[Federal Register Volume 85, Number 95 (Friday, May 15, 2020)]
[Rules and Regulations]
[Pages 29532-29589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09153]



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Vol. 85

Friday,

No. 95

May 15, 2020

Part II





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; Endangered Species 
Status for Southern Sierra Nevada Distinct Population Segment of 
Fisher; Final Rule

  Federal Register / Vol. 85 , No. 95 / Friday, May 15, 2020 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2018-0105; FF09E21000 FXES11110900000 201]
RIN 1018-BD85


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Southern Sierra Nevada Distinct Population Segment of Fisher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered species status under the Endangered Species Act (Act), as 
amended, for the Southern Sierra Nevada Distinct Population Segment 
(DPS) of fisher (Pekania pennanti). This DPS occurs in California. The 
effect of this regulation will be to add this DPS to the List of 
Endangered and Threatened Wildlife.

DATES: This rule is effective June 15, 2020.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-R8-ES-2018-0105 and at https://www.fws.gov/Yreka. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at http://www.regulations.gov. Comments, 
materials, and documentation that we considered in this rulemaking will 
be available by appointment, during normal business hours at: U.S. Fish 
and Wildlife Service, 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. 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 rule will add the Southern Sierra 
Nevada DPS of fisher (Pekania pennanti) (SSN DPS) as an endangered 
species to the List of Endangered and Threatened Wildlife in title 50 
of the Code of Federal Regulations at 50 CFR 17.11(h).
    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 identified multiple threats under various 
factors that are acting on, and will continue to act on, the SSN DPS, 
the full list of which can be found in our final Species Report 2016 
(Service 2016, entire).
    Of particular significance regarding implications for the DPS's 
status were 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), climate 
change, and tree mortality from drought, disease, and insect 
infestations. Also of significance were threats related to potential 
direct impacts to individual fishers (e.g., increased mortality, 
decreased reproductive rates, increased stress/hormone levels, 
alterations in behavioral patterns), including wildfire, increased 
temperatures resulting from climate change, disease and predation, 
exposure to toxicants, collisions with vehicles, 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 Southern Sierra Nevada DPS of fisher meets the definition 
of an endangered species.
    Peer review and public comment. In accordance with our joint policy 
on peer review published in the Federal Register on July 1, 1994 (59 FR 
34270), and our August 22, 2016, memorandum updating and clarifying the 
role of peer review of listing actions under the Act, we sought 
comments from independent specialists to ensure that our consideration 
of the status of the species is based on scientifically sound data, 
assumptions, and analyses. We invited these peer reviewers to comment 
on both the draft Species Report (Service 2014) as well as the 2014 
Proposed Rule (79 FR 60419, October 7, 2014). We also considered all 
comments and information received during three public comment periods 
(and one extension) for the 2014 Proposed Rule (79 FR 60419, October 7, 
2014; 79 FR 76950, December 23, 2014; 80 FR 19953, April 24, 2015; 84 
FR 644, January 31, 2019) and two comment periods for the 2019 Revised 
Proposed Rule (84 FR 60278, November 7, 2019; 84 FR 69712, December 19, 
2019). All comments received during the peer review process and the 
public comment periods have either been incorporated in the final 
Species Report (Service 2016, entire), in this rule, or addressed in 
the Summary of Comments and Recommendations section of the preamble.

Acronyms and Abbreviations Used

    We use several acronyms and abbreviations throughout the preamble 
of this final rule. To assist the reader, we list them here:

BLM = Bureau of Land Management
CAL FIRE = California Department of Forestry and Fire Protection
CBI = California Biology Institute
CCAA = Candidate Conservation Agreements with Assurances
CDFW = California Department of Fish and Wildlife
CESA = California Endangered Species Act
CEQA = California Environmental Quality Act
CFGC = California Fish and Game Commission
C.I. = confidence interval
DOI = Department of the Interior
DPS = distinct population segment
EKSA = Eastern Klamath Study Area
EPA = Environmental Protection Agency
ESU = evolutionarily significant unit
FPR = forest practice rules
GDRC = Green Diamond Resource Company
GNN = gradient nearest neighbor
HCP = Habitat Conservation Plan
MAUCRSA = Medicinal and Adult-Use Cannabis Regulation and Safety Act
MOU = Memorandum of Understanding
NCSO = Northern California/Southern Oregon
NEPA = National Environmental Policy Act
NFMA = National Forest Management Act
NPS = National Park Service
NSN = Northern Sierra Nevada
NWFP = Northwest Forest Plan
ODF = Oregon Department of Forestry
OGSI = old growth structure index
ONP = Olympic National Park
PECE = Policy for the Evaluation of Conservation Efforts
RCP = representative concentration pathways
RMP = resource management plan

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SHA = Safe Harbor Agreements
SNAMP = Sierra Nevada Adaptive Management Project
SOC = Southern Oregon Cascades
SPI = Sierra Pacific Industries
SSN = Southern Sierra Nevada
USFS = U.S. Forest Service
USDA = U.S. Department of Agriculture

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) (hereafter referred to as 2014 Proposed Rule). 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 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 such that the DPS met the 
definition of an endangered or threatened species.
    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, directed 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 West Coast DPS of fisher 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.
    On November 7, 2019, we published a revised proposed rule to list 
the West Coast DPS of fisher (84 FR 60278) (hereafter referred to as 
2019 Revised Proposed Rule). In the 2019 Revised Proposed Rule, we 
evaluated new information available since 2014 and reconsidered the 
best available information already in our files (including all peer, 
partner, and public comments received during previous comment periods 
as well as the two recent comment periods on the 2019 Revised Proposed 
Rule). In the 2019 Revised Proposed Rule, we concluded that the West 
Coast DPS of fisher continued to meet the definition of a threatened 
species based on cumulative effects associated with multiple threats 
across the DPS's range.
    Additional information on Federal actions concerning the West Coast 
DPS of fisher prior to October 7, 2014, is outlined in the 2014 
Proposed Rule (October 7, 2014, 79 FR 60419).

Summary of Changes From the 2019 Revised Proposed Rule

    Our 2019 Revised Proposed Rule discussed how potential changes from 
the proposed rule to the final rule regarding status would constitute a 
logical outgrowth, stating that, ``Because we will consider all 
comments and information received during the comment period, our final 
determination may differ from the proposed rule. 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 or a threatened species. Such final decisions would be a 
logical outgrowth of this proposal as long as we: (1) 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 (84 FR at 60278-79, November 7, 2019).'' 
Although this discussion centered on a final decision regarding the 
status of the previously singular West Coast DPS, and the logical 
outgrowth leading to that decision from our Revised Proposed Rule, we 
have followed this approach in developing this final rule in its 
totality, to include our re-evaluation of the DPS and the resulting 
status determinations that followed from our revised DPS 
determinations.
    In our 2019 Revised Proposed Rule we presented our delineation of 
the DPS for West Coast populations of fishers, which was revised from 
the 2014 Proposed Rule. This revised delineation identified the West 
Coast DPS as comprising the two extant historically native 
subpopulations, Northern California/Southern Oregon (NCSO) and Southern 
Sierra Nevada (SSN), as well as the Northern Sierra Nevada (NSN, also 
known as the Stirling subpopulation, as referenced in specific text 
regarding the Stirling Management Unit) and Southern Oregon Cascades 
(SOC) subpopulations that resulted from reintroductions within a 
portion of the historical range of the DPS. These four subpopulation 
groups occur geographically in essentially two groupings: NCSO 
(including NSN and SOC subpopulations) and the wholly separate SSN 
subpopulation.
    In the 2014 Proposed Rule, we explained that the DPS we proposed to 
list included all the fisher subpopulations in the three western States 
(Washington, Oregon, California) known to be extant at that time. Thus, 
the DPS included the fisher subpopulations in NCSO (including SOC and 
NSN), SSN, and Olympic National Park (ONP) in Washington. Both the ONP 
and SOC subpopulations were established with fishers translocated from 
areas outside the three western States, e.g., British Columbia, 
Alberta, and Minnesota; the NCSO and SSN subpopulations were existing 
subpopulations historically indigenous to this three-State area, and 
NSN was established with fishers translocated from the NCSO source 
subpopulation.
    However, we also included a discussion of potential alternative DPS 
configurations in the 2014 Proposed Rule, and we requested public 
comment and peer review on the two alternative DPS configurations.
    DPS Alternative 1 consisted of a single DPS encompassing the extant 
subpopulations with unique genetic characteristics in California and 
southern Oregon (i.e., NCSO, NSN, and SSN). Alternative 1 focused on 
conservation of known fishers indigenous to this California and 
southern Oregon region, and it excluded all reintroduced subpopulations 
established with non-California/Oregon fishers (i.e., SOC and ONP). In 
addition, Alternative 1 excluded areas to the north of NCSO where 
subpopulations of historically indigenous fishers were likely 
extirpated. It included both SSN

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and NCSO (which includes NSN), which each have unique genetic 
characteristics; this inclusion would allow for management of both 
these native subpopulations as a single DPS. In addition, this would 
allow for recovery efforts throughout the historical range in 
California and southern Oregon.
    DPS Alternative 2 consisted of two narrowly drawn DPSs around each 
of the extant subpopulations with unique genetic characteristics in 
California and southern Oregon (i.e., NCSO with NSN, and SSN). This 
alternative also focused on conservation of known fishers indigenous to 
this California and southern Oregon region with unique genetic 
characteristics, and it excluded all reintroduced subpopulations (i.e., 
SOC and ONP) established with non-California/Oregon fishers. This 
Alternative excluded the areas to the north of NCSO where fisher 
subpopulations were likely extirpated; it included both NCSO (which 
includes NSN) and SSN subpopulations, which each have unique genetic 
characteristics; and it allowed for management of the subpopulations as 
separate DPSs, recognizing the unique genetic characteristics within 
each. In addition, if the magnitude of threats was found to be 
different in the two DPSs, this would allow for different management 
for each DPS with regard to recovery.
    We received multiple comments on our DPS approach and possible 
alternative DPS configurations in response to the 2014 Proposed Rule. 
These comments spanned a broad range of responses from support for the 
full three-State DPS to support for each of the possible Alternatives 
to support for other configurations. The basis for the commenters' 
positions was equally varied; these positions ranged from supporting 
differing genetics between subpopulations to supporting the need for 
different management considerations. After consideration of all of 
these comments, we moved forward with a modified Alternative 1 in the 
2019 Revised Proposed Rule, with the exception that we included SOC in 
the DPS (as part of NCSO). In the 2019 Revised Proposed Rule, we did 
not specifically state that the DPS was based on focusing on 
conservation of the extant subpopulations with unique genetic 
characteristics, but we did explain that the DPS was centered on what 
we called the ``historically native'' subpopulations (i.e., those 
subpopulations of known fishers indigenous to the California and 
southern Oregon region with unique genetic characteristics) and 
included SOC because of the recent interbreeding with indigenous NCSO 
fishers.
    Our 2019 Revised Proposed Rule further sought comment regarding its 
revised DPS determination (84 FR at 60279, November 7, 2019). We 
received numerous comments regarding the revised DPS determination in 
response to the 2019 Revised Proposed Rule, both during the initial 30-
day comment period and in the subsequent 15-day comment period. Similar 
to the comments received on the 2014 Proposed Rule, the comments 
received on the 2019 Revised Proposed Rule expressed support for a wide 
range of DPS approaches. Various commenters suggested reverting back to 
the three-State DPS (i.e., include Washington State again), making all 
subpopulations (NCSO, SSN, NSN, and SOC) individual DPSs, having two 
separate DPSs as in Alternative 2, and not including SOC in any DPS 
configuration.
    While the comments presented a broad range of positions regarding 
DPS approaches, there was also a relatively consistent theme regarding 
management considerations. Many comments pointed to a concept we 
presented in the 2014 Proposed Rule that outlined alternative DPSs 
based on recognizing the unique genetic characteristics within each 
subpopulation and allowing for separate management of these two 
population segments (NCSO [including NSN and SOC] and SSN).
    In light of the numerous comments received during multiple comment 
periods over the last 5 years recommending we reexamine our DPS 
configuration, we have again reevaluated our DPS approach. We 
determined that the most appropriate path forward was to evaluate the 
two population segments ((1) NCSO [including NSN and SOC] and (2) SSN) 
as individual DPSs (similar to Alternative 2 in the 2014 Proposed 
Rule). For each population segment, if both the discreteness and 
significance criteria were met, we would then evaluate the status for 
that individual DPS. We determined our analysis would focus on the 
conservation of extant subpopulations historically indigenous to the 
California and southern Oregon region with unique genetic 
characteristics (as outlined in the 2014 Proposed Rule) while also 
allowing for separate management of the two DPSs if either or both were 
warranted for listing. The concept of the possible need for different 
management between the two DPSs was further strengthened, in part, by 
the recent limited introduction of non-California/Oregon fisher genes 
into the NCSO subpopulation via interbreeding between NCSO and SOC 
fishers. We have now determined that the singular West Coast DPS 
configuration should instead be two separate DPSs: The NCSO DPS and the 
SSN DPS.
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TR15MY20.000

BILLING CODE 4333-15-C
    The above discussion presents a logical outgrowth from our 2019 
Revised Proposed Rule regarding our DPS determination for the following 
reasons. First, our 2014 Proposed Rule (79 FR 60419, October 7, 2014) 
recognized that for fisher, the Service's DPS analysis had started with 
the petitioned DPS, which included portions of California, Oregon, and 
Washington, but also pointed out that the Service had identified 
smaller areas within the larger DPS boundary that would also 
potentially constitute a valid DPS, and that may warrant listing under 
the Act (79 FR at 60438). The 2014 Proposed Rule further announced the 
Service's evaluation of a number of alternative DPSs that may 
potentially also be valid DPSs (covering a smaller entity or entities) 
and that the Service was considering in particular the appropriateness 
of two of these alternatives and seeking public and peer

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review input on potential DPS alternatives (79 FR at 60438). One of 
these alternatives was Alternative 2, which consisted of two narrowly 
drawn DPSs around the extant subpopulations with unique genetic 
characteristics in California and southern Oregon; Alternative 2 is 
similar to the two DPS approaches we use here. Therefore, the public 
has seen this approach presented before, was aware that we were 
considering it and thus could anticipate that adoption of this approach 
was possible, and had several opportunities to provide comments on the 
approach.
    Second, we outlined the uncertainty associated with our DPS 
approach in the 2014 Proposed Rule and alerted the public to this 
uncertainty. Specifically, our 2014 Proposed Rule stated that we sought 
peer review and public comment on the uncertainties associated with the 
specific topics outlined in the Information Requested section and in 
the Other DPS Alternatives section. Specific information from the peer 
reviewers and the public on the proposed DPS and the two alternatives 
informed our final listing decision (70 FR at 60441).
    Third, our 2014 Proposed Rule explained to the public that the DPS 
approach in our final rule may differ from the proposed rule as a 
result of public comment. We stated that we may determine that the 
proposed DPS as set forth is the most appropriate for fisher 
conservation. Alternatively, through peer review and public comment, we 
could determine that one of the alternative DPSs set forth would be 
most appropriate for the conservation of fisher, and, therefore, any 
final listing determination may differ from this proposal (79 FR at 
60438). As outlined above, we have explained the basis for this changed 
DPS and have articulated a rational connection between the facts found 
and our conclusion by which we have determined to separate the singular 
West Coast DPS configuration into two separate DPSs.
    The Secretary has discretion when determining DPSs based upon the 
Congressional guidance that the authority to list DPS's be used `. . . 
sparingly' while encouraging the conservation of genetic diversity and 
in consideration of available scientific evidence of the discrete 
population segment's importance to the taxon to which it belongs (61 FR 
4722, 4725, February 7, 1996). Our DPS approach of evaluating the two 
fisher population segments ((1) NCSO [including NSN and SOC] and (2) 
SSN) as separate DPSs encourages the conservation of genetic diversity 
by focusing on conserving extant native subpopulations with unique 
genetic characteristics.
    Once we determined that the singular West Coast DPS should instead 
be two separate DPSs, we began individually evaluating the status of 
the NCSO DPS and the SSN DPS. In the 2019 Revised Proposed Rule (84 FR 
60278, November 7, 2019), we proposed to list the then-singular West 
Coast DPS as a threatened species under the Act, and we also proposed a 
concurrent rule under section 4(d) of the Act for that DPS. While the 
magnitude of the threats discussed below have not changed substantially 
from our consideration of them in the 2019 Revised Proposed Rule, what 
has changed in this analysis is the consideration of their distribution 
across the ranges of the two separate DPSs, as opposed to applying an 
analysis for a singular West Coast DPS, and then how the impact of 
those threats affects each separate DPS where they occur. This final 
determination represents a change to that 2019 Revised Proposed Rule. 
We now add the SSN DPS as an endangered species to the List of 
Endangered and Threatened Wildlife, and we present our finding that the 
NCSO DPS does not warrant listing under the Act. As detailed below in 
the General Threat Information section and the specific threats 
discussions for each DPS, these final determinations are based on the 
best scientific and commercial data available, including new 
information received in response to the 2019 Revised Proposed Rule. 
Further, we have clearly articulated the rationales for our 
conclusions.

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 (61 FR 4722, February 7, 1996), 
three elements are considered in the decision concerning the 
determination and classification of a possible DPS as 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).
    A population segment of a vertebrate taxon may be considered 
discrete under the DPS policy 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.
    If a population segment is considered discrete under one or more of 
the conditions described in the Service's DPS policy, its biological 
and ecological significance will be considered in light of 
Congressional guidance that the authority to list 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, 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 criteria, or other classes of information that might 
bear on the biological and ecological importance of a discrete 
population

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segment, as described in the DPS policy. Below, we summarize 
discreteness and significance for each of the DPSs.

Northern California/Southern Oregon DPS of Fisher (NCSO DPS)

Discreteness
    The NCSO DPS is markedly separate from other North American fisher 
populations to 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 fisher taxon in 
the central and eastern United States by natural physical barriers 
including the non-forested high desert areas of the Great Basin in 
Nevada and eastern Oregon. Other physical barriers that separate the 
NCSO DPS from Rocky Mountain and eastern United States fisher 
populations include large areas without forests, including urban and 
rural open-canopied areas, agricultural development, and other non-
forested areas.
    The NCSO DPS is also markedly separate from fisher populations to 
the north by approximately 560 miles (mi) (900 kilometers (km)) (to the 
current populations of fishers in Canada) and 270 mi (430 km) (to the 
reintroduced fisher populations in Washington). These distances are 
well beyond the various reported fisher dispersal distances (as 
described in more detail in Service 2016, pp. 13-14). An additional 
component contributing to marked separation between the NCSO DPS and 
fishers in Washington is the Columbia River and adjacent human 
developments (e.g., roads and towns); these likely act as a physical 
impediment to crossing by fishers dispersing in either direction. While 
juvenile fishers dispersing from natal areas are capable of moving long 
distances and navigating various landscape features such as highways, 
rivers, and rural communities to establish their own home range 
(Service 2016, pp. 13-14), the magnitude of these impediments and the 
distance between the NCSO DPS and Washington State fishers would 
preclude this possibility. Therefore, it is extremely unlikely that any 
transient individuals from the NCSO DPS 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. Not only is the river especially wide and deep year-round, but 
in the Cascade Range, it is bordered on one side by an interstate 
highway, a two-lane State highway on the other side, as well as a 
railroad track on both sides. These impediments further restrict the 
ability of fishers to surpass this obstacle.
    In addition, the NCSO DPS is also markedly separate from the SSN 
DPS to the southeast by approximately 130 mi (209 km) from the southern 
end of the NCSO DPS to the northern end of the SSN DPS. This distance, 
although less than that between the NCSO DPS and Washington fishers, is 
still several times beyond the known maximum dispersal distances for 
fishers (Zielinski et al. 2005, p. 1402). The intervening habitat 
between the NCSO DPS and SSN DPS is additionally characterized by 
habitat that is highly altered with reduced forest density and 
increased human development of the landscape further limiting potential 
fisher dispersal across this region (Zielinski et al. 2005, p. 1,403).
    In summary, the NCSO DPS is geographically isolated from all other 
populations of the species. Therefore, the marked separation condition 
for discreteness is met by geographical barriers, urban development, 
unsuitable habitat, and distances that are beyond the known dispersal 
distance of fishers.
Significance
    For the NCSO DPS, we found that a combination of several of the 
criteria listed above provide evidence of its biological and ecological 
importance to the taxon. First, we note that the NCSO DPS represents a 
large portion of the taxon's range along the Pacific coast, and its 
loss would leave a significant gap between the SSN DPS and all fisher 
populations to the north. While we recognize that the NCSO DPS is 
geographically separated from other fisher populations, and this 
separation likely precludes the NCSO DPS from ever acting as a 
connection for a contiguous range of fishers from the SSN DPS to 
Canada, we note that its loss would still result in an even greater 
break in the west coast range of fishers than what currently exists. 
Furthermore, the NCSO DPS supports thousands of individuals, while the 
SSN supports just a few hundred, and populations in Washington are 
still small. Therefore, a loss of the NCSO DPS would mean the majority 
of the fishers in the West Coast States would be lost.
    Significance is also demonstrated by the NCSO DPS's marked 
difference from other populations of the species in their genetic 
characteristics. The NCSO DPS is primarily composed of fishers native 
to this region of the country and which are genetically distinct from 
fishers in the remainder of North America (for example, Canada, Rocky 
Mountains, and Great Lakes). In addition, fishers in the NCSO DPS are 
also genetically distinct from those found in the SSN DPS, as we 
describe in Service 2016 (pp. 134-135). We note the NCSO DPS does 
include the translocated SOC subpopulation, which was established with 
fishers not native to this region (i.e., British Columbia and 
Minnesota) and which do not share all the same genetic characteristics 
of the native fishers. However, it is highly unlikely that the unique 
genetic characteristics that have evolved over time as native fishers 
in the NCSO DPS have adapted to the environmental conditions of this 
area will be lost as a result of this very limited introduction of 
genes from fishers not indigenous to this region. Although there is 
interbreeding between SOC and indigenous fishers, we base our 
conclusion on the fact that SOC fishers do not appear to have expanded 
their range far from their original reintroduction area since their 
translocation over 40 years ago (Barry 2018, p. 23). We therefore 
conclude that the loss of fishers in the NCSO DPS would result in a 
reduction of the species' overall genetic diversity.
    In light of the above, we conclude that the NCSO DPS is significant 
to the fisher taxon.
Summary
    Given that both the discreteness and the significance elements of 
the DPS policy are met for fisher in the Northern California/Southern 
Oregon portion of its range, we find that the NCSO DPS of fisher is a 
valid DPS. Therefore, the NCSO DPS of fisher is a species under the 
Act.

Southern Sierra Nevada DPS of Fisher (SSN DPS)

Discreteness
    Similar to the NCSO DPS, the SSN DPS is markedly separate from 
other North American fisher populations to 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 non-forested high desert areas 
of the Great Basin in Nevada and eastern Oregon. Other physical 
barriers that separate the SSN DPS from Rocky Mountain and eastern 
United States fisher populations include large areas of unsuitable 
habitat such as urban and rural open-canopied areas, agricultural 
development, and other non-forested areas.
    As noted above, the SSN DPS is markedly separate from the NCSO DPS

[[Page 29538]]

by approximately 130 mi (209 km). The intervening habitat between the 
NCSO DPS and SSN DPS is highly altered with reduced forest density and 
increased human development of the landscape, further limiting 
potential fisher dispersal across this region (Zielinski et al. 2005, 
p. 1,403). In addition, the SSN DPS is also considerably farther away 
from the Washington State and Canada fisher populations than the NCSO 
DPS, clearly meeting the marked separation condition of discreteness.
    In summary, the SSN DPS is geographically isolated from all other 
populations of the species. Therefore, the marked separation condition 
for discreteness is met by geographical barriers, urban development, 
unsuitable habitat, and distances that are beyond the known dispersal 
distance of fishers.
Significance
    For the SSN DPS, we also found that a combination of the criteria 
listed above provides evidence of the biological and ecological 
importance to the fisher taxon. First, we note that the SSN DPS 
represents the southernmost periphery of the taxon's range. Loss of the 
SSN DPS would shift representation of the taxon at its southern 
boundary approximately 400 miles northward to the range of the NCSO 
DPS.
    We also note that the SSN DPS differs markedly from other 
populations of the species in its genetic characteristics. The SSN DPS 
is wholly composed of fishers native to this region of the country, and 
these fishers are genetically distinct from fishers in the remainder of 
North America (for example, Canada, Rocky Mountains, and Great Lakes). 
In addition, fishers in the SSN DPS are also genetically distinct from 
those found in the NCSO DPS. There is high genetic divergence between 
the SSN DPS and NCSO DPS with the populations being separated for 
thousands of years (Tucker et al. 2014, p. 3). The SSN DPS has only a 
single mitochondrial DNA haplotype, which is genealogically unique from 
the rest of the fisher taxon, including the NCSO DPS (Knaus et al. 
2011, pp. 7, 11; Tucker 2019, pers. comm.). In addition, the SSN DPS 
has a unique distribution of alleles in comparison to the NCSO DPS 
(Tucker et al. 2012, p. 6). We therefore conclude that the loss of 
fishers in the SSN DPS would result in a reduction of the species' 
overall genetic diversity.
    In light of the above, we conclude that the SSN DPS is significant 
to the fisher taxon.
Summary
    Given that both the discreteness and the significance elements of 
the DPS policy are met for fisher in the Southern Sierra Nevada portion 
of its range, we find that the SSN DPS of fisher is a valid DPS. 
Therefore, the SSN DPS of fisher is a species under the Act.

Background

General Species Information

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 
denning and resting sites with a high proportion of characteristics 
associated with late-successional forests, such as snags, down wood, 
and vertical and horizontal diversity. 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 indigenous 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 
indigenous fishers still occur in northern California/southwestern 
Oregon and the Sierra Nevada; however, populations of indigenous 
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 fishers in this locale 
may be shifting to the south (Barry 2018, pp. 22-23) compared to their 
distribution in the late 1990s (Service 2014 and 2016, entire, though 
see current condition section for NCSO). Fishers in the southern Oregon 
Cascades were translocated from British Columbia and Minnesota circa 
1980. In addition, a translocation of fishers from northwestern 
California to the northern Sierra Nevada (i.e., NSN) occurred in 2009.
    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; Happe et al. 
2020, p. 345) 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; all animal translocations are expected to be completed in 2020 
(Hayes and Lewis 2006, p. 35; Lewis et al. 2019, pp. 19-20).
    Fishers were once well distributed throughout their historical 
range in the habitats described above. In Oregon and California, 
outside of the existing NCSO DPS and SSN DPS (see Figure 1, above), 
fishers are considered likely extirpated, though occasional sightings, 
verifiable and unverifiable, are reported. Additionally, in California, 
recent survey efforts have not detected fishers south of the 
reintroduced NSN subpopulation or north of the SSN DPS.
    Additional information on the species' biology and distribution is 
described in the final Species Report (Service 2016, pp. 9-12, 25-53).

General Threat Information

    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 ``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

[[Page 29539]]

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.
    Potential threats currently acting upon both the NCSO DPS and SSN 
DPS, or likely to affect them in the future, are evaluated and 
addressed in the final Species Report (Service 2016, pp. 53-162). The 
term ``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' response to those threats are likely (50 CFR 424.11(d)). For 
fisher, in determining the foreseeable future, the 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. 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 (including 
comments and information received during the two comment periods 
associated with the 2019 Revised Proposed Rule) coupled with our 
reevaluation of the entirety of the best available scientific and 
commercial information is represented and summarized in the various 
analyses below.
    Our analyses below represent an evaluation of the biological status 
of the two DPSs, based upon our assessment of the effects anticipated 
for the identified threats, consideration of the cumulative impact of 
all effects anticipated from the identified threats, and how that 
cumulative impact may affect each DPS's 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. The threats 
identified as having the potential to act upon both DPSs include: 
habitat-based threats, including high-severity wildfire, wildfire 
suppression activities, and post-fire management actions; climate 
change; tree mortality from drought, disease, and insect infestation; 
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 
evaluated the inadequacy of existing regulatory mechanisms (Factor D).
    As we conducted our threats analyses, we began under the premise 
that those with the greatest potential to become significant drivers of 
the future status of both DPSs were: Wildfire and wildfire suppression; 
tree mortality from drought, disease, and insect infestation; the 
potential for climate change to exacerbate wildfire and tree mortality; 
threats related to vegetation management; and exposure to toxicants. 
Upon determining that the previous singular West Coast DPS 
configuration should instead be two separate DPSs, we then also 
modified our premise regarding threats with the potential to become 
significant drivers of status, and added to the above list of threats: 
The potential for effects from small population size; disease or 
predation; and collision with vehicles. While our assessment of the 
status of each DPS was based on analysis of all identified threats 
acting upon them, including the cumulative effects of those threats, we 
are only presenting our detailed analyses on these specific, 
potentially significant threat drivers common to both DPSs for the 
purposes of this rulemaking. We refer the reader to the Species Report 
(Service 2016, entire) for full detailed analyses of all the other 
individual threats.
    As these potentially significant threat drivers were relevant to 
both DPSs, much of the fundamental information pertaining to the 
threats was also applicable to both DPS analyses. Although the ultimate 
conclusion about the significance of each threat varied between the 
DPSs, below we present scientific information about these threats 
common to both DPSs, followed by DPS-specific evaluations.
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 both the NCSO DPS and SSN DPS 
(Service 2014, p. 58), and fisher habitat has been burned across a 
spectrum from low- to high-severity.
    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 
affect an area's ability to support fishers for only 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

[[Page 29540]]

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). Further these types of 
fires can sustain patches of unburned refugia that are important for 
maintaining patches of higher canopy cover, acting as a source for 
future tree regeneration, and providing habitat for fisher (Blomdahl et 
al. 2019, p. 1,049). Mixed-severity wildfire may reduce some elements 
of fisher habitat temporarily, but also helps to contribute to the 
ecological processes necessary to create tree cavities and other decay 
and structural abnormalities 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 that burned at low-severity are 
likely still used by fishers (Naney et al. 2012, p. 6; Truex and 
Zielinski 2013, p. 90).
    The potential for large, high-severity wildfires 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 can alter 
fisher habitat by removing forest canopy, large trees, and structurally 
diverse understories, which can take from decades to a century or more 
to regrow (Service 2014, pp. 59-60), but it may also provide foraging 
opportunities for fishers since these post-fire areas are often 
abundant with small mammals that fishers eat (Hanson 2013, p. 27; 
Service 2016, p. 66). For example, there is evidence of fishers 
associated with high-severity burned areas, or a mix of moderate- and 
high-severity burns (Service 2016, p. 66), particularly if the area was 
structurally complex prior to the fire (Hanson 2013, p. 28). However, 
another study found fishers avoiding areas of high- and moderate-
severity fire (Thompson et al. 2019a, p. 15), so there is likely a 
threshold in high-severity patch size that influences fisher use of 
these areas (also see individual DPS sections).
    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 four decades, from 65 days in the 1970s to 140 days in the 2000s 
(Westerling 2016, pp. 3, 8, 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; this 
scenario causes wildfires to be more frequent and larger with an 
overall increase in the total area burned (Westerling 2016, pp. 8-9). 
Throughout the western United States there has been an increase in the 
patch size and total area of fires in recent decades. The evidence for 
an increasing area of high-severity fire is mixed given that studies 
present different historical levels of high-severity fire (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; see Spies et al. 2018, p. 
140 for summary of recent literature), but the scientific consensus 
accepts that mixed conifer forests were characterized by areas burned 
at low-, moderate-, and high-severity, with higher proportions of low-
severity than is currently observed (Safford and Stevens 2017, p. 50). 
Given projected changes in climate, forests are expected to become more 
vulnerable to wildfires over the coming century.
    Recent publications on wildfire occurrence and severity within the 
NCSO DPS and SSN DPS continue to support our conclusions that fire is 
likely to have a negative impact on fisher populations but will depend 
on fire size, burn severity, and proximity to occupied habitat (79 FR 
60419, at 60429, October 7, 2014). Recent information on fishers' 
behavioral and localized population response to wildfires is available 
and discussed below in the NCSO DPS and SSN DPS specific discussions.
Climate Change
    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 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; Ackerly et al. 2018, pp. 6-8; 
Bedsworth et al. 2018, pp. 23, 26, 30; Dettinger et al. 2018, p. 5; 
Grantham 2018, p. 6).
    In Oregon, Dalton et al. (2017, pp. 4, 8) evaluated greenhouse gas 
emissions via global climate models with future emission pathways 
called ``representative concentration pathways'' (RCPs). They 
considered multiple greenhouse gas emission scenarios, including both 
RCP 4.5 and 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) (2.0 
degrees Celsius ([deg]C)); RCP 8.5 = mean annual temperature increase 
predicted on average 5.0 [deg]F (2.8 [deg]C). Summers are expected to 
warm more than the annual average and will likely 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 [deg]C) by 2060 (Pierce et al. 2013, p. 844). Similarly, and more 
recently, Bedsworth et al. (2018, entire) summarizes 44 technical peer-
reviewed reports to provide a California-wide climate change 
assessment. Under two modeled scenarios, average temperatures are 
projected to increase by 2.5 to 2.7 [deg]F (1.4 to 1.5 [deg]C) in the 
early century (2006 to 2039) and 4.4 to 5.8 [deg]F (2.4 to 3.2 [deg]C) 
in the mid-century (2040 to 2069) (Bedsworth et al. 2018, p. 23). 
Precipitation models suggest that northern California may become 
wetter, while most southern parts of California will become drier 
(Bedsworth et al. 2018, p. 25). The authors caution that ``due to large 
annual variation, changes in annual mean or long-term precipitation are 
not the best metrics to understand'' the effects to changes in 
precipitation in California (Bedsworth et al. 2018, p. 25). 
Specifically, the models project less overall precipitation with more 
extreme daily precipitation, inter-annual precipitation will be more 
erratic, and the number of dry years will increase (Bedsworth et al. 
2018, p. 25 citing others; Polade et al. 2017, p. 1).
    Higher temperatures during spring and summer, coupled with early 
snow melt, will reduce the moisture of both live fuels and dead surface 
fuels by increasing evaporative demands during the dry season and 
lengthening the fire season (Keeley and Syphard 2016, pp. 2-3; Restaino 
and Safford 2018, p. 500). In addition, models project an increase in 
lightning frequency that may be associated with an increase in 
potential fire ignitions (Restaino and Safford 2018, p. 500).

