[Federal Register Volume 89, Number 104 (Wednesday, May 29, 2024)]
[Rules and Regulations]
[Pages 46576-46616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11254]



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Vol. 89

Wednesday,

No. 104

May 29, 2024

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; Designation of Critical 
Habitat for the Coastal Distinct Population Segment of the Pacific 
Marten; Final Rule

  Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2020-0151; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BE33


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Coastal Distinct Population Segment of the 
Pacific Marten

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the coastal distinct population segment of Pacific 
marten (coastal marten) (Martes caurina), a mammal species from coastal 
California and Oregon, under the Endangered Species Act of 1973 (Act), 
as amended. In total, approximately 1,213,752 acres (491,188 hectares) 
in northwestern California and southwestern Oregon fall within the 
boundaries of the critical habitat designation. This rule extends the 
Act's protections to this entity's designated critical habitat.

DATES: This rule is effective June 28, 2024.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R8-ES-2020-0151.
    Availability of supporting materials: Supporting materials we used 
in preparing this rule, such as the species status assessment report, 
are available at https://www.regulations.gov at Docket No. FWS-R8-ES-
2020-0151. For the critical habitat designation, the coordinates or 
plot points or both from which the maps are generated are included in 
the decision file for this critical habitat designation and are 
available at https://www.regulations.gov at Docket No. FWS-R8-ES-2020-
0151 and on the Service's website at https://www.fws.gov/office/arcata-fish-and-wildlife.

FOR FURTHER INFORMATION CONTACT: Vicky Ryan, Acting Field Supervisor, 
U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 
Heindon Road, Arcata, CA 95521; telephone 707-822-7201. Individuals in 
the United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), 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. On October 8, 2020, we published in 
the Federal Register (85 FR 63806) a final rule listing the coastal 
marten distinct population segment (DPS) as threatened, and on October 
25, 2021, we published in the Federal Register (86 FR 58831) a proposed 
rule to designate critical habitat for the DPS. Designating critical 
habitat can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This is a final rule to designate critical 
habitat for the coastal marten in five units totaling approximately 
1,213,752 acres (ac) (491,188 hectares (ha)) in the States of Oregon 
and California.
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary), to the maximum extent prudent 
and determinable, concurrently with listing designate critical habitat 
for the species. Section 3(5)(A) of the Act defines critical habitat as 
(i) the specific areas within the geographical area occupied by the 
species, at the time it is listed, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protections; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
by the Secretary that such areas are essential for the conservation of 
the species. Section 4(b)(2) of the Act states that the Secretary must 
make the designation on the basis of the best scientific data available 
and after taking into consideration the economic impact, the impact on 
national security, and any other relevant impacts of specifying any 
particular area as critical habitat.

Previous Federal Actions

    Please refer to the proposed rule to list the coastal marten DPS 
(83 FR 50574; October 9, 2018), the final rule to list the DPS (85 FR 
63806; October 8, 2020), the proposed rule to designate critical 
habitat for the DPS (86 FR 58831; October 25, 2021), and the document 
describing revisions to and reopening the comment period on the October 
25, 2021, proposed rule (87 FR 59384; September 30, 2022) for detailed 
descriptions of the previous Federal actions concerning this DPS.

Peer Review

    A species status assessment (SSA) team prepared a revised SSA 
report for the coastal marten (Service 2023, entire) based on both peer 
review and public comments. The SSA team was composed of Service 
biologists, in consultation with other species experts. The 2023 SSA 
report represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the species and incorporates the results of peer 
review, public and agency comments, and new information that has become 
available since our proposed critical habitat rule was published on 
October 25, 2021 (86 FR 58831). The 2023 SSA report also identifies 
habitat needs and requirements for the coastal marten. We used 
information in the 2019 and 2023 SSA reports to inform our development 
of the physical or biological features as well as our criteria for 
determining and designating critical habitat for the coastal marten. 
The 2019 and 2023 SSA reports (Service 2019 and Service 2023) are 
available at https://www.regulations.gov at Docket No. FWS-R8-ES-2020-
0151.
    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 and recovery actions under the Act, we solicited independent 
scientific review of the information contained in the draft coastal 
marten SSA report (Service 2019, entire). As discussed in the final 
listing rule (85 FR 63806; October 8, 2020) and the proposed critical 
habitat rule (86 FR 58831; October 25, 2021), we sent the 2019 SSA 
report to eight independent peer reviewers and received two responses. 
The peer reviews can be found at https://www.regulations.gov at Docket 
No. FWS-R8-ES-2020-0151. Regarding comments applicable to this 
designation of critical habitat, we incorporated the comments which 
specifically addressed our characterization of coastal marten habitat 
and the DPS's use of habitat, as

[[Page 46577]]

appropriate, into the current SSA report (Service 2023, entire) and 
into this critical habitat designation.

Summary of Changes From the Proposed Rule

    Our proposed critical habitat rule (86 FR 58831; October 25, 2021), 
contained an error in the acreage identified for Unit 1. The proposed 
rule identified 94,094 ac (37,673 ha) of Federal lands in Unit 1. The 
actual acreage of Federal land proposed for Unit 1 should have been 
93,091 ac (37,673 ha). The acreages discussed for Unit 1 in this rule 
reflect this correction.
    In addition, in preparing this final rule, we reviewed and fully 
considered the comments we received during the comment periods on our 
October 25, 2021, proposed rule (86 FR 58831) and our September 30, 
2022, document describing revisions to and reopening the comment period 
on the October 25, 2021, proposed rule (87 FR 59384). In general, the 
changes from the proposed rule to this final rule fall into two main 
categories--the finalization of section 4(b)(2) exclusions and changes 
(additions and removals) to areas that are based on our consideration 
of comments and new information we received from land managers and 
updated land ownership information. These are described below as 
changes resulting from exclusions and from land manager comments. This 
final rule also reflects minor nonsubstantive changes (such as 
clarifications on habitat use) that were made to the SSA report 
(Service 2023, version 2.2, entire).

Changes as a Result of Exclusions Under Section 4(b)(2) of the Act

    As identified in our October 25, 2021 (86 FR 58831), and September 
30, 2022 (87 FR 59384), publications, we identified the Green Diamond 
Resource Company (GDRC) lands and the Yurok Tribal lands (trust lands, 
fee title lands, and reservation boundary adjustment lands) as being 
considered for exclusion under section 4(b)(2) of the Act from Unit 5 
in California. Subsequent to the publication of our October 25, 2021, 
proposed rule, we received comments and information from both GDRC and 
the Yurok Tribe requesting that we exclude their lands from the 
critical habitat designation for the coastal marten DPS. We have 
finalized our exclusion analyses and are excluding approximately 49,010 
ac (19,834 ha) of GDRC lands, which includes approximately 9,754 ac 
(3,947 ha) of GDRC lands that are within the Yurok Tribe reservation 
boundary; 64,979 ac (26,296 ha) of Yurok Tribal lands; and 25,791 ac 
(10,437 ha) of U.S. Forest Service lands (reservation boundary 
adjustment lands) being managed by the Yurok Tribe from Unit 5 in 
California (for more information, see Consideration of Impacts under 
Section 4(b)(2) of the Act, below).
    In addition, we received information regarding a new law that 
transferred 1,031 ac (417 ha) of Federal land from the Secretary of 
Agriculture to the Secretary of the Interior, to be held in trust for 
the benefit of the Karuk Tribe (Katimi[icirc]n and Ameeky[aacute]araam 
Sacred Lands Act, Pub. L. 117-353, January 5, 2023) (Karuk Tribal 
lands). The Karuk Tribal lands within the proposed critical habitat 
designation are located in Unit 5 in Siskiyou and Humboldt Counties, 
California, and total approximately 925 ac (374 ha). As a result of 
this legislation, we asked and the Karuk Tribe requested that we 
consider an exclusion of these lands from the final designation of 
critical habitat for the coastal marten DPS. As a result of the Tribe's 
request, we reviewed the best information available and conducted an 
exclusion analysis on the transferred lands and determined that the 
lands are appropriate for exclusion from the final designation (for 
more information, see Consideration of Impacts under Section 4(b)(2) of 
the Act, below).

Changes as a Result of Comments Received From Land Managers

    We received comments and information from the U.S. Forest Service 
regarding whether certain areas within the eastern portion of Unit 1 in 
the Siuslaw National Forest in Oregon contain the physical or 
biological features (PBFs) essential to the conservation of the coastal 
marten and constitute areas of coastal marten habitat use (see Federal 
Agency Comments, below). As a result of our review of their comments, 
information they provided, subsequent meetings with the Siuslaw 
National Forest, and a site visit to the area in question, we have 
determined that the areas identified by the Siuslaw National Forest in 
Unit 1 do not meet our designation criteria and are not essential to 
the conservation of the coastal marten. We have, therefore, removed 
them from this final designation. This is based on information that the 
area in question does not contain the PBFs to the degree or extent 
necessary to support the coastal marten. Specifically, the 
environmental conditions in the more arid areas in the eastern portion 
of the proposed unit do not support the dense, spatially extensive 
shrub layer necessary for protection and cover and prey foraging. This 
final rule adopts a revised eastern boundary for Unit 1 and does not 
include those areas that do not meet the definition of critical 
habitat. The overall acreage for Unit 1 now totals 22,135 ac (8,958 
ha).
    The Siuslaw National Forest also provided updated land ownership 
and habitat information for additional areas in Units 2, 3, and 4 and 
recommended changes to the boundaries of the designation in these 
units. The changes involve numerous small additions and removals based 
on habitat conditions, connectivity to previously proposed critical 
habitat, and land ownership. These changes result in a net reduction of 
60 ac (24 ha) in Unit 3, and 3 ac (1.2 ha) in Unit 4. There is a net 
increase of 7,028 ac (2,844 ha) in Unit 2. See table 1, below, for land 
ownership and unit total acres for the final critical habitat 
designation.
    As discussed in our October 25, 2021, proposed rule, we do not 
include areas that are managed by the Bureau of Land Management (BLM) 
or U.S. Forest Service (USFS) under the Oregon and California Revested 
Lands Sustained Yield Management Act of 1937 (43 U.S.C. 2601) (O&C 
lands) and currently allocated to the ``harvest land base'' (BLM) or 
``matrix'' (USFS) land uses, as these lands are managed for permanent 
forest production and, therefore, are not likely to contain the 
physical or biological features essential to the conservation of the 
coastal marten in sufficient amounts or configuration to meet our 
criteria to be considered critical habitat for the DPS. However, based 
on the most current land use information for the entire designation 
which includes lands identified as O&C harvest land base lands, we 
identified a total of approximately 177 ac (72 ha) (121 ac (49 ha) in 
Unit 3 and 56 ac (23 ha) in Unit 5) of such O&C lands that were 
unintentionally included in the proposed designation, and we remove 
these lands from this final designation based on our criteria and rule 
set for designating critical habitat (see Conservation Strategy and 
Selection Criteria Used to Identify Critical Habitat, below).

Summary of Comments and Recommendations

    In our October 25, 2021 (86 FR 58831), and September 30, 2022 (87 
FR 59384), Federal Register publications, we requested that all 
interested parties submit written comments on the proposed designation 
by December 27, 2021, and October 17, 2022, respectively. We also 
contacted appropriate Federal and State agencies, Tribal entities, 
scientific experts and organizations, and other interested parties and 
invited them to comment on

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the proposal. Newspaper notices inviting general public comment were 
published in the Oregonian for the areas in southwestern Oregon and the 
Times-Standard for areas in northwestern California. We did not receive 
any requests for a public hearing. All substantive information we 
received during comment periods has either been incorporated directly 
into this final determination and/or the 2023 SSA report, or is 
addressed below.

Peer Review Comments

    As discussed in Peer Review, above, we received comments from two 
peer reviewers on the 2018 SSA report (Service 2018, version 1.1, 
entire). The peer reviewers generally concurred with our methods and 
conclusions, and they provided additional information and 
clarifications that we incorporated into the current version of the SSA 
report (Service 2023, version 2.2, entire) as appropriate. The SSA 
report forms the basis of information we used in determining the 
habitat needs, physical or biological features, and criteria for 
critical habitat for the coastal marten.

Federal Agency Comments

    We reached out to all Federal agencies within the range of the 
coastal marten or that may be required to consult on critical habitat 
for the DPS under section 7 of the Act to request their comments on our 
proposed rule to designate critical habitat for the coastal marten. We 
received comments regarding the proposed designation from the USFS's 
Siuslaw National Forest. Their comments are summarized below and may be 
found at http://www.regulations.gov under Docket No. FWS-R8-ES-2020-
0151 (Document No. FWS-R8-ES-2020-0151-0039).
    (1) Comment: The USFS, Siuslaw National Forest requested changes to 
proposed Units 1, 2, 3, and 4 based on habitat conditions, occupancy, 
presence of the PBFs within these units, and/or land ownership 
information. According to their comments, areas within the eastern 
interior portions of proposed Unit 1 do not currently have the habitat 
conditions necessary to support coastal marten populations, and surveys 
of proposed Unit 1 found no evidence of coastal martens outside of the 
dunes or the dense coastal forest in the western part of proposed Unit 
1. As a result, they recommended removing areas in the eastern portion 
of proposed Unit 1 from the final designation due to a lack of PBFs and 
use by the coastal marten. They also requested adjusting and including 
additional areas along the coastal dune habitats as well as east of 
Highway 101 in Units 2, 3, and 4 due to presence of additional forested 
habitat not included in the October 25, 2021, proposed rule. According 
to the Siuslaw National Forest, these additional areas contain the PBFs 
and are, in some instances, occupied by the coastal marten. Further, 
according to the Siuslaw National Forest, including these areas would 
allow for expansion of currently occupied areas and assist in 
connectivity between and adjacent to habitat for the coastal marten.
    Our response: We reviewed the information provided by the Siuslaw 
National Forest on potential changes to the proposed designation and 
considered any changes based on our strategy, criteria, and methodology 
for determining critical habitat for the coastal marten.
    For the recommended changes to Unit 1, we met with the Siuslaw 
National Forest staff and conducted a site visit to review the habitat 
conditions of the eastern inland portions of proposed Unit 1 to 
determine if the PBFs are present in sufficient quantity and quality to 
be able to support coastal martens. After our review, we determined the 
areas proposed in the eastern inland portions of Unit 1 do not contain 
the PBFs in sufficient quantity, quality, or distribution to provide 
for coastal marten populations and, as a result, do not meet the 
definition of critical habitat for the DPS. Although some habitat 
features are present and may over time improve and have better 
distribution within the eastern inland portions of this unit in the 
future, we have removed the eastern portion of proposed Unit 1 from the 
final designation of critical habitat as these areas do not currently 
meet the definition of critical habitat. See Summary of Changes from 
the Proposed Rule, above, and the description of Unit 1 under Final 
Critical Habitat Designation, below, for additional information 
regarding Unit 1.
    For the recommended changes to Units 2, 3, and 4, we reviewed 
information about the identified areas to determine whether the areas 
are owned by Federal or State agencies, are adjacent to existing 
identified critical habitat, contain the PBFs, and/or are occupied by 
coastal marten. Our review of the information provided by the Siuslaw 
National Forest resulted in some changes to the areas identified as 
critical habitat in Units 2, 3, and 4 by adding lands that meet these 
criteria. Other lands identified by the Siuslaw National Forest that 
are located on private lands and do not meet our criteria for 
identifying areas essential to the conservation of the coastal marten 
as critical habitat, are not included in this final designation. See 
Summary of Changes from the Proposed Rule, above, and the descriptions 
of Units 2, 3, and 4 under Final Critical Habitat Designation, below, 
for additional information regarding changes to these units.
    (2) Comment: The Siuslaw National Forest identified and clarified 
USFS land ownership information and mapping discrepancies within Units 
1, 2, 3, and 4 for lands that they suggest should be removed from or 
included in a critical habitat designation for the coastal marten. The 
Forest suggested that areas not be included in the designation that are 
under private ownership or lands identified as critical habitat for the 
western snowy plover (Charadrius nivosus nivosus) that include beach 
grass (Ammophila sp.) or open sand, but to include areas for which the 
determination for inclusion in the proposed designation was based on 
habitat modeling. The Siuslaw National Forest provided maps of areas 
within Units 1, 2, 3, and 4 where they recommended adjustments.
    Our response: We appreciate the information and suggestions for 
changes to the designation provided to us by the Siuslaw National 
Forest. We used the information to improve this designation for the 
coastal marten. In our review of the comments provided, we evaluated 
the suggestions and considered whether any addition or removal met or 
did not meet our criteria and methodology for determining critical 
habitat for the coastal marten (see Conservation Strategy and Selection 
Criteria Used to Identify Critical Habitat below) After consideration 
of whether the suggested changes are consistent with our criteria and 
methodology for designating critical habitat, we adjusted the 
boundaries of Units 1, 2, 3, and 4 (for more information, see Summary 
of Changes from the Proposed Rule, above).

Comments From States

    (3) Comment: The Oregon Department of Fish and Wildlife (ODFW) 
stated that, while they concur that older forests often provide habitat 
elements needed by the coastal marten, they emphasize that other forest 
and nonforest cover types provide important habitat for the DPS in 
Oregon, including younger forests, coastal dune forests, and forested 
serpentine habitat. As a result, they recommended revisions to the 
descriptions of the PBFs essential to the conservation of the species 
to better reflect the use of younger and nontypical forested habitats.
    Our response: We acknowledge that the coastal marten does occur in 
and uses various habitats for one or more of

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its life stages. As discussed under Physical or Biological Features 
Essential to the Conservation of the Species, below, the PBFs we 
identify for the coastal marten include coastal dune, serpentine, and 
lower productivity forested habitat components, and the forest 
overstory within these areas may include highly variable conditions. We 
also identify forested habitats that have a structural component that 
supports denning or resting features such as large downed trees, rock 
piles with interstitial spaces, and large snags or live trees with 
decay elements or suitable resting structures (e.g., hollows and 
cavities, forked or broken tops, dead tops, brooms from mistletoe or 
other tree pathogens, or large platforms including abandoned nests). 
Younger forested habitat may be considered critical habitat if it 
provides such features or if it is dispersal or foraging habitat. We 
have updated the SSA report and this final rule to better clarify this 
information on the coastal marten's use of variable habitat, including 
younger forests, serpentine areas, and coastal dune forested habitats.
    (4) Comment: The ODFW commented that our proposed designation may 
not be sufficient to provide for the conservation of the coastal marten 
and that they would support the designation of additional areas as 
critical habitat to provide for connectivity and dispersal corridors. 
To support this comment, ODFW developed a habitat connectivity model 
that identified high-value corridors between the identified critical 
habitat areas in Oregon. The three corridors include areas between 
Units 1 and 2, Units 3 and 4, and Units 4 and 5 (ODFW 2021, pp. 6-7).
    Our response: We appreciate our partnership with ODFW and their 
significant contributions and involvement with coastal marten 
conservation in Oregon. In identifying critical habitat for the coastal 
marten, we developed a strategy for determining critical habitat that 
focuses on identifying areas that would assist in increasing the 
resiliency, representation, and redundancy of coastal marten 
populations by maintaining, improving, and expanding existing coastal 
marten populations and their habitat. Our designation focuses on the 
core areas that are associated with rearing or denning for the coastal 
marten and also includes areas of connectivity between habitats or home 
ranges to allow dispersal and potential establishment of new 
populations, such as the designated critical habitat in the relatively 
narrow corridor connecting areas between southern Oregon and northern 
California near the State border in Unit 5. Although our designation 
does include areas associated with opportunities for dispersal and 
connectivity between habitats for the coastal marten, we considered but 
did not identify the specific areas between the designated units as 
identified by the ODFW as critical habitat. This was due to the limited 
information on consistent use of these areas by the coastal marten and 
the large distances between the units which are outside the dispersal 
distances from home or denning sites. In addition, our removal of areas 
from Unit 1 because they did not contain the proper PBFs removed the 
connectivity of habitat between Unit 1 and 2 as identified by the ODFW. 
We have determined that the areas we identify as critical habitat 
provide connectivity and dispersal opportunities between existing 
coastal marten populations within each unit and make up core areas from 
which other conservation efforts, such as recovery actions, can expand 
on.
    (5) Comment: The ODFW expressed concern with our use of habitat 
modeling to establish areas of critical habitat and recommended a 
cautious interpretation and use of model outputs when identifying 
critical habitat areas particularly if the modeling effort used 
surrogate or limited data. Specifically, ODFW stated that the available 
modeling (Slauson et al. 2019b, entire; Schrott and Shinn 2020, entire) 
may overemphasize older forested habitats and does not include younger 
aged forests or lower elevation areas associated with coastal dune 
forests. ODFW pointed to additional more recent modeling (Moriarty et 
al. 2021, entire) that includes use of broad-scale forest cover class 
variables to predict coastal marten habitat and suggested we review 
that model output to better identify coastal marten critical habitat.
    Our response: We acknowledge ODFW's concern regarding dependence on 
modeling to determine critical habitat areas, but also acknowledge the 
need to use models when specific and detailed habitat use information 
may not be available as is the case for the coastal marten. However, in 
our development and identification of areas as critical habitat for the 
coastal marten, we did not solely rely on model output to create the 
critical habitat designation. Rather, we relied heavily on recent 
verifiable occupancy records, the extant population areas that are 
based on this occupancy, and known habitat characteristics within these 
areas. In identifying low-elevation coastal dune forest habitat for the 
coastal marten, we used the Schrott and Shinn 2020 connectivity model 
(Schrott and Shinn 2020, entire); however, this model addresses the 
inclusion of low-elevation habitat by hand-mapping coastal dune forest 
for inclusion in the model. Our use of habitat modeling to assist in 
determining habitat extent and distribution was also informed by aerial 
imagery and reviewed by Service staff who are familiar with the areas 
and, in some cases, who have conducted site visits. We also acknowledge 
publication of Moriarty et al. (2021), a predictive occupancy model, 
and we compared its results to the areas we identify as critical 
habitat. Although the Moriarty model provides information on the areas 
potentially used by the coastal marten, its focus is on determining 
occupancy based on habitat conditions and not determining what occupied 
areas containing those features are considered essential to the 
conservation of the coastal marten, so could not be used as the sole 
source of data informing our designation. As a result, we consider the 
process and various sources of information we used to identify critical 
habitat for the coastal marten to be appropriate and based on the best 
scientific information available.

Comments From Tribes

    (6) Comment: As discussed in our September 30, 2022, publication 
(87 FR 59384), we received comments from the Yurok Tribe regarding 
adjustments to land ownership information for the Tribe and a request 
to exclude lands from this final critical habitat designation for the 
coastal marten. The Yurok Tribe's request identified Tribal trust 
lands, Tribal fee lands, and other Tribal reservation boundary 
adjustment lands owned by the USFS in Unit 5 in California for 
exclusion from designation as critical habitat.
    Our response: In this final rule, we identify 116,562 ac (47,171 
ha) of lands affiliated with the Yurok Tribe (including fee, trust, and 
USFS lands) as critical habitat for the coastal marten, and we exclude 
all of those lands from this critical habitat designation. See Tribal 
Lands under Exclusions Based on Other Relevant Impacts, below, for 
additional information regarding Yurok Tribal land exclusions.

