[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
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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
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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.
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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]]
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Listing citations and
Common name Scientific name Where listed Status applicable rules
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Mammals
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* * * * * * *
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)).
* * * * * * *
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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)
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[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]
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