[[Page 29541]]

    Studies specific to predicting the effects of climate change on 
suitable fisher habitat have produced a wide range of results. Ecotype 
conversion from conifer forest to woodland, shrubland, or grassland 
will 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, Figure 3; Lawler et al. 2012, p. 388; Dettinger et al. 2018, 
pp. 31-34; Restaino and Safford 2018, p. 500). 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 the habitat available to fishers (Lawler et al. 2012, pp. 384-
386; Loarie et al. 2008, p. 4 and Figure 4). Given the more significant 
contribution of hardwood trees to fisher habitat in the drier parts of 
both the NCSO DPS and SSN DPS, a shift to increasing hardwoods in more 
coastal or higher elevation forest types could improve habitat, but 
shifts to hardwood-dominated stands may also reduce protective cover 
from rain and snowfall (Suffice et al. 2019, pp. 10, 11, 13). 
Nevertheless, trees are long-lived and mature forests can persist under 
suboptimal conditions, and these factors can prevent 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 changed the 
composition of the existing stand to allow hardwood establishment. All 
of these circumstances add to the uncertainty associated with climate 
change and how it relates to fisher.
    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; Westerling 2018, pp. 21-23; Bedsworth et al. 
2018, p. 64; Dettinger et al. 2018, pp. 28-29; Stephens et al. 2018a, 
p. 77; Stephens et al. 2018b, p. 162; Restaino and Safford 2018, pp. 
493-505). A wide range of assumptions and caveats typically accompanies 
these types of predictions. For example, fire modeling shows a decline 
in future (approximately 100 years) fire intensities after the existing 
woody vegetation is burned (Restaino and Safford 2018, p. 499), but it 
is uncertain if the resulting vegetation and composition will be 
suitable for fisher.
    Variables predicting fisher resting habitat as described by 
Zielinski and Gray 2018 (p. 903) include stand characteristics such as 
high canopy closure, large 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 
range, although habitat suitability tends to be lower on private lands 
than public lands. However, when considering resting habitat trends 
over these 20 years to determine potential future resting habitat 
conditions in light of climate change projections, data from the Sierra 
National Forest (within a portion of the SSN DPS) indicates the 
beginning of a negative trend in resting habitat suitability (Zielinski 
and Gray 2018, p. 903), whereas resting habitat examined within the 
NCSO DPS 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 the thermal stress associated 
with increased summer temperatures. Preliminary research on fisher 
occupancy and climate begins to support these theories. For example, 
during a drought in central and southern California from 2012 to 2015, 
fisher utilized higher elevation areas that were otherwise inaccessible 
due to snowpack during other years (Tucker 2019, pers. comm.). Although 
fisher occur across a wide range of precipitation levels and minimum 
temperatures, and appear able to utilize higher elevations in years 
with less snowpack, it is unknown how the interaction of vegetation, 
fire regimes, and competition with other species will influence future 
fisher occupancy patterns in a changing climate (Zielinski et al. 2017, 
pp. 542-543).
    The best available information indicates there is a link between 
changing climate conditions and the resulting changes to overall 
habitat suitability and availability for fishers throughout their 
range. There is also a link between changing climate conditions and the 
potential to increase fisher stress levels when habitat changes occur. 
More specifically, these changes affect the amount and distribution of 
habitat necessary for female fishers to be able to have places to den 
and raise their young. We provide three examples below.
    First, ongoing climate change in California is likely to result in 
significant or amplified wildfire activity, with the area burned and 
fire 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 (e.g., Sheehan et al. 2015, pp. 20-22; Dalton 
et al. 2017, p. 46).
    Second, under modeled increases in drought conditions, tree 
mortality and large-scale high-severity wildfire are likely to increase 
in frequency, size, and severity, 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; 
Bedsworth et al. 2018, pp. 29-30; Larvie et al. 2019, p. 1; Westerling 
2018, pp. 21-23). Some models suggest that fire severity may be 
independent from fire intensity; thus, a lower-intensity fire could 
kill more trees if they are also experiencing a severe drought 
(Restaino and Safford 2018, p. 500). Although we can expect that 
seasonal summer dryness may prolong future droughts, it is unknown 
whether droughts in the future will be worse than our worst droughts in 
the past (Keeley and Syphard 2016, p. 6; Bedsworth et al. 2018, pp. 26, 
57). Regardless, it appears that climate change is intensifying 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 (Williams 
et al. 2015, p. 6,819; Keeley and Syphard 2016, p. 6). The combination 
of drought and wildfire can result in loss of adequate forest-canopy 
cover and individual trees that provide habitat suitable for denning 
female fishers (e.g., CBI 2019a, p. 9).
    Third, the observed increases in wildfire activity in Oregon and 
California are partially due to climate change; increasing wildfire 
activity is expected under future warming, which in turn can increase 
tree mortality from disease and insects like mountain pine

[[Page 29542]]

beetles (Dalton et al. 2017, p. 46; Bedsworth et al. 2018, p. 64). 
Widespread tree mortality (climate related or not) is likely to result 
in fishers experiencing reduced fitness (e.g., a positive relationship 
between higher amounts of tree mortality and higher cortisol levels in 
fishers; Kordosky 2019, pp. 14, 36) and an overall reduction in forest-
stand conditions suitable for denning (CBI 2019a, entire; Green et al. 
2019a, pp. 3-4). Most forests will experience some form of climate 
stress by the late 21st century and higher temperatures will result in 
more droughts in California, revealing the interconnected nature of 
climate, wildfire, and tree mortality that collectively can shift 
forest composition and structure (Larvie et al. 2019, pp. 12-14; 
Restaino and Safford 2018, p. 502) and further challenge the ability of 
fishers to locate suitable habitat.
Tree Mortality From Drought, Disease, and Insect Infestation
    In our 2019 Revised Proposed Rule, this section was titled ``Forest 
Insects and Tree Diseases''; we have changed the title to more 
accurately describe the threat. Localized tree mortality from insect 
outbreaks and tree diseases are natural processes, and they provide 
structures used by fisher for rest and den sites as well as their prey. 
However, widespread insect and disease outbreaks can alter the overall 
distribution and abundance of fisher habitat. For example, severe 
drought events in California since 2010, combined with insect outbreaks 
and tree diseases, have led to more than 147 million dead trees in 
California (California Department of Forestry and Fire Protections (CAL 
FIRE) and USFS 2019, no page number). Although both the NCSO DPS and 
SSN DPS experienced tree mortality during the recent drought, the 
magnitude of this effect on the landscape differed tremendously between 
each DPS (CAL FIRE and USFS 2019, no page number). The highest levels 
of tree mortality occur in the southern Sierra Nevada due to increased 
susceptibility to forest insects and tree disease from the severe 
drought while most of the NCSO DPS experienced background levels (0-5 
dead trees per acre) of tree mortality (CAL FIRE and USFS 2019, no page 
number; California Tree Mortality Task Force 2020, entire).
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 available for use by fisher, and the ecological processes that 
create them. An increase in open areas, such as those resulting from 
timber harvest, may increase the risk of predation on fishers by 
bobcats and other predators that frequent these areas (see the 
Predation and Disease section below). Overall, fisher home ranges 
comprise mosaics of forest-stand types and seral (stand age) 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; the 
composition and configuration of suitable habitat; and the amount and 
type of retained legacy structures (Service 2016, pp. 59-60; Thompson 
and Clayton 2016, pp. 11-16, 22; Niblett et al. 2017, pp. 14-17; Marcot 
et al. 2018, p. 400; Powell et al. 2019, entire; Parsons 2018, pp. 31, 
53-55, 63; Purcell et al. 2018, pp. 60-61, 69-70). Fishers tolerate 
some clearcuts in their home ranges, though the mean proportion tends 
to be below 25 percent of their home-range area (Powell et al. 2019, p. 
23). Fishers are also observed denning in areas where as much as 25 
percent of the area near the den sites is in openings (Niblett et al. 
2017, p. 17). Some level of open areas or younger stands may provide 
suitable prey for fishers (Parsons 2018, pp. 26-29, 53-55). Yet even in 
these situations, fishers are associated with forests that contain 
structures associated with older forests, such as complex canopies, 
down wood, hardwoods, and trees with microsites conducive to denning, 
resting, or supporting prey (Niblett et al. 2017, pp. 16-17; Powell et 
al. 2019, pp. 19-23). Therefore, for vegetation management it is 
important to maintain decadent structures that serve as den and rest 
trees and that likely required much time and site-specific conditions 
to develop (Matthews et al. 2019, p. 1,313). Overall, it appears 
fishers can tolerate management activities that promote forest 
heterogeneity (variation) and that consider the natural range of 
variation in forest structure, distribution, and composition when 
identifying and protecting valuable habitat elements (Thompson et al. 
2019b, pp. 13-14).
    While historical loss of mature and older forests via timber 
harvest through much of the 1900s resulted in a substantial loss of 
fisher habitat in California and Oregon, 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 NCSO and SSN DPSs, habitat ingrowth (i.e., forest stands 
becoming habitat as a result of forest succession) is also occurring, 
offsetting some of those losses. We address this for each of the DPSs 
below.
Exposure to Toxicants
    Wildlife can encounter a wide range of chemicals in the 
environment. Fertilizers and pesticides (e.g., herbicides, 
insecticides, and rodenticides) are among the most common chemicals 
wildlife are exposed to and impacted by, especially near urban and 
agricultural areas. Of these chemicals, the rodenticides are the 
longest lasting and therefore the easiest to test for, track, and 
understand impacts to species. Both the draft and final Species Reports 
detail the exposure of fishers to rodenticides in Oregon and California 
(Service 2014, pp. 149-166; Service 2016, pp. 141-159).
    The rodenticides impacting fishers include first- and second-
generation anticoagulant rodenticides and neurotoxicant rodenticides. 
First-generation anticoagulant rodenticides are in a bait form that 
rodents consume for several consecutive feedings (i.e., sublethal 
doses) to deliver a lethal dose. Second-generation rodenticides are 
significantly more potent than first-generation rodenticides, and a 
lethal dose can be ingested in a single feeding. Additionally, second-
generation rodenticides are more likely than first-generation 
rodenticides to poison predatory wildlife (e.g., fishers) that eat live 
or dead poisoned prey because they are more persistent in the 
environment. 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 as 
well as neurotoxicant rodenticides are 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

[[Page 29543]]

(neurotoxicant rodenticides). Anticoagulant rodenticide exposure causes 
bleeding from the 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 a decreased ability to recover from physical 
injury. Ingestion of the neurotoxicant bromethalin, which has been 
detected in DPS fisher carcasses, 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 fisher movement and foraging behaviors and therefore 
may increase the probability of mortality from other sources such as 
predation or vehicle collision. In addition, anticoagulants 
bioaccumulate and become increasingly prevalent in predators; as they 
continue to eat contaminated prey, they accumulate more and more 
anticoagulant (Lopez-Perea and Mateo 2018, p. 165). Contaminated 
rodents are 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).
    Rodenticide use in agricultural or urban areas is common and 
wildlife exposure rates can be high. For example, in California 70 
percent of tested mammals were positive for at least one anticoagulant 
rodenticide (Hosea 2000, p. 238). And across the world, 58 percent of 
tested predators were positive for anti-coagulant rodenticides (Lopez-
Perea and Mateo 2018, p. 172). Not surprisingly, mammals are most 
impacted by rodenticides, when compared to birds, reptiles, and 
insects; and generalist species that eat a variety of prey species are 
more likely to be contaminated relative to specialist species that feed 
on one or a few species (Lopez-Perea and Mateo 2018, pp. 163, 173).
    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 are more likely to be exposed 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 
remain particularly tied to their territories (Arthur et al. 1993, p. 
872), they are among the species that are more vulnerable to 
rodenticide exposure. Additionally, fisher diets consist primarily of 
small mammals (Golightly et al. 2006, entire), which are the target 
species for rodenticides (Gabriel et al. 2015, entire; Thompson et al. 
2014, pp. 97-98). Top predators within the range of fishers, including 
northern spotted owls (Strix occidentalis caurina) and barred owls (S. 
varia), have also been exposed to rodenticides (Franklin et al. 2018, 
p. 1; Gabriel et al. 2018, p. 1).
    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 DPSs (Gabriel and Wengert 2019, 
unpublished data, entire; Powell et al. 2019, p. 16). Here we discuss 
data specific to both the NCSO and SSN DPS; more DPS-specific 
information is found in the NCSO DPS and SSN DPS discussions below. 
Fisher carcasses have been collected and tested for their cause of 
death and their exposure to rodenticides (Gabriel and Wengert 2019, 
unpublished data). Data for 97 fisher carcasses collected in California 
in the period 2007-2014 indicate 81 percent of fishers tested positive 
for one or more rodenticides, and 48 fishers collected from 2015-2018 
indicate 83 percent tested positive (Gabriel and Wengert 2019, 
unpublished data). Using data from both the SSN and the NCSO DPS and 
comparing the periods 2007-2011 and 2012-2014, mortalities due to 
rodenticide toxicosis increased from 5.6 to 18.7 percent (Gabriel and 
Wengert 2019, unpublished data, p. 2). And, from 2015 to 2018, 
additional fisher mortalities due to both anticoagulant and 
neurotoxicant rodenticides have been documented, including the 
toxicosis of neonatal kits in the womb (Gabriel and Wengert 2019, 
unpublished data, p. 4). The probability of fisher mortality increases 
with the number of anticoagulant rodenticides a fisher has been exposed 
to, and most fishers are exposed to more than one (Gabriel et al. 2015, 
p. 15).
    The primary source of rodenticide exposure to fishers is from 
illegal marijuana grow sites on public, private, and tribal lands in 
California and Oregon (Gabriel et al. 2015, pp. 14-15; Thompson et al. 
2014, pp. 97-98). In the mid- to late 1970s, 90 percent of the 
marijuana consumed in the United States came from abroad (Brady 2013, 
pp. 70-71). Marijuana cultivation in California really began in 1974 or 
1975, and by 1979, 35 percent of the marijuana consumed in California 
was from California (Brady 2013, pp. 70-71). By 2010, 79 percent of all 
the marijuana consumed in the United States came from California (Brady 
2013, pp. 70-71).
    Information on the amount and types of rodenticides have been 
collected at more than 300 illegal grow sites in California from 2012 
through 2018 (Gabriel and Wengert 2019, unpublished data, pp. 5-7). 
Through this time period the use of second-generation rodenticides 
decreased. This is likely because of regulation changes in 2014 that 
placed additional restrictions on the use of second-generation 
rodenticides in California (California Department of Pesticide 
Regulation 2014). 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).
    In order to evaluate the risk to fishers from illegal grow sites 
and any differences between populations, we use a Maximum Entropy model 
to identify high and moderate likelihood of illegal grow sites being 
located within habitat selected by fisher in California and Oregon 
(Gabriel and Wengert 2019, unpublished data, pp. 7-10). This model 
indicates that 44 percent of the habitat modeled (combined NCSO and SSN 
DPSs) for fishers is within areas of high and moderate likelihood for 
illegal grow sites--see also the individual DPS sections below. 
However, the extent to which the use of toxicants occurs on marijuana 
grow sites on private land, as well as other agricultural, commercial, 
and public land sites within the range of the fisher (and habitats that 
fishers select for), is unknown.
    Illegal grow sites are regularly discovered in California (617 from 
2012 through 2018, and 2,039 from 2004 through 2018) (Gabriel and 
Wengert 2019, unpublished data, p. 7). 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 thousands of illegal grow sites--known and unknown, and 
with an undetermined amount of toxicants present--remain scattered 
within both the NCSO DPS and SSN DPS (Gabriel et al. 2015, entire; 
Thompson et al. 2017, p. 45). Rodenticides persist in the landscape, 
with first-generation rodenticides having a half-life of up to 16 days 
and second-generation rodenticides having a half-life up to 307 days 
(Shore and Coeurdassier 2018, p. 146).

[[Page 29544]]

    As discussed, both the draft and final Species Reports detail the 
exposure of fishers to rodenticides (Service 2014, pp. 149-166; Service 
2016, pp. 141-159). Below we summarize new information:
    (1) Rodent diversity--Illegal grow sites that were treated with 
rodenticides contained only mice, as compared to untreated sites where 
rodenticides were not used and where large-bodied rodents (e.g., 
woodrats, squirrels, chipmunks) were found. The absence of larger 
rodents at treated sites suggests that larger-bodied rodents may be 
impacted by rodenticides more than smaller bodied rodents. These large-
bodied rodents are the prey species fishers prefer (Gabriel et al. 
2017, p. 10). Further, illegal grow sites may act as ``sinks'' for prey 
moving in from neighboring areas meaning less prey is available for 
fisher (Gabriel 2018, pers. comm.).
    (2) Law Enforcement Activities--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 illegal grow sites 
(Department of Justice (DOJ) 2018, p. 2). Of these, 89 percent were 
confirmed or strongly suspected to have carbofuran or methamidophos 
(i.e., insecticides (non-rodenticides) that cause central nervous 
system dysfunction), up from the previous year's total of 75 percent 
(DOJ 2018, p. 2). Estimates vary of the number of illegal grow sites 
that necessitate reclamation of toxicants, but as of 2018, 766 known 
illegal grow sites are still in need of reclamation (DOJ 2018, p. 2).
    (3) Effect of legalization--Since the 2014 Proposed Rule, 
recreational marijuana cultivation and use became legal in Oregon 
(2015) and California (2016). The data are mixed with respect to how 
legalization is affecting illegal grows sites on public lands. Some 
studies find that illegal grow sites on National Forests have decreased 
in States where marijuana was legalized (Klassen and Anthony 2019, p. 
39; Prestemon et al. 2019, p. 1). Conversely, many law-enforcement 
officials have found no indication that illegal grow sites have 
decreased with cannabis legalization, and may in fact be increasing, in 
part due to legalization providing an effective means to launder 
illegal marijuana (Hughes 2017, entire; Bureau of Cannabis Control 
California 2018, pp. 28, 30; Sabet 2018, pp. 94-95; Fuller 2019, no 
page number; Klassen and Anthony 2019, p. 45). Data from fisher 
monitoring suggests that illegal grow sites are dropping in number but 
are getting larger (impacting more fisher home ranges) (Gabriel 2018, 
pers. comm.). And, law-enforcement actions have caused illegal grow 
sites to disperse further, which makes them more difficult to locate 
(Gabriel 2018, pers. comm.). Other uncertainties make it difficult to 
reach conclusions about trends in the abundance and frequency of 
illegal grow sites this soon after legalization, including legal 
marijuana market forces, the clandestine nature of the black market, 
Federal illegality and trends of legalization in other States, State 
taxation of marijuana, local employment and economic conditions, and 
regulatory and law enforcement responses (Hughes 2017, entire; Bureau 
of Cannabis Control California 2018, pp. 28, 30; Sabet 2018, pp. 94-95; 
Fuller 2019, no page number; Klassen and Anthony 2019, pp. 45-46; 
Prestemon et al. 2019, pp. 9-11).
    Legalization has resulted in an increase in legal marijuana 
cultivation. 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. In urban-wildland 
interfaces, or where private lands abut public forestland or occur as 
inholdings, legal grow sites are more likely within fisher home ranges 
(e.g., Franklin et al. 2018, p. 3).
    (4) Reclamation Efforts--Existing law enforcement cannot keep up 
with illegal marijuana activities (Bureau of Cannabis Control 
California 2018, p. 30; Wendt 2019, pp. 4-6). In addition, support from 
States and local governments to Federal law enforcement on public lands 
(e.g., U.S. Forest Service (USFS)) has dwindled as they redirect 
resources to regulate the legalized marijuana industry (Bureau of 
Cannabis Control California 2018, p. 30; Klassen and Anthony 2019, p. 
45).
    The California Comprehensive Medical Cannabis Regulation and Safety 
Act of 2016 specifies that, after control and regulation of the 
program, 20 percent of the marijuana tax fund (established by this Act) 
shall be given to California Department of Fish and Wildlife (CDFW) for 
(1) cleanup, remediation, and restoration of environmental damage in 
watersheds affected by marijuana cultivation (a portion of which may be 
distributed through grants); and (2) the stewardship and operation of 
State-owned wildlife habitat areas and State park units to prevent 
illegal cultivation, and use (Comprehensive Medical Cannabis Regulation 
and Safety Act 2016, pp. 43-44). This language is not included in the 
2017 Medicinal and Adult-Use Cannabis Regulation and Safety Act 
(MAUCRSA) that updates the 2016 Act (MAUCRSA 2017, entire).
    In 2017, CDFW used their Regulation and Forest Restoration funds 
for their newly formed Cannabis Restoration Grant Program (CDFW 2017a, 
p. 3). The program funded the restoration of watersheds impacted by 
marijuana cultivation, including removing trash and equipment, 
diversion removal, riparian enhancements, and streambank stabilization 
(CDFW 2017b, p. 1). Funds for projects in 2017 totaled $1,300,000 (CDFW 
2017a, p. 1). Monies from this program went to fund four efforts for 
watersheds within the range of the NCSO DPS (CDFW 2017a, p. 2). The 
largest and widest-ranging of these efforts included the removal and 
remediation of rodenticides at illegal grow sites. Monies were not made 
available in 2018 or 2019, but it is our understanding there are plans 
to add monies to this grant program in the future.
    The CROP Project (Cannabis Removal on Public Lands) is a citizen-
based organization established in 2018 with the primary goals of: (1) 
Securing and increasing State and Federal resources for illegal-grow-
site reclamation; (2) increasing U.S. Department of Agriculture (USDA) 
USFS law enforcement and overall presence on National Forests; and (3) 
implementing a Statewide public education campaign, focusing on the 
human health risks associated with ingesting unregulated marijuana 
(www.cropproject.org). Successful accomplishment of these goals could 
substantially improve the discovery and reclamation of illegal grow 
sites, but it is too early to determine the degree to which this 
program reduces the threat of toxicants to fishers.
    Please also see Existing Regulatory Mechanisms in both the NCSO and 
the SSN DPS discussions below for more information on voluntary 
conservation efforts that address illegal grow sites.
    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 both DPSs have died 
from toxicant exposure, fishers suffer a variety of sublethal effects 
from exposure to rodenticides, and the potential for illegal grow sites 
within fisher habitat is high. The exposure rate of more than 80 
percent of fisher carcasses tested in California has not declined 
between 2007 and 2018 (Gabriel and Wengert 2019, unpublished data, pp. 
3-4), while poisoning has increased since 2007 (Gabriel et al. 2015, p. 
7). We do not know the exposure rate of live fishers to

[[Page 29545]]

toxicants since this information is difficult to gather and has not 
been collected. In addition, the minimum amount of anticoagulant and 
neurotoxicant rodenticides required for sublethal or lethal poisoning 
is unknown. Specific information on fishers and toxicants within the 
NCSO DPS and the SSN DPS is described in the DPS-specific sections 
below.
Potential for Effects Associated With Small Population Size
    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). We 
note that forest carnivore populations, including fisher, are often 
isolated and generally occur in low densities (Service 2016, p. 29). 
While we do not have data across the entire fisher range on the West 
Coast demonstrating that fishers are exhibiting specific effects 
associated with small population size, consideration of these three 
elements along with life-history traits can provide an extinction-
vulnerability profile for both the NCSO DPS and SSN DPS. Fishers in 
Oregon and California are currently restricted to two historically 
extant indigenous populations (NCSO and SSN), one extant reintroduced 
subpopulation (NSN, established with fishers from NCSO), and one 
subpopulation established with fishers from outside this region (SOC). 
We recognize the two geographic areas of fisher, SSN and NCSO (the 
latter of which includes the SOC and NSN for this analysis), are 
geographically isolated from one another with no evidence of and very 
little opportunity for genetic interchange. Our evaluation of the best 
scientific and commercial information available indicates that the 
separation of the SSN and NCSO populations 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; Knaus et al. 2011, p. 11). 
Despite their isolation and the small size of the SSN DPS, the native 
NCSO DPS and SSN DPS have persisted over a long period of time.
    At this point in time, fishers in both the NCSO DPS and SSN DPS are 
reduced from their original/historical range within the West Coast 
States. The best available information suggests these populations are 
expected to remain isolated from one another (as has been apparent 
since pre-European settlement). Estimates of fisher population growth 
rates for the NCSO DPS and the portion of the SSN DPS surveyed do not 
indicate any overall positive or negative trend (see Current Condition 
section for the NCSO DPS below), with the exception of the recently 
reintroduced subpopulation in the NSN, which has steadily grown since 
its translocation beginning in 2009. The vulnerabilities related to 
small population size for each DPS are further described below.
Disease and Predation
    We evaluated information on disease and predation in our 2016 
Species Report (Service 2016, pp. 128-132). In addition, we evaluated 
the following new information available regarding disease or predation 
since the time of our 2014 Proposed Rule (e.g., Gabriel et al. 2015, 
pp. 5-8, 12-16; Sweitzer et al. 2016a, pp. 444-448; Integral Ecology 
Research Center 2017, p. 2; Barry 2018, pp. 39-40; Green et al. 2018a, 
p. 549; Purcell et al. 2018, pp. 39-40, 50-51, 53, 72; CDFW 2019, 
entire). Although we did not identify this threat in the 2019 Revised 
Proposed Rule as one that may have been a potentially significant 
driver of future status, we are considering this new information in 
this Final Rule in light of our DPS determination that has resulted in 
two separate DPSs; the magnitude and scale of the effect disease or 
predation may have on each DPS may differ as a result of the DPS-
specific demographics and distribution. Predation and disease are the 
two greatest sources of mortality for fishers of identified mortality 
sources studied in California (Gabriel et al. 2015, p. 6; Sweitzer et 
al. 2016a, p. 447). Of 183 California fishers where the mortality 
source was identified, 67 percent died from predation and 13 percent 
from a combination of disease, injury, or starvation (Sweitzer et al. 
2016a, p. 447). Gabriel et al. (2015, p. 7) was able to separate 
disease from other mortality sources and found that 15 percent of 136 
necropsied fishers died of disease.
    Several viral and bacterial diseases are known to affect mustelids, 
including fishers. Known diseases that have caused fisher mortality in 
the area of the NCSO and SSN DPSs include canine distemper virus, 
Toxoplasma gondii (a protozoal infection), and several bacterial 
infections (Gabriel et al. 2015, pp. 7-8; see Service 2016, pp. 128-130 
for diseases summary). Disease only has a minor impact where it has 
been studied in the SSN DPS (Spencer et al. 2015, p. 66), and it 
comprises a substantially smaller portion of fisher mortalities 
compared to predation.
    We do not know if current predation rates are similar to historical 
rates in the area of the NCSO DPS and SSN DPS. Comparing predation 
rates to populations outside of the West Coast is not informative 
because most of those populations are trapped, skewing the mortality 
source results (e.g., Lofroth et al. 2010, p. 62, Table 6.3). 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) where an increased proximity to open and 
brushy areas (vegetation selected for by bobcats) increases the risk of 
predation on fishers. Mountain lions and bobcats are major predators of 
fishers. Of 90 fishers that died from predation or were killed by other 
animals, 90 percent were killed by members of the cat family (Felidae) 
(Gabriel et al. 2015, p. 5). Sublethal effects of toxicants may also 
result in higher than normal mortality rates associated with disease 
and predation, but we do not know what portion of identified 
mortalities would not have occurred but for the presence of sublethal 
levels of toxicants in the individual (Gabriel et al. 2015, p. 16; 
Sweitzer et al. 2016a, p. 448).
    Disease and predation are naturally occurring sources of mortality, 
although the associated mortality rates may be increased by human-
caused factors such as vegetation management or toxicants (Gabriel et 
al. 2015, pp. 14, 16). Predation has been identified as the most 
important factor limiting fisher populations in California (Sweitzer et 
al. 2016a, p. 448). High levels of predation may explain why fisher 
populations have not expanded into unoccupied suitable habitat 
throughout much of the NCSO and SSN DPSs (Gabriel et al. 2015, p. 16). 
However, the reintroduced NSN subpopulation appears to be growing 
despite mortalities due to predation, indicating that other factors 
such as fisher dispersal distance through unsuitable habitat may also 
limit fisher expansion (Powell and Zielinski 1994, pp. 60-61; Aubry and 
Lewis 2003, p. 88) and that reintroductions can play an important role 
in recovery for the species (Green et al. 2020, p. 13).
Vehicle Collisions
    Fisher collisions with vehicles have been documented at multiple 
locations

[[Page 29546]]

within the NCSO DPS and SSN DPS. We summarize this information in the 
final fisher Species Report (Service 2016, pp. 137-138). Although we 
did not analyze this threat in the 2019 Revised Proposed Rule, this 
information warrants consideration in this Final Rule, particularly 
because we expect this threat to act differently in each of the newly-
identified NCSO DPS and SSN DPS based on population size and proximity 
to human development. In general, fisher collisions with vehicles 
documented in California are relatively rare, representing less than 2 
percent of documented mortalities (Gabriel et al. 2015, p. 15). And, 
vehicle-related mortalities may be a more local concern associated with 
specific high-traffic areas (Gabriel et al. 2015, pp. 7 and 15, Table 
2).
Existing Regulatory Mechanisms
    Many Federal and State existing regulatory mechanisms provide a 
benefit to fishers and their habitat. For example, trapping 
restrictions have substantially reduced fisher mortality throughout the 
NCSO DPS and SSN 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. State and Federal regulatory mechanisms have abated the large-
scale loss of fishers to trapping and minimized the loss of fisher 
habitat, especially on Federal land (Service 2014, pp. 117-141). 
Additionally, rodenticides are regulated under Federal and State laws. 
However, fishers are still exposed to rodenticides where they are used 
(see NCSO and SSN DPS specific sections on Exposure to Toxicants and 
Existing Regulatory Mechanisms).
    Finally, voluntary conservation measures are in place that provide 
a benefit to fishers and their habitat. These measures include Habitat 
Conservation Plans (HCPs), Candidate Conservation Agreements with 
Assurances (CCAAs), Safe Harbor Agreements (SHAs), Memoranda of 
Understanding (MOUs), and other conservation strategies, as described 
for each DPS below (see NCSO and SSN DPS specific sections on Voluntary 
Conservation Measures below).

Final Listing Determination for NCSO DPS of Fisher

Current Condition
    The NCSO DPS comprises a mix of ownerships, with similar amounts of 
private and Federal ownership (Table 1). The USFS is the predominant 
Federal land manager within the DPS.

                 Table 1--Land Ownership or Management for the Northern California/Southern Oregon Distinct Population Segment of Fisher
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  California (CA)                   Oregon (OR)                     NCSO total
                                                         -----------------------------------------------------------------------------------------------
                         Agency                                             Percent (%)
                                                            Acres (ac)        for CA            ac           % for OR           ac               %
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bureau of Land Management...............................         864,221             4.0         945,910            17.8       1,810,130             6.8
Forest Service..........................................       8,433,567            39.5       2,332,813            43.8      10,766,380            40.4
Bureau of Indian Affairs................................         211,998             1.0              72             0.0         212,070             0.8
National Park Service...................................         353,235             1.7         186,934             3.5         540,170             2.0
State and Local.........................................         473,997             2.2          20,637             0.4         494,635             1.9
Private.................................................      10,951,353            51.3       1,824,961            34.3      12,776,315            47.9
                                                         -----------------------------------------------------------------------------------------------
    Total Acres *.......................................      21,346,412           100.0       5,327,797           100.0      26,674,209           100.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Acres and % may not sum due to rounding and because some other owners with less land are not included.

    Population condition and abundance information for the NCSO DPS is 
presented for three different geographic portions of this DPS. First, 
the SOC portion west and south of Crater Lake in the Southern Oregon 
Cascade Range is predominantly represented by reintroduced individuals 
from British Columbia and Minnesota. However, recent analyses have 
documented that at least some of these reintroduced 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 DPS). These animals were relocated into the northern Sierra 
Nevada. This geographic portion of the NCSO DPS occurs on land known as 
the Sierra Pacific Industries (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 DPS occupy the 
Klamath-Siskiyou Mountains in southern Oregon and northern California, 
the California Coast Range Mountains, the 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 DPS 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; 
Moriarty et al. 2019, p. 23).
    Prior to 2015, survey work in the Oregon Cascades north of the NCSO 
DPS was limited to opportunistic or small-scale efforts. Verifiable 
fisher detections did not exist, except for two single fishers: One 
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); this finding suggests 
occasional 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,

[[Page 29547]]

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 the NCSO DPS. 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.). Outside of the 
Park, large-scale systematic surveys were conducted in 2016 and 2017 
north and west of Crater Lake National Park and south to the Klamath 
Falls Resource Area (south of the reintroduction area) of the Bureau of 
Land Management (BLM) Lakeview District (Barry 2018, entire). Few 
fishers were detected in an area west of Crater Lake National Park 
where fishers were captured and radio-collared in the early 1990s by 
Aubry and Raley (2002, entire). Within the Klamath Plateau (generally 
the Klamath Falls Resource Area described above, but including 
surrounding non-Federal lands), Moriarty et al. (2019, pp. 5, 21) 
identified 31 to 41 individuals from 2015 to 2018, concluding that 
fishers in the SOC area do not appear to be expanding from where they 
were initially reintroduced.
    In comparing this range estimate with a coarse baseline range 
estimate provided by the Service, Barry (2018, pp. 22-24) determined 
that there was a 67 percent range reduction for the SOC subpopulation, 
concluding that SOC fishers ``appear to have contracted, shifted south, 
or the previous population extent was incorrectly estimated'' (Barry 
2018, pp. 22-24). Given the lack of systematic range-wide fisher 
monitoring in Oregon, the author, however, urged caution when comparing 
his analysis with the baseline range estimate provided by the Service, 
and we agree. Our baseline range estimate used by Barry (2018, p. 31, 
Figure 3) was derived by encompassing verifiable fisher locations since 
1993 in southwest Oregon. Our boundaries were based on modeled fisher 
habitat and readily identifiable features such the Rogue River. These 
range maps included scattered, disjunct detections with intervening 
areas of few to no fisher detections (e.g., see Service 2016, p. 34, 
Figure 7); consequently, our range map likely encompassed areas with 
limited fisher occurrence. Hence, comparing our coarse range map with 
Barry's fisher distribution, which was quantitatively modeled from 
systematic detection surveys to delineate areas with a higher 
probability of fisher occurrence, should indeed be interpreted with 
caution. Our coarse range map certainly included areas with limited 
numbers or lack of fishers; consequently, a 67 percent range reduction 
using that map as a baseline comparison overestimates any change in 
fisher distribution in the SOC subpopulation to some extent. We do 
concur, however, that SOC fishers seem to have shifted their 
distribution, and acknowledge that their distribution may be 
contracting to some degree. Further, we acknowledge Barry's (2018, pp. 
22-24) assertion that the SOC subpopulation has had ample time since 
their reintroduction to colonize beyond the reintroduction area and has 
failed to do so, suggesting that either our understanding of suitable 
habitat may be incorrect, there may be unknown barriers limiting their 
distribution, or other factors may limit this subpopulation.
    Barry (2018, p. 23) also concluded that the SOC subpopulation 
appears small and relatively isolated given the number and spacing of 
detections. However, there is interbreeding with indigenous fishers 
near the Klamath Plateau area, suggesting fishers in the southern part 
of the SOC subpopulation are not isolated.
    Fishers in the NSN portion of the NCSO DPS stem from a 2009 to 2011 
translocation of 40 fishers (24 females, 16 males) from Humboldt, 
Siskiyou, and Trinity Counties, California, to the SPI Stirling 
Management Unit. 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). Overall, 220 individual fishers were 
identified between 2009 and 2017 with a young age structure, suggesting 
healthy reproduction and recruitment (Powell et al. 2019, p. 2). 
Although the subpopulation appears to be stable or growing, statistical 
conclusions will be difficult to draw until year 10 in 2020 (Powell et 
al. 2019, p. 2). The authors also concluded that the subpopulation is 
unlikely to go extinct in the next 20 years, barring dramatic decreases 
in survival and reproduction caused by stochastic events. We also 
recently received a draft manuscript concluding that estimated 
recruitment and survival probability of fishers in the NSN 
subpopulation ``had stabilized and were quite high, indicating that 
this new population of fishers may be self-sustaining'' (Green et al. 
2020, p. 11).
    Older estimates for the NCSO DPS (minus SOC and NSN) 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 DPS to the entire NCSO DPS (Self et al. 2008, pp. 3-5). 
In 2017, a new estimate was developed for the NCSO DPS that includes 
southern Oregon and coastal California but still excludes SOC and NSN 
(Furnas et al. 2017, pp. 2-3). This study used detection/non-detection 
survey data from across much of the NCSO DPS to calculate an average 
density of 6.6 fishers per 39 mi\2\ (100 km\2\) across the area they 
defined for the NCSO DPS (Furnas et al. 2017, pp. 12-15). Using this 
estimate of fisher density, the NCSO DPS is estimated to be 3,196 
individuals (2,507-4,184; 95 percent Confidence Interval (C.I.)) and 
fishers were detected at 41 percent of 321 paired camera stations 
(Furnas et al. 2017, pp. 10, 12). Density models indicate a core area 
of predicted high density (greater than 10 fishers per 39 mi\2\ (100 
km\2\) from between about 25 to 50 mi (40 to 80 km) inland from the 
coast in the California Coast Range and southern Klamath Mountains in 
California (Furnas et al. 2017, pp. 12-13). CDFW determined in their 
status assessment for fishers in California that the assessment done by 
Furnas, when applied to fishers in the California portion of NCSO, 
suggests that fishers are common and widespread (estimated to occur at 
60 percent of sample units in California) (CDFW 2015, p. 55).
    The indigenous population of fishers in Oregon was estimated to 
have a 26 percent range reduction compared to verifiable fisher records 
collected since 1993 (Barry 2018, p. 22). However, the author notes 
this comparison should be treated with caution, and we agree. This 
estimate is subject to the same limitations as described earlier in 
this section for the SOC fisher subpopulation. That is, the coarse 
range map the author used for a baseline comparison included areas with 
limited numbers or even lack of fishers, so a 26 percent range 
reduction overestimates any change in the indigenous fisher population 
in Oregon.
    Trend information for fishers within the NCSO DPS is based on the 
following two long-term study areas. As indicated above, we now 
consider the NCSO DPS to include the areas previously represented as 
the SOC and NSN reintroduced fisher subpopulations.
    The Hoopa study area is approximately 145 mi\2\ (370 km\2\) on the 
Hoopa Valley Indian Reservation north

[[Page 29548]]

of California State Highway 299 and near State Route 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 DPS. Fisher studies have been 
ongoing since 1996. The population trend in the period 2005-2012 
indicates declining populations with lambda 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.). The authors concluded that ``the population as a whole is 
essentially stable'' (Higley et al. 2014, p. 31), but they raised 
concerns about declines in survival of males over the last 3 years of 
the study; they believed the decline was associated with toxicant 
poisoning associated with illegal marijuana growing and that males were 
at a higher risk because of their larger home ranges compared to 
females (Higley et al. 2014, pp. 32, 38).
    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 DPS. Monitoring has occurred since 2006 (Green et 
al. 2018b, entire). Fishers in this study area were a source for 
translocating fishers to the NSN reintroduction site elsewhere in the 
DPS. The removal of nine fishers over a 2-year period in 2009 and 2010 
(equivalent to 20 percent of the population) did not affect fisher 
abundance or density in the study area (Green et al. 2017, p. 9).
    After fires in this study area in 2014, the estimated number of 
fishers declined by 40 percent from the year before the fire (Green et 
al. 2019b, p. 8). Prior to the fire, this population varied in the 
annual number of fishers and lambda trends (increasing and decreasing) 
(Green et al. 2016, p. 15, Table 1) (Table 2), indicating ``the 
population of fishers in the Klamath was relatively stable before the 
fires occurred and for the three years immediately following the 
removal of fishers for translocations'' (Green et al. 2016, p. 8). 
Modeling results suggest the post-fire decline was because of the fire. 
Although the fire notably affected fishers in this population in the 2 
years immediately following, the fate of the fishers affected by the 
fire is unknown; it is possible that some fishers may have emigrated 
out of the burned areas (Green et al. 2017, pp. 9-10) or may reoccupy 
areas that burned at lower severities in the future. Credible intervals 
(a statistical measure of uncertainty) surrounding abundance estimates 
of fishers both pre- and post-fire overlap; although the post-fire 
estimate is at the lower range of the pre-fire estimate, the fisher 
population estimate post-fire does not appear to be substantially 
different from the lowest estimates in the pre-fire years (Green et al. 
2019b, p. 18; Matthews and Green 2020, pers. comm.). Hence, even with 
the immediate decline in the local fisher population after the fire, 
the latest population estimate still appears to be within the 
statistical range of variation of pre-fire estimates. Data since 2016 
have not yet been analyzed to assess the EKSA population trend over the 
past few years.
    In the absence of limiting factors, populations tend to steadily 
increase (lambda >1) until the population growth becomes restricted. 
Within the NCSO DPS, this situation has been occurring in the NSN 
reintroduced population as it expands to fill available habitat (Powell 
et al. 2019, pp. 2, 4). Healthy populations will then naturally 
fluctuate around their upper limit, or carrying capacity, increasing in 
some years and decreasing in other years (Figure 2). This trend is 
exhibited in the data from the EKSA, where annual estimates of 
abundance for fishers have varied, yielding increasing and decreasing 
growth rates from year to year prior to the 2014 fires (Table 2). This 
occurrence is consistent with normal variation for populations that are 
neither growing nor declining, but fluctuating near carrying capacity. 
For both the Hoopa and the EKSA studies, the authors' use of the term 
``stable'' (Higley et al. 2014, p. 31; Green et al. 2016, p. 8) implies 
that the lambda rates are not swinging dramatically from year to year, 
but rather annual abundance estimates are fluctuating around a steady 
value consistent with normal population variation. There are still 
uncertainties regarding the post-fire declines from the EKSA study area 
(addressed below in Wildfire and Wildfire Suppression section) as well 
as the reduced male survival rates in the Hoopa study area. However, 
the best available data suggests that populations are exhibiting 
variability that may be consistent with populations at or near carrying 
capacity.