Public Comments

    (7) Comment: Several commenters questioned our use of a 70 percent 
or greater threshold for shrub cover as a physical or biological 
feature for the coastal marten's home range and stated that habitat for 
the DPS is more variable and should include a range of shrub cover 
percentage rather than an absolute threshold. Other commenters 
disagreed with our description of canopy cover and suggested inclusion 
of younger

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forested habitats in our PBFs. The commenters suggested looking at 
other coastal marten habitat modeling that includes use as habitat of 
less mature and more variable shrub and canopy cover by the coastal 
marten.
    Our response: We acknowledge that the coastal marten uses a range 
of shrub cover as habitat especially for foraging, for seeking cover, 
or when traversing or dispersing to adjacent forested areas. However, 
because published studies on the specific habitat characteristics of 
home range for the coastal marten are not available rangewide, we 
characterize the home-range habitat used by the coastal marten at the 
stand scale and landscape scale, while being clear that this is a 
surrogate for knowledge of home-range use by the DPS. The best science 
available indicates that an extensive, dense, shrub layer is an 
important predictor of coastal marten occurrences and, most 
importantly, aligns with our understanding of individual and species 
needs (cover from predators, resting and denning features, and prey 
habitat). As discussed under Physical or Biological Features Essential 
to the Conservation of the Species, below, the identified PBFs for the 
coastal marten include descriptions that apply to both mature and 
younger forested habitats, as well as dune forests and forests within 
serpentine habitats. Critical habitat is not intended to include all 
habitat used by a species; it focuses on those specific areas occupied 
by a species on which are found those physical or biological features 
essential to the conservation of the species in an appropriate quantity 
and spatial arrangement for survival and reproduction. For the coastal 
marten, our use of the 70 percent shrub cover layer for foraging and 
cover and our identification of features that have the appropriate 
structural components for resting, denning, and reproducing will assist 
in conserving those areas essential to the conservation of the DPS. We 
clarify and update our discussion of habitat use by the coastal marten 
by incorporating information on younger habitat use by the DPS into our 
SSA report (Service 2023, section 2.5.3) and this final rule (see 
Background, below), as appropriate.
    (8) Comment: Several commenters suggested we modify the description 
of habitat used by the coastal marten and that we deemphasize the 
coastal marten's use of mature or older forested habitat and not use 
the Old Growth Structural Index (OGSI) to determine coastal marten 
habitat or extrapolate habitat conditions in northern California for 
the rest of the DPS's range when determining critical habitat.
    Our response: Our description and identification of habitat and the 
PBFs for the coastal marten do not specifically indicate that any 
particular stand age is necessary for coastal marten or that OGSI 
information is a component needed as a determining factor for critical 
habitat. OGSI is a spatial data layer developed by the USFS and Oregon 
State University and is an index of one to four measurable criteria 
(i.e., density of large live trees, diversity of live-tree size 
classes, density of large snags, and percentage cover of downed woody 
material; Davis et al. 2015, p. 16). Although such features are used by 
and important to coastal marten, our critical habitat designation for 
the DPS is not completely focused on these habitat characteristics. 
Rather, based on habitat descriptions and PBFs, critical habitat should 
be structurally complex with some measure of the specified habitat 
characteristics of forest overstory, dense understory, and biologically 
complex structure that contains snags, logs, other decay elements, or 
other structures that support the coastal marten's denning, resting, or 
prey. We also identify less mature or low productive forested habitats 
(such as coastal dune, serpentine, or less mature habitats) as critical 
habitat for certain life-history functions. In determining critical 
habitat, we did not extrapolate the habitat information or conditions 
from northern California to determine the PBFs or critical habitat 
elsewhere in the DPS's range, but used both occupancy information and 
the habitat structure information discussed above. We clarify and 
update our description of habitat use by the coastal marten in our SSA 
report (Service 2023, section 2.5.3) and this final rule (see 
Background, below), as appropriate.
    (9) Comment: Numerous commenters stated that the coastal marten 
uses numerous habitat types, including younger forests, and recommended 
inclusion of additional areas in the critical habitat designation 
associated with forested coastal dune and serpentine habitat. According 
to one of the commenters, the forested coastal dune habitats contain 
the highest known densities and populations of the coastal marten and 
not including such areas does not incorporate the best scientific 
information available.
    Our response: We acknowledge that the coastal marten does occur in 
and uses various forested habitats for one or more of its life stages. 
However, although coastal martens have been detected on younger 
forested lands, we do not have evidence that they are using these areas 
as home ranges for denning or that they remain in these areas for 
significant periods of time. In our development of this critical 
habitat designation, we included variable habitat types where the DPS 
is found, such as forested serpentine and coastal dune habitat. For 
forested coastal dune habitat, we included those areas that had recent 
verifiable detections of the DPS. The designation included the vast 
majority but not all of the records of coastal marten occupying the 
forested coastal dune habitat (see Final Critical Habitat Designation, 
Unit 2 and Unit 3, below). The designation of critical habitat does not 
require we identify the full extent of habitat used or available for 
use by a species. We acknowledge that areas outside the critical 
habitat designation are important for recovery of the DPS, but we point 
out that the designation of critical habitat is only one tool in 
conserving the coastal marten. Other conservation and recovery efforts 
outside critical habitat will be necessary, especially on non-Federal 
lands. We have determined that the areas currently occupied by the 
coastal marten that are included in this designation will provide for 
the resiliency, representation, and redundancy of coastal marten 
populations by maintaining and improving existing coastal marten 
populations and their suitable habitat.
    (10) Comment: Several commenters suggested including additional 
areas, including unoccupied areas adjacent to or between units, to 
provide for connectivity or to account for the impacts to habitat 
resulting from the effects of climate change.
    Our response: When designating critical habitat for the coastal 
marten, we first evaluated areas occupied by the species and reviewed 
these areas to determine if the areas identified provide sufficient 
resiliency, representation, and redundancy to conserve the species. We 
acknowledge the importance of connectivity between habitat for the 
coastal marten. In this critical habitat designation, we considered the 
dispersal needs of the DPS as part of our methodology for identifying 
areas as critical habitat. The areas we proposed and are now finalizing 
as critical habitat are all occupied by the DPS with recent verifiable 
records and provide for sufficient connectivity between populations of 
coastal marten. Therefore, no unoccupied areas are essential for the 
conservation of the species. With respect to the request that we 
include additional areas to anticipate the effects of climate change, 
the commenters did not provide information regarding the habitat 
changes that may occur or what

[[Page 46581]]

additional areas should be included for the coastal marten. However, we 
consider the amount, distribution, and extent of critical habitat units 
we are designating in this rule to be relatively resilient to the 
current effects of climate change, and thus this designation 
anticipates the effects of climate change to coastal marten habitat. As 
a result, we do not consider it necessary at this time to add any 
additional areas to this critical habitat designation to address the 
effects of climate change.
    (11) Comment: Several commenters provided additional occurrence 
information and information on small, isolated, occupied areas. These 
commenters suggested we include these locations in our critical habitat 
designation for the coastal marten.
    Our response: As a result of information we received since the 
October 25, 2021, publication of our proposed rule, including 
information we received during the two public comment periods, we 
became aware of additional detections of the coastal marten. These 
additional records will assist in our understanding of the distribution 
and range of the DPS. In reviewing the location and distribution 
information in these additional records, however, we could not 
determine if these records were actual populations or individuals 
dispersing to adjacent habitats. Part of our criteria for determining 
critical habitat for the coastal marten is to include areas that have 
numerous records of observed populations within the dispersal distance 
of known populations of the DPS. Some of the new additional records 
were in areas we had already considered for designation as critical 
habitat, and others were records of single individuals and most likely 
not part of a population. Smaller, isolated, occupied habitats, 
although they may be used by the DPS, are not considered to be critical 
habitat for the coastal marten due to the uncertainty as to whether 
these areas would provide sufficient resiliency, redundancy, and 
representation to maintain coastal marten populations and do not meet 
our criteria for determining critical habitat.
    (12) Comment: One commenter questioned and requested clarification 
on occupancy within proposed Unit 5.
    Our response: Our regulations at 50 CFR 424.02 define the 
``geographical area occupied by the species'' as an area that may 
generally be delineated around species' occurrences, as determined by 
the Secretary (i.e., range). For coastal marten, we delineated extant 
population areas (EPAs) based on the DPS's occurrences and contiguous 
suitable habitat that may support the DPS. We then identified those 
PBFs essential to the conservation of the DPS to refine the boundaries 
of the EPAs and determine the critical habitat for the coastal marten 
in each unit. Additionally, consistent with the regulations at 50 CFR 
424.12(d), when several areas, each satisfying the requirements for 
designation as critical habitat, are located in proximity to one 
another, the Secretary may designate an inclusive area as critical 
habitat. Unit 5 contains multiple occurrences of coastal marten that 
are in close proximity to one another and are connected by contiguous 
forested habitat. Therefore, we include all these areas together as a 
single, occupied unit.
    (13) Comment: Several commenters suggested we wait until better 
information and understanding of habitat for the coastal marten is 
available before finalizing the designation.
    Our response: Under section 4(b)(2) of the Act and our regulations 
under 50 CFR 424.12, we are required to designate critical habitat 
concurrent with listing a species under the Act, to the maximum extent 
prudent and determinable. In our final listing rule, we affirmed that 
designation of critical habitat was not determinable at the time 
because information sufficient to perform a required analysis of the 
impacts of the designation was lacking (85 FR 63806, October 8, 2020, 
pp. 63829-63830). Later, in our October 25, 2021, proposed rule to 
designate critical habitat (86 FR 58831), we stated that designation of 
critical habitat for the coastal marten is both prudent and 
determinable. As a result, we are required to propose and finalize a 
designation based on the best scientific information available and not 
wait until new or more specific information becomes available. If new 
information becomes available in the future that warrants revisions to 
the areas we are designating as critical habitat in this rule, we may, 
upon our own initiative or through the petition process, revise this 
designation through rulemaking conducted in accordance with the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    (14) Comment: Several commenters stated that the designation of 
critical habitat will delay or stop timber and hazardous vegetation 
fuels-reduction activities that would otherwise provide for better 
forest health and wildfire resilience objectives.
    Our response: We recognize that land managers have a variety of 
forest management goals, including maintaining or improving ecological 
conditions where the intent is to provide long-term benefits to forest 
resiliency and restore natural forest dynamic processes. Critical 
habitat designations do not establish specific land management 
standards or prescriptions, nor do designations affect land ownership 
or establish a refuge, wilderness, reserve, preserve, sanctuary, or any 
other conservation area where no active land management activities can 
occur.
    The consultation requirements under section 7 of the Act apply to 
Federal agencies. Section 7(a)(2) of the Act requires Federal agencies, 
including the Service, to ensure that any action they fund, authorize, 
or carry out is not likely to jeopardize the continued existence of any 
endangered species or threatened species or result in the destruction 
or adverse modification of designated critical habitat of such species. 
We have worked closely with the USFS, BLM, and National Park Service on 
implementation of measures to avoid adverse impacts to the physical or 
biological features for the coastal marten in the areas we are 
designating as critical habitat in this rule. We will continue to work 
with them to implement projects to benefit forest resiliency and 
natural forest dynamic processes on areas designated as critical 
habitat.
    Activities implemented solely by non-Federal entities without 
Federal authorization or funding are not subject to the destruction/
adverse modification standards of critical habitat under section 7 of 
the Act. Non-Federal activities remain subject to the Act's 
prohibitions against take of listed species, such as the coastal 
marten, unless such take is excepted through a rule issued under 
section 4(d) or in accordance with an incidental take permit issued 
under section 10 of the Act. We note that, in our listing of the 
coastal marten, we issued a 4(d) rule (see 50 CFR 17.40(s)) that 
excepts from the Act's section 9 prohibition against take certain 
forest management activities, including forest management activities 
for the purposes of reducing the risk or severity of wildfire and 
forestry management activities consistent with the conservation needs 
of the coastal marten. Accordingly, we do not consider this critical 
habitat designation to be a burden on implementation of timber and 
hazardous vegetation fuels-reduction activities, whether conducted by 
Federal agencies or non-Federal entities.
    (15) Comment: Several commenters stated that the economic analysis 
is flawed in that it does not consider all economic impacts, including 
those

[[Page 46582]]

associated with listing of the DPS, cost to third parties due to 
critical habitat restrictions on recreational off-highway vehicle (OHV) 
use, or increased permitting requirements and costs under the 
California Environmental Quality Act (CEQA) for non-Federal actions.
    Our response: Section 4(b)(2) of the Act and its implementing 
regulations require that we consider the economic impact that may 
result from a designation of critical habitat. Our implementing 
regulations at 50 CFR 424.19(b) state that we will consider the 
probable economic impacts of a critical habitat designation and that we 
will ``compare the impacts with and without the designation'' (78 FR 
53058; August 28, 2013). Guidelines issued by the U.S. Office of 
Management and Budget (OMB) for the economic analysis of regulations 
direct Federal agencies to measure the costs and benefits of a 
regulatory action against a baseline (i.e., costs and benefits that are 
``incremental'' to the baseline). The baseline includes the economic 
impacts of listing the species under the Act, even if the listing 
occurs concurrently with critical habitat designation. Impacts that are 
incremental to the baseline (i.e., occurring over and above existing 
constraints) are those that are solely attributable to the designation 
of critical habitat. Our economic analysis focuses on the likely 
incremental effects of the critical habitat designation. In our 
incremental effects memorandum (IEM), we clarified the distinction 
between the recommendations that will result from the species being 
listed and those attributable to the critical habitat designation 
(i.e., difference between the jeopardy and adverse modification 
standards) for the coastal marten's critical habitat. As discussed in 
section 3 of the screening analysis (Industrial Economics, Incorporated 
(IEc) 2021, pp. 7-14), we do not anticipate making any significant 
project modification recommendations to avoid adverse modification of 
coastal marten critical habitat beyond what we already would recommend 
to avoid impacts to the DPS and other listed species with similar 
habitat requirements. The economic analysis determined that the 
critical habitat designation was unlikely to trigger additional State 
or local regulations (IEc 2021, pp. 14-16). As a result, we have 
determined our economic analysis appropriately identifies costs 
associated with the designation.
    (16) Comment: One commenter stated that the Service improperly 
certified that the designation will not have a significant impact on a 
substantial number of small business entities and did not complete a 
regulatory flexibility analysis.
    Our response: As stated in the proposed rule and this final rule 
(see Regulatory Flexibility Act 5 U.S.C. 601 et seq.) under Required 
Determinations, below), a regulatory flexibility analysis is not 
required if the head of the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In our October 25, 2021, proposed rule, we certified that, if 
made final, the proposed critical habitat designation would not have a 
significant economic impact on a substantial number of small business 
entities (86 FR 58831, October 25, 2021, p. 58850). We reaffirm that 
certification in this final rule. Our basis for the certification is 
that Federal action agencies are the only entities directly regulated 
when we adopt a critical habitat designation. There is no requirement 
under the Regulatory Flexibility Act to evaluate the potential impacts 
to entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities will be directly 
regulated by this rulemaking, the Service certifies that this critical 
habitat designation will not have a significant economic impact on a 
substantial number of small entities. As a result, a regulatory 
flexibility analysis is not required.
    (17) Comment: One commenter suggested removing or clarifying table 
2 in the October 25, 2021, proposed rule (86 FR 58831 at pp. 58837-
58838) since it represents an example of vegetation characteristics at 
a site located within a small portion of the range.
    Our response: Our intent for table 2 in the proposed rule was to 
provide an example of the vegetation characteristics used by the 
coastal marten in a portion of the DPS's range. We described it as such 
in the paragraph preceding the table. However, to avoid confusion, we 
do not include the table in this final rule, and we include new 
language in this rule to highlight the importance of the multiple 
vegetation types used by the coastal marten throughout its range.
    (18) Comment: Several commenters had concerns regarding the lands 
in Unit 5 that we identified as being considered for exclusion from the 
final designation under section 4(b)(2) of the Act. They stated that 
the coastal marten is a threatened species and that the habitat needs 
of the coastal marten should take priority over timber harvest 
activities that they stated are not adequately conserving habitat for 
the coastal marten. The commenters stated that our reliance on 
maintaining partnerships should not be considered a benefit of 
exclusion and a complete weighing analysis should be completed before 
any exclusions are finalized.
    Our response: In determining whether we exclude lands under section 
4(b)(2) of the Act, we conduct a weighing analysis comparing the 
benefits of exclusion to the benefits of inclusion. If our analysis 
finds that the benefits of exclusion outweigh the benefits of 
designating such areas as critical habitat, the Secretary may then 
choose to exercise her discretion to exclude any area from critical 
habitat unless that exclusion would result in the extinction of the 
species. In making the determination to exclude a particular area, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    Currently, our exclusion decisions are governed by the regulations 
at 50 CFR 424.19 and our Policy Regarding Implementation of Section 
4(b)(2) of the Act (hereafter, the ``2016 policy''; 81 FR 7226, 
February 11, 2016). Under our 2016 policy, we can evaluate a variety of 
factors to determine how the benefits of any exclusion and the benefits 
of inclusion are affected by the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships when we undertake a discretionary section 4(b)(2) 
exclusion analysis. In the Private or Other Non-Federal Conservation 
Plans or Agreements and Partnerships, in General and Tribal Lands 
discussions under Consideration of Impacts under Section 4(b)(2) of the 
Act, below, we provide our full weighing analysis and our rationale for 
excluding certain lands in Unit 5 from this final designation of 
critical habitat. We wish to emphasize that the exclusion of lands from 
the critical habitat designation should not be construed as a message 
that these lands are not important to the conservation of the coastal 
marten, nor should exclusion be interpreted as some indication that 
these lands are now somehow subject to habitat degradation or 
destruction because they are not included in the critical habitat 
designation. Lands excluded on the basis of conservation agreements and 
the recognition of conservation partnerships are expected to continue 
to make an important contribution to the conservation and recovery of 
the coastal marten absent the designation of critical habitat.
    (19) Comment: One commenter stated that approximately 66,422 ac 
(26,880 ha) of BLM and USFS lands proposed for designation as critical 
habitat for the

[[Page 46583]]

coastal marten fall under the Oregon and California Revested Lands 
Sustained Yield Management Act of 1937 (O&C Act; 43 U.S.C. 2601) and 
that all of these O&C lands should be excluded from the final 
designation due to the O&C Act's requirements that these lands (O&C 
lands) be devoted to permanent forest production of timber and that 
such an exclusion would result in a significant economic benefit to 
local communities. The commenter further stated that the Service may 
not indirectly impose reserves on these O&C lands by designating them 
as critical habitat.
    Our response: In determining critical habitat for the coastal 
marten, we developed specific criteria and a rule set to determine 
those specific areas occupied at the time of listing that contain the 
physical or biological features we consider essential to the 
conservation of the coastal marten. We did not include in the proposed 
designation, and do not include in this final designation, areas that 
are managed by the BLM or USFS under the O&C Act that are currently 
allocated to the ``harvest land base'' (BLM) or ``matrix'' (USFS) land 
uses, as these lands are managed for permanent forest production and 
are, therefore, not likely to contain the physical or biological 
features essential to the conservation of the coastal marten in 
sufficient amounts or configuration to be considered critical habitat 
for the DPS according to our criteria and rule set. Based on the most 
current land use information that includes lands identified as O&C 
harvest land base lands, we identified a total of approximately 177 ac 
(72 ha) (121 ac (49 ha) in Unit 3 and 56 ac (23 ha) in Unit 5) of such 
O&C lands that were unintentionally included in the proposed 
designation, and we remove these lands from this final designation 
based on our criteria and rule set for designating critical habitat 
(see Conservation Strategy and Selection Criteria Used to Identify 
Critical Habitat, below).
    As to the commenter's request to exclude the total 66,422 ac 
(26,880 ha) of O&C lands managed by the BLM or USFS from this final 
designation, we did not include any USFS matrix lands in the 
designation. The makeup of BLM managed O&C lands is a mixture of both 
harvest base lands and other reserve lands such as late-successional 
reserves, riparian reserves, and other BLM district reserves. These 
reserve lands are areas managed by BLM to assist in conserving various 
aspects of the forest ecosystem to benefit not only the forest but also 
sensitive or other listed species. Based on our exclusion analysis (see 
Consideration of Impacts under Section 4(b)(2) of the Act, below), we 
do not consider the requested exclusion appropriate for several 
reasons, including: (1) Not all O&C lands are managed as harvest land 
base/matrix lands; (2) BLM currently manages these lands in part for 
the purpose of contributing to the recovery of endangered and 
threatened species, providing clean water, restoring fire-adapted 
ecosystems, and providing for recreation opportunities (BLM 2016a, p. 
20; BLM 2016b, p. 20); (3) the O&C lands that remain within the 
critical habitat designation are occupied by the coastal marten and 
contain the physical or biological features essential to conservation 
of the DPS; and (4) under our 2016 policy (81 FR 7226; February 11, 
2016), we generally focus our exclusions on non-Federal lands, as that 
policy opines that the benefits of designating Federal lands as 
critical habitat are typically greater than the benefits of excluding 
Federal lands. The 2016 policy is based on the policy stated in the Act 
that all Federal departments and agencies seek to conserve endangered 
species and threatened species and use their authorities in furtherance 
of the purposes of the Act (16 U.S.C. 1531(c)(1)). Additionally, all 
Federal agencies have responsibilities under section 7 of the Act to 
carry out programs for the conservation of listed species and to ensure 
their actions are not likely to jeopardize the continued existence of 
listed species or result in the destruction or adverse modification of 
critical habitat. See Exclusion Analysis of Non-Harvest Land Base Lands 
(Oregon and California Lands (O&C Lands)) under Consideration of 
Impacts under Section 4(b)(2) of the Act, below, for our section 
4(b)(2) exclusion analysis of the non-harvest land base O&C lands.
    Our economic analysis did not identify significant economic impacts 
associated with the critical habitat designation. Because the areas we 
are designating as critical habitat are occupied by the coastal marten, 
the main costs associated with this designation are the administrative 
costs of determining whether an activity authorized, funded, or carried 
out by a Federal agency would result in the destruction or adverse 
modification of critical habitat for a listed species. Therefore, the 
exclusion of O&C lands in Unit 5 in Oregon would not be appropriate 
based on economic reasons.
    Further, when listing the coastal marten as a threatened species, 
we adopted a section 4(d) rule that excepts certain forestry management 
activities from take prohibitions (see 50 CFR 17.40(s)). Such an 
exception allows land managers to continue to conduct certain timber 
harvest activities without needing take authorization.
    Regarding the comment that the designation of critical habitat 
indirectly establishes reserves, critical habitat designations under 
the Act affect only Federal agency actions or federally funded or 
permitted activities. Designating areas as critical habitat does not 
establish a reserve, preserve, or sanctuary for a species or 
necessarily restrict further use of an area. Critical habitat is a tool 
to guide Federal agencies in fulfilling their conservation 
responsibilities by requiring them to consult with the Service under 
section 7 of the Act if their actions may destroy or adversely modify 
critical habitat for listed species.

