[Federal Register: March 17, 2003 (Volume 68, Number 51)]
[Rules and Regulations]
[Page 12611-12612]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr03-14]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF03
Endangered and Threatened Wildlife and Plants; Reopening of
Comment Period for Final Rule To List the Contiguous United States
Distinct Population Segment of the Canada Lynx
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; notice of reopening of comment period.
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SUMMARY: The U.S. Fish and Wildlife Service (Service), in response to
the December 26, 2002, memorandum opinion and order of the United
States District Court for the District of Columbia, in the case of
Defenders of Wildlife v. Norton, Civil Action No. 00-2996 (GK) and
pursuant to the Endangered Species Act of 1973, as amended (Act),
provides this notice opening a comment period on the contiguous United
States Distinct Population Segment (DPS) of the Canada lynx (Lynx
canadensis) (lynx). This comment period has been opened to acquire
information regarding issues identified by the Court that we need to
consider in the above-referenced case. Moreover, we invite comment on
specific information that has become available since the listing of the
lynx that pertains to the issues we will consider on remand. Upon close
of the comment period, the Service will evaluate the status of the lynx
in the contiguous United States considering the range of the species.
DATES: Comments must be postmarked or e-mailed by April 16, 2003.
ADDRESSES: Written comments and materials concerning this notice should
be sent to the Field Supervisor, U.S. Fish and Wildlife Service,
Montana Field Office, 100 N. Park Avenue, Suite 320, Helena, Montana
59601; or e-mail fw6_lynx@fws.gov. Comments and material received will
be available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Lori Nordstrom, Biologist, Montana
Field Office, (see ADDRESSES section) (telephone 406/449-5225 extension
208; facsimile 406/449-5339; e-mail lori_nordstrom@fws.gov). The
Internet is the best mechanism for obtaining the specific information
that has become available since the listing of the lynx that we intend
to consider for this remanded decision. This information can be
retrieved from the Internet at http://mountain-prairie.fws.gov/endspp/
lynx.
If you do not have access to the Internet and would like copies
of these documents, please call the Montana Field Office at the above
phone number.
SUPPLEMENTARY INFORMATION:
Background
On March 24, 2000 (65 FR 16052), the Service published a final rule
listing the contiguous United States DPS of the lynx as threatened
under the Act. As described in the final rule, the range of the lynx
where listed includes portions of the States of Colorado, Idaho, Maine,
Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah,
Vermont, Washington, Wisconsin, and Wyoming.
After the final rule was published, plaintiffs in the case of
Defenders of Wildlife v. Norton, Civil Action No. 00-2996 (GK)(D.D.C.)
challenged the listing of the lynx as threatened, alleging violations
of the Act and the Administrative Procedure Act (5 U.S.C. 551 et seq.).
Plaintiffs argued that the Service acted arbitrarily and capriciously
when it--(1) Failed to treat the four lynx geographic regions as
separate DPSs, (2) determined that the lack of guidance for
conservation of lynx in National Forest Land and Resource Plans and
Bureau of Land Management Land Use Plans is the single factor
threatening the contiguous United States DPS of lynx, (3) failed to
designate critical habitat for the lynx, and (4) determined that the
Northeast, Great Lakes, and Southern Rockies do not constitute a
significant portion of the range of the DPS.
On December 26, 2002, the Court issued its memorandum opinion and
order, deciding that the Service's determination that ``[c]ollectively,
the Northeast, Great Lakes and Southern Rockies do not constitute a
significant portion of the range of the DPS'' must be set aside and
``remanded to the agency for further consideration of the lynx's status
under the ESA consistent with the analysis set forth in the
accompanying memorandum opinion.'' The Court explained that the
Service's determination about the four regions was ``counterintuitive
and contrary'' to the plain meaning of the Act's phrase ``significant
portion of the range.'' The
[[Page 12612]]
Court required us to complete a new determination in 180 days. The
Court did not address the plaintiffs' issues concerning the threats and
the DPSs. The Court also ordered the Service to ``undertake prompt
rulemaking'' in order to designate critical habitat for lynx and
ordered injunctive relief directed at section 7 consultation.
This notice addresses the issues we will consider on remand. This
notice does not address critical habitat for the lynx. We will request
public comment on a proposed rule for critical habitat when it is
published.
Significant Portion of Its Range
The Act defines the term ``threatened species'' as ``any species
which is likely to become an endangered species within the foreseeable
future throughout all or a significant portion of its range.'' The Act
generally defines the term ``endangered species'' as a species which is
in danger of extinction throughout all or a significant portion of its
range. In the final rule, we found that ``[c]ollectively, the
Northeast, Great Lakes and Southern Rockies do not constitute a
significant portion of the range of the DPS'' and listed the species as
threatened in 14 States. As directed by the Court, we are re-evaluating
that determination.
Therefore, our re-evaluation will include an analysis of--(1) The
quantity of lynx habitat and (2) the quality of lynx habitat in its
range. In assessing habitat quality for lynx, we examine a variety of
elements, such as primary prey (snowshoe hare) abundance, forest type,
forest structure, snow conditions, denning habitat, inherent habitat
patchiness, and connectivity with larger lynx populations and habitat
in Canada. Lynx reproduction and recruitment into the population are
indicators of habitat quality. Some qualitative information addressing
some of these elements is contained in the administrative record for
the final rule listing the lynx. In the brief time available to us, we
will also re-examine available data on habitat quantity and any other
factors relevant to the new determinations required by the court.
Listing decisions under the Act must be based on the best
scientific information available. Additional information has become
available since the lynx was listed in March 2000 that will be helpful
to our analysis of what constitutes the ``significant portion'' of the
lynx's range.
Public Comments Solicited
We are reopening the comment period on our determination concerning
the significant portion of the range of the lynx. In particular, we are
seeking comment on--(1) The quantity of lynx habitat and (2) the
quality of lynx habitat. We also invite comments on other elements
relevant to our determination concerning the significant portion of the
range of the lynx. Our re-assessment will not be limited solely to the
information identified in this notice or available on our website.
We intend to examine the following information that has become
available since the listing of the lynx in March 2000 and may be
pertinent to our analysis of a significant portion of the range for
lynx--(1) Research on the historical occurrence and habitat ecology of
lynx in eastern North America, (2) research on lynx movements,
survival, habitat use, reproduction, and interspecific competition in
Maine, (3) evidence of recent lynx occurrence and reproduction in
Minnesota, (4) a report on historic lynx occurrence in Michigan, (5)
research on the ecology of lynx in western Montana, (6) information
from lynx reintroductions into Colorado, (7) information from the
National Lynx Survey, (8) any available estimates of amount of lynx
habitat on Federal lands, and (9) any additional information that may
be applicable to our determination concerning the significant portion
of the range issue that States, Tribes, or others have not already
submitted to us prior to the listing in March 2000. This information
will be included in the administrative record for this remanded
determination.
The information identified above can be retrieved from the Internet
at http://mountain-prairie.fws.gov/endspp/lynx. The Internet is the
best method for making this information rapidly available. If you
cannot access this information through the Internet, please call the
Montana Field Office (see ADDRESSES section). Your written comments on
the information identified above, or any additional information to help
us assess the significant portion of the range for lynx, must be
postmarked or emailed by the date specified above under DATES to the
Service's Montana Field Office (see ADDRESSES section). The comment
period is necessarily short because of the time given by the Court (180
days from the decision) to complete our remanded decision.
Author
The author of this notice is Lori Nordstrom, U.S. Fish and Wildlife
Service, Montana Field Office (see ADDRESSES section).
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 10, 2003.
Steve Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 03-6291 Filed 3-14-03; 8:45 am]
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