[[Page 29549]]

[GRAPHIC] [TIFF OMITTED] TR15MY20.001


Table 2--Derived Posterior Parameter Estimates of Annual Population Density, Abundance, and Population Growth of
  Fishers in the Klamath. Parameters Are Presented as Median [95% Credible Interval] (Green et al. 2016, p. 15)
[These estimates have since been reparameterized (Matthews and Green 2020, pers. comm.), indicating a population
          exhibiting typical fluctuations both increasing and decreasing around K for this time period]
----------------------------------------------------------------------------------------------------------------
                                         Density (fishers/100
                 Year                           km\2\)                 Abundance                  Lambda
----------------------------------------------------------------------------------------------------------------
2006.................................  6.64 [4.94, 8.35]......  39 [29, 49]............  .......................
2007.................................  6.64 [4.94, 8.18]......  39 [29, 48]............  1 [0.71, 1.35]
2008.................................  6.99 [5.62, 8.69]......  41 [32, 50]............  1.06 [0.78, 1.4]
2009.................................  6.47 [5.11, 8.18]......  38 [29, 47]............  0.92 [0.67, 1.2]
2010.................................  5.79 [4.43, 7.33]......  34 [26, 43]............  0.91 [0.64, 1.21]
2011.................................  6.47 [5.11, 8.18]......  38 [28, 46]............  1.09 [0.78, 1.45]
2012.................................  6.3 [4.94, 8.18].......  37 [27, 46]............  0.98 [0.72, 1.33]
2013.................................  6.99 [5.62, 8.69]......  41 [32, 50]............  1.11 [0.81, 1.49]
----------------------------------------------------------------------------------------------------------------

    Fishers in the NCSO DPS have rebounded substantially from their low 
in the late 1800s and early 1900s. Grinnell et al. (1937, p. 227) 
suggested no more than 300 fishers occurred in all of California. 
Fishers currently occupy much of their historical range in northwestern 
California, including the redwood region, which may be an expansion 
from their historical distribution (CDFW 2015, p. 23); fisher 
detections have increased in northern coastal California since the 
1990s, though it is not known as to whether this increase is due to a 
range expansion, recolonization, increased survey effort, or whether 
fishers remained undetected in earlier surveys (CDFW 2015, p. 50). 
Recent monitoring information submitted during the public comment 
period on the 2019 Revised Proposed Rule indicates fishers continue to 
occur across much of northern coastal California; systematic camera 
surveys on private timber lands found fishers at 65 of 93 (70 percent) 
camera stations (Green Diamond Resource Company [GDRC] 2019, p. 8) 
during the 2018-2019 winter, suggesting fishers are well-distributed 
across the company's lands. In Oregon, fishers also appear to have 
expanded from low numbers in the 1940s, when fishers were considered 
extremely rare and perhaps close to extirpation (see Barry 2018, pp. 
16-17 for summary), to being ``relatively common'' where the indigenous 
population is found (Barry 2018, p. 22). Fishers also appear to be 
widespread and common throughout much of the DPS (CDFW 2015, pp. 54-
55).
    The major habitat-based threats experienced by the NCSO DPS 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. In

[[Page 29550]]

addition to these threats acting on the NCSO DPS, several conservation 
efforts are also designed to benefit fishers. These efforts include 
those being implemented within the portion of the range covered by the 
Northwest Forest Plan (NWFP) including the conservation and retention 
of late seral habitats and a network of reserved land use allocations, 
which provide fisher habitat. We summarize conservation measures and 
regulation mechanisms that address some of these threats below in the 
Existing Regulatory Mechanisms section.
Threats
    As described above in the General Threats Information section, we 
determined our foreseeable future timeframe for evaluating the status 
of the NCSO fisher based upon the period for which we can reasonably 
determine that both the future threats and the species' responses to 
those threats are likely. In general, we considered that the 
trajectories of the threats acting on fisher subpopulations across the 
DPS's range could be reliably predicted for 35-40 years into the 
future.
    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, 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.
Wildfire and Wildfire Suppression
    Direct evidence of fisher population response to wildfire is 
limited. 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 (Green et al. 2019b, entire). This population of 
fishers has been monitored since 2006. As noted by Green et al. (2019b, 
p. 4): ``Previous research indicates this population of fishers had 
been relatively stable up to 2013, despite approximately 20% of the 
population being translocated elsewhere between 2009 and 2011.'' Fisher 
numbers in the study area declined 40 percent from 2013, the year prior 
to the fires. This decrease became apparent the first full year 
following the fires (2015) and persisted into the following year (Green 
et al. 2019b, p. 8, Figure 2). While the fate of the fishers affected 
by the fire is unknown, it is possible that some fishers may have 
emigrated out of the burned areas (Green et al. 2017, pp. 9-10) or may 
reoccupy areas that burned at lower severities in the future. The 
reduced population estimate appears to be within the statistical range 
of variation of pre-fire estimates, as evidenced by overlapping 
credible intervals. The post-fire population decline of 40 percent is 
based on a comparison with the population estimate from 2013, which was 
the highest measured population estimate compared to all previous 
years, with 39 animals estimated (Green et al. 2017, p. 19; 2019b, pp. 
15-18). The post-fire population estimate was not evaluated in context 
with the overall pre-fire population trend and its overall variation; 
such a comparison would likely yield a less dramatic population change. 
In addition, monitoring data since 2016 is not yet fully evaluated. 
Both of these tasks are currently underway (Matthews and Green 2020, 
pers. comm.). Fisher densities declined across all wildfire severity 
types, but they declined the most in areas with more than a 50 percent 
loss of tree basal area, consistent with other studies (Green et al. 
2019b, pp. 6, 9). The authors note that their data represent only the 
short-term effects of fires, and any negative effects may not persist. 
We do not know the fate of individual fishers that left the population 
after the fire and whether their fitness was ultimately compromised. 
But this analysis does suggest that high-severity fires can have 
immediate and substantial effects on local fisher numbers.
    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 the fires have 
extirpated fishers from the burn area. However, detection records do 
not suggest fishers were ever abundant in the area prior to the fire 
(Service 2016, pp. 24, 33, 34, and 35, Figures 4, 6, 7, and 8). We do 
acknowledge, however, that a large part of this area, is within the 
Kalmiopsis Wilderness Area, where surveys were likely limited due to 
restricted access. Therefore, fisher occupancy in some areas of the 
Biscuit Fire remains unknown.
    Given projected changes in climate, forests are expected to become 
more vulnerable to wildfires over the coming century. For example, the 
proportion of forests considered highly suitable for wildfire in the 
Klamath Mountains is projected to increase from 18 percent to 48-51 
percent by the end of the century, with most of that increase projected 
to occur on Federal lands (Davis et al. 2017, p. 180). Fire return 
intervals in low- to mid-elevation forests in Northwest California and 
the Sierra Nevada Mountains have among the highest departure rates from 
historical fire return intervals in the State (Safford and Van de Water 
2014, pp. iii, 17, 22, 36-37). And, fire return intervals in the Coast 
Range and Klamath Mountains in Oregon are expected to decrease by half, 
which would 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). We note that the projected increases include fires of all 
severity types, so the potential wildfire areas do not translate 
directly to an amount of fisher habitat removed. In the case of low- 
and moderate-severity fires, these may actually create elements used by 
fishers.
    An analysis of fire effects on fisher habitat was done centering on 
the Klamath Basin and encompassing the NCSO (CBI 2019b and 2019c, 
entire). The study looked at fisher habitat patches large enough to 
support five or more breeding female home ranges (CBI 2019b, p. 16) and 
labeled them as core habitat; the study also identified fisher linkage 
areas, which were areas on the landscape identified as least-cost 
pathways to connect the core habitats (CBI 2019b, pp. 3, 16). They 
found that 24 percent of modeled fisher core areas and 24 percent of 
modeled fisher linkage areas were considered at risk of at least 
temporary loss due to severe fires (CBI 2019c, pp. 22, 25). It is 
important to note that these percentages do not total to 48 percent of 
the fisher habitat in the study area; core areas are larger patches of 
fisher habitat, while linkage areas may or may not comprise suitable 
habitat, but instead represent ``least cost'' paths between core areas.
    To update our 2014 analysis of wildfire effects within the NCSO 
DPS, 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 (Service 2016, Appendix B) and USFS data for burn 
severity for 2008-2018 (USFS 2019), we estimated the effects of high-

[[Page 29551]]

severity wildfire to fisher habitat (high and intermediate categories) 
over the past 11 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 for 
denning and resting (although this result may not always be the case, 
as described above in the General Species Information section). Use of 
greater than 50 percent basal area loss is consistent with recent fire 
effects analyses on fishers based on the recent results as reported in 
Green et al. (2019b, p. 6). Overall, high- and intermediate-quality 
fisher habitat in the NCSO DPS 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 7.5 percent was lost as a result of wildfires since 2008; 
this is an average loss of 6.8 percent per decade.
    For comparison purposes, in our 2014 draft Species Report, we 
estimated 4 percent of fisher habitat would be lost over the next 40 
years due to high-severity wildfire, or 1 percent per decade (Service 
2014, p. 64). Our 2014 area of analysis for the NCSO subpopulation was 
based on 27 years of fire data from 1984 to 2011 and assessed 
approximately 24,080,693 ac (9,745,111 ha), compared to the 10,459,612 
ac (4,232,855 ha) assessed in our recent analysis above. The results of 
our new analysis are based on fire data from the period 2008 to 2018, 
an 11-year period of the most recent fire activity, which suggests our 
earlier estimates of changes to fisher habitat from wildfire over the 
next 40 years may have been an underestimate. However, while this 
increase in area burned may be consistent with the projections for 
wildfire increases in the DPS, the magnitude of increase in burned 
fisher habitat (i.e., from 1 percent per decade in our 2014 analysis to 
6.8 percent in our 2019 analysis) may not be a true reflection of the 
rate of change between the two time periods because of the different 
temporal (28 years v. 11 years) and geographic (the area analyzed in 
2014 was twice as large as the area assessed in 2019) scales used in 
the comparison. Nevertheless, we recognize the increase in fire 
activity within the NCSO.
    The geography of the Klamath ecoregion, which makes up much of the 
NCSO where fishers occur, is steep and complex. The variation in 
elevation and aspect shapes vegetation composition and distribution. 
This environment influences fuels and ultimately fire behavior and 
location (Taylor and Skinner 1998, p. 297; Taylor and Skinner 2003, p. 
714; Skinner et al. 2018, pp. 179-180). Consequently, fires tend to be 
more prevalent on drier sites, while less frequent on moister sites, 
which tend to be areas more consistent with fisher habitat. While these 
patterns may or may not continue with the effects of climate change, we 
can use management such as the recent fuels reduction MOUs (see 
Existing Regulatory Mechanisms below) to leverage existing topography 
and vegetation condition to better manage for wildfires.
    We acknowledge that large-scale wildfires affect fisher habitat, 
particularly given the predicted increases in wildfire associated with 
climate change by the end of the century. We also acknowledge that 
fires, even large fires, are part of the natural fire regime within the 
NCSO DPS, and fishers have sustained themselves and coexisted with 
wildfire for centuries. Into the future, it will be important to have 
areas that can maintain reproducing fishers while severely burned areas 
can regenerate into fisher habitat again, whether that is foraging 
habitat within a decade or two, or denning and roosting habitat several 
decades beyond. Existing land allocations like late-successional 
reserves from the NWFP on Federal lands throughout much of the NCSO 
DPS, especially in the areas with the greatest fire severities, will be 
necessary to manage these areas to return to forest habitat with 
complex structure. This process will ensure suitable habitat lost to 
fires will be managed to develop the overstory and structural features 
conducive to fishers. In the interim, retaining important structural 
features in burned areas, per reserve land allocation standards and 
guidelines, will facilitate the use of these areas by prey and foraging 
fishers within a few decades following high-severity fires.
    Although fire risk is expected to increase with climate change, it 
is not expected to be uniform across the DPS, as described above in 
this section. The sporadic and episodic nature of fires will help 
ameliorate some of the risk to fishers across the DPS as a whole. There 
are effects to local fisher populations immediately after a high-
severity fire (e.g., Green et al. 2019b, entire). But fishers are well 
distributed across the NCSO DPS, including coastal areas such as the 
redwood region that may be less prone to wildfire risk. This 
distribution provides redundancy to loss of fishers after a local fire 
event. Plus, fishers appear to use high severity burned areas, at least 
for dispersal and foraging (Service 2016, p. 66), suggesting that even 
severely burned areas can continue to provide some benefits to fishers 
within a decade or two after the fire. The redundancy exhibited by the 
NCSO DPS, with multiple subpopulations distributed across a substantial 
range of habitat (see Resiliency, Redundancy, and Representation 
section), will allow the NCSO DPS of fishers to absorb the impact of 
fires, demonstrating the DPS's ability to withstand catastrophic 
events.
Climate Change
    The general climate change related effects discussed above (see 
General Threats Information) apply to the NCSO DPS, in addition to the 
following effects, which are more specific to the NCSO DPS. In 
particular, Siskiyou and Trinity Counties in interior northern 
California are projected to see the greatest temperature increases for 
the North Coast Region (Grantham 2018, p. 17). In the Klamath 
Mountains, models suggest precipitation is likely to fall increasingly 
as rain rather than snow, becoming mainly rain-dominated by mid-century 
(Dalton et al. 2017, p. 17). Significant or amplified wildfire 
activity, with increased area burned and severity can result in reduced 
denning habitat availability for fishers in the Coast Range and Klamath 
Mountains. These two areas are 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). Fire return intervals in 
low- to mid-elevation forests in Northwest California and the Sierra 
Nevada Mountains have among the highest departure rates from historical 
fire return intervals in the State (Safford and Van de Water 2014, pp. 
iii, 17, 22, 36-37).
    Overall, the best available scientific and commercial information 
suggests that changing climate conditions (particularly warmer and 
drier conditions) are influencing other threats to fishers and their 
habitat within the NCSO DPS, in particular the potential for increased 
wildfire frequency and intensity. However, this is not to say that the 
DPS will experience widespread or a uniform distribution of climate-
driven wildfire events. Even under conditions for a potential increase 
in wildfire frequency, wildfires will remain sporadic and episodic 
across the range of the DPS, further moderated by the slope and aspect 
of terrain throughout the range (e.g., influencing susceptibility to 
wildfire, and creating a mosaic of fire severity). The DPS's wide 
variety of topography, vegetation, and climate conditions in its array 
of physiographic provinces (Service 2016, pp. 15-17, 28-29, 38-39) 
results in

[[Page 29552]]

unpredictable variability in how these provinces will respond to 
changing climate conditions. Please see additional discussion about 
potential impacts to fishers or their habitat associated with wildfire 
(Wildfire and Wildfire Suppression above).
Tree Mortality From Drought, Disease, and Insect Infestation
    Specific to the NCSO DPS, sudden oak death (Phytophthora ramorum) 
has caused some tree mortality in southwestern Oregon and northwestern 
California, but it is not causing widespread losses of oaks (California 
Oak Mortality Task Force 2019, p. 1; Oregon Department of Forestry 
(ODF) 2016, pp. 1-2). This finding suggests widespread loss of oaks 
used by fisher or fisher prey is not occurring as a result of sudden 
oak death. Overall, warmer and drier climate conditions are projected 
for the NCSO DPS; however, the varied composition of the vegetation 
(e.g., Lofroth et al. 2011, pp. 34-90) in the DPS suggests insect 
outbreaks and disease due to drought-related stress on trees are more 
likely to be localized should they occur; therefore, future widespread 
tree mortality impacts to fisher habitat are not anticipated in the 
NCSO DPS.
Vegetation Management
    Although local analyses across the NCSO DPS have assessed fisher 
habitat at several scales (see Lofroth et al. 2011, pp. 34-90 for study 
summaries, and Raley et al. 2012, pp. 234-235 for list of additional 
studies), there is no analysis available that explicitly tracks changes 
in fisher habitat in recent decades across large portions of the DPS, 
and which includes fisher habitat ingrowth as well as habitat loss to 
specific disturbances. Therefore, we used other available information, 
as described below, to analyze the potential effects of this threat on 
fishers in the NCSO DPS. In addition to the draft Species Report 
(Service 2014, pp. 85-96), we used several different sources of 
information to depict forest vegetation changes caused by vegetation 
management activities and offset by ingrowth within the range of the 
NCSO DPS. With the exception of the non-Federal timber harvest database 
in California (CAL FIRE) 2013), all of these sources are either new or 
updated since 2014 (Davis et al. 2015, entire; USFS 2016, entire; 
Spencer et al. 2016, entire; Spencer et al. 2017, entire; gradient 
nearest neighbor (GNN) data/maps). With these available 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 how it applies to the NCSO DPS.
    Within the portion of the NCSO DPS overlying the Northwest Forest 
Plan region (generally most of the NCSO DPS except for the northern 
Sierras), we used information from the draft late-successional and old-
growth forest monitoring report (Davis et al. 2015, entire) to assess 
changes in structural habitat elements associated with fisher habitat 
(i.e., large trees, down wood, snags) as a result of vegetation 
management. This information included use of the ``old growth structure 
index'' (OGSI), which is an index that consists of four structural 
elements associated with older forests: (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, the 
condition does track forests that contain structural elements 
consistently used by fishers in habitat studies across the DPS, even in 
areas with substantially open areas and managed young stands (Lofroth 
et al. 2010, pp. 81-121; Service 2016, pp. 15-21; Niblett et al. 2017, 
pp. 16-17; Powell et al. 2019, pp. 21-23; Matthews et al. 2019, pp. 
1,309, 1,313; Moriarty et al. 2019, pp. 29-30, 46-49). We acknowledge 
there is some unknown level of overrepresentation of stands that may 
not be occupied by fishers and underrepresentation of stands that 
fishers may actually occupy (Service 2016, p. 102), and we do not 
suggest that OGSI-80 is a surrogate for fisher habitat proper. Hence, 
we do not consider it a model of fisher habitat.
    However, OGSI-80 does cover a majority of the NCSO DPS and provides 
a way to assess regional-scale trends in forests that contain the 
structural elements consistently used by fishers (e.g., large snags, 
down wood, and large live trees). This information was the only data 
set available that identified the number of acres lost to timber 
harvest or vegetation management (as well as disturbances from fire and 
insects) and the number recruited by forest ingrowth. This OGSI-80 data 
set allows us to track changes as a result of vegetation management and 
forest recruitment. In using the OGSI-80 data, we do not expect there 
to be substantial differences in relative trends for disturbances and 
ingrowth effects on OGSI-80 stands compared to trends in their effects 
on fisher habitat.
    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 include only data for the areas 
(physiographic provinces) that cover the current range of fishers in 
the NCSO DPS. The California portion of the NCSO DPS covers all of the 
California physiographic provinces analyzed in Davis et al. (2015, pp. 
10, 30-31). The Oregon portion of the NCSO 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 these two Cascades provinces. Because no substantial differences 
were revealed between the two data sets, we report here the results of 
including only the Oregon Klamath province data along with data for all 
of the California physiographic provinces that are covered by the NWFP.
    Although loss of OGSI-80 forests 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 from 1993 to 2012 was low (5.0 
percent). 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 (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 of 
implementation (through circa 2025) (BLM 2015, pp. 350-352). Recent 
litigation may also increase timber harvest on BLM (see Existing 
Regulatory Mechanisms section). Hence,

[[Page 29553]]

overall harvest trends on Federal lands may be increasing and may be 
closer to or more than rates observed in the last decade of NWFP 
implementation (2003 to 2012).
    The net loss of OGSI-80 conditions to timber harvest, however, is 
somewhat less because 2.5 percent per decade does not include ingrowth 
of OGSI-80 stands. Ingrowth represents those stands that did not meet 
the OGSI-80 structural thresholds at the beginning of the 20-year 
monitoring period but, through vegetation succession, reached those 
thresholds at the end of the monitoring period. Stands that grow into 
the OGSI-80 condition are assumed to offset the loss of other OGSI-80 
to disturbance such as vegetation management. However, we acknowledge 
that OGSI-80 stands exist on a continuum, and OGSI-80 stands lost to 
timber harvest or some other disturbance are not necessarily equivalent 
in structural quality to stands that recently cross a threshold of 
being classified as OGSI-80. That is, the longer stands remain in the 
OGSI-80 classification, the more likely they are to contain more old-
forest structural conditions that benefit fishers.
    Ingrowth of OGSI-80 stands within the NWFP portion of the DPS 
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)). This ingrowth more than offsets the OGSI-80 stands lost to 
vegetation management. However, there is still an overall net loss of 
OGSI-80 stands in the DPS because all disturbances (i.e., wildfire and 
forest insects and pathogens) need to be considered. When all 
disturbances and ingrowth are factored in, there is a net loss of 1 
percent per decade. However, vegetation management affects a small 
portion of those habitat components used by fisher within the NWFP 
area. Furthermore, 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).
    We note that we incorporated the loss of OGSI-80 stands to wildfire 
into this analysis of vegetation management only to fully consider the 
degree to which ingrowth can offset loss of OGSI-80 stands to 
disturbance. We use a different metric to address the loss of fisher 
habitat to wildfire (see the Wildfire and Wildfire Suppression 
section). For the wildfire analysis, we were able to obtain data from 
past wildfires and overlay it on fisher habitat to better represent 
fisher habitat loss to high-severity wildfires as well as to 
incorporate the effects from more recent wildfires than those analyzed 
by Davis et al. (2015, p. 29).
    Outside of the NWFP portion of the DPS (primarily Sierra Nevada 
region), 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 determine 
net change in a particular vegetation type, but could not quantify the 
amount 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 approximate conditions suitable for fisher 
habitat, although we realize that net changes include other 
disturbances and that vegetation management will be some unknown 
portion of that change.
    For the Sierra Nevada Range (note that this includes the entire 
range, as we were not able to split out the SSN DPS from the NCSO DPS), 
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 (see Service 2016, p. 106 for a 
description related to using GNN data). The vegetation category tracked 
in this analysis is not equivalent to the OGSI-80 forests used by Davis 
et al. (2015, entire). Instead, the available data limited us to using 
predefined structure conditions describing forests with larger trees 
(greater than 20 in (50 cm)). We realize this process may not include 
all vegetation types used by fishers. This analysis showed that net 
loss of forests with larger structural conditions in the Sierra Nevada 
Range was 6.2 percent across all ownerships over the past 20 years, 
which equates to a loss of 3.1 percent per decade. However, this amount 
is loss associated with all disturbance types, including wildfire, 
insects, and disease, that occurred from 1993 through 2012. Hence, 
vegetation management is some unknown subset of this loss.
    Vegetation management is not affecting large areas of the NCSO DPS, 
though fragmentation could be restricting fisher movements in localized 
areas or increasing predation risk. For example, fishers continue to 
persist in actively managed landscapes (GDRC 2019, no page numbers), 
and fishers reintroduced into the Sierra Nevada portion of the NCSO DPS 
on SPI lands, which are managed for timber production, suggest that 
fisher populations can become established and persist in a landscape 
where substantial portions were historically and are currently managed 
for timber production (Powell et al. 2019, entire; Green et al. 2020, 
entire). Hence, we conclude that vegetation management is a low-level 
threat because of the small proportion of area harvested in the NCSO 
DPS and because of the widespread distribution of fishers and their 
occurrence in actively managed landscapes.
Exposure to Toxicants
    As described above in the General Threat Information section, 
rodenticides analyzed as a threat to the NCSO DPS of fishers include 
first- and second-generation anticoagulant rodenticides and 
neurotoxicant rodenticides. Both the draft and final Species Reports 
detail the exposure of the NCSO DPS of fishers to rodenticides in 
northern California and southern Oregon (Service 2014, pp. 149-166; 
Service 2016, pp. 141-159). Data available since the completion of the 
final Species Report in 2016 continue to document exposure and 
mortalities to fishers from rodenticides in the NCSO DPS (Gabriel and 
Wengert 2019, unpublished data, entire). Data for 48 fisher carcasses 
collected in the range of the NCSO DPS in the period 2007-2018 indicate 
36 fishers (75 percent) tested positive for one or more rodenticides 
(Gabriel and Wengert 2019, unpublished data), while 13.5 percent of 
fisher mortalities with a known cause in the NCSO DPS from 2007 through 
2014 were attributable to rodenticides (7 of 52 mortalities) (Gabriel 
et al. 2015, p. 6). Using data from both the SSN and the NCSO DPSs, 
mortalities due to rodenticide toxicosis increased from 5.6 to 18.7 
percent since the collection and testing of fisher mortalities using 
data comparing the periods 2007-2011 to 2012-2014 (Gabriel and Wengert 
2019, unpublished data, p. 2). From 2015 to 2018, additional NCSO DPS 
fisher mortalities due to both anticoagulant and neurotoxicant 
rodenticides have been documented (Gabriel and Wengert 2019, 
unpublished data, p. 4). At the Hoopa study site, population monitoring 
found

[[Page 29554]]

``the population as a whole is essentially stable'' (Higley et al. 
2014, p. 31), but there are concerns about declines in survival of 
males over the last 3 years of the study. The authors speculate this 
decline in male survival is attributed to toxicant poisoning associated 
with illegal grow sites and that males were identified as being at a 
higher risk for poisoning because of their larger home ranges compared 
to females (Higley et al. 2014, pp. 32, 38).
    To evaluate the risk to NCSO DPS fishers from illegal grow sites, 
we use a Maximum Entropy model to identify high and moderate likelihood 
of illegal grow sites being located within fisher habitat (Gabriel and 
Wengert 2019, unpublished data, pp. 7-10) in Oregon and California. 
This model indicates that 54 percent of habitat modeled for NCSO DPS 
fishers is within areas of high and moderate likelihood for marijuana 
cultivation.
    The majority of our illegal grow site data comes from California, 
and data are limited for the amount of pesticides used in Oregon. The 
USFS documented 63 trespass grows between 2006 and 2016, with toxicants 
present at all these sites (Clayton 2019, pers. comm.). In a separate 
effort, only one illegal grow site in southern Oregon has been sampled 
using the same protocol as 300 illegal grow sites in California where 
the amount and type of rodenticide at a site is tracked. 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 dispersed around the site (Gabriel and Wengert 2019, 
unpublished data, p. 7).
    As of January 24, 2020, 2,138 legal marijuana cultivation permits 
were active in counties within the NCSO and SSN DPSs in California 
(California Department of Food and Agriculture 2020, entire), and 423 
legal marijuana operations have been approved as of January 17, 2020, 
in Oregon counties occupied by fishers (Oregon Liquor Control 
Commission 2020, entire).
    Toxicant use on the landscape, and especially anticoagulant 
rodenticides, is a problem for fisher. However, the NSN subpopulation 
has grown to the point of becoming self-sustaining (Green et al. 2020, 
p. 11; Powell et al. 2019, p. 4) even with 11 of 12 fishers testing 
positive for anticoagulant rodenticides (Powell et al. 2019, p. 17). 
This finding suggests that toxicants may not be having a limiting 
effect on growth in this subpopulation. And, at EKSA only small annual 
variations were seen in the lambda value (Table 2) from 2006 to 2013 
(Green et al. 2016, p. 15). This period is at the same time as toxicant 
data were being collected (Gabriel et al. 2015, entire; Gabriel et al. 
2017, entire; Gabriel and Wengert, unpublished data 2019, entire), and 
presumably there were illegal grow sites distributed throughout the 
landscape. Illegal marijuana cultivation has been occurring in 
California since the mid-1970s. To some degree, the fisher's widespread 
distribution and relative commonness in the NCSO DPS diffuses the 
potential for a significant percentage of the subpopulation to be 
exposed to these toxicants. The presence of illegal grow sites on the 
landscape since the mid-1970s suggests that the fisher has been living 
with this threat for some time.
    We do not know what level of toxicant exposure is occurring in live 
fishers in the wild. The best available mortality data are limited (19 
individuals in California (Gabriel and Wengert 2019, unpublished data, 
p. 5), and of the 2 fishers found in Oregon that were tested for 
rodenticide exposure, both tested positive (Clayton 2016, pers. comm.). 
We also do not know how the legalization of marijuana will change grow-
site location and potentially affect exposure and mortality rates of 
fishers due to rodenticides.
    We view toxicants as a potentially significant threat to fishers in 
the NCSO DPS because of the reported exposure rate of toxicants in the 
NCSO DPS, the reported mortalities of fishers from toxicants in the 
NCSO DPS, the variety of potential sublethal effects due to exposure to 
rodenticides (including potential reduced ability to capture prey and 
avoid predators), and the degree to which illegal cannabis cultivation 
overlaps with the range and habitat of fisher in the NCSO DPS. The 
exposure rate of 75 percent of fisher carcasses tested in the NCSO DPS 
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). As noted above, we do not know the 
exposure rate of live fishers to toxicants because this data is 
difficult to collect. In addition, the minimum amount of anticoagulant 
and neurotoxicant rodenticides required for sublethal or lethal 
poisoning of fishers is currently unknown. In spite of the widespread 
nature of illegal grow sites and their known association with illegal 
rodenticide use, as well as the prevalence of toxicants occurring in 
tested fishers, the NCSO subpopulation may be demonstrating an ability 
to withstand this threat with regard to population growth (see 
discussions above in Current Condition section regarding observed 
population growth and fluctuation information in NSN and at the EKSA 
and Hoopa sites).
    Illegally used toxicants like rodenticides remain a threat to 
fishers within the NCSO DPS now and in the foreseeable future. Where 
illegal marijuana grow sites occur on the landscape and overlap with 
fisher ranges, illegally used pesticides have a high potential to harm 
those exposed individual fishers. However, while the threat of people 
developing illegal grow sites is widespread, we also note that such 
sites are generally widely dispersed within remote landscapes across 
the DPS range (i.e., illegal growers look to be as isolated and hidden 
as possible). This situation would suggest that potential for 
significant exposure to fishers is generally limited to where the grow 
sites are located. However, while there is no certain discernible trend 
regarding whether illegal grow sites may increase or decrease as a 
result of marijuana legalization, it will still likely take many years 
before the currently existing sites can be found and remediated.
Potential for Effects Associated With Small Population Size
    The NCSO DPS, 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\). Overall, the NCSO DPS has not expanded 
beyond our previous estimates; however, the SOC subpopulation may have 
contracted (Barry 2018, p. 22; Moriarty et al. 2019, p. 5) while the 
NSN subpopulation continues to grow (Powell et al. 2019, p. 2). Please 
see the Current Condition section above for detailed information on 
subpopulation size estimates.
    Generally, the ability of a species (or DPS) to withstand a 
catastrophic event (i.e., bounce back from an event that may result in 
the loss of a population or large proportion of individuals) is lower 
with relatively few populations or a very limited distribution across 
the landscape. Overall, the NCSO DPS has not appeared to grow or 
expand, despite the availability of suitable habitat. However, 
multiple, well-distributed subpopulations (i.e., NCSO, NSN, and SOC) 
continue to exist across the DPS; this occurrence includes aggregates 
of individuals in geographic areas within NCSO (i.e., EKSA fishers, 
fishers in and around Redwood National Park, Hoopa fishers, or fishers 
spread downslope of the Siskiyou Crest). At this time, the best 
available information for monitored fishers 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 DPS is

[[Page 29555]]

increasing, stable, or declining. Tucker et al. (2012, pp. 8, 11) found 
low genetic diversity within the NCSO population (and SSN population), 
but the NCSO population (and SSN population) had also exhibited low 
genetic diversity from samples collected between 1880 and 1920, 
suggesting that the currently low diversity occurred prior to when the 
historical samples were taken, and thus prior to European settlement. 
However, fishers have rebounded from substantial population reductions 
that resulted from historical trapping and habitat loss, and they are 
currently widespread and common across the DPS. Fishers are well 
distributed across the NCSO DPS, without barriers for genetic exchange 
between and among its subpopulations (e.g., genetically homogeneous 
fishers occupy either side of the Klamath River adjacent to a two-lane, 
paved highway (Service 2016, p. 113). Genetic diversity decreases 
moving southward with the peripheral areas having the lowest genetic 
diversity (Wisely et al. 2004, entire). Low genetic diversity can 
result in inbreeding depression, and one way to assess the risk of 
inbreeding depression is to determine the effective population size. An 
effective population size is the number of individuals in an ideal 
population that would result in the same level of inbreeding or genetic 
drift as that of the population under study (Jamieson and Allendorf 
2012, p. 578). It is usually substantially smaller than the actual 
number of individuals in the population, often 10 to 20 percent of the 
census (actual) population size (Frankham 1995, p. 100). An effective 
population size estimate of 128 individuals for northwestern California 
suggests inbreeding depression is not a problem (Tucker et al. 2012, 
pp. 7-8, 10) when compared to thresholds of 50 or 100 individuals from 
the established literature discussing effective population sizes 
(Jamieson and Allendorf 2012, entire; Frankham et al. 2014, entire).
    As we have described herein and previously, the NCSO DPS is 
isolated from other fisher populations, and small relative to the taxon 
as a whole. As such, the risks of small population size effects and of 
extinction exist. However, the broad distribution of the DPS across its 
range, in combination with the DPS occurring in multiple subpopulations 
with no barriers to genetic exchange within and between those 
subpopulations, and the low likelihood of a catastrophic event at a 
scale that could hypothetically affect the entire DPS, indicates that 
the risks of small population size effects and of extinction are very 
low.
Disease and Predation
    A general description of disease and predation on fishers is 
provided above (see General Species Information and Summary of 
Threats). Specific to the California portion of the NCSO DPS, of 42 
fisher mortalities analyzed, 54 percent were a result of predation and 
19 percent were caused by disease (Gabriel et al. 2015, p. 7, Table 2). 
It is not unexpected that predation is the greatest source of mortality 
given the suite of larger, generalist predators that occupy the NCSO 
DPS (e.g., coyotes, bobcats, and mountain lions). As noted in the 
General Species Information and Summary of Threats section, we do not 
know whether observed predation rates are substantially different from 
historical rates, or whether they are comparable with other populations 
not subjected to trapping. We acknowledge that sublethal effects of 
toxicants as well as a possible increase in exposure to generalist 
predators as a result of habitat modification may result in higher 
predation rates than what historically occurred (Gabriel et al. 2015, 
p. 14). However, fishers continue to remain widely distributed across 
the DPS, there is recent evidence of population growth from the NSN 
subpopulation, and the EKSA exhibits seemingly normal variability in 
spite of these stressors.
Vehicle Collisions
    Vehicle-related mortalities make up a small portion of overall 
fisher mortality across California (see General Species Information and 
Summary of Threats above) and particularly in the NCSO DPS (Service 
2016, p. 138). Although major paved highways with high-speed traffic 
occur throughout the DPS, available records do not indicate localized 
areas of concentrated mortalities that may substantially decrease local 
fisher populations. Hence, we do not consider vehicle collisions to be 
a substantial threat to fishers in the NCSO DPS.
Existing Regulatory Mechanisms
Forest Service (USFS) 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 it 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.). The NFMA specifies that the USFS 
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 and a species of conservation 
concern by the USFS, requiring Forest Plans to include Standards and 
Guidelines designed to benefit fisher. Overall, per USFS guidelines 
under the NFMA, planning rules must consider the maintenance of viable 
populations of species of conservation concern.
    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 on BLM 
lands.
    In addition, the NWFP was adopted by the USFS 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 NCSO DPS of fisher in Oregon and 
northwestern California (USDA and U.S. Department of the Interior (DOI) 
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) (BLM 2016a, 2016b, entire). 
This RMP affects BLM lands, which are mostly in the interior portion of 
the NCSO DPS in Oregon and portions of the SOC subpopulation.
    Compared with management under the NWFP, BLM's revised RMP results 
in a decrease in land allocated for

[[Page 29556]]

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 (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) (BLM 2015, pp. 
1,704-1,709). We acknowledge that a court recently found that the 
revised RMP violated statutes regulating timber harvest by setting 
aside timberland in reserves where the land is not managed for 
permanent forest production and the timber is not sold, cut, and 
removed in conformity with the principle of sustained yield; the 
decision has been appealed, and thus the ultimate outcome is as yet 
unknown (American Forest Resources Council, et al., v. Hammond, et al., 
2019 WL 6311896 (D.D.C. November 22, 2019) (appeal pending, American 
Forest Resources Council, et al. v. United States, et al., (D.C. Cir., 
appeal filed January 24, 2020)). Thus, while we recognize that timber 
harvest on BLM lands could possibly increase in the future, at this 
point we use the existing RMP in our analysis of regulatory mechanisms.
    Federal lands are important for fishers because they have a network 
of late-successional and old-growth forests that currently provide 
habitat for fisher, and the amounts of fisher habitat are expected to 
increase over time. Also, the National Forest and BLM units with 
watersheds inhabited by anadromous fish provide buffers for riparian 
reserves on either side of a stream, depending on the stream type and 
size. With limited exceptions, timber harvesting is not permitted in 
riparian reserves, and the additional protection guidelines provided by 
National Forests and BLM for these areas may provide refugia and 
connectivity between blocks of fisher habitat. Also, under the NWFP, 
the USFS, 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 of the 
1994 NWFP implementation (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 (BLM 2015, p. 875).
National Park Service
    Statutory direction for the National Park Service (NPS) lands 
within the NCSO DPS is provided by the provisions of the 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 where it is present.
Tribal Lands
    Several tribes within the NCSO 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, 
but it is typically 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 the Exposure to Toxicants section, 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 at 
marijuana grow sites within fisher habitat. Both the Environmental 
Protection Agency (EPA) and California's Department of Pesticide 
Regulation developed an effort to reduce the risk posed by the 
availability of second-generation anticoagulants to end-users, through 
the 2008 Risk Mitigation Decision for Ten Rodenticides (EPA 2008, 
entire). This effort issued new legal requirements for the labeling, 
packaging, and sale of second-generation anticoagulants, and through a 
rule effective in July 2014, restricted access to second-generation 
anticoagulants (California Food and Agricultural Code Section 12978.7).
State Regulatory Mechanisms
Oregon
    The fisher is a protected wildlife species in Oregon, meaning it is 
illegal to kill or possess fishers (Oregon Administrative Rule (OAR) 
635-044-0430). In addition, Oregon Department of Fish and Wildlife 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 (Service 2016, p. 126). State parks in Oregon 
are managed by the Oregon Parks and Recreation Department, and many 
State parks in Oregon provide forested habitats suitable for fishers.
    The Oregon Forest Practice Administrative Rules (OAR chapter 629, 
division 600) and Forest Practices Act (Oregon Revised Statutes 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.