Critical Habitat

Background

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. On April 5, 2024, jointly with the National Marine 
Fisheries Service, the Service issued a final rule that revised the 
regulations in 50 CFR 424 regarding how we add, remove, and reclassify 
endangered and threatened species to the lists and the criteria we 
consider for designating listed species' critical habitat (89 FR 
24300). This final rule is now in effect and incorporated into the 
current regulations. Our analysis for this final decision applied our 
current regulations. Given that we proposed critical habitat for this 
species under our prior regulations (revised in 2019), we have also 
undertaken an analysis of whether our decision would be different if we 
had continued to apply the 2019 regulations and we concluded that the 
decision would be the same. The analyses under both the regulations 
currently in effect and the 2019 regulations are available on https://www.regulations.gov.
    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate a species' critical habitat 
concurrently with listing the species. Critical habitat is defined in 
section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are

[[Page 46584]]

found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    This critical habitat designation was proposed when the regulations 
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the 
section 4(b)(2) exclusion process for the Service (85 FR 82376; 
December 18, 2020) were in place and in effect. However, those two 
regulations have been rescinded (87 FR 37757, June 24, 2022; 87 FR 
43433, July 21, 2022) and no longer apply to any designations of 
critical habitat. Therefore, for this final rule designating critical 
habitat for the coastal marten, we apply the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (81 FR 7226, February 11, 2016).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of designated critical habitat. The designation of 
critical habitat does not affect land ownership or establish a refuge, 
wilderness, reserve, preserve, or other conservation area. Such 
designation also does not allow the government or public to access 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal action agency would have already been 
required to consult with the Service even absent the critical habitat 
designation because of the requirement to ensure that the action is not 
likely to jeopardize the continued existence of the species. Even if 
the Service were to conclude after consultation that the proposed 
activity is likely to result in destruction or adverse modification of 
the critical habitat, the Federal action agency and the landowner are 
not required to abandon the proposed activity, or to restore or recover 
the species; instead, they must implement ``reasonable and prudent 
alternatives'' to avoid destruction or adverse modification of critical 
habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule for the 
coastal marten (see 50 CFR 17.40(s)). Federally funded or permitted 
projects affecting listed species outside their designated critical 
habitat areas may still result in jeopardy findings in some cases. 
These protections and conservation tools will continue to

[[Page 46585]]

contribute to recovery of the coastal marten. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or absence of a particular level 
of nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Summary of Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the coastal marten from studies of the DPS' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2023, entire; 
available on https://www.regulations.gov under Docket No. FWS-R8-ES-
2020-0151). A more detailed discussion of the physical or biological 
features for the coastal marten can be found in our proposed critical 
habitat rule (86 FR 58831, October 25, 2021, pp. 58835-58839). We have 
determined that the following physical or biological features (PBFs) 
are essential to the conservation of the coastal marten:
    Physical or Biological Feature 1--Habitat that supports a coastal 
marten home range by providing for breeding, denning, resting, or 
foraging. This habitat provides cover and shelter to facilitate 
thermoregulation and reduce predation risk, provides foraging sources 
for coastal marten prey, and provides structures that provide resting 
and denning sites. For cover and support denning, resting, and 
foraging, coastal martens require a dense forest overstory, dense 
understory development, and biologically complex structure that 
contains snags, logs, other decay elements, or other structures. Stands 
meeting the conditions for PBF 1 would also function as meeting PBF 2 
(facilitating movement within and between coastal marten home ranges). 
Stands meeting the condition for PBF 1 contain each of the following 
three components:
    (1) Mature, conifer-dominated forest overstory. Overstory canopy 
cover provides protection to coastal martens from aerial and 
terrestrial predators, as well as shelter from physical elements such 
as sun or storms. It also is the general source of structural features 
that coastal martens use for denning and resting, and provides suitable 
coastal marten prey. Suitable overstory conditions vary depending on 
the productivity of the site as follows:
    a. For areas with relatively low productivity (e.g., areas where 
growing conditions are harsher, such as serpentine sites or coastal 
shore pine forests, compared to other areas), suitable forest overstory 
conditions are highly variable. They may contain a sparse conifer 
overstory, such as in some serpentine areas, or a dense conifer 
overstory composed mainly of trees smaller than the typical older 
forest conditions described below in (1)b. (e.g., the dense shore pine 
overstory found in areas occupied by coastal marten along the Oregon 
coast) as well as those resting and denning structures necessary that 
are as of yet undescribed for some populations.
    b. For other areas with higher productivity, coastal martens tend 
to favor forest stands in the old-growth or late-mature seral stages. 
The specific forest composition and structure conditions found in 
higher productivity areas will vary by plant series and site class. 
Structural and composition descriptions of old-growth or late-mature 
seral stages for local plant community series should be used where 
available. In general these stands exhibit high levels of canopy cover 
and structural diversity in the form of: (i) a wide range of tree 
sizes, including trees with large diameter and height; (ii) deep, dense 
tree canopies with multiple canopy layers and irregular tree crowns; 
(iii) high numbers of snags, including large-diameter snags; and (iv) 
abundant downed wood, including large logs, ideally in a variety of 
decay stages.
    (2) Dense, spatially extensive shrub layer. The shrub layer should 
be greater than 70 percent of the area, comprising mainly shade-
tolerant, long-lived, mast-producing species (primarily ericaceous 
species such as salal, huckleberry, or rhododendron, as well as shrub 
oaks). An extensive layer of dense shrubs provides protection and cover 
from coastal marten predators. In addition, ericaceous and mast-
producing shrubs provide forage for coastal marten prey.
    (3) Stands with structural features. Structural features that 
support denning or resting, such as large downed trees, rock piles with 
interstitial spaces, and large snags or live trees with decay elements 
or suitable resting structures (e.g., hollows and cavities, forked or 
broken tops, dead tops, brooms from mistletoe or other tree pathogens, 
or large platforms including abandoned nests). These features provide 
cover and thermal protection for kits and denning females, and for all 
animals when they are resting between foraging bouts.

[[Page 46586]]

Hence, these features need to be distributed throughout a coastal 
marten's home range. They also tend to be among the largest structures 
in the stand. Many of these features, such as downed trees and snags or 
live trees with decayed elements, also support coastal marten prey.
    Physical or Biological Feature 2--Habitat that allows for movement 
within home ranges among stands that meet PBF 1, or supports 
individuals dispersing between home ranges. Habitat with PBF 2 
includes: (1) stands that meet all three conditions of PBF 1; (2) 
forest stands that only meet the first two components of PBF 1 (mature, 
conifer-dominated forest overstory and a dense, spatially extensive 
shrub layer); or (3) habitats with some lesser amounts of shrub, 
canopy, forest cover, or lesser amounts of smaller structural features 
as described in PBF 1, and while not meeting the definition of PBF 1, 
still provide forage and cover from predators that allow coastal 
martens to traverse the landscape to areas of higher quality habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the coastal 
marten may require special management considerations or protection to 
reduce the following direct or indirect threats: impacts from wildfire; 
timber harvest and other vegetation management or fuel reduction 
actions; habitat loss or fragmentation from road or highway 
construction. A detailed discussion of activities influencing the 
coastal marten and its habitat can be found in the SSA report (Service 
2023, p. 37) and final listing rule (85 FR 63806; October 8, 2020). 
Special management considerations or protection that may be required 
within critical habitat areas to address these threats include, but are 
not limited to, the following: development of wildlife crossings on 
major roadways; maintaining adequate cover and connectivity of habitats 
to provide cover from predation; implementation of forest management 
practices that prevent or reduce risk of catastrophic wildfire; 
reducing indirect impacts to coastal marten habitat from activities 
adjacent to critical habitat units; and minimizing habitat disturbance, 
fragmentation, and destruction through use of best management practices 
for vegetation management activities and providing appropriate buffers 
around coastal marten habitat, including denning and resting 
structures.

Conservation Strategy and Selection Criteria Used To Identify Critical 
Habitat

Conservation Strategy

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not designating any areas 
outside the geographical area occupied by the DPS because we have not 
identified any unoccupied areas that meet the definition of critical 
habitat. Those areas we have identified encompass the varying habitat 
types and distribution of the DPS and provide sufficient habitat to 
allow for maintaining and potentially expanding its distribution.
    To determine and select appropriate occupied areas that contain the 
physical or biological features essential to the conservation of the 
DPS or areas otherwise essential for the conservation of the coastal 
marten, we developed a conservation strategy for the designation of 
critical habitat. The goal of our conservation strategy for the coastal 
marten is to assist in recovery of the DPS to the point where the 
protections of the Act are no longer necessary. The role of critical 
habitat in achieving this conservation goal is to identify the specific 
areas within the coastal marten's range that provide the essential 
physical or biological features without which the coastal marten's 
rangewide resiliency, redundancy, and representation could not be 
achieved. This, in turn, requires an understanding of the fundamental 
parameters of the species' biology and ecology based on well-accepted 
conservation-biology and ecological principles for conserving species 
and their habitats, such as those described by Carroll et al. 1996 (pp. 
1-12); Shaffer and Stein 2000 (pp. 301-321); Natural Resources 
Conservation Service (NRCS) 2004 (entire); Tear et al. 2005 (pp. 835-
849); Groom et al. 2006 (pp. 419-551); Redford et al. 2011 (pp. 39-48); 
and Wolf et al. 2015 (pp. 200-207); and more specific coastal marten 
habitat information such as that described in Moriarty et al. 2016 (pp. 
71-81); Delheimer et al. 2018 (pp. 510-517); Linnell et al. 2018 (pp. 
1-21); Moriarty et al. 2019 (pp. 1-25); and Slauson et al. (2019a, 
entire).
    In developing our conservation strategy, we focused on increasing 
the resiliency, representation, and redundancy of coastal marten 
populations by maintaining and improving extant coastal marten 
populations and suitable habitat. Because coastal martens occur in 
small and isolated populations, the primary focus of the conservation 
strategy is to maintain and expand extant populations and suitable 
habitat within those population areas. Suitable habitat includes areas 
for cover, resting, denning and foraging and also provides for 
dispersal habitat when breeding or food resources may not be optimal. 
To maintain redundancy of coastal marten populations, the conservation 
strategy also focuses on providing for areas in the diversity of 
habitats that coastal martens have been documented to use. This 
includes mesic serpentine, coastal shore pine, and late-seral 
coniferous forests. These habitats are spread across the species' range 
and typically provide the physical and biological features essential to 
the conservation of the species without which rangewide resiliency, 
redundancy, and representation of the species could not be achieved. As 
explained further below, this focus led to the inclusion of suitable 
habitat within the ecological settings where the species occurs as part 
of the conservation strategy.

Selection Criteria and Methodology Used To Determine Critical Habitat

    As discussed above, to assist in determining which areas to 
identify as critical habitat for the coastal marten, we focused our 
selection on extant populations in the diversity of habitats 
represented by coastal marten. To define areas we consider occupied at 
the time of listing, we started with a set of detection points and 
grouped those detections into EPAs. The EPAs and the habitat areas 
adjacent to and within dispersal distance between the EPAs encompass 
the core areas we consider to be occupied at the time of listing. All 
current (since 1980) verifiable coastal marten detections were used to 
delineate EPAs within the historical home range. We selected this 
timeframe to ensure we were incorporating those records most likely to 
be extant based on the information available. If the total number of 
detections in an area was less than five or they were separated by

[[Page 46587]]

greater than 3 miles (mi) (5 kilometers (km)) from other verifiable 
detections, the combined detections were not designated as an EPA due 
to the insufficient level of information to suggest a likely self-
sustaining population (Service 2019, pp. 75-81). EPAs were considered 
separate from each other if they were not within 4.6 mi (7.5 km) of 
each other, which is based on half of the average dispersal distance of 
a coastal marten. This distance assumes that animals are not regularly 
moving between EPAs and the EPAs are functioning as separate 
populations. To better focus the areas occupied at the time of listing 
and considered to be essential to the conservation of the coastal 
marten, we refined the boundaries of the EPAs using a mapping process 
(60 percent concave hull method) to better select and focus on those 
areas with a higher prevalence of coastal marten detections.
    Because the EPAs are based on occurrence records and not habitat, 
we also used two different habitat models specific to coastal marten to 
incorporate the habitat used by the coastal marten detections 
associated with each EPA. These modeled areas are considered occupied 
by the species based on the continuous nature of the habitat and are 
within the dispersal distance and home ranges of the species. The first 
model we used found that coastal martens were positively associated 
with Old-Growth Structural Index (OGSI), precipitation, and serpentine 
soils, and negatively with elevation (Slauson et al. 2019b, entire). 
OGSI is a spatial data layer developed by the USFS and Oregon State 
University and is an index of one to four measurable old-growth 
structure elements, including (1) density of large live trees, (2) 
diversity of live-tree size classes, (3) density of large snags, and 
(4) percentage cover of downed woody material (Davis et al. 2015, p. 
16). OGSI serves as a surrogate for the late-seral structural features 
that are important to coastal marten survival and, in conjunction with 
the serpentine soil layer, incorporates several of the PBFs defined 
above. The inclusion of precipitation in the model accounts for the 
association of the mesic shrub layer that coastal martens depend on for 
cover, resting, and foraging.
    We also used a habitat connectivity model developed by the Service 
that incorporates OGSI data along with a minimum patch size of habitat 
to create `cores' of suitable habitat (Schrott and Shinn 2020, entire). 
We used our model in conjunction with the Slauson et al. 2019b model 
because the Slauson model does not include low-elevation areas known to 
be occupied by coastal martens. The Service model includes modeled 
output in lower elevation coastal regions of California and Oregon 
where we know coastal martens occur. Because the entire combined 
modeled extent of habitat overestimates the amount of habitat used by 
and needed for coastal marten conservation, we eliminated any modeled 
areas that were not adjacent to EPAs and eliminated modeled output in 
arid environments east of the Klamath River in California where 
suitable habitat is more scarce and localized to moist ravines. In 
addition, we trimmed the polygons where there were long tendrils 
displaying high edge-to-interior ratio that were generally artifacts of 
roads, modeled output, or misaligning of ownership projections and, 
thus, did not contain the PBFs considered essential to the conservation 
of the DPS.
    We further evaluated the polygons based on the PBFs for coastal 
marten and current land management practices under the Northwest Forest 
Plan (NWFP)(USFS and BLM 1994, entire) on federally managed lands and 
the timber industry on privately owned lands. Large portions of the 
privately owned lands in Oregon within the range of the coastal marten 
are used for timber harvest and are clear cut on a rotational basis. 
This type of management does not always support the maintenance of 
structural diversity of habitat needed by the coastal marten, and we 
concluded these areas are unlikely to have the PBFs essential to the 
coastal marten and would not support denning or resting structures to 
the degree necessary for the conservation of the species. As a result, 
we prioritized inclusion of Federal reserve lands and State lands 
occupied by the species at the time of listing because these lands 
contribute most to the conservation of the DPS, but also included those 
private lands that contain the PBFs essential to coastal marten 
conservation and which may require special management. In Oregon, we 
relied on Federal and State lands to meet the conservation needs of the 
coastal marten. The intermingled private lands in Oregon are largely 
industrial timberlands managed primarily for timber harvest production. 
Timber harvest practices in western Oregon are generally comprised of 
rotational clearcut operations that harvest most trees from the 
clearcut site. The areas are then replanted and the resulting forest is 
made up of even-aged stands of single tree species composition. Because 
these areas are uniformly and regularly harvested, the structure and 
PBFs needed for resting, denning, and cover on these private timber 
lands are generally lacking to the degree needed by the coastal marten.
    When determining critical habitat boundaries, we used the best land 
use and ownership information available and made every effort to avoid 
including developed areas such as lands covered by buildings, pavement, 
and other structures because such lands lack physical or biological 
features necessary for the coastal marten. The scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this rule have been excluded by text in 
the rule and are not designated as critical habitat. Due to 
unverifiable ownership and mapping information, some small portions of 
private or unclassified lands may occur within the mapping of Units 1, 
2, 3, and 4, but they are not intended for inclusion within the 
designation. These areas are extremely small artifacts of mapping 
discrepancies and potential overlapping data information, do not 
contain the PBFs considered essential to the conservation of the 
species, and are not intended to be included as critical habitat as 
defined in this rule. Accordingly, any private lands in Units 1, 2, 3, 
and 4 in Oregon inadvertently included in the designation due to land 
ownership irregularities are not considered critical habitat because 
they are part of inadvertent overlap or are undeterminable and are too 
small to be significant for coastal marten conservation. Similarly, 
inadvertent inclusion of private lands covered by buildings, roads, and 
other structures are not included in the final designation in 
California, but other private lands containing the physical or 
biological features are part of the final designation unless otherwise 
excluded under section 4(b)(2) of the Act (see Consideration of Impacts 
under Section 4(b)(2) of the Act, below). Private land owner actions on 
these lands will not trigger section 7 consultation with respect to 
critical habitat unless their action is federally authorized, funded, 
or permitted.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document under Regulation Promulgation. We include more-detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public on 
https://

[[Page 46588]]

www.regulations.gov at Docket No. FWS-R8-ES-2020-0151, and on our 
internet site at https://www.fws.gov/office/arcata-fish-and-wildlife.

Final Critical Habitat Designation

    We are designating five units as critical habitat for the coastal 
marten. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the DPS. The five units we designate as critical habitat 
are: (1) Siuslaw; (2) Siltcoos; (3) Coos Bay; (4) Cape Blanco; and (5) 
Klamath Mountains. Table 1 shows the land ownership and approximate 
areas of the designated critical habitat units for the coastal marten. 
All the units are occupied by the DPS.

                      Table 1--Critical Habitat Units for the Pacific Marten (Coastal DPS)
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                  Ownership (in acres (hectares))
        Unit No. and name        ----------------------------------------------------------------      Total
                                      Federal          State          Tribal           Other
----------------------------------------------------------------------------------------------------------------
Unit 1: OR-1 Siuslaw............  20,092 (8,131)     2,043 (827)               0               0  22,135 (8,958)
Unit 2: OR-2 Siltcoos...........  15,610 (6,317)       249 (101)               0               0  15,859 (6,418)
Unit 3: OR-3 Coos Bay...........  14,806 (5,992)       595 (241)               0               0  15,402 (6,233)
Unit 4: OR-4 Cape Blanco........     1,019 (412)   3,025 (1,224)               0               0   4,044 (1,636)
Unit 5: OR- CA-5 Klamath               1,125,492  17,812 (7,208)               0  13,008 (5,264)       1,156,312
 Mountains......................       (455,471)                                                       (467,943)
                                 -------------------------------------------------------------------------------
    Totals......................       1,177,020  23,724 (9,601)               0  13,008 (5,264)       1,213,752
                                       (476,323)                                                       (491,188)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. ``Other'' represents, city, county, private, or otherwise
  unidentified land ownership areas.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the coastal marten, below.

Unit 1: Siuslaw Unit; Lincoln and Lane Counties, Oregon

    This unit consists of approximately 22,135 ac (8,958 ha) and 
encompasses the northern portion of the central coastal Oregon 
population of coastal martens. Almost all of the unit is within Lane 
County, north of Oregon Highway 126, but a small portion extends north 
into Lincoln County, Oregon, on lands managed by the Siuslaw National 
Forest. The unit mostly borders the Pacific Ocean from just south of 
the town of Yachats, south to near Sea Lion Caves. The unit is largely 
in Federal ownership (20,092 ac (8,131 ha)) (91 percent), specifically 
the Siuslaw National Forest, with portions of the unit in Late-
Successional Reserve (LSR) land use allocation under the NWFP (USFS and 
BLM 1994, entire). Rock Creek and Cummins Creek Wilderness Areas make 
up much of the rest of the Federal lands. Oregon State Park lands along 
the coast comprise the remainder of the unit (2,043 ac (827 ha)), 
including Neptune, Heceta Head, Washburne, and Ponsler State Parks. 
Recreation is a principal land use in this unit. Because the Federal 
lands are in an LSR allocation, forest management is limited to 
activities that are neutral or beneficial to the retention or 
development of late-successional forest conditions.
    This unit was occupied at the time of listing (2020), is currently 
occupied by coastal martens, and contains all of the physical or 
biological features essential to the conservation of the species. This 
unit represents the northernmost distribution of coastal martens in 
Oregon (based on contemporary detections), as well as relatively 
unfragmented old forest compared to other forests near the ocean within 
the DPS. This area may facilitate movement of coastal martens inland. 
This unit provides all of the features described in PBFs 1 and 2. 
Overstory conditions as described in PBF 1 are mostly associated with 
high-productivity sites across much of this unit, characteristic of the 
mature forests of the Sitka spruce vegetation zone as described in 
Franklin and Dyrness (1988, pp. 58-59).
    The habitat-based threats in this unit that may require special 
management include removal of forest vegetation, primarily through 
vegetation management such as timber harvest. Portions of the Federal 
land within this unit are managed as LSR lands, which requires 
retaining or developing late-successional conditions that could be 
suitable for coastal martens. However, some treatments that meet LSR 
standards and guidelines, such as thinning to increase tree size or 
stand complexity, can result in loss of dense understories that are 
valuable to coastal martens to escape from predators and provide 
suitable prey habitat. This unit has been reduced by 73,083 ac (29,576 
ha) from the area proposed as critical habitat based on information 
received from USFS that the eastern inland portions of the unit do not 
contain the PBFs in sufficient quantity, quality, or distribution to 
provide for coastal marten populations and, as a result, do not meet 
the definition of critical habitat for the DPS.

Unit 2: Siltcoos Unit; Lane and Douglas Counties, Oregon

    This unit consists of approximately 15,859 ac (6,418 ha) and 
encompasses the central portion of the central coastal Oregon 
population of coastal martens in coastal Lane and Douglas Counties, 
Oregon. The unit occurs along the coastline west of Highway 101 and 
extends from near the city of Florence, Oregon, south approximately 12 
mi (19 km) to the vicinity of Tahkenitch Creek, west of Tahkenitch 
Lake. Land ownership within the unit includes approximately 15,610 ac 
(6,317 ha) of Federal and 249 ac (101 ha) of State land. The Federal 
portion is within the Oregon Dunes National Recreation Area, managed by 
the Siuslaw National Forest. The State portion comprises Honeyman State 
Park. Recreation, primarily all-terrain vehicle (ATV) use on the open 
dunes and forested trails within the recreation area and surrounding 
areas, is the principal land use in this unit.
    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens. Coastal martens in this unit and 
Unit 3 exhibit the highest densities and smallest home ranges 
documented in North America (Linnell et al. 2018, p. 13), indicating 
that the physical or biological features coastal martens require are 
widely available in

[[Page 46589]]

this unit. The unit contains all of the components described in PBFs 1 
and 2. For the forest overstory component of PBF 1, this unit falls 
into the less productive site category, due to the harsher growing 
conditions along the Oregon coast. Forest vegetation in this unit 
generally comprises dense strands of shore pine with extremely dense 
shrub understories, as described in Franklin and Dyrness (1988, pp. 
291-294). This unit encompasses one of four known coastal marten 
populations, which maintains redundancy across the DPS. Coastal martens 
in this unit and Unit 3 are generally isolated from coastal martens in 
the rest of the DPS, with limited ability to connect populations across 
the landscape.
    The habitat-based threats in this unit that may require special 
management include possible loss of shore pine and understory shrub 
habitat in an effort to restore movement of coastal sand dunes or 
increase open areas for recreation vehicles. An additional threat that 
may require management is the invasion of nonnative shrub species 
(e.g., Scotch broom (Cytisus scoparius)) that may preclude the 
development of ericaceous shrubs and shore pine that are known 
components of suitable coastal marten habitat. In this unit, we have 
added approximately 7,028 ac (2,844 ha) beyond what we proposed for 
this unit on October 25, 2021 (86 FR 58831), based on comments we 
received on habitat characteristics, coastal marten occupancy of the 
areas, Federal land ownership information, and the proximity of the 
subject areas to areas proposed as coastal marten critical habitat.