[[Page 29557]]

    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. However, we 
acknowledge that the Oregon Department of Forestry recently lost a 
lawsuit on its State Forest Management Plans that could result in 
increased timber harvest and reduced retention or development of forest 
area suitable for fishers, but the ultimate remedy is still unknown. 
Hence, we must use the existing plans in our analysis of regulatory 
mechanisms.
California
    On June 10, 2015, CDFW submitted its status review of the fisher to 
the California Fish and Game Commission (CFGC), indicating that listing 
of the fisher in the Southern Sierra Nevada Evolutionarily Significant 
Unit (ESU) as threatened was warranted, but that fishers in the 
Northern California ESU (similar to the California portion of the NCSO 
DPS) were not threatened (CDFW 2015, entire). CFGC made their final 
determination to list the Southern Sierra Nevada ESU as threatened and 
that listing the Northern California ESU was not warranted on April 20, 
2016 (CFGC 2016, p. 10). The determination regarding the Northern 
California ESU was made after concluding that the cumulative effects of 
threats would not threaten the continued existence of fishers due to 
the size and widespread distribution of the fisher population in the 
ESU (CDFW 2015, p. 141; CFGC 2016, pp. 7-10). Accordingly, the Northern 
California ESU is not listed under the California Endangered Species 
Act (CESA), and take as defined under CESA of the Northern California 
ESU is not prohibited. It remains illegal to intentionally trap fishers 
in all of California (Cal. Code Regs. title 14, Sec.  460 2017). Data 
on incidental captures of fishers in traps set for other furbearer 
species is not available, but the requirement to use non-body-gripping 
traps suggests that most trapped fishers could be released unharmed 
(Service 2016, p. 126).
    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 NCSO 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. The 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
    An intergovernmental memorandum of understanding (MOU) for fisher 
conservation was signed in 2016 by Federal and State agencies in Oregon 
(DOI et al. 2016, entire) to facilitate and coordinate fisher 
conservation activities among the parties, with an expiration date of 
April 2021. While we are not aware of how the MOU might influence 
specific projects (affect actual work on the ground), we consider the 
facilitation and coordination of fisher conservation activities and the 
projects that follow a benefit. Multiple interagency MOUs are also in 
place in California with the intention to coordinate and collaborate on 
actions that may reduce wildfire risk across multiple ownerships; 
actions that reduce wildfire may also reduce risk to habitat loss for 
multiple species including the fisher. Since the publication of the 
2019 Revised Proposed Rule, an interagency MOU (titled ``Forest Fuels 
Reduction and Species Conservation in California'') was signed on 
February 7, 2020, and amended on February 12, 2020, by the USFS, the 
State, small timber companies, industrial timber companies, and the 
National Fish and Wildlife Foundation to facilitate coordinated actions 
that may contribute to fuels reduction efforts and species conservation 
across the various land ownerships between now and December 2024 (USFS 
et al. 2020, entire). An addendum was signed on February 12, 2020, 
adding additional industrial timber companies and small timber 
companies. This MOU supersedes multiple previous MOUs from 2017 and 
2019 for NSO and CSO (USFS 2020, pp. 1, 13-14). Fisher-specific 
conservation measures are included in this MOU, in addition to 
conservation measures for the California and northern spotted owls. The 
measures promote fisher occupancy and habitat through increased 
resilience and resistance of habitat from multiple disturbances, 
including uncharacteristic wildfire. More specifically, participants 
will implement activities consistent with the conservation needs of the 
fisher including retention of known natal dens, retention or 
recruitment of hardwoods and structurally diverse forests, retention of 
shrubs and smaller trees in areas with sparse overstory cover, and 
avoid poisoning potential prey species. While the MOU is not specific 
to what fuels reduction measures will take place on the ground, the MOU 
will increase the effectiveness of fuels management by considering data 
and information and coordinating efforts for entire landscapes across 
multiple ownerships (USFS et al. 2020, p. 3).
    There are additional MOUs in California within the range of the 
NCSO DPS for wildfire and fuels management, that have no specific 
conservation measures for fisher, but that include other species that 
use habitat similar to those used by fisher (i.e., northern and 
California spotted owls). An MOU was signed in 2015 by multiple 
conservation groups, CAL FIRE, two Federal agencies, and two prescribed 
fire councils (USFS et al. 2015). The MOU is titled ``Cooperating for 
the purpose of increasing the use of fire to meet ecological and other 
management objectives,'' and expires on October 7, 2020. The purpose of 
this MOU is to document the cooperation between the parties to increase 
the use of fire to meet ecological and other management objectives. 
Peripheral to the 2017 MOU for California spotted owl (that has been 
superseded by the 2020 MOU discussed above), a challenge cost-share 
agreement was signed in 2017 by the National Fish and Wildlife 
Foundation, and the USFS, Pacific Southwest Region, Regional Office 
(USFS 2017); the cost share agreement expires June 29, 2022. The 
agreement is titled ``Pacific Southwest Fuels Management Strategic 
Investment Partnership.'' The purpose of this agreement is to document 
the cooperation between the parties to implement a hazardous fuels 
management program that reduces the risk of severe wildfire, protects 
ecological values, and reduces the chance of damage to public and 
private improvements.
    Finally, an MOU was signed in 2019 by small timber companies, 
industrial timber companies, CAL FIRE, the National Fish and Wildlife 
Foundation, and the USFS, Pacific Southwest Region, Regional Office 
(USFS 2019). The MOU is titled ``Forest Fuels reduction and species 
conservation in California'' with a focus on the California spotted owl 
and expires on December 31, 2020. The MOU approximately covers the area 
occupied by the NSN subpopulation of fishers in the NCSO. The purpose 
of the MOU, similar to others mentioned, is to coordinate and share 
information on fuels reductions actions across larger landscapes to 
provide species

[[Page 29558]]

conservation. We cannot find language indicating that this MOU was 
superseded by the 2020 MOU (discussed above) but many of the same 
landowners are part of both MOUs and much of the intent is the same.
    All of these MOUs and the cost-share agreement provide 
collaboration between Federal partners and non-governmental 
organizations to coordinate and fund fuel reduction projects within the 
NCSO DPS, which when implemented could reduce the impact of large-scale 
high-severity fire. So far, we are aware of two fuel reduction projects 
that have been funded as part of the MOUs within the NCSO DPS, one on 
the Lassen National Forest and one on the Six Rivers National Forest. 
Finally, many of the MOUs expire in the near term; however, we 
anticipate, based on past track records to renew and update the MOUs, 
continuing collaboration, and because many of the same partners occur 
on multiple MOUs, partnerships resulting in conservation of fisher 
habitat will continue.
    A template CCAA for fishers in western Oregon (81 FR 15737, March 
24, 2016) has been published, and we have negotiated site plans and 
issued permits to five private timber entities (with three more site 
plans under review), as well as Oregon Department of Forestry (84 FR 
4851, February 19, 2019; 84 FR 31903, July 3, 2019). 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. To date, permittees have 
committed $200,000 in cash or in-kind support towards this program of 
work as part of meeting conservation measures within the CCAA.
    In 2009, a programmatic Safe Harbor Agreement (SHA) was completed 
for northern spotted owls in Oregon (74 FR 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 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.
    For the portion of the NCSO DPS in California, reintroduction 
efforts have resulted in establishment of a fisher subpopulation in the 
SPI Stirling Management Unit (NSN) with the potential to connect with 
fishers in the remainder of the NCSO DPS to the north. In 2016, an 
approximately 1.6 million-ac (647 thousand-ha) CCAA for fishers on 
lands in 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 the California portion of the NCSO DPS, 2.7 percent of which 
is currently occupied. Implementation and monitoring have been underway 
since that time. The objectives of this CCAA are to secure general 
forested habitat conditions for fishers for a 10-year time period (2016 
to 2026) and the retention of important fisher habitat components 
(large trees, hardwoods, and snags) suitable for denning and resting 
into the future. Although this CCAA expires in 6 years, SPI has a track 
record of partnering with the Service and has demonstrated a commitment 
to fisher conservation through the development of this CCAA. We 
anticipate at the end of the CCAA, SPI will continue to conserve 
fisher. This conservation could be embodied in a new or renewed CCAA, 
or fisher conservation could be added to an HCP that is currently in 
development for northern and California spotted owls.
    In 2019, the Service finalized for the Green Diamond Forest 
Resource Company HCP (GDRC 2018, entire) an incidental take permit that 
is anticipated to provide a conservation benefit for fishers and their 
habitat in Del Norte and Humboldt Counties, California (portions of 
forests on the west slope of the coastal and Klamath Mountains). 
Conservation benefits anticipated by GDRC include (but are not limited 
to): Identifying and retaining fisher denning and resting trees, 
including maintaining a 0.25-mi (0.4-km) 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).
    In 1999, the Service finalized for the Pacific Lumber Company (now 
Humboldt Redwood Company) HCP (Pacific Lumber Company et al. 1999, 
entire) an incidental take permit that provides a conservation benefit 
for fishers and their habitat in Humboldt County, California. 
Conservation benefits include, but are not limited to: (1) Retention of 
late-seral habitats that provide denning and resting habitat for 
fishers, (2) creation of ``channel migration zones'' and ``riparian 
management zones'' to provide connectivity across the landscape, and 
(3) retention and recruitment of suitable habitat structural elements 
that provide late-seral habitat features for fishers when cut stands 
reach mid-succession.

Resiliency, Redundancy, and Representation

    In this section, we use the conservation biology principles of 
resiliency, redundancy, and representation to evaluate how the threats, 
regulatory mechanisms, and conservation measures identified above 
relate to the current and future condition of the NCSO DPS.
    Resiliency is defined as the ability of populations to withstand 
stochastic events (events arising from random factors). Measured by the 
size and growth rate of populations, resiliency gauges the probability 
that the populations comprising a species (or DPS) are able to 
withstand or bounce back from environmental or demographic stochastic 
events.
    Redundancy is defined as the ability of a species (or DPS) to 
withstand catastrophic events, and may be characterized by the degree 
of distribution of the species, either as individuals of a single 
population or as multiple populations, within the species' ecological 
settings and across the species' range. The greater redundancy a 
species exhibits, the greater the chance that the loss of a single 
population (or a portion of a single population) will have little or no 
lasting effect on the structure and functioning of the species as a 
whole. While such a loss would temporarily ``lower'' the species' 
redundancy relative to any future catastrophic events (i.e., a second 
catastrophic event causing the loss of another population or portion 
before the species was able to bounce back from the first loss), the 
higher a species' initial redundancy, the greater the likelihood its 
structure and functioning as a whole will be restored before any 
subsequent catastrophic events.
    Representation is defined as the ability of a species (or DPS) to 
adapt to changing environmental conditions. Measured by the breadth of 
genetic or environmental diversity within and among populations, 
representation gauges the probability that a species is capable of 
adapting to environmental changes.
    As noted above, the resiliency of species' population(s), and hence 
an assessment of the species' overall resiliency, can be evaluated by

[[Page 29559]]

population size and growth rate. While data on these parameters are 
often not readily available, inferences about resiliency may be drawn 
from other demographic measures. In the case of the NCSO DPS, the 
population size component of resiliency for the overall DPS may be 
lower than historical levels to some degree, based simply on historical 
losses. However, we also know that fishers in the DPS have rebounded 
from the lows of the early-and mid-1900s, and continue to remain widely 
distributed and common across the DPS. Furthermore, forest carnivores 
generally occur at low densities (Ruggiero et al. 1994, p. 146), and 
fisher density estimates are widely variable for many reasons, 
including changes in prey populations, seasonal changes caused by 
pulses in births or mortalities, and sampling error (Powell and 
Zielinski 1994, p. 43). Effective population size estimates for the 
California portion of the DPS do not indicate that inbreeding 
depression is occurring (see Effects Associated with Small Population 
Size). This combination of qualitative demographic measures (i.e., 
population rebound from historic lows, and effective population size 
estimates showing no indication of inbreeding depression), combined 
with the widespread distribution of fishers in the DPS, leads us to 
conclude that existing populations have a high level of resiliency.
    Threats that cause losses of individuals from a population have the 
potential to affect the overall resiliency of that population, and when 
losses occur at a scale large enough that the overall population size 
and growth rate are negatively impacted, this could reduce the 
population's ability to withstand stochastic events. Although we 
identify threats acting upon the NCSO DPS that likely cause losses of 
individuals, evaluation of all the available information relevant to 
the demographic condition of the DPS supports our conclusion of 
resiliency. In addition to the analysis outlined above in this 
document, we note that in our 2019 Revised Proposed Rule, several of 
the threats we evaluated under the previously singular West Coast DPS 
were mostly pertinent in the range of the SSN DPS. The threats related 
to habitat loss from tree mortality, mortality factors related to 
disease, predation, and vehicle collisions, and the inherent 
vulnerability associated with the small population size, are 
predominant in the range of the SSN DPS, but were determined to not be 
potentially significant drivers of future status in the range of the 
NCSO DPS. As such, these threats have limited, or no impact on the 
resiliency of the populations comprising the NCSO DPS. Further, we 
point to the evidence of population resilience exhibited by aggregates 
of individuals in specific geographic areas in the NCSO DPS in response 
to known disturbances or threats. Namely, fishers in the EKSA were 
resilient to removal of 20 percent of the population within the study 
area, with no changes in abundance or density. In addition, the fisher 
population at NSN has grown at a near steady rate since reintroduction 
in spite of exposure to toxicants in 11 of 12 tested fishers in the 
study area (Powell et al. 2019, p. 16). Overall, the best available 
information indicates that, although the threats acting upon the DPS 
result in losses of individual fishers, the various subpopulations 
comprising the NCSO DPS, and hence the NCSO DPS as a whole, are 
resilient and able to withstand stochastic events.
    With regard to redundancy, 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 recognized in the 2019 Revised Proposed 
Rule, the NCSO DPS exhibits redundancy by being well distributed and 
common across a broad geographic range and comprising multiple smaller 
subpopulations (i.e., NCSO, NSN, and SOC) and aggregates of individuals 
in geographic areas (i.e., EKSA fishers, fishers in and around Redwood 
National Park, Hoopa fishers, or fishers spread downslope of the 
Siskiyou Crest) (see 84 FR at 60299). Consequently, should catastrophic 
events such as wildfire affect a portion of the DPS, substantial 
numbers of fishers will still occur elsewhere in the DPS. While the 
loss of a population within the NCSO DPS, or a substantial portion 
thereof, would have the effect of temporarily lowering the redundancy 
of the entire DPS, its current existing redundancy would be sufficient 
to allow its structure and functioning as a whole to be restored. 
Remaining fishers would continue to serve as a source for recolonizing 
disturbed areas as they return to fisher habitat, contributing to the 
likelihood that fishers in the DPS will persist into the future and 
contribute to the long-term genetic and demographic viability across 
the range.
    As noted in our 2019 Revised Proposed Rule, fishers in the three 
west coast states, including the NCSO DPS, occur in smaller numbers and 
a smaller distribution than historically. This size and range reduction 
due to historical losses results in a consequent reduction in 
representation, relative to that historical condition. As such, fishers 
in the west coast states have a relatively reduced ability to adapt to 
changing environmental conditions. However, similarly to our discussion 
above regarding resiliency, the predominant impact of the historical 
reduction in representation for west coast fishers is seen in the SSN 
DPS. The NCSO DPS, even with a reduced range relative to historical 
conditions, still exhibits a wide breadth of genetic or environmental 
diversity, and thus has sufficient capacity to withstand future 
environmental changes. Fishers in the DPS display a high degree of 
representation, exhibited by the ecological variability across the DPS. 
Fishers are found across multiple physiographic provinces (a geographic 
region with a specific geomorphology) in the NCSO DPS that represent a 
wide variety of forest types and ecological conditions, from the 
Coastal California province that is wetter with lower elevations and 
redwood forests, to the Klamath province with greater forest diversity 
and abundant hardwoods, including several endemic tree and other plant 
species, to the Sierra and Cascade provinces with higher elevations and 
forests that have adapted to colder and drier conditions. Within the 
NCSO DPS, fishers have a capacity to occupy these different provinces 
and environments, reflecting an ability to adapt to changing 
environmental conditions, further contributing to long-term viability 
across their range. Although genetic diversity among fishers sampled in 
northwest California is low and has been low since pre-European 
settlement (Tucker et al. 2012, p. 8), fishers have rebounded from 
substantial population reductions that resulted from historical 
trapping and habitat loss, and although reduced in population and range 
size relative to historical conditions, they are currently widespread 
and common across the DPS.
Determination
    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

[[Page 29560]]

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
    Our regulations direct us to determine if a species is endangered 
or threatened due to any one or a combination of these five threat 
factors identified in the Act (50 CFR 424.11(c)). Our 2016 final 
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 NCSO DPS's range. In addition, we collected and evaluated new 
information available since 2016, including new information made 
available to us during the recent comment periods in 2019, to ensure a 
thorough analysis, as discussed above.
    Across the DPS, the actions or conditions we identified that were 
known to or were reasonably likely to negatively affect individuals of 
the DPS included:
     Habitat-based threats such as high-severity wildfire, 
wildfire suppression activities, and post-fire management actions 
(Factor A); climate change (Factor E); tree mortality from drought, 
disease, and insect infestation (Factor A); vegetation management 
(Factor A); and human development (Factor A).
     Direct mortality-based threats 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 the potential for effects associated with 
small population size (Factor E).
    With the exception of trapping for fishers, which is no longer a 
lawful activity in the range of the NCSO DPS, all of these identified 
threats have the potential to negatively affect fishers, either through 
direct impacts to individual animals or to the resources they need. 
Regarding incidental capture resulting from legal trapping for other 
species, it is either very rare (Service 2016, p. 126) or has a low 
chance of causing injury (through use of live traps). Regarding the 
remainder of threats, we note that the extent and magnitude of them 
vary, relative to the distribution of the DPS across its range (i.e., 
not all threats affect every fisher).
    In conducting our status assessment of the DPS, we evaluate all 
identified threats under the section 4(a)(1) factors, and attempt to 
assess how the cumulative impact of all threats acts on the viability 
of the DPS as a whole. That is, all the anticipated effects from both 
habitat-based and direct mortality-based threats are examined in total 
and then evaluated in the context of what those combined negative 
effects will mean to the future condition of the DPS. However, for the 
vast majority of potential threats, the effect on the DPS (e.g., total 
losses of individual fishers or their habitat) cannot be quantified 
with available information. Instead, we use the best available 
information to gauge the magnitude of each individual threat on the 
DPS, and then assess how those effects combined (and as may be 
ameliorated by any existing regulatory mechanisms or conservation 
efforts) will impact the DPS's future viability.
    Based on our understanding of the available information indicating 
the potential magnitude and scale of how all identified threats may 
affect the DPS, we began under the premise that those with the greatest 
potential to become significant drivers of the future status of the 
NCSO DPS were: Wildfire and wildfire suppression; tree mortality from 
drought, disease, and insect infestation; the potential for climate 
change to exacerbate both wildfire and tree mortality; threats related 
to vegetation management; and exposure to toxicants. The available 
information about the remaining threats from the list identified above 
indicated a lower potential for becoming significant drivers.
    After conducting our analyses on all these threats, we found that 
the NCSO DPS as a whole will experience:
     Changing climate conditions, likely in the manner of 
becoming generally warmer and drier, with subsequent potential to 
affect habitat conditions for fisher, as well as the potential for 
increased stress levels in individual fishers. However, these potential 
reactions to changing climate conditions will likely vary across the 
DPS, due to the DPS's wide variety of topography and vegetation in its 
physiographic provinces, and unpredictable variability in how these 
provinces will respond to the changing climate conditions.
     Increased potential for wildfire frequency and intensity, 
influenced by changing climate conditions. Wildfire, while having the 
potential to cause significant losses of fishers and their habitat 
resources where fires occur, is sporadic and episodic across the DPS, 
and moderated by the slope and aspect of terrain (e.g., influencing 
susceptibility to wildfire, and creating a mosaic of fire severity) 
throughout the range.
     Low likelihood of widespread tree mortality resulting from 
climate-influenced susceptibility to diseases or insect infestations, 
similarly moderated by the slope and aspect of terrain.
     Limited exposure to potential effects from vegetation 
management actions. Although fishers may experience localized 
fragmentation of habitat conditions or an increased risk of predation 
where vegetation management actions will occur, the available 
information indicates only a small proportion of the suitable habitat 
in the DPS's range is likely to undergo these actions.
     Some continued level of exposure to toxicants from illegal 
marijuana grow sites. Such sites are generally widely dispersed within 
remote landscapes across the NCSO DPS range, suggesting potential 
significant exposure to fishers is limited to where the grow sites are 
located. However, where they do occur within fisher ranges, illegally 
used toxicants have the potential to harm those exposed individual 
fishers. While there is no certain discernible trend regarding whether 
illegal grow sites may increase or decrease as a result of marijuana 
legalization, it will still likely take many years before the currently 
existing sites can be found and remediated.
     Some continued level of risk regarding both the effects 
associated with small population size (e.g., inbreeding depression) and 
the general risk of extinction. As we have described herein and 
previously, the NCSO DPS is isolated from other fisher populations, and 
small relative to the taxon as a whole. As such, the risks of small-
population-size effects and of extinction exist. However, the broad 
distribution of the DPS across its range, in combination with the DPS 
occurring in multiple subpopulations with no barriers to genetic 
exchange within and between those subpopulations, and the low 
likelihood of a catastrophic event at a scale that could hypothetically 
affect the entire DPS, indicates that the risks of small-population-
size effects and of extinction are very low.
     Potentially increased incidences of predation in localized 
settings (e.g., vegetation management action sites), and continued low 
incidences of collisions with vehicles. Both of these threats are 
likely to continue, but likely accounting for losses of only small 
numbers of individuals.

[[Page 29561]]

     No change in normal incidence of disease across the range.
    In summary, the NCSO DPS will experience mortality and sublethal 
effects to individual fishers across the range from the combined 
threats of changing climate conditions, wildfire and wildfire 
suppression activities, exposure to toxicants, predation, and 
collisions with vehicles. Localized effects to fisher habitat resources 
may also occur as a result of future tree mortality events or 
vegetation management actions, although these will have a low 
likelihood of causing individual fisher losses. All these effects will 
be in addition to any mortalities or sublethal effects the DPS would 
typically experience from things such as age or disease.
    At the same time as we conduct our evaluation of threats to the 
DPS, we also assessed how any existing regulatory mechanisms or 
conservation efforts are likely to eliminate or ameliorate the effects 
of those threats on the DPS. We provided our analyses of existing 
regulatory conservation measures and voluntary conservations efforts 
above in this document. In that discussion, we identified a number of 
measures that are likely to provide benefits to the DPS, either 
directly or indirectly, in the manner of maintaining or improving 
habitat conditions. Federal and State agency management plans involving 
forest management, while designed, in part, for the harvesting of 
timber, also include provisions for the long-term maintenance of those 
forests, providing for the retention of forest habitat and structural 
elements beneficial to fishers. We also describe regulatory mechanisms 
at both the State and Federal level designed to minimize the potential 
for nontarget poisoning by pesticides, as well as State and voluntary 
efforts to remediate illegal marijuana sites contaminated by 
rodenticides. In addition, implementation of existing conservation 
measures in the form of a recently signed MOU will improve 
communication and coordination surrounding the implementation of fuels 
reduction projects, which in turn may help to ameliorate the loss of 
habitat due to wildfire. While the MOU is not specific to what fuels 
reduction projects will take place on the ground or where, the MOU will 
increase the effectiveness of fuels management by considering data and 
information for entire landscapes across multiple ownerships. This 
process will contribute to the vegetation management threat in the form 
of removing fisher habitat in the short or long term, depending on the 
treatment. However, by retaining structural elements important to 
fishers and their prey, the treatments are expected to reduce the risk 
of fisher habitat loss to severe wildfires over an area much larger 
than the treatment footprint.
    As noted earlier, no information is available that would allow us 
to quantify either the cumulative effect of the identified threats on 
the DPS, or the cumulative effect of existing regulatory mechanisms or 
conservation efforts to ameliorate the effects of those threats. 
However, in evaluating the anticipated impact of both in total, we find 
that the sum of effects to the DPS are such that: The resiliency of the 
various subpopulations, and hence the DPS as a whole, will not be 
significantly negatively affected; its representation, i.e., its 
breadth of genetic and environmental diversity, will not be reduced; 
and its redundancy will remain as it currently is, with multiple 
subpopulations distributed across a substantial range of habitat.
    Upon careful consideration and evaluation of all of the information 
before us, we have analyzed the status of fishers within the NCSO DPS. 
In our 2019 Revised Proposed Rule, we evaluated the status of the West 
Coast DPS, the NCSO DPS and SSN DPS combined, and concluded that both 
the NCSO and SSN were reduced in size from historical conditions, and 
that threats were acting on fishers across the range of both. However, 
we also noted that the distribution of threats and their effects, both 
singly and cumulatively, were likely unequal in magnitude and scale 
across the full landscape. While multiple threats such as wildfire and 
wildfire suppression activities, climate change, exposure to toxicants, 
predation, and vehicle collisions will continue to occur within the 
range of the NCSO DPS, we conclude that the cumulative effect of 
threats acting on the DPS now, at their current scale and magnitude, 
does not cause the DPS to be in danger of extinction throughout its 
range, especially given the DPS's overall resiliency, redundancy, and 
representation. In addition, we conclude that the identified threats 
will not increase in scale or magnitude in the foreseeable future such 
that the DPS will become in danger of extinction throughout its range. 
Thus, after assessing the best available scientific and commercial 
information, we determine that the NCSO DPS of fishers is not in danger 
of extinction throughout its range, nor likely to become so in the 
foreseeable future.
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. Having determined that the NCSO DPS of fisher is not in 
danger of extinction or likely to become so in the foreseeable future 
throughout all of its range, we now consider whether it may be in 
danger of extinction or likely to become so in the foreseeable future 
in a significant portion of its range. The range of a species or DPS 
can theoretically be divided into portions in an infinite number of 
ways, so we first screen the potential portions of the range to 
determine if there are any portions that warrant further consideration. 
To do the ``screening'' analysis, we ask whether there are portions of 
the DPS's range for which there is substantial information indicating 
that: (1) The portion may be significant; and (2) the species may be, 
in that portion, either in danger of extinction or likely to become so 
in the foreseeable future. For a particular portion, if we cannot 
answer both questions in the affirmative, then that portion does not 
warrant further consideration and the species does not warrant listing 
because of its status in that portion of its range. Conversely, we 
emphasize that answering both of these questions in the affirmative is 
not a determination that the species is in danger of extinction or 
likely to become so in the foreseeable future throughout a significant 
portion of its range--rather, it is a threshold step to determine 
whether a more detailed analysis of the issue is required.
    If we answer these questions in the affirmative, we then conduct a 
more thorough analysis to determine whether the portion does indeed 
meet both of the ``significant portion of its range'' prongs: (1) The 
portion is significant and (2) the species is, in that portion, either 
in danger of extinction or likely to become so in the foreseeable 
future. Confirmation that a portion does indeed meet one of these 
prongs does not create a presumption, prejudgment, or other 
determination as to whether the species is an endangered species or 
threatened species. Rather, we must then undertake a more detailed 
analysis of the other prong to make that determination. Only if the 
portion does indeed meet both prongs would the species warrant listing 
because of its status in a significant portion of its range.
    At both stages in this process--the stage of screening potential 
portions to

[[Page 29562]]

identify any that warrant further consideration, and the stage of 
undertaking the more detailed analysis of any portions that do warrant 
further consideration--it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. Our 
selection of which question to address first for a particular portion 
depends on the biology of the species, its range, and the threats it 
faces. Regardless of which question we address first, if we reach a 
negative answer with respect to the first question that we address, we 
do not need to evaluate the second question for that portion of the 
species' range.
    For the NCSO DPS, we chose to address the status question (i.e., 
identifying portions where the DPS may be in danger of extinction or 
likely to become so in the foreseeable future) first. To conduct this 
screening, we considered whether any of the threats acting on the DPS 
are geographically concentrated in any portion of the range at a 
biologically meaningful scale (e.g., there are novel threats not seen 
elsewhere in the DPS; there is a greater concentration or intensity of 
threats, relative to the same threats seen elsewhere in the range; or 
there is a disproportionate response to the threats by the individuals 
in a portion of the range, relative to individuals in the remainder of 
the range).
    In our assessment of the NCSO DPS's overall status, we evaluated 
throughout its range all of the threats identified in our Species 
Report, including those with the potential to become significant 
drivers of the DPS's future status: High-severity wildfire, wildfire 
suppression activities, and post-fire management actions (Factor A); 
climate change (Factor A); tree mortality from drought, disease, and 
insect infestation (Factor A); vegetation management (Factor A); 
exposure to toxicants (Factor E); and potential effects associated with 
small population size (Factor E). As we conducted our threats analysis, 
we determined that the most significant drivers of the NCSO DPS's 
future status were: Wildfire and wildfire suppression, and the 
potential for climate change to exacerbate this threat, as well as the 
threats related to vegetation management and exposure to toxicants. 
However, for the purposes of our SPR analysis, we examined the entirety 
of the DPS to evaluate whether there may be a geographic concentration 
of any of the identified threats in any portion of the range at a 
biologically meaningful scale.
    We found no concentration of any of these threats in any portion of 
the NCSO DPS's range at a biologically meaningful scale. While high-
severity wildfires, and associated suppression activities and post-fire 
management, act in a site-specific manner, the occurrence of them in 
the DPS's range is random (i.e., not geographically concentrated in any 
portion), and we cannot predict the portions within the range of the 
NCSO DPS where these may occur. Similarly, climate change, and its 
associated influence on the potential threat of wildfires, will largely 
act throughout the NCSO DPS range. All other potential threats either 
present a risk of manifesting randomly in small, localized places 
across the range (e.g., toxicant exposure, disease or predation, and 
vehicle collisions), or manifesting in a focused manner, but still 
having only localized, site-specific effects (e.g., vegetation 
management). Regarding small population size, the potential for 
negative effects can arise in portions of a species' range in instances 
where there are small, isolated aggregations of individuals. However, 
there is no evidence to suggest that there are any areas within the 
NCSO DPS that are experiencing the deleterious effects associated with 
a small population size.
    If both (1) a species is not in danger of extinction or likely to 
become so in the foreseeable future throughout all of its range and (2) 
the threats to the species are essentially uniform throughout its 
range, then the species cannot be in danger of extinction or likely to 
become so in the foreseeable future in any biologically meaningful 
portion of the DPS. For the NCSO DPS, we found both: The DPS is not in 
danger of extinction or likely to become so in the foreseeable future 
throughout its range, and there is no geographical concentration of 
threats within the DPS at a biologically meaningful scale, so the 
threats to the DPS are essentially uniform throughout its range. 
Therefore, we determine, based on this screening analysis, that no 
portions warrant further consideration through a more detailed 
analysis, and the DPS is not in danger of extinction or likely to 
become so in the foreseeable future in any significant portion of its 
range. Our approach to analyzing significant portions of the DPS's 
range in this determination is consistent with the court's holding in 
Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 
2018 WL 4053447 (N.D. Cal. Aug. 24, 2018); Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017); and 
Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 
28, 2020).
Determination of Status
    Our review of the best available scientific and commercial 
information indicates that the NCSO DPS of fisher does not meet the 
definition of an endangered species or a threatened species in 
accordance with sections 3(6) and 3(19) of the Act. Therefore, we find 
that listing the NCSO DPS of fisher is not warranted at this time.

Final Listing Determination for SSN

Current Condition
    The SSN DPS of fisher is small and is geographically separated from 
the remainder of the species as described above in the DPS section. 
While this DPS has persisted in isolation since prior to European 
settlement (Knaus et al. 2011, entire), the DPS has recently 
experienced substantial loss of habitat and increase in habitat 
fragmentation following the 2012-2015 drought (Thompson et al. 2019a, 
pp. 8-9). This period of drought and associated insect infestation, 
fire, and tree mortality has resulted in a 39 percent decline in fisher 
foraging and denning habitat in the SSN DPS in a period of 5 years 
(Thompson et al. 2019a, pp. 8-9). The remaining habitat is much more 
fragmented (74 habitat patches prior to the drought compared with 558 
following the drought), and the average patch size of remaining habitat 
for the SSN DPS is 92 percent smaller than prior to the 2012-2015 
drought (Thompson et al. 2019a, pp. 8-9).
    The SSN DPS is found in Mariposa, Madera, Fresno, Tulare, and Kern 
Counties in California. Historically, the SSN DPS 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 DPS from other populations of native fishers to the north in 
California is longstanding and predates European settlement (Knaus et 
al. 2011, entire; Tucker et al. 2012, entire; Tucker 2015, pers. comm., 
pp. 1-2). Ownership within the SSN DPS is shown in Table 3 below.

[[Page 29563]]



  Table 3--Land Ownership or Management for the Southern Sierra Nevada
                  Distinct Population Segment of Fisher
------------------------------------------------------------------------
                                                            Percent of
                 Agency                        Acres           total
------------------------------------------------------------------------
Bureau of Land Management...............         916,152             9.8
Forest Service..........................       3,637,488            39.0
Bureau of Indian Affairs................          56,003             0.6
National Park Service...................       1,337,482            14.4
State and Local.........................          42,123             0.5
Private.................................       3,099,276            33.3
                                         -------------------------------
    Total Acres *.......................       9,318,596           100.0
------------------------------------------------------------------------
* Acres and % may not sum due to rounding and because some other owners
  with less land are not included.

    Estimates for the SSN DPS prior to the 2012-2015 drought 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 DPS 
where fishers have been intensely studied to the range of the entire 
population (Spencer et al. 2011, pp. 801-802). These population 
estimates pre-date the 2012-2015 drought and subsequent habitat loss 
and fragmentation; these drought-related effects may have caused 
population declines since the population estimates of the early 2000's.
    An 8-year monitoring study throughout the SSN DPS sampled an 
average of 139.5 units (range 90-189) comprising six baited track plate 
stations per year during the period 2002-2009 throughout the SSN DPS 
showed no declining trend in occupancy (Zielinski et al. 2013, pp. 3-4, 
10-14; Tucker 2013, pp. 82, 86-91). Recent analyses conducted over a 
14-year period (2002-2015) showed that occupancy rates in 2015 were not 
statistically different from 2002, although rates dipped slightly from 
2005-2011 (Tucker 2019 pers. comm.). Although occupancy patterns show 
no declining trends, these analyses do not provide details on 
demographic rates, such as survival and recruitment that provide more 
detailed information on population growth rates, size, or status. As 
with the population estimates described above, these patterns in 
occupancy were calculated prior to the 2012-2015 drought and subsequent 
39 percent reduction in foraging and denning habitat and associated 
habitat fragmentation. It is unknown how occupancy and survival across 
the range of the SSN DPS of fisher have changed in response to these 
changes in their habitat.
    Another study (the Sierra Nevada Adaptive Management Project (SNAMP 
Fisher Project)) of radio-collared fishers monitored from 2007 through 
2014 in the northern portion of the SSN DPS on 49 mi\2\ (128 km\2\) of 
the Sierra National Forest showed the survival rate (calculated using 
demographic parameters) of adult males, but not females, is lower than 
sites in the NCSO DPS. Specifically, Sweitzer et al. stated that their 
analysis ``suggested slightly negative growth ([lambda] = 0.966) for 
the period of the research. 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] was consistent with the estimated 
population densities, which did not indicate a persistent decline 
during 4 years from 2008-2009 to 2011-2012'' (Sweitzer et al. 2015a pp. 
781-783; Sweitzer et al. 2015b, p. 10). Additionally, the SNAMP Fisher 
Project (later called Sugar Pine) was extended through 2017. They 
reanalyzed the data for radio-collared fishers monitored from 2007 
through 2017 (totaling 139 collared fishers) and concluded the 
population was stable with 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). These population estimates for the SSN DPS do not take into 
consideration the extensive tree mortality, habitat loss, and 
fragmentation that has impacted habitat from 2015 to present. Research 
is currently being conducted to determine any potential effects that 
tree mortality may have on fisher in the SSN DPS, but results are not 
yet available (Green et al. 2019a, entire).
    Extensive areas of suitable habitat within the SSN DPS remain 
unoccupied by fishers, suggesting that habitat may not be the only 
limiting factor for this DPS (Spencer et al. 2015, p. 9). In the SSN 
DPS, the northern portion of the Stanislaus National Forest is largely 
unoccupied, with at least one confirmed detection north of the Merced 
River in Yosemite National Park and the Stanislaus National Forest 
(Stock 2020, pers. comm.). The interaction of all the threats within 
the SSN DPS are likely limiting northward expansion into what is 
considered suitable habitat for fisher. Fisher habitat is lacking 
landscape-scale forest heterogeneity in the SSN DPS compared to 
historical conditions, with wildfire and severe drought disturbances 
creating large patches of homogeneous habitat, a situation exacerbated 
by past logging practices and wildfire suppression (Thompson et al. 
2019a, p. 13).
    Recent habitat changes from drought, wildfire, and associated tree 
mortality are affecting many of the key components of fisher habitat 
such as complex forest canopy structure and connected closed-canopy 
forest conditions. Only preliminary analyses have been completed with 
updated vegetation information from 2016, revealing that almost 40 
percent (reduction of 2.3 million acres to 1.4 million acres) of 
potential fisher foraging habitat has been lost to drought, insects and 
tree diseases, and wildfire between 2014 and 2016 (Thompson et al. 
2019a, pp. 7-8). The spatial configuration of fisher foraging habitat 
also changed, with patch number increasing from 74 to 558 and patch 
size declining from 31,500 ac (12,748 ha) to 2,600 ac (1,052 ha), 
indicating a significantly more fragmented landscape (Thompson et al. 
2019a, p. 8). Within the same affected area (i.e., not an additive 
loss), denning habitat availability also declined by almost 40 percent 
and overall patch size declined from 3,169 ac (1,283 ha) to 2,868 ac 
(1,161 ha) (Thompson et al. 2019a, p. 9). Current efforts are underway 
to incorporate the most recent and precise vegetation data into a full 
revision of the SSN Fisher Conservation

[[Page 29564]]

Strategy in 2020 (Thompson 2020, pers. comm.).
    The major threats for the SSN DPS are loss and fragmentation of 
habitat resulting from climate change, 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. Potential conservation 
measures are discussed in more detail in Voluntary Conservation 
Mechanisms below, and include the development of the Southern Sierra 
Nevada Fisher Conservation Strategy (Spencer et al. 2016, entire) and 
the associated interim guidelines that consider the recent tree 
mortality (Thompson et al. 2019a, entire).
Threats
    Potential threats currently acting upon the SSN 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). Our most recent 
consideration of new data since 2016 coupled with our reevaluation of 
the entirety of the best available scientific and commercial 
information (including comments and information received during the two 
comment periods associated with the 2019 Revised Proposed Rule) is 
represented and summarized here.
    As we conducted our threats analysis, we determined that the most 
significant drivers of the species' future status were: Wildfire and 
wildfire suppression, tree mortality from drought, disease, and insect 
infestation, and the potential for climate change to exacerbate both of 
these threats, as well as the threats related to vegetation management, 
exposure to toxicants, disease or predation, collisions with vehicles, 
and the potential for effects from small population size. 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 final rule. For detailed analyses of all the other individual 
threats, we refer the reader to the Species Report (Service 2016, 
entire).
Wildfire and Wildfire Suppression
    Wildfire is a natural ecological process in the range of the SSN 
DPS; however, the mean proportion of high-severity fire and patch size 
has shifted compared to historical conditions (Safford and Stevens 
2017, p. viii.) with increases in the frequency of large wildfires 
greater than 24,700 acres (9,996 (ha) (Westerling 2016, pp. 6-7). 
Changes in future climate continue to predict large increases in the 
area burned by wildfire (Dettinger et al. 2018, p. 72). We expect these 
predicted changes to the fire regime to further reduce the habitat 
available for fisher in the SSN DPS (see Climate Change section for 
further detail on future conditions). We recognize there are mixed 
findings as to whether current conditions are outside of the natural 
range of variation and 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; Spies et al. 2018, p. 140), 
but the scientific consensus accepts that mixed conifer forests were 
characterized by areas burned at low, moderate, and high severity, with 
higher proportions of low severity prior to European settlement than is 
currently being observed on the landscape (Safford and Stevens 2017, 
pp. 48-50).
    Recent analyses show habitat loss from high-severity fire 
throughout the SSN DPS (Thompson et al. 2019a, p. 10). For this new 
analysis of effects of wildfire on fisher habitat in the southern 
Sierra Nevada, high-severity-fire data was analyzed from 2003 to 2017 
(CBI 2019a, pp. 26-28) and showed a loss of fisher denning (8.5 
percent), resting (9.3 percent), and foraging (7.6 percent) habitat of 
approximately 25 percent, with most of the loss occurring between 2013 
and 2017 (approximately 22 percent) (CBI 2019a, p. 28). However, some 
areas of denning, resting, and foraging habitat overlap each other, so 
the total amount of habitat lost to high-severity fire is likely less 
than 25 percent. 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, likely inhibiting northward population 
expansion (Spencer et al. 2016, p. 10; CBI 2019a, pp. 26-28). It is 
uncertain how fishers are using this changed landscape.
    Prior to these substantial habitat changes as a result of recent 
fire, fishers persisted in burned landscapes characterized by lower 
fire severities that maintained habitat elements important to fisher. 
For example, the northern portion of the SSN DPS had lower fisher 
occupancy in units burned by either prescribed burning or wildfire but 
less than 1 percent of the study area burned; however, there was no 
consistent negative effect of fire on fisher's use of habitat (Sweitzer 
et al. 2016b, pp. 208, 214, and 221-222). 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, as less than 5 
percent of areas burned at high severity were associated with a high 
probability of fisher den presence (Blomdahl 2018, entire). Thus, 
forests that burn at lower fire intensities can create important 
habitat elements for fisher (e.g., den trees) within a home range such 
that the burned habitat may continue to support both fisher foraging 
and reproduction.
    Fisher avoided areas affected by high- and moderate-severity 
wildfires in the French (2014) and Aspen Fires (2013), and there was a 
higher probability of finding fishers in ravines or canyon bottoms in 
combination with unburned or lightly burned patches (Thompson et al. 
2019a, pp. 13-14). In our final Species Report we reported fisher use 
of areas affected by high-severity fire (Hanson 2015, p. 500; Service 
2016, p. 66), so results from these studies may differ due to the type 
of analysis used, the values chosen to identify wildfire severity 
classes, or the 2-4 year v. 10-year post-wildfire sampling period 
(Thompson et al. 2019a, 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 (Thompson et al. 2019a, pp. 
17-18).
    As stated above, wildfire has already resulted in habitat loss and 
is increasing in terms of frequency, severity, and magnitude in the 
Sierra Nevada. We 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 are 
necessary for those burned areas to support fisher 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), large high-severity fires 
that kill trees and significantly reduce canopy cover in fisher habitat 
(of high and intermediate quality) are likely to negatively affect 
fisher occupancy and reproduction. The degree to which wildfire affects 
fisher populations depends on the forest type, landscape location, 
patch configuration, size, and intensity of the wildfire.

[[Page 29565]]

Climate Change
    In the Sierra Nevada region, mean annual temperatures have 
generally increased by around 1 to 2.5 degrees [deg]F (0.5 to 1.4 
[deg]C) over the past 75-100 years (Safford et al. 2012, p. 25). By the 
end of the 21st century, temperatures are projected to warm within the 
SSN DPS by 6 to 9 [deg]F (3.3 to 5 [deg]C) on average, enough to raise 
the transition from snow to rain during a storm by about 1,500 to 3,000 
ft (457 to 914 m) (Dettinger et al. 2018, p. 5). In addition, 
California recently experienced extreme drought conditions due to lack 
of precipitation in the periods 2007-2009 and 2012-2014 (Williams et 
al. 2015, pp. 6,823-6,824). Climate change likely contributed to the 
2012-2014 drought anomaly and increases the overall likelihood of drier 
conditions, including extreme droughts, within the SSN DPS into the 
future (Williams et al. 2015, pp. 6,819, 6,826; Bedsworth et al. 2018, 
p. 25).
    The observed increases in wildfire activity and tree mortality in 
the SSN DPS are partially due to climate change. The red fir forests in 
the SSN DPS, currently found at the upper edge of fisher elevation 
range, are expected to have more frequent fire with species composition 
shifting to more fire-prone species, but it is unclear whether these 
forests will become more central to the range of fisher with warming 
climate conditions or if it will remain on the elevation edge of the 
SSN DPS (Restaino and Safford 2018, p. 497; Service 2016, pp. 87, 138-
139). Climate change will likely continue to increase tree-mortality 
events into the future because drought conditions will increase, which 
will 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).
    Overall, at this time, the best available scientific and commercial 
information suggests 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 SSN DPS, including high-severity wildfires, 
and tree mortality. Please see additional discussion about potential 
impacts to fishers or their habitat associated with wildfire (Wildfire 
and Wildfire Suppression section, above) and tree mortality (Tree 
Mortality from Drought, Disease, and Insect Infestation section, 
below).
Tree Mortality From Drought, Disease, and Insect Infestation
    The recent drought and subsequent beetle outbreak in the Southern 
Sierra Nevada from 2012 to 2015 is one of the most severe and largest 
beetle outbreaks in recent decades (Fettig et al. 2019, p. 176). Over 
half of the potential fisher habitat in the SSN DPS has been 
significantly impacted by canopy loss from tree mortality, which is 
disproportionately affecting the largest conifer trees and which are 
most likely to serve as den or rest trees for fisher (CBI 2019a, pp. 3-
9, 29; Fettig et al. 2019, pp. 167-168). Although fisher often use 
hardwoods for denning and resting, conifers appear to be more important 
for denning and resting in the SSN DPS than other fisher populations, 
and overall den-tree size is much larger than other portions of the 
fisher range, so the loss of large trees has the potential to 
disproportionately alter den availability in the landscape (Green et 
al. 2019c, p. 139). Drought effects on more than 6 million hectares of 
forest in California occurred over a multiyear period from 2011 through 
2015, and more than 500 million large trees have been affected, 
primarily from canopy water content loss, with some of the largest 
impacts to forested areas within the range of the SSN DPS (Asner et al. 
2016, p. E252). These trees, spread over millions of hectares of 
forest, are more vulnerable in future droughts, likely resulting in 
death and altering future forest structure, composition, and function 
(Asner et al. 2016, p. E253; Fettig et al. 2019, p. 176).
    Limited information is available on the direct impacts to fisher 
from tree mortality; however, the combination of drought, forest 
insects, disease, and fire has led to a 39 percent decrease in 
available foraging and denning habitat along with a substantial 
increase in habitat fragmentation and 92 percent reduction in average 
habitat patch size. Both of these effects occurred over a period of 
approximately 5 years (Thompson et al. 2019b, pp. 8-9). The habitat 
changes associated with drought, forest insects, disease, and fire may 
result in increased use of areas by large predators that in turn could 
increase predation rates on fisher (Thompson et al. 2019b, p. 15; also 
see Predation and Disease, above in the General Species Information and 
Summary of Threats section, above). The usual patterns of localized 
outbreaks and low density of tree-consuming insects and tree diseases 
are beneficial and can create snags, providing structures conducive to 
rest and den site use by fishers or their prey. The large-scale beetle 
kill is concerning because USFS personnel are already reporting snag 
failures, indicating these snags may fall at a faster rate than other 
methods of snag creation (e.g., wind, fire, age; Larvie et al. 2019, p. 
11). Further, 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; Tucker 2019, pers. comm.).
    Preliminary information in the SSN DPS indicates fishers are 
avoiding areas with tree mortality and are more likely to be found in 
areas close to streams, drainages, and ravines where tree mortality 
effects were dampened (Green et al. 2019a, entire). In addition, 
increased tree mortality on the landscape may be associated with 
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); however, reduced fisher survival is also likely 
influenced by other factors. Although other studies indicate fishers 
tolerate certain levels of canopy loss in small-scale projects, fisher 
response to tree mortality may have been influenced by the large scale 
of the tree-mortality event (Thompson et al. 2019a, p. 16).
    Loss of canopy cover and large trees from tree mortality caused by 
insects and tree diseases likely reduces habitat suitability for 
fishers, but it is unknown if the level of habitat loss will 
significantly impact the SSN DPS throughout its range. Although fishers 
are using riparian areas with intact forest canopy, it is uncertain how 
patches with sufficient canopy cover are connected in this changing 
landscape. 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); therefore, we expect continued loss and 
fragmentation of remaining habitat across the range of the SSN DPS of 
fisher.
Vegetation Management
    In the SSN DPS, 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 
(Service 2016, pp. 98-101). Available data limited us to using 
predefined structure conditions describing forests with larger trees 
(greater than 20 in (50 cm)), although we realize this sample may not 
include all vegetation types

[[Page 29566]]

used by fishers. This analysis showed that net loss of forests with 
larger structural conditions in the SSN DPS from 1993 to 2012 was 6.2 
percent across all ownerships, which equates to a loss of 3.1 percent 
per decade.
    In the single analysis where fisher habitat was actually modeled 
and tracked through time for the SSN DPS, ingrowth of fisher habitat 
replaced habitat lost by all disturbances between 1990 and 2012, 
showing a net increase in fisher habitat at the female-home-range 
scale, albeit this net increase is less than 8 percent over 30 years 
(Spencer et al. 2016, pp. 44, A-21, A-26). However, the authors of this 
report have since cautioned that these conclusions may no longer be 
accurate based on the ``dramatic changes [that] have occurred in Sierra 
Nevada mixed conifer forests due to drought and extraordinary tree 
mortality'' from the 2012-2015 drought (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 
DPS may be increasing, we can no longer support that conclusion based 
on recent tree mortality.
    Vegetation management that maintains structural complexity and 
canopy cover that reflect pretreatment conditions may only have a minor 
impact on fisher use of these habitats (Purcell et al. 2018, p. 60). 
Overall, vegetation management may result in short-term avoidance of 
fuels reduction treatments, with no longer term shift in fisher 
behavior, but likely depends on the amount treated each year (Purcell 
et al. 2018, p. 69).
    On all ownerships combined, loss of forest with old-forest 
structures in the past two decades (1993-2012) was 3.1 percent per 
decade as a result of all disturbance types within the SSN DPS. 
Additionally, fisher habitat appeared to be increasing until recent 
(2012-2015) tree mortality due to fires and drought. However, it is 
difficult to conclude the degree to which vegetation management 
threatens fishers in the SSN DPS. Given the large home range of fishers 
and the geographic extent of forest-management activities throughout 
the range of the SSN DPS, some fisher individuals are likely affected 
as a result of habitat impacts (e.g., Purcell et al. 2018, pp. 60-61). 
In addition, still other factors unrelated to habitat may be limiting 
fisher distribution. Consequently, based on the best available 
scientific and commercial information, we find that vegetation 
management effects to fisher will depend on the spatial distribution of 
the activities and whether structural elements important to fishers are 
maintained. Although vegetation management may threaten fisher now and 
in the foreseeable future, many of the effects are likely exacerbated 
by other forms of habitat loss such as tree mortality from drought and 
severe wildfires.
Exposure to Toxicants
    As described above in the general threats section, rodenticides 
analyzed as a threat to the SSN DPS of fishers include first- and 
second-generation anticoagulant rodenticides and neurotoxicant 
rodenticides. Both the draft and final Species Reports detail the 
exposure of the SSN DPS of fishers to rodenticides in the Sierra Nevada 
(Service 2014, pp. 149-166; Service 2016, pp. 141-159). Data available 
since the completion of the final Species Report in 2016 continue to 
document exposure and mortalities to fishers from rodenticides in the 
SSN DPS (Gabriel and Wengert 2019, unpublished data, entire). Data for 
97 fisher carcasses collected in the range of SSN DPS in the period 
2007-2018 indicate 83 fishers (86 percent) tested positive for one or 
more rodenticides (Gabriel and Wengert 2019, unpublished data), while 
5.2 percent of known-cause SSN DPS fisher deaths from 2007 through 2014 
were attributable to rodenticide toxicosis (6 of 115 total known-cause 
mortalities) (Gabriel et al 2015, p. 6). The probability of fisher 
mortality increases with the number of anticoagulant rodenticides to 
which a fisher has been exposed (Gabriel et al. 2015, p. 15). Using 
data from both the SSN DPS and the NCSO DPS comparing the periods 2007-
2011 and 2012-2014, mortalities due to rodenticide toxicosis increased 
from 5.6 to 18.7 percent (Gabriel and Wengert 2019, unpublished data, 
p. 2). From 2015 to 2018, additional SSN DPS fisher mortalities due to 
both anticoagulant and neurotoxicant rodenticides have been documented 
(Gabriel and Wengert 2019, unpublished data, p. 4).
    In order to evaluate the risk to SSN DPS fishers from illegal grow 
sites, we use a Maximum Entropy model that was developed to identify 
high and moderate likelihood of illegal grow sites within habitat 
selected for by fisher (Gabriel and Wengert 2019, unpublished data, pp. 
7-10). This model indicates that 22 percent of habitat modeled for SSN 
DPS fishers is within areas of high and moderate likelihood for 
marijuana cultivation. The extent to which the use of toxicants occurs 
on legal private land grow sites within the SSN DPS, as well as other 
agricultural, commercial, and public land sites within the range of the 
SSN DPS of 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 SSN DPS have 
died from toxicant exposure. Data indicate a total of 19 mortalities 
specifically within the monitored fisher populations (in both NCSO and 
SSN DPSs in California) have been directly caused by toxicant exposure 
(Gabriel and Wengert 2019, unpublished data, p. 5). We view toxicants 
as a potentially significant threat given the small population size of 
the SSN DPS fishers because of the reported exposure rate of toxicants 
in the SSN DPS, reported mortalities of SSN DPS fishers from toxicants, 
the variety of potential sublethal effects due to exposure to 
rodenticides (including potential reduced ability to capture prey and 
avoid predators), and the degree to which illegal grow sites overlap 
with the range and habitat of the SSN DPS of fisher.
    The effect of these impacts to the SSN DPS is of particular concern 
because of the small number of individuals in the SSN DPS. The exposure 
rate of more than 80 percent of fisher carcasses tested in the SSN DPS 
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, pp. 6-7). We do not know the exposure rate of 
live fishers to toxicants because this data is difficult to collect. 
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. Although uncertainty exists in the 
effect of toxicants on a small population such as the SSN DPS of 
fisher, the lethal and sublethal effects of toxicants on individuals 
have the potential to have population-level effects and reduce the 
resiliency of the DPS as a whole. Overall, rodenticides are a threat to 
fisher within the SSN DPS now and in the foreseeable future.
Potential for Effects Associated With Small Population Size
    The SSN DPS exhibits the following attributes related to small 
population size, to varying degrees, which may affect its distribution 
and population growth:
    (1) Loss of large contiguous areas of historical habitat, including 
a 39 percent

[[Page 29567]]

loss of foraging and denning habitat over the past 5 years (Thompson et 
al. 2019b, p. 9), in combination with restriction of the species to 
forested habitats that have been lost or modified due to timber-harvest 
practices; large, high-severity wildfires whose frequency and intensity 
are in turn influenced by the effects of climate change; and increasing 
forest fuel density from fire suppression and a lack of low-severity 
fire over the recent long term.
    (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, 
influence the magnitude of other threats described in this analysis for 
the SSN DPS of fisher.
    Some information is available that demonstrates fisher's 
vulnerability to small-population effects in the SSN DPS, including 
overall low genetic diversity (mitochondrial DNA haplotype and nuclear 
DNA allelic richness) for the entire SSN DPS, limited gene flow, and 
existing barriers to dispersal (Wisely et al. 2004, pp. 642-643; Knaus 
et al. 2011, p. 7; see also additional discussion in Service 2016, pp. 
134-137; Tucker et al. 2014, pp. 131-134), albeit some of these 
barriers allow some gene flow (Tucker et al. 2014, p. 131). However, 
the recent tree mortality and several recent large-scale fires acting 
on the narrow, linear range of the SSN DPS have resulted in substantial 
habitat fragmentation and reduction in habitat patch size (Thompson et 
al. 2019b, pp. 8-9) and are likely to increase barriers to dispersal, 
potentially limiting movement among habitat patches and preventing 
northward expansion, particularly for females, given female dispersal 
and associated genetic connectivity is facilitated by dense forest 
habitat (Tucker et al. 2017, p. 10).
    At this point in time, the SSN DPS is 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 SSN DPS is increasing. The recent post-
drought declines in foraging and denning habitat and associated habitat 
fragmentation further isolate the SSN DPS from other fishers and limit 
the opportunities for movement among remaining patches within the range 
of the SSN DPS. The best available information suggests the SSN DPS is 
expected to remain isolated from other fishers (as has been apparent 
since pre-European settlement). The SSN DPS is likely to remain small 
or be reduced even further into the future, primarily given the other 
stressors that have the potential to exacerbate the impacts from 
threats on small populations. In addition, average litter size for the 
SSN DPS is the lowest reported for the species, potentially due to diet 
limitations, smaller body size, and lower genetic diversity compared to 
other populations (Green et al. 2018a, pp. 545, 547). Estimates of 
fisher population growth rates for the SSN DPS do not indicate any 
overall positive or negative trend.
    Population estimates for the SSN DPS of fisher prior to recent 
fires, drought and tree mortality and subsequent 39 percent loss of 
foraging and denning habitat range anywhere in size from 100 to 500 
individuals (Service 2016, pp. 48-50). Population-growth-rate analyses 
have been estimated as 0.97 (C.I. 0.79-1.16) from 2007 through 2014 
throughout the SSN DPS (Sweitzer et al. 2015a, p. 784), and more 
recently 0.99 (C.I. 0.826 to 1.104) from 2007 through 2017 in a small 
portion of the SSN DPS at Sugar Pine (Purcell et al. 2018, pp. 5-6, 
17). Available population estimates and trend information for the SSN 
DPS do not take into consideration extensive tree mortality that has 
impacted the habitat from 2015 to present. Research is currently being 
conducted to determine any potential effects that tree mortality may be 
having on the SSN DPS, but results are not yet available (Green et al. 
2019a, entire). At this point in time, we do not have sufficient 
information to predict whether population trends of the SSN DPS will be 
positive or negative into the foreseeable future; however, we 
anticipate continued loss and fragmentation of fisher habitat.
    Overall, a species (or DPS) with relatively few individuals may be 
of concern when there are significant threats to the species. The SSN 
DPS is considered relatively small and has not appeared to grow or 
expand, despite the availability of unoccupied suitable habitat. The 
SSN DPS has been found to have relatively low genetic diversity, but 
there is currently no evidence of inbreeding depression. The small 
population may make the SSN DPS more vulnerable to threats, but there 
is no evidence at this time that small populations are causing impacts 
such as loss of genetic variability or large fluctuations in 
demographic parameters of the SSN DPS.
Disease and Predation
    A general description of disease and predation on fishers overall 
was provided earlier (see General Species Information and Summary of 
Threats, above). Specific to the SSN DPS, of 94 fisher mortalities 
analyzed, 71 percent were a result of predation and 14 percent were 
caused by disease (Gabriel et al. 2015, p. 7, Table 2). Further, 
predation may be one of the limiting factors in overall population 
growth for fishers in the SSN DPS. For example, research on effects of 
mortalities on population growth of fishers in the SSN DPS found that 
reducing predation by 25 or 50 percent would increase lambda from 0.96 
to 1.03 or 1.11, respectively; conversely, removing all mortality 
sources but predation would only increase lambda to 0.97 (Sweitzer et 
al 2016a, p. 438). While we did not consider this threat as a 
potentially significant driver of future status in the 2019 Revised 
Proposed Rule, the information we received during a public comment 
period providing updated information on mortalities associated with 
these factors (i.e., Sweitzer et al 2016a, p. 438), indicated that 
predation may be, in fact, be a potentially significant driver of 
future status for the SSN DPS.
Vehicle Collisions
    In the SSN DPS, vehicle collisions contributed to 8 percent of 
documented causes of mortality for fishers (Sweitzer et al. 2016a, p. 
438). At the northernmost boundary of the SSN DPS, 10 fisher roadkill 
mortalities have been documented in Yosemite National Park over the 
past two decades (Service 2016, p. 137). Although many factors affect 
dispersal and northward population expansion, it is likely that roads 
and associated traffic in Yosemite National Park combined with other 
stressors may inhibit northward expansion of the SSN DPS (Spencer et 
al. 2015, p. 21).
Existing Regulatory Mechanisms
U.S. Forest Service (USFS)
    The USFS is the landowner for approximately 39 percent of the SSN 
DPS. 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 it requires full evaluation and disclosure of 
the effects of Federal actions on the environment. Other Federal 
regulations

[[Page 29568]]

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.).
    The NFMA specifies that the USFS 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 in the SSN DPS has been identified as a 
species of conservation concern by the USFS; thus, all Forest Plans 
within the DPS include standards and guidelines designed to benefit 
fisher. Overall, per USFS guidelines under the NFMA, planning rules 
must consider the maintenance of viable populations of species of 
conservation concern.
    In 2004 the USFS amended the Forest Plans in the SSN DPS with the 
Sierra Nevada Forest Plan Amendment (USFS 2004, entire). The Sierra 
Nevada Forest Plan Amendment included measures to increase late-
successional forest, retain important wildlife structures such as 
large-diameter snags and coarse downed wood, and manage about 40 
percent of the plan area as old-forest emphasis areas. The Sierra 
Nevada Forest Plan Amendment also established a 602,100-ha (1,487,800-
ac) Southern Sierra Fisher Conservation Area with additional 
requirements intended to maintain and expand the fisher population of 
the southern Sierra Nevada. Conservation measures for the Southern 
Sierra Fisher Conservation Area include maintaining a minimum of 50 
percent of each watershed in mid-to-late- successional forest (28-cm 
[11-in] diameter at breast height (dbh) and greater) with forest-canopy 
closure of 60 percent or more. The plan also includes seasonal 
protections for known fisher natal and maternal den sites. The USFS is 
currently updating the National Forest Management Plans (NFMPs) within 
the SSN DPS according to the Forest Service 2012 Planning Rule (36 CFR 
part 219). A conservation strategy is in progress (described below in 
SSN Voluntary Conservation Measures) that will provide fisher specific 
guidance for the updated NFMPs.
National Park Service
    The NPS is the land manager for approximately 14 percent of the SSN 
DPS. Statutory direction for the NPS lands within the SSN DPS is 
provided by provisions of the National Park Service Organic Act of 
1916, as amended (54 U.S.C. 100101). Land management plans for the 
National Parks within 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 where it is 
present.
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 EPA and California's Department 
of Pesticide Regulation developed an effort to reduce the risk posed by 
the availability of second-generation anticoagulants to end-users, 
through the 2008 Risk Mitigation Decision for Ten Rodenticides (EPA 
2008, entire). This effort issued new legal requirements for the 
labeling, packaging, and sale of second-generation anticoagulants, and 
through a rule effective in July 2014, restricted access to second-
generation anticoagulants (California Food and Agricultural Code 
Section 12978.7).
State Regulatory Mechanisms
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 CFGC, indicating that 
listing of the fisher in the Southern Sierra Nevada Evolutionarily 
Significant Unit (ESU) as threatened was warranted (CDFW 2015, entire). 
CDFW made their final determination to list the Southern Sierra Nevada 
ESU as threatened on April 20, 2016 (CFGC 2016, p. 10); thus, take as 
defined under CESA continues to be prohibited. It remains illegal to 
intentionally trap fishers in all of 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 in the SSN DPS 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 FPRs 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. The 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
    There are currently two MOU agreements in California within the 
range of the SSN DPS for wildfire and fuels management. The first MOU 
was signed in 2015 by Sierra Forest Legacy, California Department of 
Forestry and Fire Protection, State of California Sierra Nevada 
Conservancy, The Wilderness Society, The Nature Conservancy, The Sierra 
Club, Center for Biological Diversity, DOI-NPS-Pacific Region, Northern 
California Prescribed Fire Council, Southern Sierra Prescribed Fire 
Council, and the USDA-USFS-Pacific Southwest Region. The MOU is titled 
``Cooperating for the purpose of increasing the use of fire to meet 
ecological and other management objectives.'' The purpose of this MOU 
is to document the cooperation between the parties to increase the use 
of fire to meet ecological and other management objectives. A second 
MOU was signed in 2017 by the National Fish and Wildlife Foundation and 
the USFS-Pacific Southwest Region-Regional Office. The MOU is titled 
``Pacific Southwest Fuels Management Strategic Investment 
Partnership.'' The purpose of this agreement is to document the 
cooperation between the parties to implement a hazardous-fuels-
management program that reduces the risk of severe wildfire, protects 
ecological values, and reduces the chance of damage to public and 
private improvements. While neither MOU contains specific fisher 
conservation activities, projects that reduce the likelihood of 
catastrophic wildfire

[[Page 29569]]

provide benefit to fisher by reducing habitat loss. Both of these fuel-
reduction MOUs provide collaboration between Federal partners and non-
governmental partners to organize and fund fuel-reduction projects 
within the SSN DPS, which could reduce the impact of large-scale high-
severity fire. So far, no projects have been funded within the SSN DPS.
    The Sierra Nevada Fisher Working Group, which includes CBI, Sierra 
Nevada Conservancy, USDA-USFS, NPS, the Service, and CDFW, completed a 
conservation strategy in 2016 (Spencer et al. 2016, entire). The 
authors of the conservation strategy 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 is still in progress by the CBI. However, 
preliminary Draft Interim Recommendations from December 2019 recognize 
the importance of stabilizing key habitat, restoring landscape 
permeability, and promoting landscape heterogeneity while offering a 
suite of suggestions to mitigate potential negative effects of 
management actions (Thompson et al. 2019b, pp. 17-33).
Resiliency, Redundancy, and Representation
    In this section, we use the conservation biology principles of 
resiliency, redundancy, and representation to evaluate how the threats, 
regulatory mechanisms, and conservation measures identified above 
relate to the current and future condition of the SSN DPS.
    As noted above, the resiliency of species' population(s), and hence 
an assessment of the species' overall resiliency, can be evaluated by 
population size and growth rate. While data on these parameters is 
often not readily available, inferences about resiliency may be drawn 
from other demographic measures. In the case of the SSN DPS, the 
population size component of resiliency is lower than historical levels 
because the total population size is small and fragmented and has been 
reduced in distribution relative to historical levels. While there is 
some evidence that the SSN DPS of fishers may have persisted for some 
time at relatively low numbers, the DPS has recently experienced a 39 
percent loss of foraging and denning habitat, a substantial increase in 
habitat fragmentation, and a 92 percent reduction in habitat patch size 
following the 2012-2015 drought (Thompson et al. 2019a pp. 8-9). These 
negative effects on fisher habitat have likely had additional cascading 
effects on numbers of individuals through reduction in habitat, 
potential increases in predator abundance, and decreases in 
connectivity across the range of the DPS.
    Threats acting on a species or DPS that cause losses of individuals 
from a population have the potential to affect the overall resiliency 
of that population, and losses occurring at a scale large enough that 
the overall population size and growth rate are negatively impacted 
could reduce the population's ability to withstand stochastic events. 
The SSN DPS exists in low numbers across its range and faces a variety 
of ongoing threats that will result in losses of individual fishers or 
impede population growth, including continued loss and fragmentation of 
habitat (i.e., from high-severity wildfire and wildfire-suppression 
actions, climate change, tree mortality from drought, disease, and 
insect infestation, 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, vehicle collisions, and potential effects associated with 
small population size. These present and ongoing threats cumulatively 
play a large role in both the current and future resiliency of the DPS. 
Of greatest importance at this time are:
    (1) The long-term suitability of habitat conditions throughout the 
range of the SSN DPS given the continued presence/extent of high-
severity and wide-ranging wildfires and prolonged drought conditions 
that exacerbate tree mortality from drought, disease, and insect 
infestation. These conditions: (a) Reduce the availability of the 
natural resources (e.g., appropriate canopy cover, old-growth forest 
structure with large trees and snags, patch size) 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 DPS); 
and (c) increase habitat fragmentation within and between populations. 
The recent 2012-2015 drought and associated tree mortality and wildfire 
demonstrated that this suite of threats can act rapidly to reduce and 
fragment fisher habitat across the range of the DPS.
    (2) The sustained presence of toxicants from marijuana grow sites 
across a likely significant proportion of the landscape that contribute 
to continued fisher mortalities and sublethal effects. 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. In a small population, such as the 
SSN DPS of fisher, the lethal and sublethal effects of toxicants on 
individuals have greater potential to reduce the resiliency of the 
population.
    (3) Continued fragmentation of habitat in conjunction with the 
isolation and potential inbreeding of the SSN DPS, especially when 
taking into account the threats of toxicant exposure and habitat 
losses. These ongoing threats increase this DPS's vulnerability to 
extinction from stochastic events particularly as fragmentation 
continues to reduce habitat patch size and limit connectivity across 
the landscape. Regardless of this DPS's potential for growth into the 
small amount of available but unoccupied suitable habitat present, we 
do anticipate this DPS will be small into the long-term future and is 
at risk of future reductions in population size due to continued 
habitat loss from drought, wildfire, and tree mortality into the future 
(see also Service 2016, pp. 133-137). Comments received on the 2014 
Proposed Rule and 2019 Revised Proposed Rule generally agree that the 
SSN DPS is small.
    The SSN DPS of fisher has maintained its presence across its 
current range despite 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 at least some reduced female survival associated 
with increased stress hormones and reduced habitat suitability 
documented in a portion of the SSN DPS (see Tree Mortality from 
Drought, Disease, and Insect Infestation, above). However, the long-
term demographic effects of the large-scale loss of habitat and 
increase