Unit 3: Coos Bay Unit; Douglas and Coos Counties, Oregon

    This unit consists of approximately 15,402 ac (6,233 ha) and 
encompasses the southern portion of the central coastal Oregon 
population of coastal martens in coastal Douglas and Coos Counties, 
Oregon. The unit extends from Winchester Bay south to the north spit of 
Coos Bay proper, and lies west of U.S. Highway 101. Land ownership 
includes 14,806 ac (5,992 ha) of Federal and 595 ac (241 ha) of State 
land. The majority (13,233 ac (5,351 ha)) of the Federal portion is 
within the Oregon Dunes National Recreation Area, managed by the 
Siuslaw National Forest. The BLM owns approximately 1,584 ac (641 ha). 
The State portion comprises Umpqua Lighthouse State Park. This unit is 
similar to Unit 2 in terms of primary land use, coastal marten 
occupancy, presence of physical or biological features, vegetation 
description, essentiality of conservation, and habitat-based threats. 
Recreation, primarily ATV use on the open dunes and forested trails 
within the recreation area and surrounding areas, is the principal land 
use in this unit.
    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens. Coastal martens in this unit, 
along with Unit 2, exhibit the highest densities and smallest home 
ranges in North America (Linnell et al. 2018, p. 13). The physical or 
biological features coastal martens require are widely available in 
this unit. The unit contains all of the components described in PBFs 1 
and 2. For the forest overstory component of PBF 1, this unit falls 
into the less productive site category, due to the harsher growing 
conditions along the Oregon coast. Forest vegetation in this unit 
generally comprises dense strands of shore pine with extremely dense 
shrub understories, as described in Franklin and Dyrness (1988, pp. 
291-294). This unit encompasses one of four known coastal marten 
populations, which maintains redundancy across the DPS. Coastal martens 
in this unit and Unit 2 are generally isolated from coastal martens in 
the rest of the DPS, with limited ability to connect populations across 
the landscape.
    The habitat-based threats in this unit that may require special 
management include addressing the possible loss of shore pine and 
understory shrub habitat in an effort to restore movement of coastal 
sand dunes or increase open areas for recreation vehicles. Special 
management may be required to address the invasion of nonnative shrub 
species (e.g., Scotch broom) that may preclude the development of 
ericaceous shrubs and shore pine that are known components of suitable 
coastal marten habitat. In this rule, we have reduced this unit by 
approximately 60 ac (24 ha) from our proposal based on comments we 
received on habitat characteristics, coastal marten occupancy of the 
area, and Federal land ownership information.

Unit 4: Cape Blanco Unit; Coos and Curry Counties, Oregon

    This unit consists of approximately 4,044 ac (1,636 ha) and 
encompasses the immediate coastal portion of the southern coastal 
Oregon population of coastal martens in coastal Coos and Curry 
Counties, Oregon. The unit extends from just south of the Bandon State 
Natural Area, south to Cape Blanco State Park, and lies west of U.S. 
Highway 101. Land ownership includes 1,019 ac (412 ha) of Federal (BLM) 
and 3,025 ac (1,224 ha) of State land. The Federal portion is managed 
by the BLM as a District Designated Reserve and not being considered as 
part of any timber harvest program. Portions of the reserve are managed 
for recreation, while other portions are managed as the New River Area 
of Critical Environmental Concern to protect and conserve natural 
resources. The State portion comprises Cape Blanco State Park and 
Floras Lake State Natural Area. Recreation is the principal land use in 
this unit.
    This unit was occupied at the time of listing (2020) and is 
currently occupied by coastal martens and contains all of the physical 
or biological features essential to the conservation of the species. 
The unit is a mix of shore pine dominated forests in the lowlands near 
the ocean, and more mature Sitka spruce forest in the higher bluffs 
around Cape Blanco. This unit encompasses occupied coastal forest that 
is known to be suitable habitat for coastal martens.
    The habitat-based threats in this unit that may require special 
management are the prevalence of invasive shrub species that may 
preclude the development of ericaceous shrubs and shore pine that are 
known components of suitable coastal marten habitat. In this rule, we 
removed approximately 3 ac (1.2 ha) from our proposal based on comments 
we received on habitat characteristics, coastal marten occupancy of the 
area, and Federal land ownership information.

Unit 5: Klamath Mountains Unit; Coos, Curry, Douglas, and Josephine 
Counties, Oregon, and Del Norte, Humboldt, and Siskiyou Counties, 
California

    This unit consists of approximately 1,156,312 ac (467,943 ha) and 
occurs mostly within the Klamath Mountains of southwestern Oregon and 
northwestern California. Within Oregon, the unit occurs in the southern 
part of Coos County, just south of Powers, Oregon, and extends south 
through eastern Curry and western Josephine Counties, with the 
northeastern fringe of the unit extending into Douglas County. The 
northwestern portion of this unit consists of a non-contiguous portion 
that encompasses Humbug Mountain State Park. The unit extends south 
into California, occupying much of the eastern portion of Del Norte 
County, extending south into Humboldt County and east into Siskiyou 
County. In California, the unit lies west of U.S. Highway 96 and 
extends all the way to the Pacific Ocean in northern Humboldt County, 
encompassing Redwood National and State Parks. The unit is 97 percent 
federally owned (approximately 1,125,492 ac (455,471 ha)), with an 
additional 17,812 ac (7,208 ha) of State lands, and the remainder 
(13,008 ac

[[Page 46590]]

(5,264 ha)) owned by private or local governments. The USFS is the 
principal Federal land manager (Rogue River-Siskiyou, Six Rivers, and 
Klamath National Forests) (approximately 1,013,456 ac (410,131 ha)) 
with the BLM managing additional lands in Oregon (approximately 66,489 
ac (26,907)) and the National Park Service managing lands in California 
(Redwood National Park; approximately 45,528 ac (18,425 ha)). LSRs 
account for approximately 45 percent of the Federal ownership. In 
addition, several Wilderness Areas are within this unit, including 
Grassy Knob, Wild Rogue, Copper Salmon, and Kalmiopsis in Oregon, and 
the Siskiyou Wilderness in California.
    This unit was occupied at the time of listing (2020), is currently 
occupied by coastal martens, and contains all of the physical or 
biological features essential to the conservation of the species. This 
unit represents the southernmost distribution of critical habitat for 
the coastal marten and encompasses the majority of known coastal marten 
detections. Outside of portions of Unit 1, it also is the only source 
of non-shore pine habitat, and includes a variety of vegetation 
conditions that coastal martens use, enhancing representation. This 
unit contains key connectivity areas for coastal martens to move either 
north or south in the DPS, as well as inland or towards the coast. 
Overstory conditions as described in PBF 1 are associated with high 
productivity sites across much of the unit, but low-productivity 
serpentine sites also occur across this unit.
    The habitat-based threats in this unit that may require special 
management include removal of forest vegetation, primarily through 
vegetation management such as timber harvest. Fuels management to 
reduce the risk of fire is also a regular activity throughout much of 
this unit. We have excluded portions of Unit 5 under section 4(b)(2) of 
the Act for the Green Diamond Resource Company, the Yurok Tribe, and 
the Karuk Tribe (see Consideration of Impacts under Section 4(b)(2) of 
the Act, below).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they authorize, fund, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species.
    Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species (50 CFR 402.02).
    Compliance with the requirements of section 7(a)(2) of the Act is 
documented through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during formal consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate consultation. Reinitiation of consultation is 
required and shall be requested by the Federal agency, where 
discretionary Federal involvement or control over the action has been 
retained or is authorized by law and: (1) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (4) if a new species is listed or critical habitat 
designated that may be affected by the identified action. As provided 
in 50 CFR 402.16, the requirement to reinitiate consultations for new 
species listings or critical habitat designation does not apply to 
certain agency actions (e.g., land management plans issued by the 
Bureau of Land Management in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires that the Federal Register 
notice ``shall, to the maximum extent practicable also include a brief 
description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify [critical] habitat, or may be affected by such 
designation.'' Activities that may be affected by designation of 
critical habitat for the coastal marten include those that may affect 
the physical or biological features of the coastal marten's critical 
habitat (see Physical or Biological Features Essential to the 
Conservation of the Species).

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. There are no DoD lands with a completed INRMP

[[Page 46591]]

within the final critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat based on economic 
impacts, impacts on national security, or any other relevant impacts. 
Exclusion decisions are governed by the regulations at 50 CFR 424.19 
and the 2016 policy (81 FR 7226; February 11, 2016)--both of which were 
developed jointly with the National Marine Fisheries Service (NMFS). We 
also refer to a 2008 Department of the Interior Solicitor's opinion 
entitled, ``The Secretary's Authority to Exclude Areas from a Critical 
Habitat Designation under Section 4(b)(2) of the Endangered Species 
Act'' (M-37016). We explain each decision to exclude areas, as well as 
decisions not to exclude, to demonstrate that the decision is 
reasonable.
    The Secretary may exclude any particular area if she determines 
that the benefits of such exclusion outweigh the benefits of including 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making the determination to exclude a particular area, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    We describe below the process that we undertook for deciding 
whether to exclude any areas -taking into consideration each category 
of impacts and our analysis of the relevant impacts.

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our economic analysis of the critical habitat designation and related 
factors (Industrial Economics Inc. (IEc) 2021, entire; Service 2021, 
entire). The screening analysis, dated April 15, 2021, was made 
available for public review from October 25, 2021, through December 27, 
2021 (see 86 FR 58831), and again from September 30, 2022, through 
October 17, 2022 (see 87 FR 59384). The economic analysis addressed 
probable economic impacts of critical habitat designation for the 
coastal marten. Following the close of the comment periods, we reviewed 
and evaluated all information submitted during the comment periods that 
may pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Additional information 
relevant to the probable incremental economic impacts of critical 
habitat designation for the coastal marten is summarized below and 
available in the screening analysis for the DPS (IEc 2021, pp. 1-22), 
available at https://www.regulations.gov.
    As identified in the screening analysis (IEc 2021, p. 2), the 
economic costs of the critical habitat designation for the coastal 
marten will likely be primarily limited to additional administrative 
efforts for Federal agencies to consider adverse modification in 
section 7 consultations. This determination is based on: (1) the areas 
identified as critical habitat are occupied by the coastal marten and, 
therefore, any conservation actions taken in order to be protective of 
the species would typically also provide protection for habitat used by 
the coastal marten; (2) a large portion (49 percent) of the areas 
identified are already designated as critical habitat for other listed 
species (i.e., northern spotted owl (Strix occidentalis caurina), 
marbled murrelet (Brachyramphus marmoratus)) that have similar habitat 
requirements as coastal marten; and (3) the majority of the areas 
identified (97 percent) are federally managed and have ongoing baseline 
conservation efforts partly as a result of requirements under the 
Northwest Forest Plan. As a result, the screening analysis identified 
that the critical habitat designation for the coastal marten is 
unlikely to generate costs exceeding $100 million in a single year; the 
annual costs to the Service and Federal action agencies are estimated 
to be approximately $280,000. See the economic screening analysis (IEc 
2021, entire) and our October 25, 2021, proposed rule (86 FR 58831) for 
additional results and background information on our process for 
determining the economic costs of critical habitat designation.
    As discussed above, we considered the economic impacts of the 
critical habitat designation, and the Secretary is not exercising her 
discretion to exclude any areas from this designation of critical 
habitat for the coastal marten based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    In preparing this rule, we determined that there are no lands 
within the designated critical habitat for the coastal marten that are 
owned or managed by the DoD or Department of Homeland Security, and, 
therefore, we anticipate no impact on national security or homeland 
security. We did not receive any additional information during the 
public comment periods for the proposed designation regarding impacts 
of the designation on national security or homeland security that would 
support excluding any specific areas from the final critical habitat 
designation under the authority of section 4(b)(2) and our implementing 
regulations at 50 CFR 424.19, as well as the 2016 policy.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security as discussed above. To identify other relevant impacts that 
may affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area such as HCPs, safe harbor agreements, or candidate 
conservation agreements with assurances (CCAAs), or whether there are 
non-permitted conservation agreements and partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at whether Tribal conservation plans or partnerships, 
Tribal resources, or government-to-government relationships of the 
United States with Tribal entities may be affected by the designation. 
We also consider any State, local, social, or other impacts that might 
occur because of the designation.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive due to the 
protection from destruction or adverse modification as a result of 
actions with a Federal nexus, the educational benefits of mapping 
essential habitat for recovery of the listed species, and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat. In the case of the coastal marten, the 
benefits

[[Page 46592]]

of critical habitat include public awareness of the presence of the DPS 
and the importance of habitat protection, and, where a Federal nexus 
exists, increased habitat protection for coastal marten due to 
protection from destruction or adverse modification of critical 
habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation, or in the continuation, strengthening, or 
encouragement of partnerships. Additionally, continued implementation 
of an ongoing management plan that provides equal to or more 
conservation than a critical habitat designation would reduce the 
benefits of including that specific area in the critical habitat 
designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion. We consider a variety of factors, including, 
but not limited to, whether the plan is finalized; how it provides for 
the conservation of the essential physical or biological features; 
whether there is a reasonable expectation that the conservation 
management strategies and actions contained in a management plan will 
be implemented into the future; whether the conservation strategies in 
the plan are likely to be effective; and whether the plan contains a 
monitoring program or adaptive management to ensure that the 
conservation measures are effective and can be adapted in the future in 
response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    Based on the information provided by entities seeking exclusion, as 
well as additional public comments we received, and the best scientific 
data available, we evaluated whether certain lands in proposed critical 
habitat Unit 5 in California are appropriate for exclusion from the 
final designation under section 4(b)(2) of the Act. If our analysis 
indicates that the benefits of excluding lands from the final 
designation outweigh the benefits of designating those lands as 
critical habitat, then the Secretary may exercise her discretion to 
exclude the lands from the final designation. In the paragraphs below, 
we provide a detailed balancing analysis of the areas we evaluated for 
exclusion under section 4(b)(2) of the Act.

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships, in General

    We sometimes exclude specific areas from critical habitat 
designation based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement or in partnership with the 
Service.
    We evaluate a variety of factors to determine how the benefits of 
any exclusion and the benefits of inclusion are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below. These factors are not required elements of plans or 
agreements, and all items may not apply to every plan or agreement.
    a. The degree to which the record of the plan supports a conclusion 
that a critical habitat designation would impair the realization of 
benefits expected from the plan, agreement, or partnership.
    b. The extent of public participation in the development of the 
conservation plan.
    c. The degree to which there has been agency review and required 
determinations (e.g., State regulatory requirements), as necessary and 
appropriate.
    d. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 
et seq.) compliance was required.
    e. The demonstrated implementation and success of the chosen 
mechanism.
    f. The degree to which the plan or agreement provides for the 
conservation of the essential physical or biological features for the 
species.
    g. Whether there is a reasonable expectation that the conservation 
management strategies and actions contained in the conservation plan or 
agreement will be implemented.
    h. Whether the plan or agreement contains a monitoring program and 
adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    During the development of this final designation, we considered 
additional information we received during both public comment periods 
on whether any specific areas should be excluded from this final 
critical habitat designation under authority of section 4(b)(2) of the 
Act and our implementing regulations at 50 CFR 424.19. As described 
above under Summary of Comments and Recommendations, we received four 
requests to exclude areas from the final critical habitat designation 
that provided sufficient information to conduct an exclusion analysis 
of those areas. The first two areas include lands owned and managed by 
the Green Diamond Resource Company and Yurok Tribal lands in Unit 5 in 
California. The Yurok Tribal land exclusion includes lands they own or 
manage, lands held in trust by the Secretary, and lands owned by the 
USFS that are part of a proposed reservation boundary adjustment. We 
also received a request from the Karuk Tribe for exclusion of lands 
recently transferred from USFS lands to trust status, held by the 
Secretary of the Interior for the benefit of the Karuk Tribe to be used 
for traditional and customary uses of the Tribe. Lastly, we received a 
request from the American Forest Resource Council to exclude all O&C 
lands from the final designation. Below, we provide our exclusion 
analysis for the Green Diamond Resource Company lands. We then provide 
our exclusion analysis for the Yurok Tribal owned or managed lands, 
Yurok Tribe reservation boundary adjustment lands, and Karuk Tribal and 
transferred lands separately (see Tribal Lands, below). We also provide 
our exclusion analysis for all O&C lands in Units 1, 2, 3, 4, and 5.

Green Diamond Resource Company--Unit 5: OR-CA-5 Klamath Mountains

    In our October 25, 2021, proposed rule (86 FR 58831), we identified 
approximately 1,289,627 ac (521,913 ha) as critical habitat in proposed 
Unit 5 (Klamath Mountains). The unit is located in southern Oregon and 
northern California. GDRC owns and manages approximately 49,010 ac 
(19,834 ha) of land that occurs in Unit 5 in California. We have 
identified all the lands owned and managed by GDRC in Unit 5 in 
California for exclusion from the final designation of critical habitat 
for the coastal marten under section 4(b)(2) of the Act.

[[Page 46593]]

    To assist in conservation of the coastal marten and its habitat and 
assist in protecting and conserving the PBFs for the DPS, GDRC has 
developed a coastal marten-focused memorandum of understanding (MOU) 
with the Service (GDRC-Service 2020, entire) and a State safe harbor 
agreement (SHA) with the California Department of Fish and Wildlife 
(CDFW 2018, entire). The five key habitat conservation measures 
identified for the coastal marten and its habitat in the MOU and State 
SHA are: (1) Retain older forest areas within riparian corridors and 
unstable slope areas that increase in age, develop resting and denning 
structures (PBF 1-3), and provide for connectivity of habitats across 
watersheds (PBF 2); (2) retain trees with specific habitat structures 
important for coastal marten resting and denning to accelerate 
development of habitat during the forest management cycle (PBF 1-3); 
(3) retain large woody debris existing prior to timber harvest and 
create slash piles within harvested areas to promote prey base and 
provide cover for coastal martens in regenerating forest stands (PBF 1-
1a, 1-1b, and 2); (4) protect known den sites and retain habitat around 
those sites (PBF 1-2, 1-3; and (5) under a proposed carbon project, 
retain and grow mixed tree species forest stands that will increase 
average forest age over a 100-year time frame (PBF 1-1). In addition, a 
2,098-ac (849-ha) area has been designated as a no harvest area to 
avoid disturbance of habitat and incidental take of coastal martens in 
an area known to have coastal marten occupancy over the past 20 years. 
Further, GDRC will monitor the coastal marten population and 
collaborate with agencies, other landowners, and researchers to 
increase understanding of coastal marten habitat use and needs, which 
will inform future commitments through adaptive management.
    GDRC has been and continues to be a member of a multi-agency 
management group for conservation of the coastal marten in California 
and Oregon. The group has developed a conservation assessment and 
strategy for conserving the coastal marten in California and Oregon 
(Slauson et al. 2019a, entire). The strategy outlines measures to 
protect existing populations of the coastal marten, reestablish 
populations in areas currently suitable but unoccupied, restore habitat 
conditions in specific areas to increase population size, distribution, 
and connectivity between populations, and outlines next steps and 
research needed for coastal marten conservation. Although the 
conservation strategy was developed to address coastal marten declines 
and synthesizes current knowledge on the DPS and identifies current 
threats, management goals, and outlines numerous conservation actions 
and information needs, the intent of the strategy is to establish an 
integrated regional approach to address the immediate research and 
conservation needs of the coastal marten. Implementation of the 
strategy is being completed by those Federal, State, Tribal, private, 
and nongovernmental organizations with an interest in conservation and 
management of the coastal marten. GDRC and others have implemented 
measures to assist in conservation of habitat for the coastal marten 
identified in the strategy and has committed by participation in the 
working group to continue to implement such measures in the future.
    Additionally, in August 2023, GDRC finalized the California 
Timberlands Forest Management Plan (GDRC 2023, entire). The plan 
provides an overview of GDRC's land and resource management objectives, 
forest planning and operation practices, and implementation of measures 
and processes for conservation of the coastal marten and other listed 
or sensitive species and important habitat in California. The 
management plan provides for adaptive management and will be updated as 
new information becomes available or in response to changing 
conditions.

Benefits of Inclusion--Green Diamond Resource Company Lands

    The principal benefit of including an area in a critical habitat 
designation is the requirement of Federal agencies to ensure that 
actions that they fund, authorize, or carry out are not likely to 
result in the destruction or adverse modification of any designated 
critical habitat, which is one of the regulatory standards of section 
7(a)(2) of the Act under which consultation is completed. Under section 
7 of the Act, Federal agencies must also consult with the Service on 
actions that may affect a listed species, and refrain from actions that 
are likely to jeopardize the continued existence of such species.The 
analysis of effects to critical habitat is a separate and different 
analysis from that of the effects to the species. Therefore, the 
difference in outcomes of these two analyses represents the regulatory 
benefit of critical habitat. Thus, critical habitat designation may 
provide greater benefits to the recovery of a species than listing 
would alone.
    Accordingly, a critical habitat designation may provide a 
regulatory benefit for the coastal marten when there is a Federal nexus 
present for a project that may affect critical habitat. However, as 
this is private property and consultations have been and are expected 
to be rare, critical habitat is not anticipated to have much effect due 
to the lack of a Federal nexus. Given the anticipated lack of section 7 
consultations, the regulatory benefit is limited and dependence on 
private conservation actions is more important.
    Another important benefit of including lands in a critical habitat 
designation is that it can serve to educate landowners, agencies, 
Tribes, and the public regarding the potential conservation value of an 
area, and may help focus conservation efforts on areas of high value 
for certain species. Any information about coastal marten that reaches 
a wide audience, including parties engaged in conservation activities, 
would be considered valuable. However, the coastal marten was 
petitioned for listing in 2010, was a candidate species beginning in 
2015, was listed by the State of California as endangered in 2018 (CDFW 
2019, entire), was federally listed as a threatened species under the 
Act in 2020 (see 85 FR 63806; October 8, 2020), and had critical 
habitat proposed in 2021 (see 86 FR 58831; October 25, 2021). These 
actions have provided numerous opportunities for public outreach and 
education and have ensured that the GDRC and others are fully aware of 
the importance of coastal marten habitat and conservation. GDRC is also 
a member of a working group made up of landowners and researchers and 
has developed a conservation strategy for the coastal marten in 
California. Because the majority of lands surrounding or adjacent to 
GDRC lands will be designated as critical habitat, there will still be 
opportunities for us to raise public awareness of the conservation 
value of the area for the coastal marten. In addition, GDRC is already 
working with the Service and has a demonstrated history of implementing 
conservation actions for the coastal marten on their lands and for 
conservation of the DPS in larger scale conservation efforts and 
management. As a result, the educational value of the designation is 
also reduced.