[[Page 29570]]

in habitat fragmentation following the 2012-2015 drought are not yet 
understood. Historical reductions in range in combination with recent 
range-wide habitat loss and fragmentation along with other ongoing 
threats such as exposure to toxicants indicate that the current 
resiliency of the SSN DPS of fishers may be quite low. The best 
available science and information at this time indicate that the 
current resiliency of the SSN DPS of fisher is low and it is likely 
that resiliency of this DPS will decrease further in the near-term 
future. This conclusion is based on the 39 percent loss of foraging and 
denning habitat along with 92 percent decrease in habitat patch size 
that has occurred across the range of the SSN DPS of fisher in the past 
5 years and likelihood that the threats that caused these declines will 
continue to operate across the range of the SSN DPS. The current and 
ongoing cumulative impacts to the SSN DPS associated with current 
climate-change-model predictions for continued periodic but prolonged 
drought conditions, predictions of continued and increased intensity of 
wildfires and subsequent habitat loss and fragmentation in the southern 
Sierra Nevada, 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 indicate that the range of SSN DPS is 
likely to decrease in available habitat and habitat patch size along 
with continued exposure to threats to individual survival resulting in 
continued declines in resiliency.
    With regard to redundancy, 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. Prior to the 2012-2015 drought, redundancy was 
limited across the range of the SSN DPS as a result of the DPS being a 
single fragmented population distributed over a relatively confined 
(for a carnivorous mammal) geographic area. Redundancy was further 
limited by the range-wide loss of foraging and denning habitat along 
with the associate increase in habitat fragmentation and decrease in 
habitat patch size, which make the species as a whole more susceptible 
to catastrophic events by further limiting their distribution. The 
limited redundancy of the SSN DPS decreases the DPS's chance of 
survival in the face of potential environmental, demographic, and 
genetic stochastic factors and catastrophic events (extreme drought, 
wildfire, Allee effects, etc.).
    Lastly, we consider the current representation across the SSN DPS 
of fisher to be limited, considering the DPS's existence as only a 
single fragmented population with low genetic diversity. The SSN DPS 
exists in a limited range of environmental conditions and has narrow 
representation in the environments that it occupies. An additional 
concern for current and future representation in the SSN DPS of fisher 
is that fragmented populations can be more susceptible to local 
declines, contributing further to loss of genetic diversity. As future 
droughts, wildfire, and tree mortality continue to fragment remaining 
fisher habitat, the opportunity for loss of genetic diversity may 
increase because of limited connectivity among habitat patches. 
Overall, SSN DPS fishers are represented across a small, fragmented 
range and occur in small numbers.
Determination
    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
    In our 2019 Revised Proposed Rule we proposed that the Western DPS 
of fisher met the definition of a threatened species. Recognizing the 
SSN as a separate DPS, we now conduct an analysis of the SSN DPS to 
determine its status considering the current condition of the DPS and 
current and ongoing threats. We evaluated threats to the SSN DPS of 
fishers and assessed the cumulative effect of the threats under the 
section 4(a)(1) factors. Our 2016 final Species Report (Service 2016, 
entire) is the most recent detailed compilation of fisher ecology and 
life history, and it has a significant amount of analysis related to 
the potential impacts of threats within the SSN DPS's range. In 
addition, we collected and evaluated new information available since 
2016, including new information made available to us during the recent 
comment periods in 2019, to ensure a thorough analysis, as discussed 
above. Our analysis as reflected in this rule included our reassessment 
of the previous information and comments received on the 2014 Proposed 
Rule regarding the potential impacts to the SSN DPS of fisher, as well 
as our consideration of new information regarding the past, present, 
and future threats to the DPS, and the comments and information 
received during the two comment periods associated with the 2019 
Revised Proposed Rule.
    We find that the SSN DPS is currently in danger of extinction 
throughout all of its range due to the existing threats that have 
resulted in a small population size, reduced geographic distribution, 
and reduced habitat quality resulting in habitat fragmentation. Because 
it is limited to a single, fragmented population with few individuals 
and has experienced recent and rapid loss of habitat, and given the 
threats acting upon it, the current condition of the SSN DPS across the 
southern Sierra Nevada does not demonstrate resiliency, redundancy, and 
representation such that persistence into the future is likely.
    At this time, the best available information suggests that future 
resiliency for the SSN DPS of fisher is low. As discussed above in the 
``Risk Factors for the SSN DPS of Fisher'' section (along with some 
detail in the 2014 draft and 2016 final Species Reports (Service 2014 
and 2016, entire)), the SSN DPS faces a variety of threats including: 
loss and fragmentation of habitat resulting from high-severity wildfire 
and wildfire suppression, climate change, tree mortality from drought, 
disease, and insect infestations, 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, vehicle collisions, and potential 
effects associated with small population size.
    Currently, fishers in the SSN DPS exist in one small population. 
Estimates of population size and trend prior to the severe 2012-2015 
drought suggested the

[[Page 29571]]

SSN DPS consisted of approximately 300 individuals (range = low of 100 
to a high of 500 individuals), while there is no statistically 
detectable trend in population size or growth. No estimates are 
available for population size or trend following the 39 percent loss of 
foraging and denning habitat and 92 percent reduction in average 
habitat patch size. Overall, the SSN DPS of fisher exists as a single 
small population that has persisted but does not appear to be expanding 
and has experienced recent substantial habitat loss, fragmentation, and 
reduction in habitat patch size.
    We took into consideration all of the threats operating within the 
range of SSN DPS. This DPS is reduced in size due to historical 
trapping and past loss of late-successional habitat and, therefore, is 
more vulnerable to extinction from random events and increases in 
mortality. Some examples of multiple threats on the SSN DPS of fisher 
include:
     Destruction, modification, or curtailment of habitat, 
which may increase fisher's vulnerability to predation and loss of 
genetic diversity (Factors A, C, and E);
     Impacts associated with climate change, such as increased 
risk of wildfire and tree mortality (tree insects and disease) (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 currently causing rapid loss of habitat and 
habitat patch size across the range of the SSN DPS and exposing SSN DPS 
fishers to increased threats from direct mortality, resulting in low 
resiliency and reducing viability for the SSN DPS as a whole. The SSN 
DPS is particularly vulnerable in areas not managed for retention and 
recruitment of fisher habitat attributes, areas sensitive to climate 
change, areas susceptible to large high-severity fires and tree 
mortality, 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 have not ameliorated the threats to such a 
degree that the DPS is not currently in danger of extinction. In 
particular, threats acting on this small population related to illegal 
rodenticide use, increasing high-severity wildfires, and prolonged 
droughts that exacerbate the effects from wildfire, forest insects, and 
tree disease are operating at a scale much larger than the current 
scope of the beneficial actions. Further, the two MOU agreements in 
California within the range of the SSN DPS for wildfire and fuels 
management have no specific conservation measures for fisher.
    The best available information suggests that identified threats are 
of concern across the range of the SSN DPS because of the narrow band 
of habitat that comprises this DPS and its vulnerability to negative 
impacts associated with 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 SSN 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 range of the SSN DPS where data were available to do 
so. Modeling completed for the SSN DPS demonstrates 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 an increasing trend in habitat-related threats, 
the best available information suggests that cumulative effects to the 
SSN DPS of fisher are reducing its resiliency to such a degree that the 
DPS is currently in danger of extinction throughout all of its range. 
Based on our review of the best scientific and commercial data 
available, we have determined the SSN DPS of fisher meets the 
definition of an endangered species under the Act. Per our 2014 draft 
and 2016 final Species Reports, as well as our most recent analysis 
summarized herein and based on the comments and information received on 
the 2019 Revised Proposed Rule, we find the cumulative impact of all 
identified threats on the SSN DPS, especially habitat loss and 
fragmentation due to high-severity wildfire (Factor A) and vegetation 
management (Factor A) (noting that tree mortality from drought, 
disease, and insect infestation is exacerbated by changing climate 
conditions and thus also plays a role under Factor A), and exposure to 
toxicants (Factor E), are acting upon the SSN DPS to such a degree that 
it is currently in danger of extinction. The existing regulatory 
mechanisms (Factor D) are not addressing these threats to the level 
that the species does not meet the definition of an endangered species.
    Thus, after assessing the best available information, we conclude 
that the SSN DPS of fisher is currently in danger of extinction 
throughout all of its range. In reaching this conclusion, we have 
considered all information received from species experts, partners, the 
public, and other interested parties, including the variety of 
available conservation measures and existing regulatory mechanisms that 
may ameliorate the 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. We have determined that the SSN DPS is in danger of 
extinction throughout all of its range, and accordingly, did not 
undertake an analysis of any significant portion of its range. Because 
we have determined that the SSN DPS warrants listing as endangered 
throughout all of its range, our determination is consistent with the 
decision in Center for Biological Diversity v. Everson, 2020 WL 437289 
(D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the 
2014 Significant Portion of its Range Policy that provided the Service 
and the National Marine Fisheries Service do not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range.
Determination of Status
    Our review of the best available scientific and commercial 
information indicates that the SSN DPS of fisher meets the definition 
of an endangered species. Therefore, we are listing the SSN DPS of 
fisher as an endangered species in accordance with sections 3(6) 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.

[[Page 29572]]

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.
    Following publication of this final listing rule, 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 State of California 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the SSN DPS of fisher. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for this species. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to 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, USFS, BLM, and NPS; 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.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, 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 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 species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing.
    Based on the best available information, the following actions may 
potentially result in a violation of section 9 of the Act; this list is 
not

[[Page 29573]]

comprehensive: (1) Unauthorized modification of the forest landscape 
within the range of the SSN DPS; and (2) unauthorized use of first- and 
second-generation anticoagulant rodenticides and neurotoxicant 
rodenticides within the range of the SSN DPS.
    Based on the best available information, the following actions are 
unlikely to result in a violation of section 9, if these activities are 
carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive: (1) Any actions that may 
affect the SSN DPS of fisher that are authorized, funded, or carried 
out by a Federal agency, when the action is conducted in accordance 
with the consultation requirements for listed species pursuant to 
section 7 of the Act; (2) any action taken for scientific research 
carried out under a recovery permit issued by us pursuant to section 
10(a)(1)(A) of the Act; (3) land actions or management carried out 
under a habitat conservation plan approved by us pursuant to section 
10(a)(1)(B) of the Act; and (4) recreation activities that comply with 
local rules and that do not result in take of listed species, including 
hiking and backpacking.

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. In the 2019 Revised Proposed Rule (84 FR 60278, 
November 7, 2019), we determined that designation of critical habitat 
was prudent but not determinable because specific information needed to 
analyze the impacts of designation was lacking. We are still in the 
process of assessing this information. We plan to publish a proposed 
rule to designate critical habitat for the SSN DPS of fisher in the 
near future.

Summary of Comments and Responses

    In the 2014 Proposed Rule published on October 7, 2014 (79 FR 
60419; Docket No. FWS-R8-ES-2014-0041), we requested that all 
interested parties submit written comments on the proposal by January 
5, 2015. We electively held one public hearing and seven public 
information meetings between November 13 and December 4, 2014. The 
comment period for this rule was extended (79 FR 76950, December 23, 
2014) and reopened (80 FR 19953, April 14, 2015) for additional 
comments. Following our withdrawal of this proposed rule (81 FR 22710, 
April 18, 2016) and subsequent litigation (see Previous Federal 
Actions, above), the District Court for the Northern District of 
California reinstated the 2014 Proposed Rule on September 21, 2018. 
Given the time that had elapsed and the availability of new 
information, we reopened the comment period on the 2014 Proposed Rule 
on January 31, 2019 (84 FR 645), requesting that all interested parties 
submit new information or comments by March 4, 2019. We published the 
2019 Revised Proposed Rule on November 7, 2019 (84 FR 60278), again 
requesting that all interested parties submit written comments on the 
proposal by December 9, 2019, and noting that all previously submitted 
comments would be fully considered in the preparation of our final 
determination. Finally, we reopened the comment period on the 2019 
Revised Proposed Rule for additional comments and information to be 
submitted by January 3, 2020 (84 FR 69712, December 19, 2019), 
reiterating that our final determination would take into consideration 
all comments and any additional information we have received during the 
comment periods described herein.
    Notices were published in a variety of newspapers during the 
comment periods inviting general public comment on the various 
announcements between 2014 and 2019 outlined above. Newspaper notices 
covered the range of the DPS and included one or more of the following: 
Bellingham World, Chico Enterprise Record, Eureka Times-Standard, 
Fresno Bee, Klamath Falls Herald and News, Olympian, Oregonian, 
Peninsula Daily News, Redding Record Searchlight, Sacramento Bee, 
Wenatchee World, and Yakima Herald Republic. We also contacted 
appropriate Federal and State agencies, Tribes, scientific experts and 
organizations, and other interested parties and invited them to comment 
on both the 2014 draft Species Report and the 2014 Proposed Rule. 
Information received from these parties was used to update the 2016 
Species Report and the 2019 Revised Proposed Rule. We also used 
information received from Federal and State agencies, Tribes, 
organizations, and other partners throughout the process. All 
substantive information provided during the comment periods outlined 
above has either been incorporated directly into this final 
determination or addressed below.
    In connection with development of this final rule, we reviewed 
comments received from the public and peer reviewers on the 2014 
Proposed Rule and the Draft Species Report, and from the public on the 
2019 Revised Proposed Rule. As outlined in the April 2016 Withdrawal 
(81 FR 22710, April 18, 2016), which provided our full response to all 
comments received to the initial documents, we added new information, 
made clarifications, and made necessary corrections to our final 
Species Report (Service 2016, entire) to reflect the peer and public 
comments received to that time. As necessary, these prior comments have 
been reevaluated to inform the development of this final rule. For 
those comments where we determined a further response was required, 
they are addressed in our response to comments section below or are 
incorporated in our analysis in the specific section of the final rule 
as appropriate.
4(d) Rule
    (1) Comment: Multiple commenters raised concerns, provided 
suggestions, and asked for clarification on the 4(d) rule in the 2019 
Revised Proposed Rule.
    Our Response: 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 a species 
listed as threatened, and can by regulation prohibit with respect to 
such species any act prohibited under section 9(a)(1) for threatened 
wildlife species. In this final rule, we determine that the NCSO DPS 
does not warrant listing under the Act and that the SSN DPS meets the 
definition of an endangered species under the Act; therefore, since 
neither DPS will be listed as threatened, the section 4(d) provisions 
do not apply and the proposed 4(d) rule has been removed from this 
final rule.
Climate Change
    (2) Comment: One commenter asserted that voluntary conservation 
efforts on non-Federal lands mitigate and decrease the threats of 
climate change to fisher.
    Our Response: We considered both regulatory and voluntary 
conservation measures that are currently being implemented to reduce 
the impacts of the stressors to the species in the final Species Report 
(Service 2016, pp. 162-189) and updated in this document (see Existing 
Regulatory Mechanisms and Voluntary Conservation Measures, above), 
including important voluntary conservation contributions on non-Federal 
lands.
    We found that listing of the NCSO DPS was not warranted. We have 
found that the SSN DPS meets the definition

[[Page 29574]]

of an endangered species. At this time, we continue to assert that 
fisher habitat is likely to be affected by changing climate conditions, 
but the severity will vary, potentially greatly, between the NCSO DPS 
and the SSN DPS, with effects to fishers ranging from negative, 
neutral, or potentially beneficial. We cannot at this time conclude 
that conservation efforts on non-Federal lands are mitigating or 
decreasing the threats of climate change to fisher within the NCSO DPS 
or the SSN DPS. That said, voluntary actions on non-Federal lands 
(e.g., CCAA, SHAs, HCPs, and MOUs), particularly within the NCSO DPS, 
provide a conservation benefit to the species (e.g., actions that 
retain key elements of fisher habitat and/or improve collaboration to 
reduce significant spread of high-severity wildfires) and may 
contribute to reducing the overall cumulative impacts to the NCSO DPS 
and its habitat. Overall, anything that reduces impacts to the species 
in the future would help increase its resilience to climate change.
    (3) Comment: One commenter claimed that the best available science 
on climate change should be added to our analysis, including recent 
modeling and analysis information related to warming climate, wildfire 
severity, and droughts. This comment also was raised in comments 
received on the 2014 Proposed Rule stating that there are conflicting 
perspectives on the potential impacts associated with changing climate 
conditions, and the Service needs to evaluate the best available 
information.
    Our Response: We have evaluated new information on climate change 
that has become available since the 2014 Proposed Rule, including 
literature received and suggested citations during the comment periods 
on the 2019 Revised Proposed Rule. All information received has been 
reviewed and analyzed as part of our determination; the information is 
included in the decision record for this determination, but not 
necessarily cited in this rule. Significant new information or updates 
are included in the Climate Change sections above.
Completeness and Accuracy
    (4) Comment: Several commenters stated that the 30-day comment 
period for the 2019 Revised Proposed Rule did not provide the public 
enough time to evaluate the changes made to the proposed rule, which 
had significant differences from our previous determinations.
    Our Response: In response to multiple requests seeking more time to 
fully evaluate the information in the 2019 Revised Proposed Rule, we 
added an additional 15-day comment period (ending on January 3, 2020) 
to the original 30-day comment period for the 2019 Revised Proposed 
Rule. Moreover, as noted in our discussion of the DPS above, we 
provided the public with notice of two alternative DPS configurations 
in our 2014 Proposed Rule, which included DPS boundaries that are very 
similar to the DPS configurations that were analyzed in the 2019 
Revised Proposed Rule and this final determination.
    (5) Comment: One commenter mentioned that significant new 
information has been developed since the completion of the 2016 final 
Species Report, and that the 2019 Revised Proposed Rule mentioned some 
of the new data. However, the commenter stated that the Service did not 
clarify how much weight was given to the new information in the 
decision to propose listing the fisher.
    Our Response: New information became available between completion 
of the 2016 final Species Report and the 2019 Revised Proposed Rule to 
list the fisher as a threatened species, and new information became 
available since the publication of our 2019 Revised Proposed Rule. We 
are obligated under the Act to carefully consider whether or not any 
new information would affect our decision to list a species (i.e., 
meeting the definition of an endangered or a threatened species 
according to section 3 of the Act). All new information provided since 
the 2016 final Species Report was carefully analyzed. Our 2019 Revised 
Proposed Rule indicated that our conclusion in the final determination 
may change based on the new information we received in response to the 
2019 Revised Proposed rule (84 FR at 60279). And in fact, we found that 
the new information and information submitted during public comment 
provided substantial evidence that threats to the fisher have been 
reduced or eliminated to the extent that listing of the fisher is not 
warranted in the NCSO DPS but is warranted for listing as an endangered 
species in the SSN DPS.
Critical Habitat
    (6) Comment: Many commenters articulated the need for designated 
critical habitat for the West Coast DPS of fisher. Two of these 
commenters asserted that critical habitat should have been proposed 
concurrent with the proposed listing rule.
    Our Response: We stated in the 2019 Revised Proposed Rule that we 
were in the process of working with the States and other partners in 
acquiring the complex information needed to perform an economic 
analysis. As stated in II. Critical Habitat, above, we are still 
assessing information and we anticipate publishing a proposed rule to 
designate critical habitat in the near future.
Current Conservation Agreements
    (7) Comment: One commenter asked if landowners will be able to 
enroll in CCAAs after a final rule is published.
    Our Response: Landowners within the area of the NCSO DPS can enroll 
in CCAAs because we found that listing of the NCSO DPS was not 
warranted. Once a species is listed as threatened or endangered under 
the Act, landowners are not able to enroll in CCAAs for that species; 
this applies to the SSN DPS. However, other conservation tools such as 
Safe Harbor Agreements (SHA) can provide assurances for landowners. A 
SHA is a voluntary agreement between the Service and private or other 
non-Federal property owners whose actions contribute to the recovery of 
federally listed species. Landowners who fulfill the conditions of the 
SHA will not be subject to any additional or different management 
activities without their consent.
    (8) Comment: One commenter stated that the completion of a marten/
fisher conservation strategy would complement work being done by the 
Forest Service. A second commenter provided a summary of a draft 
conservation strategy for fisher in the SSN subpopulation, claiming 
that the strategy will update fisher and fisher habitat status, 
summarize new science, provide recommendations for identifying and 
maintaining key habitat elements, provide recommendations for 
increasing resilience of fisher habitat, identify potential mitigation 
for necessary management (e.g., hazard tree removal), and identify 
potential management options for forest conditions that support fisher 
conservation.
    Our Response: The Service supports a conservation strategy for the 
benefit of marten and fisher to complement work being done by the 
Forest Service. The new draft conservation strategy for fisher in the 
SSN DPS was reviewed and discussed above under Final Listing 
Determination for SSN under ``Current Condition'' and ``Voluntary 
Conservation Measures.''
    (9) Comment: One commenter stated the 2019 Revised Proposed Rule 
was unclear as to whether or not conservation measures currently being 
implemented for fisher were evaluated. Therefore, the commenter advised 
that the Service cannot rely on those measures to support conclusions 
for

[[Page 29575]]

unregulated take of individuals on Federal land.
    Our Response: The Service evaluates voluntary conservation measures 
when considering the status of a species under section 4 of the Act. As 
such, voluntary conservation measures were considered in this final 
rule for fisher. See the Voluntary Conservation Measures section, 
above.
    (10) Comment: One commenter stated that sustainable forestry 
practices on private land support fisher conservation by providing 
healthy forests, forest products, and wildlife enhancements. The 
commenter claimed that unnecessary regulations and restrictions of 
sustainable forestry practices will negatively affect fisher 
populations and the ability of private landowners to maintain working 
forests on their lands.
    Our Response: We appreciate the efforts on private lands to support 
healthy forests and provide wildlife enhancements that benefit fisher, 
and we will continue to work with landowners. We assume the commenter 
is concerned that sustainable forestry practices would be regulated as 
a result of listing the fisher under the Act. We found that listing of 
the NCSO DPS was not warranted. We determined that the SSN DPS meets 
the definition of endangered; thus, we are required by the Act to list 
it. The Service will work with partners to continue forest practices 
that retain key elements of fisher habitat that will continue to 
contribute to the overall conservation of the species.
    (11) Comment: Multiple commenters stated that voluntary 
conservation measures and multi-entity partnerships are in place, 
should receive Federal support or funding assistance, and should be the 
focus of the evaluation of the status of the fisher. Specifically, the 
commenters claimed that Federal and non-Federal land managers are 
engaging in collaborative efforts (e.g., CCAAs, HCPs, MOUs) to maintain 
fisher habitat and minimize wildfire risk, and the Service failed to 
acknowledge these efforts and their contribution to fisher 
conservation. Some of these commenters also stated that the Service 
provided little justification to the determination that conservation 
agreements are not acting at a scale and magnitude sufficient to 
ameliorate threats, and that the extent of the agreements was not 
considered. An additional commenter is similarly concerned that listing 
the fisher would mandate section 7 consultation under the Act for 
actions implemented under MOUs, which would hinder implementation and 
increase the risk of catastrophic wildfire. Finally, another commenter 
suggested that CCAAs, which cover several million acres, are being 
implemented or are sufficiently certain to be implemented, which should 
compel the Service to withdraw the proposed listing rule.
    Our Response: The Service supports conservation efforts for the 
benefit of fisher in both the NCSO DPS and the SSN DPS. We incorporated 
additional information that was received during the comment period into 
our analysis including CCAAs, HCPs, and MOUs that benefit the NCSO DPS 
and/or the SSN DPS of fisher. We found that listing of the NCSO DPS was 
not warranted. We have found that the SSN DPS meets the definition of 
endangered; therefore, it is necessary to carefully assess actions that 
may impact the DPS to avoid extinction. The Service will work with 
partners to continue forest practices that retain key elements of 
fisher habitat that will continue to contribute to the overall 
conservation of the species. See also the response to Comment 10 above.
    (12) Comment: One commenter stated that the Service did not apply 
the Policy for Evaluation of Conservation Efforts When Making Listing 
Decisions (PECE) and asserted that application of this policy will 
result in a determination that listing fisher as a threatened species 
is not necessary.
    Our Response: In this final rule, the NCSO DPS is not warranted for 
listing, so a PECE analysis is not appropriate. The SSN DPS is 
warranted for listing as an endangered species, and we conclude that 
the existing conservation efforts are not to the level that prevents 
the SSN DPS from meeting the Act's definition of an endangered species.
    (13) Comment: One commenter is concerned that timber management at 
a landscape scale is likely to be unaffected by listing fisher. 
Specifically, the commenter asserted that agreements with timber 
companies that exempt timber management activities will not provide 
landscape-scale contiguous tracts of habitat or sufficient trees with 
cavities.
    Our Response: We assume the agreements the commenter refers to are 
HCPs, CCAAs, and SHAs. Each HCP, CCAA, and SHA contains measures to 
protect habitats for listed species. While these may not individually 
operate at a landscape scale, the combined efforts across the range of 
the species contribute to the ability of fishers to move across larger 
landscapes and to find trees for denning and resting.
Distinct Population Segment (DPS)
    (14) Comment: Several commenters believed there should be more than 
one DPS (with separate listing decisions) in the area described in the 
2019 Revised Proposed Rule as the West Coast DPS of fisher. Some 
commenters stated that the NCSO and SSN subpopulations are two 
separate/isolated geographic areas with no genetic interchange, and 
therefore they should be two separate DPSs, especially given the 
apparent differences in landscape-level threats and information that 
they believe qualifies the SSN as distinct and significant according to 
our DPS Policy. Some of these commenters further articulated that the 
DPSs should be consistent with the ESUs designated in 2015 by the CDFW, 
including that we should consider their decision that listing the 
Northern California ESU was not warranted. Two commenters asserted that 
the SSN subpopulation should be a DPS that is listed as endangered and 
the NCSO subpopulation should be a DPS that is listed as threatened 
given the differences in existing conditions and threats into the 
future. Finally, another commenter asserted that the NCSO, SSN, NSN, 
and SOC subpopulations should all be individual DPSs.
    Our Response: We received multiple comments on our DPS approach in 
both the 2014 Proposed Rule and 2019 Revised Proposed Rule. As 
explained in further detail in this document's Summary of Changes from 
the 2019 Revised Proposed Rule section, we carefully considered all 
these comments, and as a result reevaluated our DPS approach. We 
determined that what we had proposed as the West Coast DPS in the 2019 
Revised Proposed Rule should instead be two separate DPSs, one for the 
SSN subpopulation, and one for the several subpopulations comprising 
the NCSO geographic area. We determined our analysis would focus on the 
conservation of extant subpopulations historically indigenous to the 
California and southern Oregon region with unique genetic 
characteristics (as outlined in the 2014 Proposed Rule), while also 
allowing for separate management of the two DPSs if either or both were 
warranted for listing. For a complete discussion of the logical 
outgrowth that led to this outcome, please refer to the Summary of 
Changes section mentioned above, as well as the detailed Distinct 
Population Segment analyses presented herein.
    (15) Comment: One commenter agreed that the DPS configuration 
should not include the State of Washington, and two commenters 
disagreed, requesting that we reconsider and include this area to 
address the connectivity needs of the species and consideration of 
habitat needed for dispersal. One of the two commenters that disagreed 
also

[[Page 29576]]

suggested that population monitoring of recent fisher reintroductions 
in Washington would be more readily supported if this area was included 
in the DPS configuration. Relatedly, we also received multiple comments 
on the 2014 Proposed Rule suggesting that the Service needs to consider 
connectivity between subpopulations and dispersal habitat within the 
DPS configuration, including habitat in Washington and Oregon that is 
north of the current distribution.
    Our Response: As explained in further detail in both the 2019 
Revised Proposed Rule, and in this document's Distinct Population 
Segment analyses, the determination of a DPS is based on where a 
population segment actually occurs on the landscape. A DPS does not set 
a geographic boundary, nor ``set aside'' connectivity or dispersal 
habitat for conservation purposes, but rather identifies the segment of 
a population that is discrete from, and significant to the taxon as a 
whole, and that may or may not require protection under the Act. Our 
DPS approach focused on the extant subpopulations historically 
indigenous to the California and southern Oregon region with unique 
genetic characteristics, and such subpopulations do not occur in 
Washington, nor in Oregon north of the current distribution.
    (16) Comment: One commenter asserted that it is inappropriate to 
consider fishers reintroduced in the State of Washington as nonnative, 
as this term typically describes a taxon occurring outside of its 
historical range. The commenter stated that reintroduced fishers in 
Washington are from source populations in British Columbia and Alberta, 
which were likely contiguous and interbreeding with fishers that 
historically occurred in Washington.
    Our Response: In both the 2014 Proposed Rule and 2019 Revised 
Proposed Rule, we explained that our use of the term ``nonnative'' was 
intended to articulate the difference between the extant fisher 
subpopulations that have been indigenous to the three West Coast States 
since before the time of the original petition (``native''), and those 
current fisher subpopulations that were established with fishers from 
outside the three West Coast States (``nonnative''). We recognize that 
the fisher populations currently established in Washington are 
genetically similar to historically indigenous Washington fishers prior 
to their extirpation, and our only purpose in the use of the term 
``nonnative'' was to distinguish the reintroduced Washington fishers 
from those fishers in California and northern Oregon that are 
historically extant.
    (17) Comment: One commenter stated that the revised DPS 
delineation/description limits opportunities to implement future 
conservation measures throughout the historical range of the species. 
They also stated that excluding historically occupied fisher habitat in 
Washington and Oregon limits opportunities for recovery.
    Our Response: Please see our response to Comment 15. Conservation 
measures are not limited throughout the range of the species by this 
listing determination.
    (18) Comment: Several commenters requested that we clearly define 
the boundary of the DPS. For example, one commenter stated that there 
are only dispersing fishers in one area within the delineated boundary 
as described in the 2019 Revised Proposed Rule, and there does not 
appear to be a breeding population there. Two commenters suggested that 
specific extant subpopulations are delineated that include a predicted 
movement distance, such as the approach used for the Humboldt marten 
(Martes caurina humboldtensis). Two other commenters stated that the 
proposed boundary does not represent the extant subpopulations or the 
specific predicted habitat areas, noting their belief that the basis 
for the current depiction is unclear.
    Our Response: Please see our responses to Comment 14 and Comment 15 
regarding the final determination of DPSs. Additionally, there is no 
requirement that all areas of a DPS be used for breeding. And, when we 
identify a DPS, we are simultaneously evaluating the current range of 
the animals comprising the DPS. This process is identical to our 
process for any listed species. Any maps accompanying these 
determinations are intended to illustrate that range, based on the best 
available scientific and commercial information regarding the species' 
(or DPS's) ecology and the availability of its resource needs on the 
landscape, but do not represent a determination by the Service that all 
areas within a generalized range are occupied by the species. The maps 
presented herein depict our understanding of the current ranges of both 
DPSs, with the further understanding that these ranges are not 
necessarily static, and individuals from either DPS have the potential 
to expand or contract from what are the current range limits.
    (19) Comment: One Federal partner stated their support of listing 
native fisher populations wherever they occur, but suggested the area 
east of Highway 97 in Oregon be excluded.
    Our Response: As presented herein, our final analysis determines 
that the NCSO DPS, which includes fishers in Oregon, does not meet the 
definition of either a threatened or endangered species. As a result, 
fishers east of Highway 97 would not be considered listed under the 
Act.
    (20) Comment: One commenter asserted that fishers residing in the 
SOC subpopulation (reintroduced from British Columbia and Minnesota) 
experience significantly different threats and existing conditions 
(e.g., small population size, surrounding habitat for expansion) than 
the NCSO subpopulation; therefore, these factors should lead to not 
including this subpopulation area in any DPS.
    Our Response: As presented herein, our final analysis includes the 
SOC subpopulation within the NCSO DPS. Although the SOC subpopulation 
was established with fishers from British Columbia and Minnesota, the 
area where the SOC occurs lies within the historical range of the NCSO 
DPS, and more importantly, includes documentation of SOC fishers 
interbreeding with fishers of the NCSO subpopulation (Pilgrim and 
Schwartz 2016, entire; Pilgrim and Schwartz 2017, entire). Given this 
interbreeding activity and the use of suitable habitat between these 
two population areas, it was a sound and logical conclusion to include 
all fishers across these areas as part of the NCSO subpopulation. 
However, we found that listing of the NCSO DPS was not warranted.
Distribution
    (21) Comment: One commenter provided new fisher detection locations 
from systematic camera surveys conducted from October 2018 to February 
2019 and from October 2019 through December 2019 within their private 
timberlands in coastal northern California. The commenter asserts that 
the new information indicates that fishers remain well distributed 
across their coastal California timberlands and that fishers may have 
expanded into portions of northern coastal California where they were 
not detected during earlier survey efforts.
    Our Response: We thank the commenter for the new fisher detection 
information, which augments our knowledge of the distribution and 
relative abundance of the fisher within the NCSO. We have included this 
information in the NCSO Current Condition above. We agree that the 
submitted information demonstrates that fishers are well distributed 
across

[[Page 29577]]

portions of the commenter's California timberlands where surveys were 
conducted.
    (22) Comment: One commenter disagreed with information we presented 
in the 2019 Revised Proposed Rule regarding the historical and current 
distribution of fishers in the SSN subpopulation. The commenter 
suggested that our statement that historically the SSN subpopulation 
likely extended farther north than our current DPS boundary in the 
Sierra Nevada was conjecture and that historical museum specimens are 
limited to south of the Tuolumne River, which is currently the northern 
boundary of what was identified in the 2019 Revised Proposed Rule as 
the Sierra Nevada portion of the DPS. Further, the commenter mentioned 
that our statement that multiple lines of genetic evidence suggests 
that the NCSO and SSN subpopulations have been isolated since before 
European settlement contradicts the previous assertion that fishers 
historically occupied the area between the NCSO and SSN portions of the 
DPS. The commenter also disagreed with our statement that the current 
northern boundary of the SSN subpopulation is the Tuolumne River in 
Yosemite National Park, asserting that the northern extent of the 
current occupied distribution of the SSN subpopulation is actually the 
Merced River, varying from about 10 to 20 miles south of the Tuolumne 
River. They stated that only a single male fisher was recently detected 
north of the Merced River and that there is no fisher population 
between the Merced and Tuolumne Rivers.
    Our Response: Although not confirmed, there are numerous historical 
sightings of fishers, many of them from reported trapping locations 
from 1919 through 1924, in the areas between the SSN and NCSO DPSs 
(summarized in CDFW 2015, pp. 17-19). Thus, we conclude that, at some 
point, fishers occupied portions of the northern Sierra Nevada at least 
temporarily. Whether the northern Sierra Nevada contained a viable 
population or only served as a movement corridor between the current 
NCSO and SSN DPSs is unknown. That said, genetic information supports 
that the NCSO and SSN DPSs have been largely separated for thousands of 
years (Tucker et al. 2014, p. 3), so we determined that separating the 
NCSO DPS and SSN DPS was appropriate.
    We included the area between the Tuolumne and Merced Rivers in the 
SSN DPS because the area contains suitable habitat, and fishers found 
in this area would be a part of the SSN DPS. In addition, the recent 
detection of at least one fisher north of the Merced River indicates 
that the SSN DPS has the capability to expand into the area between the 
Tuolumne River and the Merced River (Stock 2020, pers. comm.).
Existing Regulatory Mechanisms
    (23) Comment: Several commenters stated that the proposed rule 
fails to adequately consider existing conservation efforts that benefit 
the fisher and other actions that benefit other forest species. These 
efforts include such things as CCAAs, MOUs, HCPs, ongoing enforcement 
agreements implemented by State and Federal parties, and conservation 
agreements for other species such as spotted owls, which can benefit 
fisher. Although many of these efforts are mentioned in the 2019 
Revised Proposed Rule, the commenters believed that there is no 
evaluation, both individually and cumulatively. Other commenters stated 
that these efforts must be considered in combination with the extensive 
regulatory framework that already exists (e.g., the Sierra Nevada 
Forest Plan Amendment for the Forest Service; the California Forest 
Practice Rules and the California Environmental Quality Act and their 
roles in the timber harvest planning process in the State).
    Our Response: As noted by the commenter, our 2019 Revised Proposed 
Rule mentions existing conservation efforts that provide benefits to 
fisher and other forest species. In that proposed rule, we provided an 
in-depth discussion about how existing regulatory mechanisms and other 
voluntary conservation efforts benefit fishers. Each of these 
regulatory mechanisms and conservation efforts were evaluated 
individually for how they may provide benefits, and cumulatively to 
assess how in combination they may ameliorate threats. A similar in-
depth analysis is provided in this current rule, albeit with analyses 
specific to both the NCSO DPS and SSN DPS. Further discussion of how 
all of the regulatory mechanisms and conservation efforts were 
considered in the context of the existing regulatory frameworks and our 
status evaluations can be found in the Determination sections for each 
DPS in this final rule document.
    (24) Comment: One commenter stated that the proposed rule does not 
consider the widespread participation in sustainable forest management 
certification programs such as the Sustainable Forestry Initiative and 
the Forest Stewardship Council that promote forest health and 
resilience in opposition to climate change with sequestration of carbon 
in wood products and renewable reforestation and harvest cycles.
    Our Response: While sustainable forest management certification 
programs require actions by participants that are ecologically 
beneficial, the certification standards are too general to evaluate the 
effects of participation on fisher conservation. As an example, one of 
the certification programs lists the following standards: (1) A program 
to protect threatened and endangered species; (2) a program to locate 
and protect known sites of flora and fauna associated with viable 
occurrences of critically imperiled and imperiled species and 
communities also known as Forests with Exceptional Conservation Value; 
and (3) support of and participation in plans or programs for the 
conservation of old-growth forests in the region of ownership or forest 
tenure'' (SFI 2015, p. 6). We believe these sustainable forest 
management certification programs can and do promote and lead to fisher 
conservation. We are not implying that these standards are faulty. 
However, as written these general standards are too vague to consider 
their benefit to fishers and how they may reduce existing threats. The 
Service requires specific information from the participants of the 
sustainable forest management certification program and how they meet 
these standards in order to be able to assess the degree to which they 
affect fisher conservation and address the threats to the species.
    (25) Comment: One commenter stated that the Service cannot 
rationally assume that BLM lands in the DPS will be managed in a way to 
promote viability or recovery of fisher because of recent court rulings 
regarding the Oregon and California Railroad (O&C) lands under BLM 
management. If these rulings stand, BLM will no longer be able to place 
O&C timberlands in reserves. The final rule must address how the 
Service intends to achieve recovery in light of these rulings.
    Our Response: We have acknowledged the recent court ruling 
regarding BLM O&C lands in this rule and that this decision has been 
appealed. However, we must base our decision on the regulatory 
mechanisms currently in place, which are the 2016 revisions to BLM's 
western Oregon resource management plans. We cannot speculate how the 
court's ruling will ultimately effect BLM management going forward. For 
example, the ruling may stand, it may be overturned by a higher court, 
or a settlement may be reached to implement yet a different

[[Page 29578]]

management action. Opportunities to assess any such changes in BLM 
management, once final, will occur through a new listing petition. 
Consequently, we base our conclusion on the plans in place at the time 
of our decision, which are the 2016 western Oregon resource management 
plans.
    (26) Comment: One commenter said that assuming the NEPA process 
will do good things for fisher is incorrect. Federal agencies document 
their actions under NEPA and whether they comply with the Endangered 
Species Act, but the process itself does not provide a conservation 
benefit.
    Our Response: We have not assumed that NEPA will benefit fishers. 
We explicitly stated in our 2019 Revised Proposed Rule (84 FR at 60296, 
November 7, 2019), ``NEPA does not regulate or protect fishers, but 
requires full evaluation and disclosure of the effects of Federal 
actions on the environment.'' We continue to affirm that statement in 
this document.
    (27) Comment: One commenter stated that the regulatory mechanisms 
embodied in law enforcement agencies have failed to control illegal 
cultivation of marijuana on public lands, leading directly to the 
issues described under the toxicants section of the proposed rule. The 
proposed rule should acknowledge this fact, recognizing and calling 
attention to the limitations imposed on the funding and priorities 
under which these agencies operate.
    Our Response: We have acknowledged the difficulties experienced by 
law enforcement to address illegal cultivation of cannabis on public 
lands in this rule (see Exposure to Toxicants section).
    (28) Comment: One commenter observed that the proposed rule does 
not acknowledge existing efforts to address illegal cannabis 
cultivation on public lands (e.g., increasing California State agency 
staff; CROP Project (Cannabis Removal on Public Lands), whose goal is 
to increase funding for trespass grow reclamation, increase USFS Law 
Enforcement presence, and implement statewide education on health risks 
of unregulated cannabis). Evaluation of toxicant threat is incomplete 
without considering the regulatory mechanisms related to cannabis 
cultivation.
    Our Response: We recognize and commend efforts to clean up illegal 
grow sites and remove toxicants from the landscape. We acknowledge the 
CROP Project and their efforts to reduce and reclaim illegal cannabis 
cultivation on public lands (see Exposure to Toxicants section). We 
also acknowledge that CDFW provided money in 2017 through their 
Cannabis Restoration Grant Program to clean up illegal grow sites, and 
that they may continue to do so in the future. And we recognize efforts 
by private timber companies (e.g., GDRC HCP) to restrict access and 
patrol their lands. Conversely, we note that Forest Service law 
enforcement personnel have observed that State and local resources for 
combatting illegal cultivation on Federal lands has diminished since 
State cannabis legalization, as resources have been redirected to State 
and local regulatory compliance (Klassen and Anthony 2019, p. 45). 
There are still both many unremediated and undiscovered illegal 
marijuana sites across the landscape where further clean-up efforts are 
needed. We commend on-going efforts and encourage all future funding 
and clean-up efforts. We also recognize the magnitude and scope of the 
problem that makes the threat of exposure to toxicants difficult to 
manage across the landscape. Please see the NCSO DPS and SSN DPS 
discussions above in their respective Exposure to Toxicants sections 
for our assessment of this threat.
    (29) Comment: One commenter stated that if the fisher is listed, 
then positive relationships with landowners will be impossible and harm 
proactive, collaborative, voluntary conservation.
    Our Response: We are committed to creating positive relationships 
with landowners. As an example, by working with commercial timber 
landowners in Oregon on fisher CCAAs, we have built collaborative 
relationships that have spilled over into work on proactive 
conservation for other species considered for listing under the Act, 
such as the Pacific marten (Martes caurina) and red tree vole 
(Arborimus longicaudus). There are many tools available to incentivize 
collaborative, voluntary conservation for the fisher. Potential 
voluntary conservation opportunities include: CCAAs (such as the 
existing agreement with SPI); HCPs (such as the existing plan with GDRC 
for the northern spotted owl); and SHAs (such as the existing agreement 
in Oregon). These agreements and plans allow landowners to manage their 
lands while conserving species, and at the same time provide landowners 
regulatory assurance and incidental take coverage under the Act for 
agreed upon activities. Also, our Partners for Fish and Wildlife 
Program works with and funds landowners to implement on-the-ground 
conservation efforts on their lands. Though not all landowners 
participate in these various voluntary conservation opportunities, many 
continue to work with us to conserve species.
    (30) Comment: One commenter stated that listing the fisher would 
also increase wildfire risk within the fisher's range and blunt the 
effectiveness of wildfire prevention measures that are already in 
place. Private landowners are currently implementing an MOU that is 
designed to lessen wildfire risks within the fisher's range. If the 
fisher were listed as threatened or endangered, these wildfire 
reduction measures would be slowed down and would become less 
effective. Listing the fisher would also have the consequence of 
requiring Federal agencies to consult under section 7 of the ESA before 
taking actions that could affect fisher habitat, including the fuels 
reduction efforts contemplated under the MOU.
    Our Response: The MOU referenced by the commenter pertains to the 
NCSO DPS area, which is found not warranted for listing in this 
determination. There is no similar agreement applicable to the SSN DPS. 
Consequently, we believe the concerns expressed are not applicable to 
this listing determination. We do not believe that listing the fisher 
would increase wildfire risk in the SSN DPS because the Service is 
working with Federal agencies to develop a programmatic consultation 
process to streamline wildfire reduction activities that provide for 
the conservation of fisher.
Fisher Biology
    (31) Comment: Two commenters pointed out new studies showing that 
fishers use managed landscapes. They both noted that fishers have been 
documented using slash piles for denning. One of them also added that 
fishers use areas near timber harvest units, possibly due to the 
availability of prey.
    Our Response: Fishers use managed landscapes on private industrial 
timberlands, and this determination reflects this use. Rather than 
specifically mentioning fisher use of slash piles in our analysis, we 
considered fisher use of managed landscapes more broadly in vegetation 
management.
Fuels Treatment
    (32) Comment: Some commenters expressed that protecting fishers 
from extreme wildfire is important, stating that wildfires are 
prevalent in the DPS and are predicted to increase in frequency. They 
indicated that high-severity burns take decades if not centuries to 
replace habitat structures necessary to support fishers and their prey; 
therefore, thinning projects and

[[Page 29579]]

prescribed burns are necessary to prevent stand-replacing wildfires.
    Our Response: High-severity fires can remove or substantially 
reduce fisher habitat; thus, we assessed the conservation measures in 
place to conduct fuel reduction projects (see Voluntary Conservation 
Mechanisms). The Service is working with Federal agencies within the 
SSN DPS to develop a programmatic consultation process to streamline 
wildfire reduction activities that provide for the conservation of 
fisher.
Habitat
    (33) Comment: Once commenter states that the use of OGSI-80 as a 
surrogate for fisher habitat underrepresents substantial areas of 
occupied fisher habitat in the NCSO and NSN areas and presented their 
analysis of citations (Zielinski et al. 2012; Niblett et al. 2017; 
Powell et al. 2019) to support this interpretation. Specifically, they 
referenced application of the Zielinski et al. (2004) fisher habitat 
model on managed landscapes. They claim that the model is similar to 
OGSI-80 in that it is derived from observed fisher use of large, old 
trees in old forests, primarily on public lands. Applying the model on 
managed landscapes resulted in lands classified as ``poor'' by the 
model actually being occupied by fishers (Niblett et al. 2017; Powell 
et al. 2019). Thus, the commenter opined that projections of trends 
based on the OGSI-80 surrogate cannot be relied upon to represent 
amounts of trends in fisher habitat. The commenter further recommended 
the Service address the proportion of occupied habitat actually 
represented by OGSI-80, stating that the OGSI-80 definition excludes 
substantial amounts of occupied private and Federal land.
    Our Response: In addressing the last portion of the comment, our 
intended use of OGSI-80 is not as a surrogate for fisher habitat, nor 
to delineate areas on the landscape where fishers may or may not be 
found. That would not be an appropriate use because the data sources 
for OGSI-80 (gradient nearest neighbor or GNN) limit the application of 
the index to the landscape or regional scale and not the site-specific 
or local scale (Ohman and Gregory 2002, p. 738).
    We are not sure why the commenter concluded that the Zielinski et 
al. (2004) model, derived from observed fisher use of very large old 
trees and logs in old forests primarily on public lands, is similar to 
OGSI-80. First, OGSI-80 is not based on fisher use of stands. Second, 
OGSI-80 does not indicate a forest age, but rather structures that are 
characteristic with where forests are on a general forest succession 
continuum, regardless of their age. Hence, a stand meeting the OGS-I80 
condition may be younger than 80 years old, and stands substantially 
older than 80 may not meet the OGSI80 condition. Third, OGSI-80 was 
derived from a network of plot data systematically placed across all 
ownerships, not just Federal lands (Davis et al. 2015, pp. 13-15). We 
compared OGSI-80 trends between Federal and non-Federal lands in our 
analysis.
    The commenter's conclusion as to why the Zielinski model did not 
perform as well on private lands assessed by Niblett et al. (2017) does 
not comport with the conclusion Niblett et al. (2017, pp. 14-15) made. 
They note that Zielinski compiled a resting habitat suitability score 
that was a composite of multiple features of fisher resting habitat, 
such as live tree basal area, large down wood abundance, hardwood basal 
area, canopy cover, and mean tree age. Such an overall composite may be 
less meaningful in characterizing fisher habitat on landscapes assessed 
by Niblett et al. (2017, entire) than just assessing the structural 
attributes that fishers use, especially because forest cover is so low 
for such a large part of their study area. In that light, OGSI-80 is 
similar in that it is characterizing a single component of fisher 
habitat, the structural habitat components that fishers are associated 
with, so long as forest canopy cover meets a minimum of 10 percent. We 
note that Niblett et al. (2017, p. 15) still found that, even in their 
heavily managed landscape with large areas absent of forest cover, 
fishers still denned in the largest available trees on the landscape. 
Depending on the vegetation zone that encompasses the Niblett et al. 
(2017, entire) study area, the OGSI-80 minimum structural element 
thresholds (Davis et al. 2015, pp. 16-18) may or may not exceed the den 
tree and snags used by fishers in Niblett et al. (2017, p. 15). 
Nevertheless, OGSI-80 is not meant to map where fishers may occur on 
the landscape, or to quantify fisher habitat characteristics, but to 
characterize trends in those structural elements that fishers use.
    (34) Comment: One commenter stated that in areas occupied by 
breeding female fishers on the Stirling Management Unit, some habitat 
suitability models based on fisher use of forests with large trees 
performed very poorly in predicting fisher home ranges (Powell et al. 
2019, Figure 28 and others). Consequently, OGSI-80, being based on 
large trees, will not represent areas used by fishers on these 
landscapes.
    Our Response: As stated in earlier comments, OGSI-80 is not meant 
to map where fishers may occur on the landscape, or to quantify fisher 
habitat characteristics, but to characterize trends in those structural 
elements that fishers use. We also want to clarify the results of the 
analysis that the commenter is describing (Powell et al. 2019, Figure 
28 and others). There are certainly areas of habitat classed by the 
different models assessed as either moderate fisher habitat or even 
relatively high-quality fisher habitat (e.g., Powell et al. 2019, 
Appendix 2, pp. 64-65) that fishers avoided. The authors suspect lack 
of other vital habitat components in these stands, such as hardwoods, 
may be the reason, though this needs further study (Powell et al. 2019, 
Appendix 2, pp. 69-70). Nevertheless, for most of the models assessed 
in Powell et al. (2019, Appendix 2), fishers still selected habitats on 
the landscape that generally encompassed largest tree category and 
greatest canopy cover.
    (35) Comment: One commenter believed our statement that substantial 
amounts of unoccupied fisher habitat could suggest that habitat is not 
limiting for fisher and, therefore, habitat loss is not a threat was 
misleading. They note that there is not a lot of unoccupied habitat in 
the SSN south of the Merced River, and, indeed, habitat may very likely 
be a limiting factor, especially for females in the currently occupied 
area. Unoccupied habitat north of the Merced may not be accessible due 
to dispersal barriers (Merced River, high-severity fire areas, and 
heavily used roads in Yosemite National Park) and, therefore, is not de 
facto evidence that habitat is not a limiting factor.
    Our Response: We recognize in the final rule that the interaction 
of all the threats within the SSN DPS are likely limiting northward 
expansion into what is considered suitable habitat for fisher. In 
general, fisher habitat is lacking landscape-scale forest heterogeneity 
in the SSN DPS compared to historic conditions, with wildfire and 
severe drought disturbances creating large patches of homogeneous 
habitat, which are exacerbated by past logging practices and wildfire 
suppression (Thompson et al. 2019a, p. 13).
    (36) Comment: The proposed rule's estimation of habitat trend is 
inconclusive and does not indicate substantial decline. If the 
definition of habitat is corrected to include the known fisher 
distribution, fisher habitat has in fact dramatically expanded. This 
expanded range is demonstrated by a 24 percent increase in the occupied 
range since the CDFW estimate in 2010.

[[Page 29580]]

    Our Response: We do not agree with the conclusion that habitat 
usable by fisher has dramatically expanded. A range expansion for 
fisher or any other species does not automatically mean that habitat 
has increased. Many factors serve to limit species distribution (e.g., 
connectivity and fragmentation, prey and predators, population 
demographics), and these factors may or may not be affected by habitat. 
Although not perfect, our analyses for vegetation management and 
wildfire show losses of either fisher habitat or structural elements 
used by fishers (as represented by OGSI-80). Further, the OGSI-80 
analysis, which incorporates ingrowth and is only for the NWFP portion 
of the NCSO DPS, indicates a net loss of this structural condition 
type. In the SSN, areas within the previously known fisher distribution 
experienced a reduction of nearly 40 percent due to fire, drought, and 
associated tree mortality. Although we expect ingrowth to occur, we are 
uncertain how soon the landscape will be considered fisher habitat, 
particularly because large trees that often act as a seed source for 
future regeneration were disproportionately affected.
    The number of fishers in the NSN subpopulation is increasing and 
with this increase, fishers are expanding and using new habitats. We 
are encouraged by this expansion and commend SPI, CDFW, and other 
partners for their efforts. However, we conclude that this expansion is 
due to reintroduction efforts, not because of an increase or expansion 
of new habitat. Prior to the reintroduction, the habitat existed and 
was available, but it was unoccupied.
    The commenter suggests that fisher's range has expanded by 24 
percent since a CDFW estimate in 2010. Based on the maps provided and 
the comment, we assume this refers to a 24 percent increase in the 
occupied range for NCSO. Judging expansions or contractions in fisher 
populations from ranges drawn by humans on a map can be problematic 
because the polygons created might not capture areas that have not been 
surveyed, they likely do not consider variable survey efforts (i.e., 
opportunistic versus systematic camera surveys), or a line may closely 
or loosely follow a boundary (which can greatly skew comparisons). In 
this case, the CDFW polygon does not include the NSN subpopulation, nor 
does it include all the known fisher sightings in the area at the time, 
nor does it consider areas that may have been under-surveyed. 
Furthermore, since CDFW's 2010 estimate is from a California-specific 
analysis, it does not include areas in Oregon that are occupied by 
fisher.
    In the most recent review of fisher, CDFW concludes that fishers 
currently occupy much of their historical range in northwestern 
California and may have expanded in the redwood region (CDFW 2015, p. 
23); fisher detections have increased in northern coastal California 
since the 1990s, though it is not known as to whether this increase is 
due to a range expansion, recolonization, increased survey effort, or 
whether fishers remained undetected in earlier surveys (CDFW 2015, p. 
50).
    In our draft and final Species Report, we reviewed fisher data 
(1994-2013) for accuracy and minimized repetitive individual sightings. 
When we use the data from our species report and overlay it with (1) 
newer locations from the California Natural Diversity Database 
(reviewed for accuracy), (2) newer SPI locations, (3) newer locations 
from Collins Pine Company, (4) multiple newer efforts in southern 
Oregon (captured for NCSO in Current Condition, above), and (5) also 
consider historical locations before 1994, the majority of new 
locations are infill within the bounds of our 1994-2013 data (Service 
2020, map). There are a few areas where we see new fisher sightings, 
particularly along the eastern edge of the species' range. In Oregon, 
we expect these new locations are largely a product of increased survey 
effort or research activity rather than an actual increase in the 
range, because there are numerous historical sightings in these areas. 
In California, some of this expansion is because of reintroduction 
efforts at NSN, but some may also be because of an increase in range, 
or increased survey efforts. We are also aware of a few areas where 
contractions have been reported in Southern Oregon near the Biscuit 
Fire and the SOC subpopulation. We conclude that there has been a 
recent range expansion because of the reintroduction effort in the NSN 
subpopulation. There have also been some small contractions. And, there 
have been some small expansions, but we are unclear if these are actual 
expansions or the result of increased survey effort.
Habitat Recruitment
    (37) Comment: A couple of commenters stated that OGSI-80 is a poor 
surrogate for fisher habitat and demonstrably under-represents 
substantial areas of occupied fisher habitat in the NCSO and NSN areas 
and is not the best scientific information. There is little evidence 
that OGSI-80 represents or correlates with fisher habitat. It may be 
appropriate for predicting northern spotted owl habitat, but there is 
little evidence that predicted habitat for northern spotted owl is 
similar to fisher habitat (cites Zielinski et al. 2006). Trends in 
OGSI-80 should only be used to represent habitat in areas where that 
habitat type occurs and should not be relied upon to represent fisher 
habitat trends elsewhere.
    Our Response: We have revised our vegetation management section to 
clarify our use of the OGSI-80 forest condition. We have explored 
several avenues to assess trends in fisher habitat in the absence of an 
available DPS-wide model that displays changes in fisher habitat over 
time. For our 2014 Proposed Rule, we used northern spotted owl habitat 
as a surrogate for fisher habitat because that allowed us to estimate 
losses through timber harvest. However, comments from peer reviewers 
and the public criticized our use of spotted owl habitat and that it 
may not properly represent fisher habitat. They also wanted us to 
consider ingrowth of fisher habitat and its role in replacing habitat 
lost to disturbances such as vegetation management and fire. Hence, we 
have used OGSI-80 because it is a forest stand condition that is mapped 
throughout most of the NCSO portion of the DPS. We do not consider it 
as a model for fisher habitat and realize that it may include areas 
that are not considered suitable for fishers, as well as not capturing 
all suitable fisher habitat. It does, however, allow us to assess 
regional-scale trends in the forests that contain the structural 
elements consistently used by fishers (large snags, down wood, and 
large live trees). Although several commenters believe this is not the 
best available data, they have provided no alternatives to assess 
trends in this structural condition (both loss and recruitment) at a 
regional scale across the DPS.
    Regarding the comment that OGSI-80 should be used to represent 
habitat only in areas where the habitat type occurs, we do not consider 
OGSI-80 a habitat type. It represents a structural condition used by 
fishers. The OGSI-80 condition has the potential to be found anywhere 
the forest vegetation zones upon which it was built occur (Davis et al. 
2015, pp. 9-10, Figure 4), which is all forested zones within the NWFP 
portion of the DPS. Hence, we are not applying it in areas outside of 
its intended use.
    (38) Comment: Regarding our use of OGSI-80 to document trends in 
vegetation important to fishers, one commenter believed it is unlikely 
that 80-year-old conditions would represent fisher habitat unless those 
stands contained much older features. Another

[[Page 29581]]

commenter noted that in using OGSI to measure ingrowth of fisher 
habitat, the Service has no idea if the stands with ingrowth have 
structures needed by fisher. Hence, the Service should not assume that 
recently developed OGSI-80 stands are of a quality 80 years post-
harvest to support fisher denning.
    Our Response: See our responses above regarding our intent in our 
use of OGSI-80. OGSI-80 stands are meant to represent mature forest 
stands with old-forest remnants. The OGSI-80 threshold represents the 
general point in the forest succession time scale when forests in the 
NWFP area begin to develop stand structure associated with older forest 
(Davis et al. 2015, p. 18, Figure 2) and includes older forest stands 
on that succession time scale as well. For stands to meet the OGSI-80 
threshold, they had to have greater than 10 percent canopy cover and 
meet minimum tree and log size criteria, depending on the vegetation 
zone (Service 2016, p. 102). For the Douglas-fir and white fir/grand 
fir forest vegetation zones, which comprise much of the NCSO, OGSI-80 
stands had to have at least one large live tree greater than 75 cm 
(29.5 in) dbh or an average stand diameter greater 37.5 cm (14.25 in) 
dbh. In addition, stands had a minimum snag size of 50 cm (19.7 in) dbh 
and minimum log diameter of 25 cm (9.8 in) (Davis et al. 2015, pp. 17-
18, Table 5). Although average size of trees and snags used by fishers 
are often substantially larger than the minimum tree and snag diameters 
used to define OGSI stands, structures of this size have been used by 
resting and denning fishers in study areas in the DPS (e.g., Lofroth et 
al. 2011, pp. 38, 52, 57, 78). As we acknowledged in the vegetation 
management section, OGSI-80 does not represent all fisher habitat, and 
it may define areas that are not used by fishers, but it fairly 
represents trends through time of forest structures used by fishers.
    (39) Comment: One commenter stated that the proposed rule seems to 
significantly overstate the threats to the NCSO population and the 
cited data seems contradictory. Specifically, the rule states that fire 
is removing 8 percent of habitat/decade, yet the OGSI-80 analysis shows 
only a 1 percent loss/decade, if that, because of ingrowth (which is 
ignored when describing removal by wildfire). The rule further states 
that ingrowth is expected to increase in the coming decade, which would 
seemingly more than compensate for any loss from any of the 
disturbances evaluated.
    Our Response: We have revised our discussion of wildfire threats to 
clarify the distinction between the Davis et al. (2015, entire) 
analysis of loss of OGSI-80 forest to wildfire in the NWFP portion of 
the DPS (which covers the NCSO portion of the DPS) and the analysis 
done by the Service to more directly assess fisher habitat loss to 
wildfire. We assume that the commenter's statement that fire is 
removing 8 percent/decade of fisher habitat is referring to our 
projection that 4 to 8 percent of fisher habitat would be lost to 
wildfire over the next 40 years in the NCSO portion of the DPS, based 
on our analysis done in the draft species report (Service 2014, p. 64). 
That analysis was done by overlaying mapped fisher habitat (as 
determined through modeling) with severity data from fires that had 
occurred from 1984 to 2011. We updated that analysis to include more 
recent fires in the NCSO area (data from 2008 to 2018) and found that 7 
percent of fisher habitat was lost to high-severity wildfires during 
that time period. Davis et al. (2015, pp. 30-31, Tables 6 and 7) looked 
at loss of OGSI-80 stands to wildfire from 1993 through 2012, and their 
results differ from ours likely for several reasons, with the primary 
one being that they looked at a different time period than we did and 
did not capture more recent fires. In addition, their analysis did not 
include portions of the NCSO DPS that are outside of the NWFP area.
    While forest ingrowth is expected to increase in the coming 
decades, so is loss of habitat to wildfire. Hence, we cannot conclude 
whether or not ingrowth will fully compensate for projections of loss 
of fisher habitat. Upon reconsideration of the threats and the current 
condition of the NCSO DPS, we have determined that the NCSO DPS of 
fisher is not in danger of extinction throughout its range, nor likely 
to become so in the foreseeable future.
    (40) Comment: One commenter stated that habitat trend analysis 
based on OGSI-80 is inadequate to fully describe fisher habitat 
ingrowth. Growth is occurring on all lands excluded from OGSI-80 
definition, yet growth is recognized on Federal lands only for the 
OGSI-80 type. Growth on remaining occupied Federal lands and private 
lands is acknowledged, but its importance is not considered. The 
Service should consider the implications of estimated future habitat 
ingrowth and fisher population response (see Powell et al. 2019 final 
report, p. 25).
    Our Response: We are not using OGSI-80 to quantify the amount of 
fisher habitat ingrowth. It is a means to assess the trends of those 
old-forest structural components used by fishers throughout the DPS 
(see our responses above). Our analysis accounted for ingrowth on non-
Federal lands, in including the data from Davis et al. (2015, pp. 30-
31), which addressed ingrowth from both Federal and non-Federal lands. 
Ingrowth was over three times greater on non-Federal lands than on 
Federal lands (13.5 percent on non-Federal lands and 4.2 percent on 
Federal lands, for a total ingrowth of 8 percent on the combined 
ownerships over the 20-year analysis period) within the combined 
provinces of the Oregon Klamath, California Klamath, California Coast 
Range, and California Cascades within the NWFP area of the DPS. 
Regarding the reference to Powell et al. (2019, p. 25), we have 
incorporated their assessment of the status of the NSN reintroduced 
population into our analysis.
    (41) Comment: One commenter stated that habitat trends in the HCP/
CCAA covered lands within the NCSO will be stable to increasing over 
the foreseeable future. Combined, these habitat trends do not support a 
habitat-related likelihood of endangered status in the foreseeable 
future.
    Our Response: Upon further analysis and consideration of comments, 
we have determined that the NCSO DPS is not in danger of extinction in 
the foreseeable future.
Implementation of Specific Conservation and Recovery Actions
    (42) Comment: One commenter requested implementation of specific 
conservation or recovery actions for fishers throughout the West Coast 
States, including research and management activities that would improve 
the overall landscape for fishers. The actions (e.g., cessation of 
logging and trapping) were recommended to the Service because the 
commenter believed they would ensure the long-term conservation of the 
fisher.
    Our Response: We appreciate the recommendations provided to 
conserve fishers and their habitat. Although no comprehensive strategy 
for fishers in the West Coast States exists, we acknowledge 
conservation measures, strategies, and actions that may benefit fisher 
conservation in this rule. We also recognize that specific management 
activities can increase forest resiliency, and although there may be 
short-term negative effects to fishers, certain actions are likely to 
have an overarching, net beneficial impact for the conservation of 
fishers in this DPS.
Other Stressors
    (43) Comment: One commenter took issue with the following statement 
from the 2019 Revised Proposed Rule: ``Now,

[[Page 29582]]

these small populations of Pacific Fisher are threatened by the use of 
toxic rodenticides by marijuana growers, and increasing fire severity 
exacerbated by climate change, along with loss of habitat due to 
logging.'' The commenter states that increasing fire severity 
exacerbated by climate change and loss of habitat due to logging are 
theory only, and that only rodenticide is the real threat. The 
commenter asserts that no significant climate change has taken place in 
the western Cascades since 1650 and that there has been little to no 
logging taking place that affects the habitat in question. Protection 
of fisher from the threat of poisoning due to toxic rodenticides can, 
and should be, done by local ordinance, not by putting our lands at 
risk from further mismanagement by restricting activity and efforts to 
reduce current catastrophic fuel loads. The commenter then went on to 
state that the true danger to fisher is, and will continue to be, 
catastrophic wildfire, and management efforts for that purpose must 
continue unimpeded.
    Our Response: Our threats analysis considered the best available 
science and considered them holistically when making our final decision 
(see Threats sections, above, for specific information about each 
threat). In addition, we recognize the importance of fuels reduction 
treatments that promote forest heterogeneity while retaining structural 
elements important to fishers (for example, see Voluntary Conservation 
Measures section, above).
Policy
    (44) Comment: One commenter asserted that we should more closely 
evaluate the five listing factors to ensure that we are acting on the 
basis of the best scientific and commercial data available, rather than 
speculation or supposition.
    Our Response: Our Policy on Information Standards under the Act 
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines 
(www.fws.gov/informationquality/), provide criteria and guidance, and 
establish procedures to ensure that our decisions are based on the best 
scientific data available. They require our biologists, to the extent 
consistent with the Act and with the use of the best scientific data 
available, to use primary and original sources of information as the 
basis for recommendations to list a species (or DPS) as an endangered 
or threatened species. We use information from many different sources, 
including articles in peer-reviewed journals, scientific status surveys 
and studies completed by qualified individuals, Master's thesis 
research that has been reviewed but not published in a journal, other 
unpublished governmental and nongovernmental reports, reports prepared 
by industry, personal communication about management or other relevant 
topics, conservation plans developed by States and counties, biological 
assessments, other unpublished materials, experts' opinions or personal 
knowledge, and other sources. We have relied on published articles, 
unpublished research, habitat modeling reports, digital data publicly 
available on the internet, and the expert opinion of subject biologists 
to aid in the determination that the SSN DPS of fisher meets the 
definition of an endangered species.
    Also, in accordance with our peer review policy published on July 
1, 1994 (59 FR 34270), we solicited peer review of the 2014 Species 
Report (Service 2014, entire) from knowledgeable individuals with 
scientific expertise that included familiarity with the species, the 
geographic region in which the species occurs, and conservation biology 
principles; their feedback was incorporated into the 2016 final Species 
Report (Service 2016, entire), which remains the foundation of our 
research along with our additional analysis presented in the 2019 
Revised Proposed Rule and this final rule. Additionally, we requested 
comments or information from other concerned governmental agencies, 
Native American Tribes, the scientific community, industry, and any 
other interested parties over multiple comment periods for both the 
2014 Proposed Rule and the 2019 Revised Proposed Rule (see Previous 
Federal Actions, above). Comments and information we received helped 
inform this final rule. Also, we revisited our threats analysis and 
determined that the NCSO DPS is not warranted for listing.
    (45) Comment: Three commenters stated that our discussion of the 
PECE Policy in the proposed rule was insufficient, and asserted that we 
should conduct a PECE analysis. Two of these commenters stated that 
conducting this analysis would result in a decision that the species is 
not warranted for listing. The third commenter also claimed that we 
failed to consider numerous existing conservation efforts (e.g., MOUs 
or HCPs that address wildfire risk and enforcement programs) that were 
developed to benefit fishers and other species that inhabit forested 
lands. The third commenter also claimed that the 2019 Revised Proposed 
Rule did not explain why the variety of existing regulatory mechanisms 
and voluntary conservation measures are not at a scale or magnitude 
sufficient to ameliorate the primary significant threats. Generally, 
these commenters stated or implied that we could not reach a conclusion 
to list the species as endangered or threatened when no analysis under 
the PECE Policy or a cumulative effects analysis is conducted.
    Our Response: Upon determining that our status assessments would be 
conducted individually on the NCSO DPS and SSN DPS, we then evaluated 
threats and any potentially ameliorating measures specific to each. For 
the NCSO DPS, as discussed above in its specific Determination section, 
our analysis found that the cumulative effect of threats acting on the 
DPS at their current scale and magnitude did not cause the DPS to be in 
danger of extinction throughout all or a significant portion of its 
range, now or in the foreseeable future, especially given the DPS's 
overall resiliency, redundancy, and representation. While we 
acknowledged and evaluated various regulatory mechanisms and 
conservation efforts, and the potential benefits they may provide to 
the DPS, we did not rely on them for our conclusion that the NCSO DPS 
did not meet the definition of either an endangered or threatened 
species. As such, no PECE analysis was necessary.
    For the SSN DPS, our analysis found that the cumulative effect of 
threats acting on the DPS at their current scale and magnitude do cause 
the DPS to be in danger of extinction throughout all of its range, in 
light of the anticipated effect of the identified threats on the DPS's 
overall resiliency, redundancy, and representation. Our analysis 
included consideration of any potential benefits provided to the SSN 
DPS by existing regulatory mechanisms, as well as potential benefits 
that may result collaterally from existing voluntary conservation 
efforts that were not developed for fisher conservation. In addition, 
we considered the benefits resulting from an existing voluntary 
conservation strategy, while noting that changed circumstances arising 
from tree mortality events in the range of the SSN DPS will require 
revisions to some of the strategy's conservation measures. While all of 
the conservation efforts identified are being implemented and are 
effective in some measure, and therefore do not require a PECE 
analysis, we found that they are not

[[Page 29583]]

ameliorating the threats such that the SSN DPS did not meet the 
definition of an endangered species.
    (46) Comment: One commenter claimed that we did not explain what 
new scientific and commercial information was developed between the 
2016 withdrawal (81 FR 22710, April 18, 2016) and the 2019 Revised 
Proposed Rule. The commenter stated that we changed our position 
regarding the efficacy and desirability of establishing conservation 
agreements even though developing and adopting these types of 
agreements has expanded over time.
    Our Response: The Summary of Changes section of the 2019 Revised 
Proposed Rule noted new information since completion of the 2016 final 
Species Report (Service 2016, entire) that we evaluated in that 
proposal. Our analysis of all new information since the 2016 final 
Species Report was summarized and cited where applicable in the 2019 
Revised Proposed Rule and this final rule, including new information 
received during the public comment periods on the 2019 Revised Proposed 
Rule.
    With regard to conservation agreements, we heavily rely on 
voluntary conservation efforts to provide for the conservation and aid 
in recovery of listed species. As stated above, we have previously and 
continue to believe that our relationship with private, State, tribal, 
and Federal landowners is imperative for the conservation of fishers. 
We intend to continue to work cooperatively with partners and assist 
where possible.
    (47) Comment: One commenter claimed that the Revised Proposed Rule 
failed to provide a rational explanation for changing a conclusion (in 
the 2016 withdrawal) that none of the threats were resulting in 
species-level impacts. Additionally, the commenter asserted that we 
eliminated discussion of species-wide threats and instead argued that 
individual-level threats cumulatively rise to the level that listing is 
required without showing how each of the potential threats actually 
affects the species.
    Our Response: In this final rule, the Service has examined again 
the threats and impacts to the fisher populations, and that analysis 
has led to the conclusions and rationale supporting this final 
determination. Addressing the commenter's concern, our rationale in the 
Threats sections in this final rule explains how the various threats 
impact the species.
    (48) Comment: One commenter argued that we should have analyzed 
whether the West Coast DPS of fisher is endangered in a significant 
portion of its range.
    Our Response: Please see our response to Comment 14 regarding the 
DPSs analyzed for this effort. As presented herein, our analysis of the 
NCSO DPS indicated that it was not in danger of extinction throughout 
all of its range, nor likely to become so in the foreseeable future. 
Upon reaching that conclusion, we conducted an analysis to see if there 
were any portions of the NCSO DPS that warranted further consideration 
as being in danger of extinction or likely to become so in the 
foreseeable future in any significant portion of its range. We did not 
find any such portion, and concluded that the NCSO DPS is not in danger 
of extinction or likely to become so in the foreseeable future in any 
significant portion of its range. Regarding the SSN DPS, our analysis 
indicated it was in danger of extinction throughout all of its range, 
and therefore did not conduct an SPR analysis.
Population Estimates
    (49) Comment: The proposed rule incorrectly states that the Hoopa 
population was declining during 2005-2012 (84 FR, at 60285, column 2, 
November 7, 2019). This conclusion is not valid because reported lambda 
confidence intervals overlapped 1.0. The relevance of these data 7 
years later is not evaluated. Also, as noted in comments on the 2014 
listing proposal, this decline only brought the Hoopa population from 
an atypical high density to a density similar to other populations in 
the surrounding region, a fact not noted in the rule.
    Our Response: While there is uncertainty in concluding whether the 
population is increasing or decreasing given that the lambda confidence 
intervals overlap 1, the lambda value of 0.992 for the Hoopa study is a 
statistic that indicates a declining population during the time period 
measured. We do not have additional population data from that study 
area to indicate the population trend since 2012. Regarding the decline 
from an ``atypical high density'' to a level similar to other fisher 
populations in the area, the commenter is referring to Matthews et al. 
(2011, p. 72) where fishers declined from a density estimate of 52 (per 
100 km\2\ (38.6\2\)) to 14 between 1998 and 2005. This decline preceded 
the 2005 to 2012 analysis. We do not know whether the slight population 
decline observed between 2005 and 2012 is a continuation of the overall 
decline from 1993, a reflection of a population that is currently 
fluctuating around carrying capacity, or some other phenomenon.
    (50) Comment: One commenter stated that Green et al. (2019b) (as 
yet unpublished) acknowledged that their results only describe a short-
term situation and confined speculation about implications to their 
discussion section. The 2019 Revised Proposed Rule did not acknowledge 
that some of the fishers displaced by fire may have survived to 
emigrate and may not have been lost to the larger regional population. 
The commenter also stated that the proposed rule did not acknowledge or 
evaluate the overlap in credible interval values from the post-fire and 
pre-fire population estimates, nor that the upper credible value post-
fire estimates approached the mean pre-fire estimates (see Green et al. 
2019b, Table 2 and Figure 2). The commenter asserted that the proposed 
rule uncritically applies this estimate of post-fire loss to the 
analysis that concluded there has been a 7 percent loss in habitat 
since 2008. The commenter claimed that these oversights create 
unacknowledged uncertainty as to the validity and application of this 
estimate, compounded by issues with the 2014 modeling that was 
addressed in comments at that time, but not acknowledged in the 2019 
Revised Proposed Rule.
    Our Response: We elaborate more on Green et al. (2019b, entire) in 
this rule, noting the observation that the post-fire population 
estimates have confidence intervals that overlap with pre-fire 
estimates, as well as the uncertainties in the ultimate fate of fishers 
in response to wildfire.
    Regarding our evaluation of fisher habitat loss to wildfires and 
the commenter's assertion that we ``uncritically'' applied the estimate 
of post-fire habitat loss in Green et al. (2019b, p. 6) to that 
analysis, we are referring to the authors' definition of high-severity 
fire, which is a basal area mortality of greater than or equal to 50 
percent. We acknowledge that fishers may begin moving about these 
stands within a decade or two after fires once stand growth is 
initiated. However, our use of the Green et al. (2019b, p. 6) 
definition of high-severity fire for the purposes of quantifying the 
acres of fisher habitat that may be unavailable to fishers in the short 
term is a reasonable approach and is not inconsistent with observations 
of fisher avoidance of areas with less than or equal to 30 percent 
canopy cover (Spencer et al. 2016, p. 10, footnote 7).
    The use of the fisher habitat model continues to remain the best 
available science regarding a large-scale map of fisher habitat across 
the fisher range.