Benefits of Exclusion--Green Diamond Resource Company Lands

    The benefits of excluding GDRC land from the designation of 
critical habitat are substantial. The area will continue to provide 
conservation value to the species by: (1) Continuing and strengthening 
our effective working relationship with GDRC to promote

[[Page 46594]]

voluntary, proactive conservation and recovery of the coastal marten 
and its habitat on their lands; (2) fostering current and future 
potential collaboration with GDRC and adjacent private land owners for 
additional conservation of the coastal marten and its habitat as well 
as conservation of other federally listed species; and (3) contributing 
to educational benefits and public awareness through our partnership 
with GDRC on coastal marten conservation.
    In this case, the benefits of excluding the GDRC lands include the 
recognition of the important role of voluntary conservation actions in 
the conservation of the coastal marten, facilitating cooperation with 
neighboring landowners, and acknowledging the good faith efforts on 
their part to date in conserving the coastal marten. GDRC has 
demonstrated a partnership with the Service and others to promote 
coastal marten conservation through the development of the conservation 
assessment and strategy for conserving the coastal marten.
    The success of GDRC's management is demonstrated in the development 
and implementation of the MOU and State SHA. In addition, GDRC has 
finalized their California Timberlands Forest Management Plan 
(management plan) (GDRC 2023, entire). The plan identifies measures 
that provide for conservation of the coastal marten that GDRC include 
in their timber harvest plans (THPs) that are required by the State of 
California prior to commencement of timber harvest activities. 
Additional evidence of the partnership between the Service and GDRC is 
shown by GDRC's commitment in the MOU to provide for adaptive 
management, where mutually agreed-upon changes to the MOU's 
conservation commitments in response to changing conditions or new 
information would avoid or minimize take and conserve habitat of the 
coastal marten to the maximum extent practicable. Conservation measures 
identified in the SHA and MOU are included in GDRC's management plan 
and are implemented through their THPs. Exclusion of this area from 
designation will maintain and strengthen the partnership between the 
Service and GDRC and provide a conservation benefit for the coastal 
marten.
    Our collaborative relationship with GDRC also makes a difference in 
our partnership with the numerous stakeholders involved in coastal 
marten management and recovery and influences our ability to form 
partnerships with others. Concerns over perceived added regulation 
potentially imposed by critical habitat could harm this or other future 
collaborative relationships.
    Because important areas with coastal marten habitat occur on 
private lands, collaborative relationships with private landowners will 
be essential in order to recover coastal marten. The coastal marten and 
its habitat are expected to benefit substantially from voluntary 
landowner management actions that implement appropriate and effective 
conservation strategies. It is beneficial to implement policies that 
provide positive incentives to private landowners to voluntarily 
conserve natural resources and that remove or reduce disincentives to 
conservation (Wilcove et al. 1996, entire; Bean 2002, pp. 1-7). Thus, 
it is essential for coastal marten recovery to build on continued 
conservation activities such as these with a proven partner, and to 
provide positive incentives for other private landowners who might be 
considering implementing voluntary conservation activities, but who 
have concerns about incurring incidental regulatory or economic 
impacts.
    Because GDRC-owned lands in Unit 5 are occupied by the coastal 
marten, conservation measures that may be implemented to protect or 
conserve coastal marten habitat would occur regardless of the critical 
habitat designation due to the requirements of protecting a listed 
species and its habitat under both section 7 and section 10 of the Act 
and as a result of the GDRC MOU with the Service and State SHA with 
CDFW. As a result, the benefits of a critical habitat designation are 
lessened for GDRC lands that are occupied. Also, because this portion 
of the unit is privately owned, we do not anticipate future Federal 
actions to impact the area. Because of the lack of past section 7 
consultations within this portion of Unit 5, the reduced likelihood of 
future Federal actions altering the current management of this portion 
of Unit 5, the presence of coastal marten, and the commitment to 
continue implementing land management actions that maintain coastal 
marten habitat, the benefits of a critical habitat designation on this 
portion of Unit 5 (Klamath Mountains) are minimal.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Green Diamond 
Resource Company Lands

    We have determined that the benefits of exclusion of private lands 
owned by GDRC in Unit 5 (Klamath Mountains), with the implementation of 
measures identified in the coastal marten conservation strategy, GDRC's 
management plan, MOU, and State SHA, outweigh the benefits of inclusion 
because the current management efforts maintain the physical or 
biological features necessary to develop, maintain, and protect habitat 
essential to coastal marten conservation. These actions serve to manage 
and protect habitat needed for the coastal marten above those 
conservation measures that may be required if the area were designated 
as critical habitat. In making this finding, we have weighed the 
benefits of exclusion against the benefits of including these lands as 
critical habitat.
    Past, present, and future coordination with GDRC has provided and 
will continue to provide sufficient education regarding coastal marten 
habitat conservation needs on these lands, such that there would be 
minimal additional educational benefit from designation of critical 
habitat. The incremental conservation benefit of designated critical 
habitat on GDRC-owned lands would largely be redundant with the 
benefits of the existing management. Therefore, the incremental 
conservation and regulatory benefits of designating critical habitat on 
GDRC lands in Unit 5 (Klamath Mountains) are minimal.
    The benefits of designating critical habitat for coastal marten on 
GDRC lands in Unit 5 (Klamath Mountains) are relatively low in 
comparison with the benefits of exclusion. Based on our 2016 policy, we 
find that GDRC's implementation of the conservation strategy, 
management plan, MOU, and State SHA meets several factors for 
exclusion, including: (1) the conservation strategy, MOU, and SHA 
documents have been developed in conjunction with resource agency 
review, and we have received required determinations (e.g., State 
regulatory requirements), as necessary and appropriate; (2) the 
measures identified in the documents have been implemented and have 
demonstrated success (such as establishment of specific protected areas 
for coastal marten conservation); (3) the documents identify measures 
that provide for the conservation of the physical or biological 
features essential for the coastal marten; (4) the conservation 
management strategies and actions contained in the documents have been 
and will continue to be implemented; and (5) the documents contain 
monitoring program and adaptive management components to ensure that 
the conservation measures are effective and can be modified in the 
future in response to new information.
    The implementation of the conservation strategy, management plan, 
MOU, and State SHA is focused

[[Page 46595]]

on long-term land management commitments and continued conservation of 
the coastal marten and has solidified our partnership with GDRC to help 
foster the maintenance and development of future coastal marten habitat 
conservation. We anticipate that greater coastal marten conservation 
can be achieved through these management actions and relationships than 
through consultation regarding impacts to designated critical habitat 
on a project-by-project basis on private land where such consultations 
are expected to be rare.
    The benefits of excluding GDRC-owned lands in Unit 5 from critical 
habitat are considerable and greater than inclusion for the reasons 
that follow. GDRC's implementation of the conservation strategy, 
management plan, MOU, and State SHA establish frameworks for 
cooperation and coordination with the Service and the State in 
connection with resource management activities for the coastal marten 
and its habitat based on adaptive management principles. Most 
importantly, the participation of GDRC in development and 
implementation of measures identified in these documents indicates 
GDRC's continuing commitment to ongoing management and conservation 
actions that has resulted in benefits to the coastal marten and its 
habitat. Exclusion of these lands from critical habitat designation 
will help preserve and strengthen the conservation partnership we have 
developed with GDRC, reinforce those we are building with other 
entities, and foster future partnerships and development of management 
plans. Conversely, inclusion of these lands in the designation would 
negatively impact our relationships with GDRC and other existing and 
future partners. We are committed to working in partnership with GDRC 
to further conservation of coastal marten and other endangered and 
threatened species. GDRC has agreed to continue to implement their 
management plans and play an active role to protect the coastal marten 
and its habitat. Thus, we find that our partnership with and actions 
taken by GDRC provide significant benefits to coastal marten 
conservation and outweigh the small regulatory benefits of including 
the GDRC lands in the final critical habitat designation.
    Therefore, after weighing the benefits of inclusion in the coastal 
marten critical habitat designation against the benefits of exclusion, 
we determined that the benefits of excluding the approximately 49,010 
ac (19,834 ha) of GDRC lands within Unit 5 with long-term GDRC 
management commitments outweigh the benefits of including the area in a 
designation of critical habitat.

Exclusion Will Not Result in Extinction of the Species--Green Diamond 
Resource Company Lands

    We have determined that the exclusion of GDRC lands within the 
boundaries of Unit 5 (Klamath Mountains) will not result in extinction 
of the coastal marten. The protections and conservation measures 
afforded the coastal marten and its habitat by the MOU and State SHA, 
as well as our partnership with GDRC on managing for coastal marten, 
provide assurances that the DPS will not go extinct as a result of 
excluding these lands from the critical habitat designation. In 
addition to the conservation actions being implemented on the areas 
being excluded, the areas remaining as critical habitat in Unit 5 for 
the coastal marten total 1,156,312 ac (467,943 ha). These remaining 
areas are occupied and will continue to provide support to and conserve 
the DPS throughout the area. Further, for any projects having a Federal 
nexus and potentially affecting the coastal marten, the jeopardy 
standard of the Act will provide a level of assurance that the DPS will 
not go extinct as a result of excluding GDRC lands from the critical 
habitat designation. As a result, the Secretary is excluding 49,010 ac 
(19,834 ha) of GDRC land under section 4(b)(2) of the Act from the 
final designation of critical habitat for the coastal marten in Unit 5 
(Klamath Mountains).

Tribal Lands

    Several Executive Orders, Secretary's Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretary's Order that applies to both the Service and the 
National Marine Fisheries Service (NMFS)--Secretary's Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (June 5, 1997) (S.O. 3206)--is the 
most comprehensive of the various guidance documents related to Tribal 
relationships and Act implementation, and it provides the most detail 
directly relevant to the designation of critical habitat. In addition 
to the general direction discussed above, the appendix to S.O. 3206 
explicitly recognizes the right of Tribes to participate fully in any 
listing process that may affect Tribal rights or Tribal trust 
resources; this includes the designation of critical habitat. Section 
3(B)(4) of the Appendix requires us to consult with affected Tribes 
``when considering the designation of critical habitat in an area that 
may impact Tribal trust resources, Tribally-owned fee lands, or the 
exercise of Tribal rights.'' That provision also instructs the Service 
to avoid including Tribal lands within a critical habitat designation 
unless the area is essential to conserve a listed species, and it 
requires the Service to ``evaluate and document the extent to which the 
conservation needs of the listed species can be achieved by limiting 
the designation to other lands.''
    Our implementing regulations at 50 CFR 424.19 and the 2016 policy 
are consistent with S.O. 3206. When we undertake a discretionary 
exclusion analysis, in accordance with S.O. 3206, we consult with any 
Tribe whose Tribal trust resources, Tribally-owned fee lands, or Tribal 
rights may be affected by including any particular areas in the 
designation, and we evaluate the extent to which the conservation needs 
of the species can be achieved by limiting the designation to other 
areas. When we undertake a discretionary section 4(b)(2) exclusion 
analysis, we always consider exclusion of Tribal lands, and give great 
weight to Tribal concerns in analyzing the benefits of exclusion.
    However, S.O. 3206 does not override the Act's statutory 
requirement of designation of critical habitat. As stated above, we 
must consult with any Tribe when a designation of critical habitat may 
affect Tribal lands or resources. The Act requires us to identify areas 
that meet the definition of ``critical habitat'' (i.e., areas occupied 
at the time of listing that contain the essential physical or 
biological features that may require special management or protection 
and unoccupied areas that are essential for the conservation of a 
species), without regard to land ownership. While S.O. 3206 provides 
important direction, it expressly states that it does not modify the 
Secretaries' statutory authority under the Act or other statutes.

Yurok Tribe-Owned or -Managed Lands--Unit 5: OR-CA-5 Klamath Mountains

    In our October 25, 2021, proposed rule (86 FR 58831), we identified 
approximately 1,289,627 ac (521,913 ha) as critical habitat in Unit 5 
(Klamath Mountains). The unit is located in southern Oregon and 
northern California. Approximately 64,979 ac (26,296 ha) of the 
critical habitat is

[[Page 46596]]

owned or managed by the Yurok Tribe. We have identified all lands owned 
and managed by the Yurok Tribe in Unit 5 in California (64,979 ac 
(26,296 ha)) for exclusion from the final designation of critical 
habitat for the coastal marten under section 4(b)(2) of the Act. This 
includes Yurok Tribe Reservation lands, fee lands owned by the Yurok 
Tribe, and lands held in trust for the Yurok Tribe, which we 
characterize here as Yurok Tribe-owned or -managed Lands.
    Throughout the development of critical habitat for the coastal 
marten, we have been in contact and coordinated with the Yurok Tribe on 
implementing numerous conservation efforts and management strategies 
for the coastal marten and other listed species. The Yurok Tribe has a 
demonstrated record of maintaining its lands for natural resources 
through implementation of several binding agreements including the 
following: the Yurok Tribe Sustained-Yield Unit (SYU) Cooperative 
Agreement, the Yurok Forest Management Plan (FMP) (Yurok 2012, entire), 
the Blue Creek Interim Management Plan (BCMP) (Yurok Tribe and Western 
Rivers Conservancy 2018, entire), and the Pacific marten memorandum of 
understanding (MOU) with the Service (Yurok Tribe-Service 2021, 
entire). These agreements are described in more detail below.
    The SYU cooperative agreement with the BIA was executed in October 
2013 pursuant to 25 U.S.C. 3115(a)(1), under which the BIA may enter 
into a cooperative agreement with an Indian tribe regarding forestry 
and natural resource management, and to 16 U.S.C 583a, the Sustained-
Yield Management Act (SYMA), under which the BIA may enter into a 
cooperative agreement with a private owner of forest land for 
coordinated management of private and federally administered forest 
land. This binding agreement covers Phase I lands, lands known as Cook/
Koppala and Gerber/Gleason, as well as all lands recorded as restricted 
within the SYU boundary, and is designed to encompass lands that the 
Yurok Tribe may so designate in the future, but over which they 
currently have no management authority. This agreement establishes that 
these lands are managed under the jurisdiction of the BIA in a Trust 
relationship in accordance with SYMA, with the purpose, in part, to 
protect, restore, and enhance water quality and improve fish habitat, 
improve forest structure and increase natural biodiversity, protect and 
restore Tribal cultural resources (including those species of cultural 
importance to the Yurok Tribe, such as the Pacific marten), and 
implement and maintain a functionally integrated wildfire protection 
system.
    The FMP pertains to lands identified in the SYU cooperative 
agreement described above. It describes management of the Tribe's 
forest resources, elucidating that they should be managed to provide 
for multiple use, sustained yield, and maximum benefit, and should 
protect non-timber resources such as cultural features, wildlife, water 
qualities, aesthetics, and soil. It is explicit that the preferred 
approach to forest management is one that is both adaptive and mainly 
provides for uneven-age timber management. The goals identified in the 
FMP include limiting the use of clear cutting, eliminating the use of 
herbicides, protecting and enhancing areas considered culturally 
significant, and protecting and enhancing fisheries. It also provides 
for wildfire suppression, creation of fuel breaks, fuels reductions, 
use of prescribed fire, and implementation of stand improvement 
projects in order to safeguard forest structures and forest stands 
against wildfire. The FMP includes limitations on harvest of old growth 
forests specifically to reduce the chance for impacts to habitat for 
traditional species and to avoid direct take of endangered and 
threatened species. It also requires intensive surveys for such species 
and subsequent dedication of no-cut areas around such species' 
sensitive sites, including nesting and den sites. Further, it includes 
a requirement to consider preservation of trees with significant 
wildlife uses, such as denning and resting sites.
    The BCMP is a co-management agreement established between the Yurok 
Tribe and Western Rivers Conservancy (WRC) for those Phase II lands 
currently within WRC ownership, and approved by the State Coastal 
Conservancy, Wildlife Conservation Board, and the Yurok Tribal Council. 
It establishes the Blue Creek Salmon Sanctuary, land set aside 
specifically for biological and cultural restoration. The primary goal 
of the BCMP is to protect and restore the area to a healthy ecosystem, 
rich in biodiversity and resilient to resource threats such as drought 
and climate change, and to reestablish the traditional Yurok role in 
the management and stewardship of their ancestral territory. The BCMP 
includes specific conservation measures for special status species 
including: advanced surveys if there is proposed ground disturbance, 
retention of potential nest or den trees or other suitable habitat 
components during forest restoration activities, assumption of stand 
occupancy until appropriate surveys are conducted and retention of 
stands with known activity areas, and prohibition of use of mechanized 
equipment within 0.25 mi (0.4 km) of stands occupied by endangered or 
threatened species in coordination with the Service. It also allows for 
designation of special management areas (SMAs), which guide proactive 
restoration and enhancement of critical forest structure and species 
habitat within the Sanctuary. Conservation measures within SMAs of 
particular importance to coastal marten include that the SMAs are 
designated for late-seral forest reestablishment; focused on coastal 
marten habitat and connectivity restoration, including creation of 
surrogate structures to meet key life-history needs; and managed to 
conserve and restore aquatic and riparian habitat.
    The Tribe has also developed and executed a MOU in collaboration 
with the Service to promote cooperation and coordination in the 
conservation, management, and recovery of the coastal marten population 
that resides on portions of Yurok Tribe forest lands (Yurok Tribe-
Service 2021, entire). Within the MOU, the Yurok Tribe and the Service 
formally recognize that the coastal marten is a species of significant 
management concern throughout its historical range, and that a 
proactive conservation approach to evaluating and implementing 
conservation actions based on sound science will benefit the species. 
The MOU is designed on an adaptive management principle to support 
coastal marten connectivity, and overall forest health. The MOU further 
outlines actions that will allow the Yurok Tribe to continue 
restoration and use of lands occupied by the coastal marten while 
remaining consistent with the Yurok Tribe's land use management plans 
and existing agreements with State and other Federal agencies, 
including strategies that support Yurok Tribal goals stated in the 
Yurok Community Forest and Blue Creek Salmon Sanctuary management 
plans. For habitat-related conservation, the MOU calls for 
implementation of thinning and removal of overly dense understory 
vegetation to restore unhealthy and fire-prone forests with poor 
coastal marten habitat by implementing uneven age stand management and 
retention of at least 40 percent overstory cover. In combination, these 
measures are intended to reestablish late-seral forest characteristics 
beneficial to the coastal marten on an accelerated timeline. The MOU 
also includes deliberate retention of known coastal marten denning and 
rest structure and creation of

[[Page 46597]]

supplementary artificial structures. It further commits to completing 
pre-treatment surveys within proposed treatment areas, as well as post-
treatment surveys to monitor the results of restoration whenever 
possible. Finally, the MOU formalizes the Tribe's prohibition on the 
use of pesticides on these lands, which can harm coastal martens.
    The Yurok Tribe has also been and continues to be a member of a 
multi-agency management group for the conservation of the coastal 
marten in California and Oregon. The group has developed a conservation 
strategy and management plan for conserving the coastal marten in 
California (Slauson et al. 2019a, entire). The document provides 
guidance and recommended conservation measures for protecting habitat 
and resource needs for the coastal marten in California.

Benefits of Inclusion--Yurok Tribe-Owned or -Managed Lands

    The principal benefit of including an area in a critical habitat 
designation is the requirement of Federal agencies to ensure that 
actions that they fund, authorize, or carry out are not likely to 
result in the destruction or adverse modification of any designated 
critical habitat, which is one of the regulatory standards of section 
7(a)(2) of the Act under which consultation is completed. Although the 
Yurok Tribe is not a Federal agency, some actions taken by the Tribe 
may fall under the jurisdiction of the BIA due to Federal funding or 
authorization or because actions are occurring on lands held in trust 
for the Tribe. As a result, the BIA may be the Federal nexus for some 
activities implemented by the Tribe. Under section 7 of the Act, 
Federal agencies must also consult with the Service on actions that may 
affect a listed species, and refrain from actions that are likely to 
jeopardize the continued existence of such species.The analysis of the 
effects to critical habitat is a separate and different analysis from 
that of the effects to the species. Therefore, the difference in 
outcomes of these two analyses represents the regulatory benefit of 
critical habitat. Thus, critical habitat designation may provide 
greater benefits to the recovery of a species than listing would alone.
    We have provided the Yurok Tribe and the BIA with technical 
assistance on project implementation and conducted informal 
consultations with agencies implementing actions on Tribal lands. 
However, since the listing of the coastal marten as threatened in 2020, 
no actions determined to likely adversely affect the coastal marten and 
require formal section 7 consultations have occurred within lands owned 
or managed by the Yurok Tribe. Because of the Tribe's practice of 
implementing conservation measures and management actions for the 
coastal marten and the lack of actions requiring formal section 7 
consultation, we do not anticipate an increase in section 7 
consultations in the future and, as a result, the regulatory benefit of 
critical habitat would be minimal.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to inform and educate 
landowners and the public regarding the potential conservation value of 
an area, and it may help focus management efforts on areas of high 
value for certain species. Any information about the coastal marten 
that reaches a wide audience, including parties engaged in conservation 
activities, is valuable. However, the coastal marten was petitioned for 
listing in 2010, was a candidate species beginning in 2015, was listed 
by the State of California as endangered in 2018 (CDFW 2019, entire), 
was federally listed as a threatened species under the Act in 2020 (see 
85 FR 63806; October 8, 2020), and had critical habitat proposed in 
2021 (see 86 FR 58831; October 25, 2021). These actions have provided 
numerous opportunities for public outreach and education and have 
ensured that the Yurok Tribe and others are fully aware of the 
importance of coastal marten habitat and conservation. The Yurok Tribe 
has been and is currently working with the Service to conserve the 
coastal marten and its habitat, participating in working groups, and 
exchanging management and resource information regarding the DPS. In 
addition, because the majority of lands surrounding or adjacent to the 
Yurok Tribe Lands are included in this critical habitat designation for 
the coastal marten, there will still be opportunities for us to raise 
public awareness of the conservation value of the area for the coastal 
marten. Given that the listing of the coastal marten has already 
informed the public about the value of these areas and helped to focus 
potential conservation actions, the educational benefits from 
designating critical habitat on Yurok Tribe-owned or -managed Lands 
would be small.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement actions in areas designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes often seek 
additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving section 6 or 
other recovery funding for coastal marten habitat-related projects. 
However, areas where coastal marten occur, as is the case here, may 
also benefit from funding for projects based on the presence of the 
species.
    Therefore, because of the development and implementation of 
management plans, habitat conservation, lack of additional section 7 
conservation measures, occurrence of breeding and dispersing coastal 
martens on Tribal lands, and overall coordination with the Yurok Tribe 
on coastal marten-related issues, it is expected that there may be 
limited benefits from including these Tribal lands in a coastal marten 
critical habitat designation. The principal benefit of any designated 
critical habitat is that federally authorized or funded activities in 
and affecting such habitat require consultation under section 7 of the 
Act. Such consultation would ensure that adequate protection is 
provided to avoid destruction or adverse modification of critical 
habitat.

Benefits of Exclusion--Yurok Tribe-Owned or -Managed Lands

    The benefits of excluding the Yurok Tribe Lands from designated 
critical habitat include: (1) Our deference to the Tribe and 
recognition of their sovereignty to develop and implement their own 
conservation and natural resource management plans for their lands and 
resources, which includes benefits to the coastal marten and its 
habitat that might not otherwise occur; (2) the continuance and 
strengthening of our effective working relationship with the Tribe to 
promote the conservation of the coastal marten and its habitat; and (3) 
the maintenance of effective partnerships with the Tribe and working in 
collaboration and cooperation to promote conservation of coastal marten 
and its habitat, as well as conservation for other listed or sensitive 
species.
    During the development of the proposed rule to designate critical 
habitat for the coastal marten (86 FR 58831; October 25, 2021) and the 
development of the MOU for coastal marten, as well as coordination for 
other endangered or threatened species actions, we have communicated 
and coordinated with the Yurok Tribe on how they might be affected by 
listed species regulations in general and those associated with listing 
and designating critical habitat for the coastal marten. As such, we 
have established a beneficial relationship to support coastal marten

[[Page 46598]]

conservation. As part of our relationship, we have provided technical 
assistance to the Yurok Tribe to develop measures to conserve the 
coastal marten and its habitat on their lands. These measures are 
contained within the extensive management plans developed by the Yurok 
Tribe. During our coordination efforts with the Yurok Tribe, we 
recognized and endorsed their fundamental right to provide for Tribal 
resource management activities, including those relating to forested 
habitat.
    As stated above, the Yurok Tribe has developed and implemented 
multiple management plans that benefit the coastal marten and its 
habitat. The Yurok Tribe has expressed that their lands, and 
specifically forest habitat, are connected to their cultural and 
religious beliefs, and as a result they have a strong commitment and 
reverence toward their stewardship and conservation and have common 
goals with the Service on species and habitat conservation. The 
management plans identify actions to maintain, improve, and preserve 
forest habitat, including those physical or biological features 
identified as essential for the coastal marten, such as managing for 
late-seral forest; establishing specific coastal marten management 
areas; implementing harvest restriction near water courses; conducting 
wildfire and fuels management actions; and implementing monitoring, 
assessment, and adaptive management actions. Overall, the commitments 
toward management of coastal marten habitat by the Yurok Tribe likely 
accomplish greater conservation than would be available through the 
implementation of a designation of critical habitat on a project-by-
project basis.
    The designation of critical habitat on lands owned and managed by 
the Yurok Tribe could have an adverse impact on our working 
relationship with the Tribe. The designation of critical habitat could 
be viewed as an intrusion and perceived as infringing on the Tribe's 
sovereign ability to manage natural resources in accordance with their 
own policies, customs, and laws. Critical habitat could be seen as 
potentially: (1) Interfering with the sovereign and constitutional 
rights of the Yurok Tribe to protect and control its own resources on 
the Reservation; (2) undermining the positive and effective 
relationship that has been built between the Tribe and the Service--a 
relationship that serves to protect federally listed species and their 
habitats; and (3) hampering or confusing the Tribe's own long-standing 
protections for the Klamath Mountains. The perceived restrictions of a 
critical habitat designation could have a damaging effect on 
coordination efforts, possibly preventing actions that might maintain, 
improve, or restore habitat for the coastal marten and other species. 
For these reasons, we have determined that our working relationship 
with the Tribe would be better maintained if we exclude their lands 
from the designation of critical habitat for the coastal marten. We 
view this as a substantial benefit since we have developed a trusting, 
cooperative working relationship with the Yurok Tribe for the mutual 
benefit of the coastal marten and other endangered and threatened 
species that has resulted in substantial conservation commitments by 
the Tribe.
    In addition, we anticipate future management plans addressing 
conservation efforts for other listed species and their habitats may be 
hampered if critical habitat is designated on Tribal lands that are 
already being managed for sensitive species conservation. We have 
determined that other Tribes are willing to work cooperatively with us 
and others to benefit other listed and sensitive species, but only if 
they view the relationship as mutually beneficial. Consequently, the 
development of future voluntary management actions for other listed 
species may be compromised if these Tribal lands are designated as 
critical habitat for the coastal marten. Thus, a benefit of excluding 
these lands would be future conservation efforts that would benefit 
other listed or sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Yurok Tribe-
Owned or -Managed Lands

    The benefits of including Yurok Tribal Lands in the critical 
habitat designation are limited to the incremental benefits gained 
through the regulatory requirement for Federal agencies (i.e., BIA) to 
consult under section 7 and consideration of the need to avoid adverse 
modification of critical habitat, agency and educational awareness, 
potential additional grant funding, and the implementation of other law 
and regulations. However, due to the rarity of Federal actions 
resulting in formal section 7 consultations within the Yurok Tribal 
Lands, the benefits of a critical habitat designation are minimized. In 
addition, the benefits of consultation are further minimized because 
any conservation measures that may have resulted from consultation are 
already provided through other mechanisms, such as (1) the conservation 
benefits to the coastal marten and its habitat from implementation of 
the Yurok Tribe management plans, and (2) the maintenance of effective 
collaboration and cooperation to promote the conservation of the 
coastal marten and its habitat.
    Based on our 2016 policy for exclusions, we find that the Yurok 
Tribe's management of their lands through their management plans meet 
several factors for exclusion including: (1) The measures identified in 
the Yurok Tribe management plans have been implemented and have 
demonstrated success; (2) the documents identify measures that provide 
for the conservation of the physical or biological features essential 
for the coastal marten; (3) the conservation management strategies and 
actions contained in Yurok Tribe management plans have been and will 
continue to be implemented; and (4) the Yurok Tribe management plans 
contain monitoring program and adaptive management components to ensure 
that the conservation measures are effective and can be modified in the 
future in response to new information.
    Because the Yurok Tribe has developed specific management plans, 
has been involved with the critical habitat designation process, and is 
aware of the value of their lands for coastal marten conservation, the 
educational benefits of a coastal marten critical habitat designation 
are minimized.
    Allowing the Yurok Tribe to implement its own resource conservation 
programs gives the Tribe the opportunity to manage their natural 
resources to benefit forest habitat for the coastal marten, without the 
perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of these areas will likely also 
provide additional benefits to the coastal marten and other listed 
species that would not otherwise be available without a cooperative 
working relationship between the Service and the Yurok Tribe. The 
actions taken by the Tribe to manage and protect habitat needed for the 
coastal marten would most likely provide a greater benefit than those 
conservation measures that may be required if the area were designated 
as critical habitat. As a result, we have determined that the benefits 
of excluding these Tribal lands from critical habitat designation 
outweigh the benefits of including these areas.
    After weighing the benefits of including Yurok Tribe-owned or -
managed Lands in the critical habitat designation for the coastal 
marten

[[Page 46599]]

against the benefits of excluding them from the designation, we have 
concluded that the benefits of excluding the approximately 64,979 ac 
(26,296 ha) of Unit 5 (Klamath Mountains) owned and managed by the 
Yurok Tribe outweigh the benefits that would result from designating 
this area as critical habitat.

Exclusion Will Not Result in Extinction of the Species--Yurok Tribe-
Owned or -Managed Lands

    We have determined that exclusion of land owned and managed by the 
Yurok Tribe from the critical habitat designation will not result in 
the extinction of the coastal marten. We base this determination on 
several points. First, the amount of critical habitat within Unit 5 
(Klamath Mountains) remaining within the designation for the coastal 
marten totals 1,156,312 ac (467,943 ha). Complimentary to the excluded 
area, this remaining area is occupied and will continue to provide 
support to and conserve the coastal marten and its habitat. Second, for 
any projects having a Federal nexus and potentially affecting the 
coastal marten, the jeopardy standard of the Act will provide a level 
of assurance that the DPS will not go extinct as a result of excluding 
the Yurok Tribe's Lands from the critical habitat designation. Third, 
the Yurok Tribe has a long-term record of conserving species and 
habitat and is committed to protecting and managing coastal marten 
habitat according to their cultural history, management plans, and 
natural resource management objectives.
    We have determined that this commitment accomplishes greater 
conservation than would be available through the implementation of a 
designation of critical habitat on a project-by-project basis. With the 
implementation of conservation measures, which are based upon 
strategies developed in the management plans, as well as significant 
areas remaining as critical habitat and assurances of consultation with 
the Service for Federal actions that may likely adversely affect the 
species, we have concluded that the coastal marten will not become 
extinct as a result of this exclusion of Yurok Tribe-owned or managed 
Lands from the critical habitat designation.
    Accordingly, we have determined that the benefits of excluding the 
Yurok Tribe-owned or managed Lands outweigh the benefits of their 
inclusion, and the exclusion of these lands from the designation will 
not result in the extinction of the species. As a result, the Secretary 
is excluding 64,979 ac (26,296 ha) of Yurok Tribe-owned or managed Land 
under section 4(b)(2) of the Act from the final designation of critical 
habitat in Unit 5 for the coastal marten.

Yurok Tribe Reservation Boundary Adjustment Lands--Unit 5: OR-CA-5 
Klamath Mountains

    We have identified approximately 25,791 ac (10,437 ha) within Unit 
5 (Klamath Mountains) in California for exclusion from this final 
critical habitat designation. The area is part of the Yurok Tribe 
ancestral territory currently owned and managed by the USFS, Six Rivers 
National Forest. The Yurok Tribe is currently working with Congress to 
introduce legislation to revise the boundaries of the Yurok Tribe's 
Reservation. The proposed legislation would include an adjustment of 
the Tribe's reservation boundaries, place the identified USFS land into 
trust for the Tribe, transfer the resource management responsibilities 
to the Tribe, and affirm the Tribal-Federal partnership for the Federal 
lands.
    The Yurok Tribe has shown a commitment to managing forest and 
sensitive species habitat on their lands or lands held in trust for the 
Tribe and has shown to be an effective partner in conservation of the 
coastal marten as discussed above. The Tribe has also been working with 
the USFS on coordinated management of the Federal lands within the 
reservation boundary adjustment lands and the USFS is supportive of a 
coordinated management approach. On October 19, 2023, the USFS Regional 
Office (Region 5) authorized the Six Rivers National Forest to work 
closely with the Yurok Tribe on developing forest management plans for 
the area under the Tribal Forest Protection Act of 2004, and to 
identify co-stewardship and conservation responsibilities (USFS 2023, 
entire). Should legislation transferring management responsibilities or 
land ownership or trust responsibilities to the Tribe be delayed or not 
occur, we are confident that the Yurok Tribe and USFS would coordinate 
management of the area and continue to provide for conservation of the 
coastal marten based on their past and current implementation of 
conservation and management of forest and sensitive habitats, include 
those measures identified for the coastal marten and its habitat. As a 
result, even if legislation transferring management responsibilities is 
delayed or does not occur, we expect that the management of the area by 
the Yurok Tribe and/or the Forest Service would provide for 
conservation of the area equal to if not better than designating the 
area as critical habitat.

Benefits of Inclusion--Yurok Tribe Reservation Boundary Adjustment 
Lands

    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure that 
actions that they fund, authorize, or carry out are not likely to 
result in the destruction or adverse modification of any designated 
critical habitat, which is one of the regulatory standards of section 
7(a)(2) of the Act under which consultation is completed. Under section 
7 of the Act, Federal agencies must also consult with the Service on 
actions that may affect a listed species, and refrain from actions that 
are likely to jeopardize the continued existence of such species. The 
analysis of effects to critical habitat is a separate and different 
analysis from that of the effects to the species. Therefore, the 
difference in outcomes of these two analyses represents the regulatory 
benefit of critical habitat. For some cases, the outcome of these 
analyses will be similar, because effects to habitat will often result 
in effects to the species. In this case, given the absence of a binding 
agreement focused on coastal marten conservation, section 7 
consultations are the primary mechanism in which take is avoided and 
conservation measures are implemented.
    Our section 7 consultation history within the USFS lands considered 
for this boundary adjustment shows that since the coastal marten's 
listing in 2020, no formal consultations and four informal 
consultations have been completed for actions conducted on those lands. 
Other coastal marten consultations are in progress, including 
conferencing on areas proposed as critical habitat for the coastal 
marten. We anticipate that the USFS actions will likely increase in the 
future given that numerous salvage, hazard tree abatement, fuels 
management, infrastructure management, and other projects associated 
with recent catastrophic wildfires are in the planning stages. However, 
this may not be the case if the lands are transferred to the Tribe in 
the future. Coastal marten conservation measures, reasonable and 
prudent measures, and other management practices would still continue 
to be developed and implemented on these lands whether they remain with 
USFS or are transferred to the Tribe, as informal or formal section 7 
consultation will still be necessary to address impacts to coastal 
marten for actions associated

[[Page 46600]]

with any Federal nexus with the USFS or BIA.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to educate landowners and 
the public regarding the potential conservation value of an area, and 
it may help focus management efforts on areas of high value for certain 
species. Any information about the coastal marten that reaches a wide 
audience, including parties engaged in conservation activities, is 
valuable.
    Finally, there is the possible benefit that additional Tribal 
funding could be generated for habitat improvement actions in areas 
designated as critical habitat. Some funding sources may rank a project 
higher if the area is designated as critical habitat. Therefore, having 
an area designated as critical habitat could improve the chances of 
receiving funding for coastal marten habitat-related projects.

Benefits of Exclusion--Yurok Tribe Reservation Boundary Adjustment 
Lands

    The benefits of excluding the Yurok Tribe Reservation Boundary 
Adjustment Lands from designated critical habitat include: (1) Our 
deference to the Tribe and recognition of their sovereignty to develop 
and implement their own conservation and natural resource management 
plans for their lands and resources, which includes benefits to the 
coastal marten and its habitat that might not otherwise occur; (2) the 
continuance and strengthening of our effective working relationship 
with the Tribe to promote the conservation of the coastal marten and 
its habitat; and (3) the maintenance of effective partnerships with the 
Tribe and working in collaboration and cooperation to promote 
conservation of coastal marten and its habitat, as well as conservation 
for other listed or sensitive species. As stated above, the Yurok Tribe 
has developed and implemented multiple management plans that benefit 
the coastal marten and its habitat; however, these binding agreements 
are not currently extended to Yurok Tribe Reservation Boundary 
Adjustment Lands that are at present owned and managed by the USFS, Six 
Rivers National Forest. However, the USFS is currently in the process 
of working and developing an agreement with the Yurok Tribe to conduct 
forest management and habitat restoration activities on the Yurok Tribe 
Reservation Boundary Adjustment Lands under the Tribal Forest 
Protection Act of 2004 (Pub. L. 108-278).
    During the development of the proposed rule to designate critical 
habitat for the coastal marten (86 FR 58831; October 25, 2021), 
development of the MOU for coastal marten, and coordination on other 
endangered or threatened species actions, we have communicated and 
coordinated with the Yurok Tribe on how they might be affected by 
listed species regulations in general and those associated with listing 
and designating critical habitat for the coastal marten. As such, we 
have established a beneficial relationship to support coastal marten 
conservation. As part of our relationship, we have provided technical 
assistance to the Yurok Tribe to develop measures to conserve the 
coastal marten and its habitat on their lands. These measures are 
contained within the extensive management plans developed by the Yurok 
Tribe. During our coordination efforts with the Yurok Tribe, we 
recognized and endorsed their fundamental right to provide for Tribal 
resource management activities, including those relating to forested 
habitat.
    As stated above, the Yurok Tribe has developed and implemented 
multiple management plans that benefit the coastal marten and its 
habitat. The Yurok Tribe has expressed that forested habitats are 
intimately connected to their cultural and religious beliefs, and as a 
result they have a strong commitment and reverence toward their 
stewardship and conservation and the Tribe has common goals with the 
Service on species and habitat conservation. We expect that Yurok 
Tribe's land management practices on the Yurok Tribe Reservation 
Boundary Adjustment Lands would be similar to those on lands directly 
owned or held in trust for the Tribe. Because the Tribe has an 
excellent record of performance and commitment toward management of the 
coastal marten and its habitat, we have determined that the Yurok Tribe 
will likely accomplish greater conservation than would be available 
through the implementation of a designation of critical habitat on a 
project-by-project basis.
    If critical habitat were designated on these lands, we would expect 
that the designation could have an adverse impact on our working 
relationship with the Tribe. The designation of critical habitat could 
be viewed as an intrusion and perceived as infringing on the Tribe's 
sovereign ability to manage these future Tribal natural resources in 
accordance with the Tribe's own policies, customs, and laws. These 
perceived impacts include, but are not limited to: (1) Interfering with 
the sovereign and constitutional rights of the Tribe to protect and 
control its own resources, once these lands are transferred to the 
Tribe; (2) undermining the positive and effective relationship between 
the Tribe and the Service--a relationship that serves to protect 
federally listed species and their habitats; and (3) hampering or 
confusing the Tribe's own long-standing protections for the Klamath 
Mountains, which the Tribe has indicated as its intent for management 
of these lands upon transfer. The perceived restrictions of a critical 
habitat designation could have a damaging effect on coordination 
efforts, possibly preventing actions that might maintain, improve, or 
restore habitat for the coastal marten and other species. For these 
reasons, we have determined that our working relationship with the 
Tribe would be better maintained if we exclude these lands from the 
critical habitat designation for the coastal marten. We view this as a 
substantial benefit since we have developed a productive and 
cooperative working relationship with the Yurok Tribe for the mutual 
benefit of the coastal marten and other endangered and threatened 
species that has resulted in substantial conservation commitments by 
the Tribe.
    In addition, we anticipate that development of future management 
plans by the Tribe that could include additional conservation efforts 
for other listed species and their habitats may be hampered if critical 
habitat is designated on these lands. We have determined that other 
Tribes are willing to work cooperatively with us and others to benefit 
other listed and sensitive species, but only if they view the 
relationship as mutually beneficial. Consequently, the development of 
future voluntary management actions for other listed species may be 
compromised if these potential Tribal lands are designated as critical 
habitat for the coastal marten. Thus, a benefit of excluding these 
lands would be future conservation efforts that would benefit other 
listed or sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Yurok Tribe 
Reservation Boundary Adjustment Lands

    The benefits of including the Yurok Tribe Reservation Boundary 
Adjustment Lands in the critical habitat designation are limited to the 
incremental benefits gained through the regulatory requirement for 
Federal agencies (i.e., BIA) to consult under section 7 and 
consideration of the need to avoid adverse modification of critical 
habitat, agency and educational awareness,

[[Page 46601]]

potential additional grant funding, and the implementation of other law 
and regulations. In addition, any conservation measures that may result 
from future consultations are already expected to be implemented by the 
Tribe due to their MOU with the Service and implementation of the 
Tribal Forest Protection Act authorization with the USFS, which the 
Tribe has indicated will be applicable to these lands upon transfer. We 
have determined that our working relationship with the Tribe will 
provide for and promote the conservation of the coastal marten and its 
habitat, based on the maintenance of our effective collaboration and 
cooperation to date.
    Because the Yurok Tribe has developed specific management plans for 
actions on their lands, has been involved with the critical habitat 
designation process, and is aware of the value of their lands for 
coastal marten conservation, the educational benefits of a coastal 
marten critical habitat designation are minimized.
    By excluding critical habitat, the Tribe will have more flexibility 
to manage natural resources that benefit forest habitat for the coastal 
marten without the perception of Federal Government intrusion. This 
philosophy is also consistent with our published policies on Native 
American natural resource management. The exclusion of these areas will 
likely also provide additional benefits to the coastal marten and other 
listed species that would not otherwise be available should the 
designation impair the cooperative working relationship between the 
Service and the Yurok Tribe. The actions taken by the Tribe to manage 
and protect habitat needed for coastal marten are above those 
conservation measures that may be required if the area were designated 
as critical habitat. As a result, we have determined that the benefits 
of excluding the Yurok Tribe Reservation Boundary Adjustment Lands from 
the critical habitat designation for the coastal marten outweigh the 
benefits of including these areas in the designation.
    After weighing the benefits of including Yurok Tribe Reservation 
Boundary Adjustment Lands in the coastal marten critical habitat 
designation against the benefits of excluding them from the 
designation, we have concluded that the benefits of excluding the 
approximately 25,791 ac (10,437 ha) of Unit 5 located on Yurok Tribe 
Reservation Boundary Adjustment Lands outweigh those that would result 
from designating this area as critical habitat.

Exclusion Will Not Result in Extinction of the Species--Yurok Tribe 
Reservation Boundary Adjustment Lands

    We have determined that exclusion of Yurok Tribe Reservation 
Boundary Adjustment Lands from the critical habitat designation will 
not result in the extinction of the coastal marten. We base this 
determination on several points. First, the amount of critical habitat 
within Unit 5 (Klamath Mountains) remaining as critical habitat for the 
coastal marten totals 1,156,312 ac (467,943 ha). Complimentary to the 
area excluded, this remaining area is occupied and will continue to 
provide support to and conserve the coastal marten and its habitat. 
Second, the area is anticipated to be transferred to be held in trust 
for the Yurok Tribe and any actions requiring Federal authorization or 
funding will require section 7 consultation under the jeopardy standard 
of the Act, which will provide a level of assurance that the DPS will 
not go extinct as a result of excluding these lands from the critical 
habitat designation.
    We have determined that our relationship with the Tribe and their 
commitments to sensitive species and habitat management will provide 
greater opportunities to accomplish conservation than would be 
available through the implementation of a designation of critical 
habitat on a project-by-project basis. With the USFS and Tribe as 
partners in implementation of the conservation strategy for the coastal 
marten in California and the Act's requirement for consultation under 
the jeopardy standard, as well as the occupancy by and management of 
these lands for the benefit of coastal martens, we have concluded that 
the coastal marten will not become extinct as a result of the exclusion 
of this area from the critical habitat designation for the coastal 
marten.
    Accordingly, we have determined that the benefits of excluding the 
Yurok Tribe Reservation Boundary Adjustment Lands from the critical 
habitat designation for the coastal marten outweigh the benefits of 
their inclusion in the designation, and the exclusion of these lands 
from the designation will not result in the extinction of the species. 
As a result, the Secretary is excluding 25,791 ac (10,437 ha) of Yurok 
Tribe Reservation Boundary Adjustment Lands under section 4(b)(2) of 
the Act from Unit 5 of this designation of critical habitat for the 
coastal marten.