[[Page 29584]]

The comments and responses regarding the fisher habitat model in the 
2016 Withdrawal do not lead us to conclude that our assessment of 
habitat loss was flawed, particularly because it was done at the DPS-
wide scale. We cannot know whether the estimate of 7 percent of fisher 
habitat lost based on modeling is precise, but it is a reasonable 
estimate given the landscape-scale application of the fisher habitat 
model.
    (51) Comment: One commenter pointed out that the 2019 Revised 
Proposed Rule concedes that it is unknown whether fisher populations 
are stable or declining. The commenter asserted that the proposed rule 
should evaluate the implications of the lack of conclusive information 
that fishers in the DPS are declining. Additionally, they stated that 
the lack of conclusive evidence of decline should increase the burden 
of proof that the other threats are indeed demonstrable, conclusive, 
and serious. According to the commenter, given the substantial 
expansion of the range, the Service must also consider whether the 
population size within the NCSO and SSN subpopulations is likely to be 
expanding, and if there is no evidence of population decline, evidence 
of effects of threats must be conclusive.
    Our Response: To clarify the statement relied upon by the 
commenter, we stated in our 2019 Revised Proposed Rule that, based on 
the information available regarding population growth data, we could 
not conclude that populations were stable, increasing, or declining. 
All three scenarios are plausible, given the available data. However, 
we also note that the lack of conclusive evidence of a decline is also 
not conclusive evidence that there is no decline. The commenter further 
suggests that, in the face of inconclusive evidence for a population 
decline, we must then provide conclusive evidence that threats acting 
on a species must be demonstrable and serious. In response, we 
reiterate that we did not conduct our analyses using an assumption that 
populations are declining. We merely presented the available 
information regarding population growth, while at the same time 
presenting our analyses of how both threats and conservation measures 
are likely to affect the viability of each DPS.
    (52) Comment: One commenter noted that the proposed rule considers 
Higley et al. (2014) and Green et al. (2019b), but does not evaluate 
other material in our possession, specifically Powell et al. 2019, 
which stated, ``Our best estimates of survival and reproduction are 
consistent with a stable or growing population on Stirling.'' Although 
this study differs from the Higley and Green studies in that it was 
initiated in an area newly occupied by fishers, it was of similar 
duration to both of them and the population size was similar to Higley 
et al. (2019) and larger than that of Green et al. (2019b). The 
conclusions from Powell et al. (2019) are worthy of qualified 
evaluation in an objective assessment of fisher population trend in 
NCSO.
    Our Response: We incorporated information from Powell et al. (2019, 
entire) regarding the growth trend of the Stirling (NSN) reintroduced 
population into our analysis for this rule.
    (53) Comment: One commenter stated that available scientific 
information indicates that fisher population trends are not declining 
and, in Northern California, they likely are stable or increasing. The 
commenter asserted that these trends have probably contributed to the 
substantial expansion of the species' range within the last 9 years. 
The commenter concluded that there is no evidence of declines at the 
population scale.
    Our Response: In the Current Condition section for the NCSO DPS in 
this final rule, we elaborate on population variability in general and 
how that may affect any interpretation of the available data on NCSO 
populations. We are not aware of any substantial expansion beyond the 
NSN translocation and the subsequent growth of that subpopulation.
    (54) Comment: One commenter stated that the 2019 Revised Proposed 
Rule describes significant uncertainty regarding fisher population 
status and trend using prior data, despite the availability of 
scientific studies that were developed with robust sample design and 
effort. This commenter cited multiple references for inclusion such as 
Furnas et al. 2017 and Powell et al. 2019.
    Our Response: We incorporated the population estimate of Furnas et 
al. (2017, p. 12) and the conclusions regarding the NSN subpopulation 
into our analysis of the NCSO DPS (see the Current Condition section of 
the NCSO DPS analysis). We incorporated a discussion of the fluctuating 
nature of populations over time and acknowledge the fisher's ability to 
sustain populations within the DPS in the presence of ongoing 
stressors.
    (55) Comment: One commenter claimed that the Service changed its 
interpretation of confidence intervals with no rationale for the 
change. They request that the Service explain how to interpret a 
confidence interval so the public and reviewing courts will understand 
the technical basis for the Service's conclusions.
    Our Response: For population monitoring studies, we have moved away 
from discussing confidence intervals around lambda, preferring instead 
in this final determination to discuss the fluctuations in lambda we 
see and how they likely represent normal fluctuations of a population 
at or near carrying capacity (see NCSO Current Condition, above).
    (56) Comment: One commenter noted that even though one catastrophic 
wildfire damaged habitat for several individual fishers, it would be 
improper for the Service to use one event as justification for listing 
a species. Instead, the Service should be reviewing the entire 
administrative record, and affording one event the weight it deserves 
in terms of predicting overall population trends for the species.
    Our Response: We have based our determinations for the NCSO DPS and 
the SSN DPS on the best scientific and commercial data available. We 
evaluated threats to the species and assessed the cumulative effect of 
the threats under section 4(a)(1) of the Act. For the NCSO DPS, we 
determined that, in part, because of the population's widespread 
distribution combined with resiliency and redundancy, it did not 
warrant listing. For the SSN DPS, we concluded that, in part, the small 
population size, combined with substantial habitat loss as a result of 
recent tree mortality among other factors, warranted listing as 
endangered. In conclusion, we have based our decisions on a multitude 
of factors, not on a single event.
Rodenticides
    (57) Comment: Several commenters asserted that rodenticides 
(anticoagulants or neurotoxicants) are a significant threat to the DPS, 
and that we underestimated the risks to the species in the 2019 Revised 
Proposed Rule. Some of these commenters provided information on this 
threat, such as illegal grow site activity in Oregon. Another commenter 
expressed concerns related to staffing constraints on Federal lands 
that have delayed and likely will continue to delay cleanup activities. 
Another commenter was concerned that emotional reaction stimulated by 
the proposed rule's description of the potential effects of 
anticoagulant rodenticides and the potential extent of this threat may 
influence the perception of the actual magnitude of the effect to 
fishers. Additionally, the commenter claimed that the Service did not 
address an important gap in present knowledge

[[Page 29585]]

about anticoagulant rodenticides within the species' range, i.e., the 
degree to which exposure influences mortality of fishers within the 
DPS, which the commenter asserts should have substantial bearing on any 
conclusion about the magnitude of this threat.
    Our Response: Toxicants, especially rodenticides, are a threat to 
fisher in both the NCSO and the SSN DPSs. And, we agree that finding 
and cleaning up after illegal grow sites is problematic from an 
ecological, funding, and staffing perspective. We also agree that the 
description of toxicant poisoning elicits an emotional response. 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 both DPSs have died 
from toxicant exposure, fishers suffer a variety of sublethal effects 
from exposure to rodenticides, and the potential for illegal grow sites 
within fisher habitat is high. But it is difficult for us to accurately 
estimate the effects these rodenticides are having to fisher as a whole 
because we do not understand what proportion of the population is being 
negatively affected (i.e., mortality or sublethal effects).
    For the NCSO DPS, in spite of the ongoing impacts from toxicants, 
the NCSO population seems to be withstanding this threat. For example, 
the NSN subpopulation has grown to the point where the population is 
self-sustaining, despite the fact that rodenticide exposure rates are 
similar to other areas in California (Gabriel et al. 2015, entire; 
Powell et al. 2019, p. 16). And, fisher at EKSA in the Klamath 
Mountains in California near the Oregon border do not show a long-term 
decline (Powell et al. 2014, p. 18), despite the fact that illegal grow 
sites are in the area. For the SSN DPS, because this DPS is much 
smaller, the lethal and sublethal effects of toxicants to individuals 
have the potential to have population-level effects and reduce the 
resiliency of the DPS as a whole.
    (58) Comment: Two commenters stated that rodenticides are subject 
to increased regulation in Oregon and California; although a timeframe 
for this comment was not included, we assume the commenters were 
referring to the time since recreational marijuana use became legalized 
in Oregon (2015) and California (2016). Further, one commenter argued 
that legalized and increased regulation will reduce trespass and 
improve environmental cleanup and restoration of public lands damaged 
by illegal marijuana cultivation (although no data was provided by the 
commenter).
    Our Response: As discussed in the general Exposure to Toxicants 
section above, the data are mixed with respect to how legalization is 
affecting illegal grow sites on public lands. For example, some 
information shows that illegal grow sites on National Forests have 
decreased in States where marijuana was legalized (Klassen and Anthony 
2019, p. 39; Prestemon et al. 2019, p. 1). On the other hand, many law 
enforcement officials have found no indication that illegal grow sites 
have decreased with cannabis legalization, and it may in fact be 
increasing, in part due to legalization providing an effective means to 
launder illegal marijuana (Hughes 2017, entire; Bureau of Cannabis 
Control California 2018, pp. 28, 30; Sabet 2018, pp. 94-95; Fuller 
2019, no page number; Klassen and Anthony 2019, p. 45). Illegal grow 
sites appear to be dropping in number but are getting larger (impacting 
more fisher home ranges) (Gabriel 2018, pers. comm.). And, law 
enforcement actions have caused illegal grow sites to disperse further 
which makes them more difficult to locate (Gabriel 2018, pers. comm.). 
At this time, it is difficult to reach conclusions about trends in the 
abundance and frequency of illegal grow sites this soon after 
legalization.
    (59) Comment: One commenter claimed that it is valid to extrapolate 
known levels of anticoagulant exposure to areas where little exposure 
research has occurred (e.g., Stanislaus National Forest), given the 
high rate of fisher's exposure in the Southern Sierras. The commenter 
also claimed that the risk to small population(s) from rodenticides 
undercuts any chance of population recovery.
    Our Response: Illegal grow sites are distributed as discrete 
patches throughout much of the NCSO and SSN DPSs. In the absence of 
data, it is reasonable to assume the opportunity for fisher to be 
exposed to toxicants is similar across much of the NCSO and SSN DPSs 
(except at higher elevations where the growing season is shorter and it 
is harder to grow marijuana). We also agree for the SSN DPS, because 
this DPS is much smaller, the lethal and sublethal effects of toxicants 
to individuals have the potential to have population-level effects and 
reduce the resiliency of the DPS as a whole. As to the comment stating 
the risk to small population(s) from rodenticides undercuts any chance 
of population recovery, no further evidence was provided to support 
this claim. It is the intent of the ESA that species will eventually be 
recovered.
    (60) Comment: One commenter asserted that voluntary conservation 
efforts on non-Federal lands (CCAAs and HCPs) mitigate and decrease the 
threats to fishers from toxicants, further articulating that these 
conservation measures aggressively prevent illegal drug growing that 
use anticoagulant rodenticides.
    Our Response: We do not have information that allows us to compare 
and assess the distribution of illegal grow sites on private versus 
public lands. Nor do we have information on how many acres may benefit 
from limiting access to private lands or information on how many 
patrols are being added across what area and at what frequency. 
Similarly, we do not have information that allows us to address how the 
voluntary conservation measures may or may not be affecting illegal 
grow sites. Further, not all voluntary conservation efforts include 
measures that address illegal grow sites (e.g., the Oregon CCAAs). The 
job of preventing illegal grow sites across large areas is extremely 
difficult and comes with large staffing and resource needs. Although we 
cannot quantify the effectiveness of these voluntary conservation 
measures at lessening the threat from toxicant exposure at illegal grow 
sites, we do expect limiting access will make it more difficult to 
establish illegal grow sites. And increased patrols (depending on the 
number of patrols and the scale of the landscape they are visiting) 
will act as a deterrent. We support voluntary conservation efforts to 
limit the impact of toxicant exposure from illegal grow sites to 
fisher.
Range Expansion
    (61) Comment: Several commenters claimed that the range of the 
fisher in the NCSO subpopulation expanded. Some of these commenters 
provided maps delineating occupied fisher range (as determined by CDFW 
in 2010 and 2015), fisher location data from 1980 to 2019, and the 
Service's West Coast Fisher DPS boundary in support of their 
conclusion. Further, they questioned the magnitude of impact of 
purported threats in light of this expansion.
    Our Response: The maps provided by the commenters were developed 
using data sets from different time periods and are not directly 
comparable. Further, we did not receive data during the 2019 Revised 
Proposed Rule comment periods to suggest that the range of the fisher 
had expanded. The data we did receive confirmed what we understood 
about the distribution of fisher and presented in our 2019 Revised 
Proposed Rule. We find that the fisher NCSO DPS is widespread and 
common to the point where listing is not warranted at this time.

[[Page 29586]]

Cumulative Effects
    (62) Comment: One commenter asserted that the Service's analysis of 
cumulative effects was missing from the proposed rule. Further, the 
commenter claimed that the threats analysis did not support the 
Service's determination that the existing regulatory mechanisms are not 
sufficient to address the cumulative impacts of the primary threats, 
specifically referring to exposure to toxicants and habitat loss and 
fragmentation due to wildfire and vegetation management. Additionally, 
and in contrast, we note our receipt of a peer review comment on the 
2014 Proposed Rule indicating that synergistic (cumulative) effects, 
primarily climate change and its secondary effects from wildfire, pose 
the most serious long-term threat to fisher populations, especially in 
California.
    Our Response: In evaluating the status of a species or DPS, we 
identify both the threats acting upon it and any conservation efforts 
or mechanisms that may ameliorate those threats. In identifying 
threats, we describe them in the context of the five listing factors, 
and evaluate the scale and magnitude of their effect on the species in 
light of their impacts on the resilience, redundancy, and 
representation of the species. A species' overall status with regard to 
whether it warrants listing is based on our assessment of the 
cumulative effect of all threats and ameliorating measures combined. 
This cumulative analysis is found in the Determination section of both 
our 2019 Revised Proposed Rule and this current document.
    (63) Comment: One commenter claimed that little, if any, actionable 
measures exist that could address the individual-level threats 
identified by the Service in order to recover the species. The 
commenter asserted that those who wish to help the species recover have 
no clear direction forward, because the threats described in the 2019 
Revised Proposed Rule are not assigned any values and often are 
inconsistent with one another. The commenter claimed that many of these 
identified threats are competing in nature. For example, the commenter 
stated that severe wildfire can often be prevented by proper vegetation 
management. Similarly, the commenter stated that vegetation management 
can help prevent losses due to forest insects and tree diseases by 
preventing widespread loss of forest vegetation.
    Our Response: Threats acting on the fisher are complex and interact 
with each other such that some threats can influence how other threats 
act on the fisher. These influences can be either positive (e.g., 
appropriate vegetation management that may reduce forest vulnerability 
to large-scale tree diseases or insect outbreaks) or negative (e.g., 
climate change influencing the potential for high-severity wildfires). 
In this context of competing threat influences, the commenter further 
suggests the need to provide a direction forward for those attempting 
to recover listed species, as threats are not assigned any ``values.'' 
While we do not assign values to threats when conducting a status 
assessment for a species, we identify those threats that may have the 
most significant impacts to the species' viability. However, we also 
note that efforts to recover a species, once determined it warrants 
listing, are subsequently developed in light of all the identified 
threats, where they occur within the species' range, and how they 
interact with each other and the species and its environment. Recovery 
actions may therefore be location- or habitat-specific, and address the 
competing nature noted by the commenter.
Threatened v. Endangered
    (64) Comment: Several commenters urged the Service to list the 
proposed West Coast DPS of fisher as either endangered or threatened, 
or urged listing without specifying which status is most appropriate. 
In contrast, several other commenters urged the Service not to list the 
taxon. Some comments urging the Service not to list the DPS are either 
focused on not listing specifically in the State of Oregon or not 
listing the NCSO subpopulation. All of these comments with varied 
opinions are similar in content and rationales to those received on the 
2014 Proposed Rule.
    Our Response: Sections 3(6) and 3(20) of the Act, respectively, 
define an endangered species as one that is in danger of extinction 
throughout all or a significant portion of its range, and a threatened 
species as one that is likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range. Our task in evaluating a species for a potential listing under 
the Act is to determine whether that species meets the definition of 
either a threatened species or an endangered species, based solely on 
the best scientific and commercial data available. For this reason, 
comments merely expressing support for or opposition to a proposed 
listing, without supporting scientific rationale or data, do not meet 
the standard of information required by section 4(b)(1)(A) of the Act. 
There is significant information available on fishers and their habitat 
in the West Coast States; we note there could always be more data for 
most analyses to help lessen uncertainties.
    The determination for the NCSO DPS is that listing is not 
warranted. Regarding the SSN DPS, at this time the best available 
scientific and commercial information suggests that the cumulative 
impact of the stressors adversely affecting the SSN DPS of fisher is 
such that listing the SSN DPS of fisher as an endangered species is 
appropriate. Of greatest concern at this time are stressors related to 
illegal rodenticide use, increasing high-severity wildfires, and 
prolonged droughts that exacerbate the effects from wildfire, forest 
insects, and tree disease. For all of these reasons and as detailed in 
the Determination section of this document, we conclude that the SSN 
DPS of fisher meets the definition of an endangered species under the 
Act.
    (65) Comment: Two commenters urged the Service to list the NCSO 
subpopulation as a threatened species and SSN subpopulation as an 
endangered species, the latter because they believe protections for 
this small, isolated subpopulation are insufficient to prevent its 
extinction and threats are more immediate (e.g., high-severity 
wildfires and drought within its narrow range have increased in recent 
years).
    Our Response: Please see our response to Comment 14 and Comment 64, 
and the analysis for each DPS contained in this document.
    (66) Comment: One commenter stated that the Rogue-River and 
Siskiyou area, where the Ashland fisher population resides, is 
recognized as a rich environment of floristic biodiversity. The 
commenter stated that habitat characteristics deemed important for 
fishers are equally critical for smaller mammals and birds that rely on 
similar, if not exact, habitat requirements, and that species of 
special concern that also cohabit this region, such as the northern 
spotted owl, the Humboldt marten, and the northern flying squirrel, 
would certainly benefit from the overarching protection of fisher 
resources that this listing could provide. Further, the commenter 
claimed that protection of habitat characteristics for both predator 
and prey species would retain an ecological balance important to the 
functionality of forest health and successional stages (e.g., insect 
population control and seed dispersal roles by mammalian and avian 
species).
    Our Response: We cannot base our listing decision on the benefits 
of habitat protection to other plants and animals. Section 4(a)(1) of 
the Act directs us to ``determine whether any species is an endangered 
species or a

[[Page 29587]]

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.'' We recognize the 
ecological value of the Rogue River and Siskiyou area, as well as its 
contribution to fishers and other plants and animals. However, this 
information did not contribute to our overall determinations on the 
status of the fisher.
Tree Mortality
    (67) Comment: One commenter expressed concern that canopy cover 
loss from tree mortality will increase fragmentation and reduce female 
fisher gene flow. The commenter claimed that tree mortality is 
resulting in extensive management along road corridors, which may 
further impede connectivity.
    Our Response: We discussed the best available science regarding 
tree mortality in both the NCSO DPS and SSN DPS of this final rule.
Vegetation Management
    (68) Comment: One commenter stated that the Revised Proposed Rule 
fails to justify wildfire suppression and vegetation management 
activities as threats. The commenter asserted that the Service should 
evaluate the benefits associated with these activities, including the 
decreased risk of severe wildfire when vegetation is managed 
appropriately.
    Our Response: Fishers use managed landscapes, particularly when key 
elements such as den and rest trees are retained and when forest 
heterogeneity is promoted (see Vegetation Management). There can be 
benefits associated with vegetation management including decreased risk 
of wildfire; however, there are potential trade-offs to these 
activities (e.g., loss of fisher habitat to reduce wildfire risk in 
fisher habitat), which should be weighed carefully when implementing 
such actions.
    (69) Comment: One commenter claimed that wildfire mitigation 
activities, which can include vegetation management, can be effective 
in long-term preservation of fisher habitat. Meanwhile, the commenter 
pointed out that other Federal agencies, such as the Forest Service, 
have recognized that active forest management is necessary to address 
threats from widespread tree mortality. Overall, the commenter asserted 
that the Service failed to acknowledge the beneficial effects on fisher 
habitat associated with forest and fuels management.
    Our Response: We acknowledge the benefit of carefully applied fuels 
reduction strategies in reducing wildfire risk while also retaining 
fisher habitat structural elements in the final Species Report (Service 
2016, pp. 60, 68-69). We further acknowledge in this rule conservation 
measures designed to reduce fire risk while also retaining fisher 
habitat structural elements.
    (70) Comment: One commenter stated that the Service provides no 
analysis or supporting citations for its conclusory statements that 
removal of ``snags and other large habitat structures'' for safety 
reasons is a threat to the DPS.
    Our Response: For clarification purposes, 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, including alteration of habitat or required resources. Because 
the fisher uses snags and large trees for resting and denning, their 
removal would have a negative effect on the species and is, by this 
definition, a threat. However, the mere identification of a threat does 
not necessarily mean that the species meets the statutory definition of 
an endangered or threatened species. For both DPSs, we weighed the 
cumulative effects of the threats, along with existing conservation 
measures, to make our determination.
    (71) Comment: One commenter stated that over the last 5 years, a 
variety of logging projects within the fisher's range have degraded 
habitat. The commenter claimed that if current trajectories continue, 
we can expect to see more habitat loss through logging.
    Our Response: We recognize that timber harvest is and will continue 
to be an ongoing activity within the fisher DPSs. However, it affects a 
small portion of conditions used by fishers (as represented by the 
OGSI-80 condition in the NCSO DPS). For the NCSO DPS, we concluded that 
timber harvest (vegetation management), combined with other analyzed 
threats and the existing population condition, are not acting on the 
DPS to the degree that it meets the definition of endangered or 
threatened under the Act. Conversely, for the SSN DPS we concluded that 
timber harvest (vegetation management), combined with other analyzed 
threats and the existing population condition, are such that the DPS 
meets the definition of endangered under the Act.
    (72) Comment: One commenter observed that the proposed rule 
discusses the effects of fire on fisher habitat and the extended time 
to recover habitat features. The commenter stated that timber harvest 
on Federal lands under existing management plans allows the removal of 
live and dead woody features that are important components of denning 
habitat. Furthermore, the commenter asserted that timber harvest does 
not provide the same ecological effects of fire, also noting that 
timber harvest, as currently practiced by the Forest Service and BLM, 
can remove and downgrade fisher habitat.
    Our Response: In this rule and in the final Species Report (Service 
2016, pp. 60-77, 98-111), we acknowledge the wide variety of effects on 
fisher habitat as a result of wildfire and vegetation management, as 
well as the different ecological effects of fire vs. vegetation 
management. We also recognize that timber harvest on Federal lands has 
removed, and will continue to remove, fisher habitat and have factored 
that information into our decision, concluding that such harvest 
results in removal of a small portion of fisher habitat.
    (73) Comment: One commenter stated that the Service is inconsistent 
with our handling of vegetation management as a tool to reduce the risk 
of large-scale, high-severity wildfire. The commenter noted that we 
conclude it is a threat to fisher in the proposed rule, yet in the 
recent finding for the California spotted owl, the Service concluded 
that vegetation management was necessary to reduce the overall 
potential for wildfires to be detrimental to California spotted owl 
habitat and ultimately concluded that the owl did not warrant listing.
    Our Response: The Service relied on conservation efforts to reduce 
large-scale high-severity fires within the range of California spotted 
owl that included specific measures to identify the greatest risks to 
the owl's known occupied activity centers and prioritize fuels 
reduction work that helps to protect the greatest number of activity 
centers on Federal and private lands, while not reducing the quality of 
the highest quality owl habitat in treated areas. While these 
California spotted owl conservation measures benefit fisher, they do 
not explicitly describe how implementation will benefit fisher. Since 
the 2019 Revised Proposed Rule, we received new MOUs designed to reduce 
high-severity wildfire that include specific conservation measures to 
protect fisher habitat within the NCSO DPS. We have incorporated this 
new information into our analysis.
    (74) Comment: One commenter stated that the Service acknowledges in 
the 2019 Revised Proposed Rule that it has

[[Page 29588]]

no basis to conclude that fuels reduction, restoration thinning, or 
indeed any other management activity is a threat to the DPS; there is 
no information on how different vegetation management activities affect 
fisher subpopulations and their persistence within the DPS's range. The 
commenter also claimed that the Service proceeds to conclude that some 
forms of vegetative management, without specifying which kinds, ``may 
threaten fisher.'' The commenter asserted that, based on this ``slim 
reed,'' the Service then identified vegetative management as a threat 
to the species, specifically including fuels reduction and restoration 
thinning.
    Our Response: As noted in our analyses, a wide range of activities 
fall under the broad term, ``vegetation management.'' Thus, fisher 
response to vegetation management activities can vary, depending on the 
type of activity and its duration and magnitude (Service 2016, p. 110; 
see Vegetation Management section). Our analysis of the effects of 
vegetation management (changes in OGSI-80 stands or in GNN analyses; 
actual loss of fisher habitat within the SSN) is somewhat driven by the 
features measured in the data sets we used. That is, in the case of 
OGSI-80 stands, activities that reduce canopy cover to below 10 percent 
or remove large structural elements would be recorded as a reduction in 
that stand condition. Such activities may include clearcuts and some 
fuels reduction activities, but likely not thinning activities. Hence, 
our analysis focuses on those vegetation management activities that 
likely have the greatest effect on fishers in terms of removing canopy 
cover or structural elements. These types of vegetation management 
activities seem to have the greatest effect on fishers, although the 
portion of the DPS affected by vegetation management is small.
Wildfire
    (75) Comment: One commenter stated that the duration of impact from 
high-severity wildfire is not adequately addressed. In particular, the 
commenter claimed that the Service assumes that habitat lost to high-
severity wildfire is permanent, and therefore does not consider effects 
into the foreseeable future. The commenter specifically stated that we 
failed to consider fisher re-occupancy of the 1992 Fountain Fire, which 
was salvage-logged with little retention of structures used by fisher.
    Our Response: The Wildfire and Wildfire Suppression section of this 
rule and the 2016 final Species Report (Service 2016, pp. 62-66, 77) 
include discussions of short- and long-term effects of wildfire on 
fisher habitat. Further, the 2016 final Species Report includes a 
discussion of fisher re-occupancy of the 1992 Fountain Fire area 
(Service 2016, p. 66). Neither the 2019 Revised Proposed Rule, this 
final rule, nor the 2016 final Species Report assumes that habitat loss 
as a result of high-severity fire is permanent. The 2019 Revised 
Proposed Rule and this final rule also consider vegetation ingrowth 
(see Vegetation Management, above) and its ability to represent trends 
in forest structural conditions used by fishers. Therefore, we have 
already determined that habitat affected by fire is not permanent and 
that fishers may re-occupy burned areas in the foreseeable future.
    (76) Comment: One commenter stated that the 2019 Revised Proposed 
Rule does not make a conclusive statement regarding the degree to which 
wildfire threatens fisher. The commenter cites Powell et al. (2019, pp. 
23-27) and examples of fisher reoccupying burned areas (e.g., Fountain 
Fire) as a reason to reconsider the threat of extinction from wildfire 
within the foreseeable future. Specific to Powell et al. (2019), the 
commenter claimed that extinction risk for fisher did not exceed 0.25 
unless more than 40 percent of the simulated area burned, with a 
decrease in risk when SPI management was included. Thus, the commenter 
asserted there is a low risk of extinction when modeled at a high rate 
of short-term, high-intensity habitat loss. Lacking any analysis, the 
commenter believed the conclusion should be that the reported rate of 
loss of habitat (7 percent over 10 years; citing 84 FR 60278, p. 60288, 
November 7, 2019) is not likely to lead to endangered status in the 
foreseeable future.
    Our Response: Contrary to the comment, the 2019 Revised Proposed 
Rule and this final rule include statements regarding the degree of 
impacts of wildfire on fisher, at the species level and for both 
subpopulations (see Wildfire and Wildfire Suppression). As we explain, 
the impacts are highly variable and depend on forest type, landscape 
location, size, and intensity of the wildfire. The conclusions reached 
by the commenter regarding data in Powell et al. (2019, pp. 23-27) 
appear to be extrapolations of data presented in figure 16 (Powell et 
al. 2019, p. 26). We acknowledge the point the commenter brings 
forward, but also note the model used by Powell et al. 2019 and the 
data used to determine the loss of habitat at 7 percent per year are 
different. As we describe in Wildfire and Wildfire Suppression above, 
our analysis addressed potential habitat loss from wildfires. The 
analysis completed by Powell et al. 2019 (entire) more generally 
addresses area burned rather than the potential fisher habitat loss 
within that area. Therefore, these two methods are not directly 
comparable.
    (77) Comment: Multiple commenters indicated that we did not analyze 
the impact of fuel breaks and fuel reduction projects occurring under 
MOUs for the northern spotted owl and the California spotted owl across 
Federal, State, and private ownerships.
    Our Response: The final rule includes an updated discussion of the 
MOUs (see Existing Regulatory Mechanisms and Voluntary Conservation 
Measures) suggested by the commenter. In summary, the MOUs have not 
been in place very long; therefore, it is difficult to understand their 
effectiveness and subsequently their actual benefits to fishers and 
their habitat. However, we view these MOUs as important collaboration 
tools that can achieve the conservation needs of the fisher across 
large landscapes. We will continue to monitor these efforts into the 
future.
    (78) Comment: One commenter is concerned that entire populations 
and subpopulations of fisher could be eliminated by stochastic wildfire 
events unless steps are taken to increase protections. Two other 
commenters are similarly concerned that climate-related factors are 
predicted to increase wildfire activity; thus, the commenters stated 
that forest management is a necessary tool to minimize the impacts and 
spread of wildfire.
    Our Response: We agree that the impacts of wildfire are a 
significant concern for fisher (see Wildfire and Wildfire Suppression 
section of this rule). We are optimistic that actions implemented under 
voluntary conservation measures (e.g., MOUs, CCAAs, HCPs; see Existing 
Regulatory Mechanisms and Voluntary Conservation Measures section of 
this rule), including forest management will provide protection of 
fisher habitat in the near and long term.
    (79) Comment: One commenter stated that the analysis of wildfire 
was not thoroughly evaluated. Specifically, the commenter raised 
concerns about the Service's use of OGSI-80 to determine a less than 1 
percent loss of habitat per decade from wildfire and an analysis 
conducted by the Service that showed a 7 percent of high and 
intermediate fisher habitat loss to wildfire since 2008.
    Our Response: We have revised our discussion of wildfire threats to 
clarify the distinction between the Davis et al. (2015, entire) 
analysis of loss of OGSI-

[[Page 29589]]

80 forest to wildfire and the analysis done by us to more directly 
assess fisher habitat loss to wildfire. Please see our response to 
comments above and the Wildfire and Wildfire Suppression section of 
this rule.

Required Determinations

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 rule are the staff members of the 
Unified Interior's California-Great Basin Regional Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend part 17.11(h) by adding an entry for ``Fisher (Southern Sierra 
Nevada 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) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Fisher (Southern Sierra Nevada    Pekania pennanti..  U.S.A. (Southern    E              85 FR [INSERT Federal
 DPS).                                                 Sierra Nevada,                     Register PAGE WHERE
                                                       CA).                               THE DOCUMENT BEGINS],
                                                                                          5/15/2020.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-09153 Filed 5-14-20; 8:45 am]
 BILLING CODE 4333-15-P