Karuk Tribe Managed Lands--Unit 5: OR-CA-5 Klamath Mountains

    On January 5, 2023, legislation was signed by the President of the 
United States to transfer management and resource responsibilities of 
approximately 1,031 ac (417 ha) of land from the USFS, Six Rivers 
National Forest, to be held in trust by the Secretary of the Interior 
for the Karuk Tribe under the Katimi[icirc]n and Ameeky[aacute]araam 
Sacred Lands Act (Pub. L. 117-353). The legislation takes certain 
Federal land located in Siskiyou County and Humboldt County, 
California, into trust for the benefit of the Karuk Tribe, and for 
other purposes. The trust lands include approximately 925 ac (374 ha) 
of land that overlaps with the proposed designation of critical habitat 
for the coastal marten in Unit 5 (Klamath Mountains) near the 
intersection of the Klamath River and Salmon River in California. We 
have identified these Karuk Tribe Trust Lands for exclusion from this 
final critical habitat designation.
    The Karuk Tribe has a demonstrated record of maintaining and 
managing its lands for natural resources and sensitive species through 
implementation of its Eco-Cultural Resources Management Plan (Karuk 
Tribe 2010, entire), and through its partnership with the USFS to 
restore healthy forests in the region through the Western Klamath 
Restoration Partnership Project (USFS 2014, entire). The Eco-Cultural 
Resources Management Plan and the Tribe's partnership with the USFS on 
forest management are discussed below.
    The Karuk Tribe Department of Natural Resources has developed the 
Eco-Cultural Resources Management Plan to serve as a long-term adaptive 
management strategy for the protection, enhancement, and utilization of 
cultural and natural resources. The plan outlines cultural 
environmental management practices through the use of traditional 
ecological knowledge (TEK) and existing western scientific information. 
The plan provides measures and guidance for environmental education, 
wildfire suppression and fuels reduction activities, fisheries 
management and enhancement, forestry management, watershed and water 
quality restoration, and wildlife resource conservation and protection. 
Measures in the plan to conserve and restore wildlife including the 
coastal marten and its habitat (PBFs) include: (1) Coordinating efforts 
to conserve and monitor wildlife species and their habitats with 
Tribal, Federal, State, and county governments, nongovernmental 
organizations, and local community

[[Page 46602]]

groups; (2) managing wildlife through forest, shrub, and grassland 
habitat restoration activities, including utilizing hand and mechanical 
treatments in conjunction with identifiable prescribed fire ignition 
strategies (PBF 1-3); (3) implementing landscape-level planning to 
support holistic ecosystem management (PBF 1-1, 1-2); (4) 
reestablishing interconnectivity between various habitat types across 
the landscape to foster wildlife movement and dispersal (PBF 2); and 
(5) where appropriate, managing for single/indicator species in an 
effort to prevent further habitat loss or degradation (PBF 1-1, 1-2, 1-
3), species endangerment, and local extirpations of the species, as 
well as to allow for potential reintroductions.
    The Karuk Tribe has also been working with the USFS and others 
since 2007 as a member of a multi-partner management group for the 
management and conservation of forested habitat in the western Klamath 
River region known as the Western Klamath Restoration Partnership 
(WKRP). The WKRP works collaboratively among all stakeholders and 
across all landscapes, integrating TEK and western science to achieve 
three goals: (1) resilient landscapes; (2) fire-adapted communities; 
and (3) safe and effective wildfire response. These goals will be 
partly accomplished by restoring the landscape through measures such as 
forest thinning and prescribed burns to help preclude severe, 
catastrophic wildfire; restore native plant communities; improve 
terrestrial and aquatic habitats; and provide monitoring and adaptive 
management.
    In our October 25, 2021, proposed rule (86 FR 58831) and September 
30, 2022, publication (87 FR 59384), we stated that our final 
designation may not include all areas proposed, may include some 
additional areas that meet the definition of critical habitat, or may 
exclude some areas if we find the benefits of exclusion outweigh the 
benefits of inclusion and that the exclusion will not result in the 
extinction of the species. Our balancing analysis for these Karuk Tribe 
Trust Lands, concerning whether the benefits of exclusion of these 
lands from the critical habitat designation outweigh the benefits of 
their inclusion in the designation and whether such an exclusion will 
result in the extinction of the coastal marten, is discussed below.

Benefits of Inclusion--Karuk Tribe Trust Lands

    The principal benefit of including an area in a critical habitat 
designation is the requirement of Federal agencies to ensure that 
actions that they fund, authorize, or carry out are not likely to 
result in the destruction or adverse modification of any designated 
critical habitat, which is one of the regulatory standards of section 
7(a)(2) of the Act under which consultation is completed. Although the 
Karuk Tribe is not a Federal agency, the ownership of the lands in 
question is now held by the Secretary of the Interior in trust for the 
Tribe. As a result, actions requiring Federal authorization or funding 
on the Karuk Tribal Trust Lands require consultation under section 7 of 
the Act if the action may affect a listed species, and such 
consultation regarding an adverse effect to the species would consider 
whether the action is likely to jeopardize the continued existence of 
such species.The analysis of effects to critical habitat is a separate 
and different analysis from that of the effects to the species. 
Therefore, the difference in outcomes of these two analyses represents 
the regulatory benefit of critical habitat. Thus, critical habitat 
designation may provide greater benefits to the conservation of a 
species than listing would alone.
    We have provided the Karuk Tribe and the BIA with technical 
assistance on project implementation and conducted informal 
consultations with the Federal agencies implementing actions on Tribal 
lands. However, since the listing of the coastal marten as threatened 
in 2020, no actions determined to likely adversely affect the species 
and require formal section 7 consultations for the coastal marten have 
occurred within the areas that are now part of the Karuk Tribe Trust 
Lands. Because of the Karuk Tribe's practice of implementing 
conservation measures and management actions for the coastal marten and 
its habitat or designing projects that result in insignificant, 
discountable, or wholly beneficial effects to the DPS and its habitat, 
we do not anticipate a significant increase in section 7 consultations 
in the future, and, as a result, the regulatory benefit of critical 
habitat will be minimal.
    Another important benefit of including lands in a critical habitat 
designation is that the designation can serve to inform and educate 
landowners and the public regarding the potential conservation value of 
an area, and it may help focus management efforts on areas of high 
value for certain species. Any information about the coastal marten 
that reaches a wide audience, including parties engaged in conservation 
activities, is valuable. However, the coastal marten was petitioned for 
listing in 2010, was a candidate species beginning in 2015, was listed 
by the State of California as endangered in 2018 (CDFW 2019, entire), 
was federally listed as a threatened species under the Act in 2020 (see 
85 FR 63806; October 8, 2020), and had critical habitat proposed in 
2021 (see 86 FR 58831; October 25, 2021). These actions have provided 
numerous opportunities for public outreach and education and have 
ensured that the Karuk Tribe and others are fully aware of the 
importance of coastal marten habitat and conservation. The Karuk Tribe 
has been and is currently working with the Service to conserve the 
coastal marten and its habitat, participate in working groups, and 
exchange management and resource information regarding the species. In 
addition, because the majority of lands surrounding or adjacent to the 
Karuk Tribe Trust Lands will be designated as critical habitat, there 
will still be opportunities for us to raise public awareness of the 
conservation value of the area for the coastal marten. Given that the 
listing of the coastal marten has already informed the public about the 
value of these areas and helped to focus potential conservation 
actions, the educational benefits from including the Karuk Tribe Trust 
Lands in the critical habitat designation would be small.
    Finally, there is the possible benefit that additional funding 
could be generated for habitat improvement actions in areas designated 
as critical habitat. Some funding sources may rank a project higher if 
the area is designated as critical habitat. Tribes often seek 
additional sources of funding in order to conduct wildlife-related 
conservation activities. Therefore, having an area designated as 
critical habitat could improve the chances of receiving section 6 or 
other recovery funding for coastal marten habitat-related projects. 
However, the occurrence of coastal martens on the Karuk Tribe Trust 
Lands may also promote the evaluation of projects within this area for 
funding, regardless of whether the lands are designated as critical 
habitat.
    Therefore, because of the development and implementation of 
management plans, the Tribe's commitment to habitat conservation, the 
unlikelihood that a critical habitat designation would prompt more 
section 7 consultations than those that would occur due to the presence 
of breeding and dispersing coastal martens on these Tribal lands, and 
overall coordination with the Karuk Tribe on coastal marten-related 
issues, it is expected that there may be limited benefits from 
including the Karuk Tribe Trust Lands in a coastal marten critical 
habitat designation. The

[[Page 46603]]

principal benefit of any designated critical habitat is that federally 
authorized or funded activities in and affecting such habitat require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid destruction or adverse 
modification of critical habitat.

Benefits of Exclusion--Karuk Tribe Trust Lands

    The benefits of excluding the Karuk Tribe Trust Lands from 
designated critical habitat include: (1) Our deference to the Tribe and 
recognition of their sovereignty to develop and implement their own 
conservation and natural resource management plans for their lands and 
resources, which includes benefits to the coastal marten and its 
habitat that might not otherwise occur; (2) the continuance and 
strengthening of our effective working relationship with the Tribe to 
promote the conservation of the coastal marten and its habitat; and (3) 
the maintenance of effective partnerships with the Tribe and working in 
collaboration and cooperation to promote conservation of the coastal 
marten and its habitat, as well as conservation for other listed or 
sensitive species.
    During the development of our October 25, 2021, proposed rule (86 
FR 58831), as well as during coordination for other endangered species 
or land management actions, we have communicated and coordinated with 
the Karuk Tribe on how they might be affected by listed species 
regulations in general and those associated with listing and 
designating critical habitat for the coastal marten. As such, we have 
established a beneficial relationship to support the Karuk Tribe's 
coastal marten conservation efforts. As part of our relationship, we 
have provided technical assistance to the Karuk Tribe to develop 
measures to conserve the coastal marten and its habitat on their lands. 
These measures are contained within the extensive management actions 
developed by the Karuk Tribe. During our coordination efforts with the 
Karuk Tribe, we recognized and endorsed their fundamental right to 
provide for Tribal resource management activities, including those 
relating to forested habitat.
    As stated above, the Karuk Tribe has developed and implemented 
their Eco-Cultural Resources Management Plan that benefits the coastal 
marten and its habitat. The Karuk Tribe has expressed that their lands, 
and specifically forest habitat, are connected to their cultural and 
religious beliefs, and, as a result, they have a strong commitment to 
and reverence for their lands' stewardship and conservation and have 
common goals with the Service on species and habitat conservation. The 
management plan identifies actions to maintain, improve, and preserve 
forest habitat, including those physical or biological features 
essential to the coastal marten. We have determined that the measures 
identified in the Karuk Tribe's Eco-Cultural Resources Management Plan 
meet several factors for exclusion under our 2016 policy including the: 
(1) Coordination of efforts to conserve wildlife species and their 
habitats with Tribal, Federal, State, and county governments, 
nongovernmental organizations, and local community groups; (2) 
management of wildlife through forests, shrub, and grassland habitat 
restoration activities, including utilizing hand and mechanical 
treatments in conjunction with identifiable prescribed fire ignition 
strategies; (3) implementation of landscape-level planning to support 
holistic ecosystem management; (4) reestablishment of interconnectivity 
between various habitat types across the landscape to foster wildlife 
movement and dispersal; (5) management for single/indicator species to 
prevent further habitat loss or degradation, species endangerment, and 
local extirpations of the species, as well as to allow for potential 
reintroductions; and (6) implementation of a monitoring program and 
adaptive management components to ensure that the conservation measures 
are effective and can be modified in the future in response to new 
information. The Karuk Tribe has identified that the measures 
identified above would be applied to the newly acquired Karuk Tribe 
Trust Lands
    Overall, the commitments toward management of coastal marten 
habitat by the Karuk Tribe likely accomplish greater conservation than 
would be available through the implementation of a designation of 
critical habitat on a project-by-project basis.
    Because of the above-mentioned and established conservation efforts 
and coordination, the designation of critical habitat on the Karuk 
Tribe Trust Lands could have an adverse impact on our working 
relationship with the Karuk Tribe. The designation of critical habitat 
could be viewed as an intrusion and perceived as infringing on the 
Tribe's sovereign ability to manage natural resources in accordance 
with their own policies, customs, and laws. These perceived impacts 
include, but are not limited to: (1) Interfering with the sovereign and 
constitutional rights of the Karuk Tribe to protect and control its own 
resources within the Karuk Tribe Trust Lands; and (2) undermining the 
positive and effective relationship between the Karuk Tribe and the 
Service--a relationship that serves to protect federally listed species 
and their habitats. The perceived restrictions of a critical habitat 
designation could have a damaging effect on coordination efforts, 
possibly preventing actions that might maintain, improve, or restore 
habitat for the coastal marten and other species. For these reasons, we 
have determined that our working relationship with the Karuk Tribe 
would be better maintained if we exclude the Karuk Tribe Trust Lands 
from the critical habitat designation for the coastal marten. We view 
this as a substantial benefit since we have developed a trusting 
cooperative working relationship with the Karuk Tribe for the mutual 
benefit of the coastal marten and other endangered, threatened, and at-
risk species that has resulted in substantial conservation commitments 
by the Karuk Tribe, such as development and implementation of resource 
management plans and continued partnerships and coordination with the 
Service and others.
    In addition, we anticipate that future management plans addressing 
conservation efforts for other listed species and their habitats may be 
hampered if critical habitat is designated on Karuk Tribe Trust Lands. 
The Tribal Trust Lands have been managed for sensitive species 
conservation under the WKRP and the Tribe has committed to continuing 
this management, and to bring these lands within its ERMP. We have 
determined that other Tribes are willing to work cooperatively with us 
and others to benefit other listed and sensitive species, but only if 
they view the relationship as mutually beneficial. Consequently, the 
development of future voluntary management actions for other listed 
species may be compromised if these Karuk Tribe Trust Lands are 
designated as critical habitat for the coastal marten. Thus a benefit 
of excluding these lands would be future conservation efforts that 
would benefit other listed or sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Karuk Tribe 
Trust Lands

    The benefits of including the Karuk Tribe Trust Lands in the 
critical habitat designation for the coastal marten are limited to the 
incremental benefits gained through the regulatory requirement for 
Federal agencies (i.e., BIA) to consult under section 7 and 
consideration of the requirement to avoid adverse modification or

[[Page 46604]]

destruction of critical habitat, agency and educational awareness, 
potential additional grant funding, and the implementation of other law 
and regulations. However, due to the rarity of Federal actions 
resulting in formal section 7 consultations, the benefits of a critical 
habitat designation are minimized. In addition, the benefits of 
consultation are further minimized because any conservation measures 
that may have resulted from consultation are already provided through 
other mechanisms, such as (1) the conservation benefits to the coastal 
marten and its habitat from application to and implementation of the 
Karuk Tribe management plans to Karuk Tribe Trust Lands; and (2) the 
maintenance of effective collaboration and cooperation to promote the 
conservation of the coastal marten and its habitat.
    Because the Karuk Tribe has developed specific management plans 
applicable to the Karuk Tribe Trust Lands, has been involved with the 
critical habitat designation process, and is aware of the value of 
their lands for coastal marten conservation, the educational benefits 
of a coastal marten critical habitat designation are minimized.
    Allowing the Karuk Tribe to implement its own resource conservation 
programs gives the Tribe the opportunity to manage their natural 
resources to benefit forest habitat for the coastal marten without the 
perception of Federal Government intrusion. This philosophy is also 
consistent with our published policies on Native American natural 
resource management. The exclusion of these areas will likely also 
provide additional benefits to the coastal marten and other listed 
species that would not otherwise be available through maintenance of a 
cooperative working relationship between the Service and the Karuk 
Tribe. The actions taken by the Tribe to manage and protect habitat 
needed for coastal marten and that the Tribe has committed will be 
applied to the Karuk Tribe Trust Lands are above those conservation 
measures that may be required if the area were designated as critical 
habitat. As a result, we have determined that the benefits of excluding 
the Karuk Tribe Trust Lands from critical habitat designation outweigh 
the benefits of including these areas in the designation.
    After weighing the benefits of including the Karuk Tribe Trust 
Lands in the coastal marten critical habitat designation against the 
benefits of excluding them from the designation, we have concluded that 
the benefits of excluding the approximately 925 ac (374 ha) of Karuk 
Tribe Trust Lands from Unit 5 (Klamath Mountains) outweigh those that 
would result from designating this area as critical habitat.

Exclusion Will Not Result in Extinction of the Species--Karuk Tribe 
Trust Lands

    We have determined that exclusion of the Karuk Tribe Trust Lands 
from this critical habitat designation will not result in the 
extinction of the coastal marten. We base this determination on several 
points. First, the amount of critical habitat designated for the 
coastal marten within Unit 5 (Klamath Mountains) surrounding the trust 
lands is large, totaling 1,156,312 ac (467,943 ha). This remaining area 
is occupied and will continue to provide support to and conserve the 
coastal marten and its habitat. Second, for any projects having a 
Federal nexus and potentially affecting the coastal marten, the 
jeopardy standard of the Act will provide a level of assurance that the 
DPS will not go extinct as a result of excluding the Karuk Tribe Trust 
Lands from the critical habitat designation. Third, the Karuk Tribe has 
a long-term record of conserving species and habitat and is committed 
to protecting and managing coastal marten habitat according to their 
cultural history, management plans, and natural resource management 
objectives.
    We have determined that this commitment accomplishes greater 
conservation than would be available through the implementation of a 
designation of critical habitat on a project-by-project basis. With the 
implementation of these conservation measures, which are based upon 
strategies developed in the Karuk Tribe's Eco-Cultural Resources 
Management Plan, as well as significant areas remaining as critical 
habitat and assurances of consultation with the Service for Federal 
actions that may likely adversely affect the species, we have concluded 
that the coastal marten will not become extinct as a result of this 
exclusion of Karuk Tribe Trust Lands from the critical habitat 
designation.
    Accordingly, we have determined that the benefits of excluding the 
Karuk Tribe Trust Lands from the critical habitat designation outweigh 
the benefits of including them in the designation, and the exclusion of 
these lands from the designation will not result in the extinction of 
the species. As a result, the Secretary is excluding 925 ac (374 ha) of 
Karuk Tribe Trust Lands under section 4(b)(2) of the Act from the final 
designation of critical habitat in Unit 5 for the coastal marten.

Exclusion Analysis of Non-Harvest Land Base Lands (Oregon and 
California Lands (O&C Lands))

    In our October 25, 2021, proposed rule (86 FR 58831), we did not 
include existing ``harvest land base'' lands (O&C lands) as critical 
habitat. We did include other O&C lands in Units 2, 3, 4, and 5 that 
are currently identified as either congressionally reserved, late-
successional reserves, riparian reserve, or otherwise reserve lands. 
During the public comment period on the October 25, 2021, proposed 
rule, we received a request to exclude all O&C lands from the critical 
habitat designation for the coastal marten. O&C lands occur in western 
Oregon in a checkerboard pattern intermingled with private land across 
18 counties. All O&C lands were revested to the Federal Government 
under the Chamberlain-Ferris Act of 1916 (39 Stat. 218, June 9, 1916). 
The Oregon and California Revested Lands Sustained Yield Management Act 
of 1937 (O&C Act; 43 U.S.C. 2601) addresses the management of O&C 
lands. Most of these lands (82 percent) are administered by BLM. The 
remaining lands are administered by the USFS. The O&C Act identifies 
the primary use of revested timberlands for permanent forest 
production. The O&C Act provides that these lands are to be managed for 
permanent forest production, and the timber thereon shall be sold, cut, 
and removed in conformity with the principle of sustained yield for the 
purpose of providing a permanent source of timber supply, protecting 
watersheds, regulating stream flow, and contributing to the economic 
stability of local communities and industries, and providing 
recreational facilities (43 U.S.C. 2601).
    The counties where the O&C lands are located participate in a 
revenue-sharing program with the Federal Government wherein the 
counties receive 50 percent of the revenues based on commercial 
receipts (e.g., income from commercial timber harvest) generated on 
these Federal lands (43 U.S.C. 2605(a)).
    The majority of O&C lands within the areas we proposed as critical 
habitat for the coastal marten occur in Unit 5 in Oregon and are 
managed by the BLM. No O&C lands in California or managed by the USFS 
are within the areas proposed as critical habitat. In 2016, BLM revised 
its resource management plans for western Oregon, resulting in two 
separate plans. These two BLM plans, the Northwestern Oregon and 
Coastal Oregon Record of Decision and Resource Management Plan (BLM 
2016a) and the Southwestern Oregon Record of Decision and Resource

[[Page 46605]]

Management Plan (BLM 2016b), address all or part of six BLM districts 
across western Oregon, including the management of O&C lands.

Benefits of Inclusion--Non-Harvest Land Base O&C Lands

    The lands included in the designation that are managed by BLM under 
the O&C Act as reserves and not as ``harvest land base'' lands total 
approximately 69,094 ac (27,961 ha) of land in units 2, 3, 4, and 5 in 
Oregon. These areas are occupied by the coastal marten, contain the 
physical or biological features essential to the conservation of the 
DPS, and are composed primarily of late-successional reserve on BLM 
lands. These lands provide important habitat for reproduction, 
connectivity, and survival for the coastal marten and provide 
connectivity to more northerly habitat in Oregon as well as extensive 
habitat farther south into northwestern California.
    A significant effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not destroy or adversely modify designated critical habitat. 
Absent critical habitat designation, Federal agencies remain obligated 
under section 7 of the Act to consult with us on actions that may 
affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence. The critical habitat 
designation benefits the coastal marten and identifies areas as part of 
a rangewide conservation strategy and network that connects large 
blocks of habitat that are able to support multiple home ranges and 
populations of the coastal marten in the variable habitats where the 
DPS occurs. The non-harvest land base O&C lands and other lands 
included in the designation provide connectivity and habitat areas in a 
spatial configuration that is essential to the conservation of the 
coastal marten.
    The critical habitat designation also identifies areas on the 
landscape on which are found the physical or biological features that 
may require special management considerations or protection. Through 
the critical habitat designation and the section 7 consultation 
process, the Service is able to work collaboratively with the BLM, and 
other Federal agencies to help design how timber harvest can occur in 
these areas while minimizing impacts to coastal marten recovery. 
Conserving extant, high-quality habitat and addressing the threat from 
severe wildfire are key management actions that can be undertaken by 
the BLM and are components of the special management considerations for 
conserving the PBFs within the areas identified as critical habitat for 
the coastal marten.
    Because the threat of wildfire is present throughout the range of 
the coastal marten, special management considerations or protection may 
be required in all of the critical habitat units to ensure the coastal 
marten has sufficient habitat available to withstand large-scale, 
landscape-altering wildfire events. Based on the small population size 
of the DPS, its limited distribution, and its relatively unknown 
specific habitat requirements, the protection of high-quality habitat 
such as that found on non-harvest land base O&C lands is extremely 
important. The types of management or protection that may be required 
to achieve these goals and maintain the physical or biological features 
essential to the conservation of the coastal marten in occupied areas 
vary across the range of the DPS. Some areas of coastal marten habitat, 
particularly in wetter forest types, are unlikely to be enhanced by 
active management activities, but instead need protection of the 
essential features. Other forest areas would likely benefit from more 
proactive forestry management, especially when considering the effects 
of large-scale wildfire.
    The designation of non-harvest land base O&C lands as critical 
habitat benefits the DPS by ensuring that the impact of actions 
identified in the Special Management Considerations or Protection 
section in this rule are considered in the design and implementation of 
timber harvest projects and avoiding or minimizing impacts to PBFs in 
these areas. The additional analysis required for critical habitat in a 
section 7 consultation requires action agencies to evaluate the effects 
on the physical or biological features that are essential to the 
conservation of the coastal marten that provide for denning, resting, 
foraging, and dispersal. In our consultations, the Service evaluates 
how those actions affect the conservation value of a critical habitat 
subunit and its essential physical or biological features, and then the 
analysis is scaled up to evaluate those effects at the critical habitat 
unit scale and the critical habitat designation as a whole. Evaluating 
habitat at multiple scales in consultations on timber harvest actions 
in designated critical habitat ensures the landscape continues to 
support the habitat network locally, regionally, and rangewide.
    Another benefit of including lands in a critical habitat 
designation is that it generally serves to educate landowners, State 
and local governments, and the public regarding the potential 
conservation value of an area. Identifying areas of high conservation 
value for the coastal marten can help focus and promote conservation 
efforts by other parties. Any additional information about the needs of 
the coastal marten or its habitat that reaches a wider audience can be 
of benefit to future conservation efforts. There is a benefit to 
communicating to the public and land managers that habitat found on O&C 
lands is essential to the conservation of the coastal marten. We work 
closely with the BLM in our coordinated section 7 consultation 
processes, and we have a keen understanding of the agency's missions 
and mandates. Our local biologists meet regularly to discuss upcoming 
and ongoing Federal projects and their effects to both listed species 
and their critical habitats, and to address any concerns about the 
section 7 consultation process. Additionally, we meet regularly with 
local and regional forest managers to advise and coordinate management 
and conservation of forested lands. This process and partnership, 
established under the NWFP (USFS and BLM 1994, entire), has been 
effective for many years. We conclude that this collaborative approach, 
which includes reviewing projects and discussing how they may affect 
the physical and biological features of critical habitat for the 
coastal marten, is a substantial benefit of including these lands in 
the critical habitat designation.

Benefits of Exclusion--Non-Harvest Land Base O&C Lands

    There would be benefits realized by excluding all non-harvest land 
base O&C lands managed by the BLM from critical habitat. Executive 
Order 12866 directs agencies to consider regulatory approaches that 
reduce burdens and maintain flexibility and freedom of choice for the 
public where these approaches are relevant, feasible, and consistent 
with regulatory objectives. Excluding non-harvest land base O&C lands 
from the coastal marten critical habitat designation would reduce the 
burden of additional section 7 consultation beyond any requirements to 
consult because the DPS occurs on these lands. However, that burden 
reduction would be minor, as it would only reduce the administrative 
costs associated with conducting an adverse modification analysis.

[[Page 46606]]

    Our economic analysis for the proposed designation found that there 
would be some additional administrative costs associated with the 
designation of critical habitat. These costs would be associated with 
the determination by the Federal agency of whether an action they 
conduct, fund, or authorize would adversely modify or destroy critical 
habitat. However, the economic analysis of the proposed critical 
habitat found the incremental effects of the designation to be 
relatively small due to the extensive conservation measures already in 
place for the DPS because of its listed status under the Act and 
because of the measures provided under the NWFP (USFS and BLM 1994, 
entire), BLM resource management plans for western Oregon (BLM 2016a, 
entire; BLM 2016b, entire), and those measures identified for other 
listed species such as the northern spotted owl and marbled murrelet 
(IEc 2021, p. 2).
    In addition, we find value in consulting programmatically and at 
the project level under section 7 of the Act on Federal projects on O&C 
lands outside of those lands allocated by BLM to the harvest land base. 
The benefits derived in these section 7 consultations include avoiding 
or minimizing impacts to the PBFs and providing an opportunity to 
evaluate the effects those timber harvest projects have on the 
functionality of the overall critical habitat designation. The 
consultations allow the Service to evaluate the effects on the 
functionality of the critical habitat network and ensure that 
functionality is not significantly impaired. We find that focusing our 
consultation and administrative capacity on section 7 consultations in 
the O&C lands outside of the BLM's harvest land base lands is a 
priority given that the majority of this area is designated as late-
successional reserve and riparian reserve and contributes to 
conservation of habitat for the coastal marten. Additionally, as stated 
above, the O&C lands outside of the BLM harvest land base allocation 
provide areas of higher quality habitat that coastal martens prefer for 
denning, resting, and foraging behavior and lower quality habitat that 
coastal martens use for dispersal. Therefore, the benefits of excluding 
the O&C lands outside of the BLM harvest land base from this critical 
habitat designation are reduced.

Benefits of Inclusion Outweigh the Benefits of Exclusion--Non-Harvest 
Base O&C Lands

    When weighing the benefits of inclusion and the benefits of 
exclusion of areas, the Secretary has broad discretion as to what 
factors to consider as benefits of inclusion and benefits of exclusion, 
and what weight to assign to each factor. We have determined that the 
benefits of including non-harvest land base O&C lands in units 2, 3, 4, 
and 5 in this critical habitat designation outweigh the benefits of 
excluding them because the habitat on these lands are of a high 
conservation value for the coastal marten and exclusion of these areas 
would most likely reduce the current management efforts being 
implemented to maintain the physical or biological features necessary 
to develop, maintain, and protect habitat essential to coastal marten 
conservation. These efforts, therefore, serve to manage and protect 
habitat needed for the coastal marten. In making this finding, we have 
weighed the benefits of excluding these lands from the critical habitat 
designation against the benefits of including these lands in the 
designation. We acknowledge that many counties depend on timber harvest 
production; however, our economic analysis (IEc 2021, entire) did not 
identify significant economic impacts due to the designation itself. 
The disruptions noted by the commenters in Federal timber production 
are caused by a range of factors, including the listing of species, 
timber sale design factors unrelated to listed species, market 
conditions, and a number of other factors that are not attributable to 
critical habitat designation.
    Even assuming the high end of the economic impacts identified in 
our economic analysis, ultimately, we give greater weight to the 
conservation value of the O&C lands outside of the BLM harvest land 
base than to the potential economic benefits of excluding these lands 
from the designation, for several reasons. First, these areas are of 
significant conservation value to the coastal marten given the 
geographical location and the essential habitat features they provide 
for the DPS. Second, the section 7 consultation requirements (i.e., the 
USFS and BLM must consult with the Service on proposed impacts to 
designated critical habitat from Federal projects) that will apply to 
the O&C lands outside of the BLM's harvest land base/USFS matrix lands 
provide for meaningful coordination between the Service and the 
agencies regarding actions they are proposing and the needs of the 
coastal marten, which, in turn, provides a conservation benefit to the 
DPS in Oregon and California. The benefits derived in these section 7 
consultations include avoiding or minimizing impacts to the PBFs and 
providing an opportunity to evaluate the effects those projects have on 
the functionality of the overall critical habitat designation. In sum, 
we find that the benefits of including the areas of O&C lands outside 
of BLM's harvest land base (i.e., non-harvest land base lands) in this 
critical habitat designation outweigh the benefits of excluding them 
from the designation. As a result, we are not excluding the O&C lands 
outside of BLM's harvest land base (i.e., non-harvest land base lands) 
as allocated under the 2016 RMPs from this final designation.
    Because we are not excluding the O&C lands outside of BLM's harvest 
land base (i.e., non-harvest land base lands) from this final 
designation, we are not required to conduct an extinction analysis for 
any exclusion.

Summary of Exclusions

    As discussed above, based on the information provided to us by 
entities seeking exclusion, as well as additional public comments and 
other information we received, we evaluated whether certain lands in 
the proposed critical habitat designation were appropriate for 
exclusion from this final designation pursuant to section 4(b)(2) of 
the Act. We are excluding the following areas from Unit 5 of the 
critical habitat designation for the coastal marten: (1) areas in 
California owned and managed by the GDRC; (2) areas owned or managed by 
the Yurok Tribe; (3) areas identified by the Yurok Tribe as reservation 
boundary adjustment lands; and (4) lands held in trust for the Karuk 
Tribe as part of recent legislation. Table 2, below, presents a summary 
of these exclusions.

[[Page 46607]]



                       Table 2--Areas Excluded From Critical Habitat Designation in Unit 5
                                               [Klamath Mountains]
----------------------------------------------------------------------------------------------------------------
                                                         Areas meeting the    Areas excluded
              Unit                    Specific area        definition of      from critical      Final critical
                                                          critical habitat       habitat       habitat in Unit 5
----------------------------------------------------------------------------------------------------------------
Unit 5: OR-CA-5 Klamath          Green Diamond Resource  1,289,627 ac       49,010 ac (19,834  1,156,312 ac
 Mountains.                       Company lands.          (521,913 ha).      ha).               (467,943 ha) *.
                                 Yurok Tribe-owned or -                     64,979 ac (26,296
                                  managed lands.                             ha).
                                 Yurok Tribe                                25,791 ac (10,437
                                  Reservation boundary                       ha).
                                  adjustment lands
                                  (USFS-owned).
                                 Karuk Tribe trust                          925 ac (374 ha)..
                                  lands.
----------------------------------------------------------------------------------------------------------------
* Unit total represents exclusions plus any minor adjustments based on habitat features or land designations.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14094)

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.
    Executive Order 12866, as reaffirmed by E.O. 13563 and E.O. 14094, 
provides that the Office of Information and Regulatory Affairs (OIRA) 
in the Office of Management and Budget will review all significant 
rules. OIRA has determined that this rule is not significant.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    Under the RFA, as amended, as understood in light of recent court 
decisions, Federal agencies are required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself; in other words, the RFA does not require 
agencies to evaluate the potential impacts to indirectly regulated 
entities. The regulatory mechanism through which critical habitat 
protections are realized is section 7 of the Act, which requires 
Federal agencies, in consultation with the Service, to ensure that any 
action authorized, funded, or carried out by the agency is not likely 
to destroy or adversely modify critical habitat. Therefore, under 
section 7, only Federal action agencies are directly subject to the 
specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies will be directly 
regulated by this designation. The RFA does not require evaluation of 
the potential impacts to entities not directly regulated. Moreover, 
Federal agencies are not small entities. Therefore, because no small 
entities will be directly regulated by this rulemaking, we certify that 
this critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the two comment periods on 
October 25, 2021, proposed rule (86 FR 58831), and the September 30, 
2022, document that describes revisions to and reopened the comment 
period on the October 25, 2021, proposed rule (87 FR 59384) that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Based on this 
information, we affirm our certification that this critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions (66 FR 28355;

[[Page 46608]]

May 22, 2001). E.O. 13211 defines a ``significant energy action'' as an 
action that (i) is a significant regulatory action under E.O. 12866 or 
E.O. 14094 (88 FR 21879; Apr. 11, 2023)); and (ii) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. This rule is not a significant regulatory action under E.O. 
12866 or 14094. We are currently unaware of and do not expect any 
planned activities to occur in the areas identified as critical habitat 
for the coastal marten that would significantly affect energy supply, 
distribution, or use. In our economic analysis, we did not find that 
this critical habitat designation will significantly affect energy 
supplies, distribution, or use. The economic costs of the critical 
habitat designation for the coastal marten are likely to be minor and 
primarily limited to administrative efforts that consider adverse 
modification during consultation. Therefore, this action is not a 
significant energy action, and no statement of energy effects is 
required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The economic analysis concludes that the majority of incremental 
impacts would most likely occur as a result of Federal agency actions 
and primarily limited to administrative efforts that consider adverse 
modification during consultation. Therefore, a Small Government Agency 
Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the coastal marten in a takings implications assessment. 
The Act does not authorize us to regulate private actions on private 
lands or confiscate private property as a result of critical habitat 
designation. Designation of critical habitat does not affect land 
ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed and 
concludes that this designation of critical habitat for the coastal 
marten does not pose significant takings implications for lands within 
or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate State resource agencies. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, this final rule does not 
have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The designation may have some benefit to these governments 
because the areas that contain the features essential to the 
conservation of the species are more clearly defined, and the physical 
or biological features of the habitat necessary for the conservation of 
the species are specifically identified. This information does not 
alter where and what federally sponsored activities may occur. However, 
it may assist State and local governments in long-range planning 
because they no longer have to wait for case-by-case section 7 
consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act will be required. While 
non-Federal entities

[[Page 46609]]

that receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule will not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the physical or biological features essential to the 
conservation of the species. The designated areas of critical habitat 
are presented on maps, and the rule provides several options for the 
interested public to obtain more detailed location information, if 
desired.

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

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, May 4, 1994), Executive Order 13175 
(Consultation and Coordination with Indian Tribal Governments), the 
President's memorandum of November 30, 2022 (Uniform Standards for 
Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's 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 our development of the proposed critical habitat designation and 
again after our proposed rule published, we reached out to all 
federally recognized Tribes in southern Oregon and northern California 
including the Yurok and Karuk Tribes, and provided them with 
information on our processes for designating critical habitat and met 
with them to discuss the management of lands under their control, their 
concerns, and their request for potential exclusion of lands under 
section 4(b)(2) of the Act. As a result of our coordination with the 
Yurok Tribe, we developed a MOU regarding their activities and 
conservation of coastal marten habitat. We used the MOU as part of our 
rationale for excluding Yurok Tribe-owned or managed Lands under 
section 4(b)(2) of the Act, and we are excluding the lands identified 
by the Yurok Tribe, including Yurok Tribe Reservation Boundary 
Adjustment Lands from this final designation. We also excluded lands 
recently transferred from the USFS to be held in trust by the Secretary 
of the Interior for the benefit of the Karuk Tribe (for more 
information, see Tribal Lands under Consideration of Impacts under 
Section 4(b)(2) of the Act, above).

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team, the Arcata Fish 
and Wildlife Office in California, and the Service's Roseburg Field 
Office in Oregon.

List of Subjects in 50 CFR Part 17

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

Signing Authority

    Martha Williams, Director of the U.S. Fish and Wildlife Service, 
approved this action on April 3, 2024, for publication. On May 17, 
2024, Martha Williams authorized the undersigned to sign the document 
electronically and submit it to the Office of the Federal Register for 
publication as an official document of the U.S. Fish and Wildlife 
Service.

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. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by revising the entry for ``Marten, Pacific 
[Coastal DPS]'' under MAMMALS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 46610]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Marten, Pacific [Coastal DPS]...  Martes caurina....  U.S.A. (CA          T              85 FR 63806, 10/8/2020;
                                                       (northwestern),                    50 CFR 17.40(s); \4d\
                                                       OR                                 50 CFR 17.95(a).\CH\
                                                       (southwestern)).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (a) by adding an entry for ``Pacific 
Marten (Martes caurina), Coastal Distinct Population Segment (DPS)'' 
after the entry for ``Florida Manatee (Trichechus manatus)'' to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Pacific Marten (Martes caurina), Coastal Distinct Population Segment 
(DPS)

    (1) Critical habitat units are depicted for California and Oregon 
on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Coastal DPS of the Pacific marten 
consist of the following components:
    (i) Habitat that supports a coastal marten home range by providing 
for breeding, denning, resting, or foraging. This habitat provides 
cover and shelter to facilitate thermoregulation and reduce predation 
risk, provides foraging sources for coastal marten prey, and provides 
structures that provide resting and denning sites. For cover and 
support denning, resting, and foraging, coastal martens require a dense 
forest overstory, dense understory development, and biologically 
complex structure that contains snags, logs, other decay elements, or 
other structures. Stands meeting the conditions for this physical or 
biological feature would also function as meeting the physical or 
biological feature described in paragraph (2)(ii) of this entry. Stands 
meeting the condition for this physical or biological feature contain 
each of the following three components:
    (A) Mature, conifer-dominated forest overstory. Overstory canopy 
cover provides protection to coastal martens from aerial and 
terrestrial predators, as well as shelter from physical elements such 
as sun or storms. It also is the general source of structural features 
that coastal martens use for denning and resting, and provides suitable 
coastal marten prey. Suitable overstory conditions vary depending on 
the productivity of the site as follows:
    (1) For areas with relatively low productivity (e.g., areas where 
growing conditions are harsher, such as serpentine sites or coastal 
shore pine forests, compared to other areas), suitable forest overstory 
conditions are highly variable. They may contain a sparse conifer 
overstory, such as in some serpentine areas, or a dense conifer 
overstory composed mainly of trees smaller than the typical older 
forest conditions described in paragraph (2)(i)(A)(2) of this entry 
(e.g., the dense shore pine overstory found in areas occupied by 
coastal marten along the Oregon coast) as well as those resting and 
denning structures necessary that are as of yet undescribed for some 
populations.
    (2) For other areas with higher productivity, coastal martens tend 
to favor forest stands in the old-growth or late-mature seral stages. 
The specific forest composition and structure conditions found in 
higher productivity areas will vary by plant series and site class. 
Structural and composition descriptions of old-growth or late-mature 
seral stages for local plant community series should be used where 
available. In general, these stands exhibit high levels of canopy cover 
and structural diversity in the form of:
    (i) A wide range of tree sizes, including trees with large diameter 
and height;
    (ii) Deep, dense tree canopies with multiple canopy layers and 
irregular tree crowns;
    (iii) High numbers of snags, including large-diameter snags; and
    (iv) Abundant downed wood, including large logs, ideally in a 
variety of decay stages.
    (B) Dense, spatially extensive shrub layer. The shrub layer should 
be greater than 70 percent of the area, comprising mainly shade-
tolerant, long-lived, mast-producing species (primarily ericaceous 
species such as salal, huckleberry, or rhododendron, as well as shrub 
oaks). An extensive layer of dense shrubs provides protection and cover 
from coastal marten predators. In addition, ericaceous and mast-
producing shrubs provide forage for coastal marten prey.
    (C) Stands with structural features. Structural features that 
support denning or resting, such as large downed trees, rock piles with 
interstitial spaces, and large snags or live trees with decay elements 
or suitable resting structures (e.g., hollows and cavities, forked or 
broken tops, dead tops, brooms from mistletoe or other tree pathogens, 
or large platforms including abandoned nests). These features provide 
cover and thermal protection for kits and denning females, and for all 
animals when they are resting between foraging bouts. Hence, these 
features need to be distributed throughout a coastal marten's home 
range. They also tend to be among the largest structures in the stand. 
Many of these features, such as downed trees and snags or live trees 
with decayed elements, also support coastal marten prey.
    (ii) Habitat that allows for movement within home ranges among 
stands that meet the conditions of the physical or biological feature 
described in paragraph (2)(i) of this entry or that supports 
individuals dispersing between home ranges. Habitat with this physical 
or biological feature includes:
    (A) Stands that meet all three conditions of the physical or 
biological feature described in paragraph (2)(i) of this entry;
    (B) Forest stands that meet only the conditions of paragraphs 
(2)(i)(A) and (B) of this entry; or
    (C) Habitats with lesser amounts of shrub, canopy, or forest cover, 
or lesser amounts of smaller structural features as described in 
paragraph (2)(i) of this entry, and while not meeting all of the 
conditions of the physical or biological feature described in paragraph 
(2)(i) of this entry, still provide forage and cover from predators 
that allow a coastal marten to traverse the landscape to areas of 
higher quality habitat.
    (3) Critical habitat does not include humanmade structures (such as 
buildings, aqueducts, runways, roads, and other paved or hardened areas 
as a result of development) and the land on which they are located 
existing within the legal boundaries on June 28, 2024. Due to the scale 
on which the critical

[[Page 46611]]

habitat boundaries are developed, some areas within the legal 
boundaries may not contain the physical or biological features and, 
therefore, are not considered critical habitat.
    (4) Data layers defining map units were created using ArcGIS Pro 
2.5.2 (Environmental Systems Research Institute, Inc. (ESRI)), a 
Geographic Information Systems (GIS) program. ESRI base maps of world 
topographic, world imagery, and the program's world imagery U.S. 
Geological Survey (USGS) Imagery were used. Critical habitat units were 
then mapped using North American Datum (NAD) 1983, Albers. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's Arcata Fish and Wildlife Office's internet site 
at https://www.fws.gov/office/arcata-fish-and-wildlife, or on https://www.regulations.gov at Docket No. FWS-R8-ES-2020-0151. You may obtain 
field office location information by contacting one of the Service 
regional offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Index map of critical habitat follows:

Figure 1 to Pacific Marten (Martes caurina), Coastal DPS paragraph (5)
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR29MY24.000


[[Page 46612]]


    (6) Unit 1: Siuslaw Unit; Lincoln and Lane Counties, Oregon.
    (i) Unit 1 consists of 22,135 acres (ac) (8,958 hectares (ha)) and 
is composed of Federal (20,092 ac (8,131 ha)) and State (2,043 ac (827 
ha)) lands.
    (ii) Map of Unit 1 follows:

Figure 2 to Pacific Marten (Martes caurina), Coastal DPS paragraph 
(6)(ii)
[GRAPHIC] [TIFF OMITTED] TR29MY24.001

    (7) Unit 2: Siltcoos Unit; Lane and Douglas Counties, Oregon.
    (i) Unit 2 consists of 15,859 ac (6,418 ha) and is composed of 
Federal (15,610 ac (6,317 ha)) and State (249 ac (101 ha)) lands.
    (ii) Map of Unit 2 follows:


[[Page 46613]]


Figure 3 to Pacific Marten (Martes caurina), Coastal DPS paragraph 
(7)(ii)
[GRAPHIC] [TIFF OMITTED] TR29MY24.002

    (8) Unit 3: Coos Bay Unit; Douglas and Coos Counties, Oregon.
    (i) Unit 3 consists of 15,402 ac (6,233 ha) and is composed of 
Federal (14,806 ac (5,992 ha)) and State (595 ac (241 ha)) lands.
    (ii) Map of Unit 3 follows:


[[Page 46614]]


Figure 4 to Pacific Marten (Martes caurina), Coastal DPS paragraph 
(8)(ii)
[GRAPHIC] [TIFF OMITTED] TR29MY24.003

    (9) Unit 4: Cape Blanco Unit; Coos and Curry Counties, Oregon.
    (i) Unit 4 consists of 4,044 ac (1,636 ha) and is composed of 
Federal (1,019 ac (412 ha)) and State (3,025 ac (1,224 ha)) lands.
    (ii) Map of Unit 4 follows:


[[Page 46615]]


Figure 5 to Pacific Marten (Martes caurina), Coastal DPS paragraph 
(9)(ii)
[GRAPHIC] [TIFF OMITTED] TR29MY24.004

    (10) Unit 5: Klamath Mountains Unit; Coos, Curry, Douglas, and 
Josephine Counties, Oregon, and Del Norte, Humboldt, and Siskiyou 
Counties, California.
    (i) Unit 5 consists of 1,156,312 ac (467,943 ha) and is composed of 
Federal (1,125,492 ac (455,471 ha)), State (17,812 ac (7,208 ha)), and 
private or undefined (13,008 ac (5,264 ha)) lands.
    (ii) Map of Unit 5 follows:


[[Page 46616]]


Figure 6 to Pacific Marten (Martes caurina), Coastal DPS paragraph 
(10)(ii)
[GRAPHIC] [TIFF OMITTED] TR29MY24.005

* * * * *

Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics of the Joint Administrative Operations, U.S. 
Fish and Wildlife Service.
[FR Doc. 2024-11254 Filed 5-28-24; 8:45 am]
BILLING CODE 4333-15-C