[Federal Register Volume 69, Number 188 (Wednesday, September 29, 2004)]
[Proposed Rules]
[Pages 58115-58119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21800]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding for 
a Petition To List the Western Gray Squirrel as Endangered Rangewide

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding for a petition to list the western gray squirrel 
(Sciurus griseus) as endangered under the Endangered Species Act of 
1973, as amended. We find the petition does not present substantial 
scientific or commercial information indicating that listing this 
species may be warranted.

DATES: The finding announced in this document was made on September 29, 
2004.

ADDRESSES: Data, information, comments or questions concerning this 
petition should be sent to the Manager, U.S. Fish and Wildlife Service, 
Western Washington Fish and Wildlife Office, 510 Desmond Drive SE., 
Suite 102, Lacey, WA 98503. The petition finding, supporting data, and 
comments are available for public inspection, by appointment, during 
normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Dr. L. Karolee Owens (see ADDRESSES 
section), telephone 360/753-4369, facsimile 360/753-4369.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. et seq.), requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. This finding is to be based on all 
information contained in the petition and available in our files at the 
time the finding is made.
    Our standard for substantial information with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If the finding is that 
substantial information was presented, we are required to promptly 
commence a review of the status of the species, unless a status review 
has previously been initiated.

Petition

    On December 24, 2002, we received a petition dated December 19, 
2002, from the Institute for Wildlife Protection (IWP). The petition 
was submitted as a comment to our request for public comments in a 90-
day finding for a petition to list the Washington population of one of 
the subspecies of the western gray squirrel (Sciurus griseus griseus) 
as threatened or endangered. The petitioner provided a comment letter-
petition to list the western gray squirrel rangewide and two 
attachments. The petitioner requested that we consider listing the 
western gray squirrel as endangered throughout its range and evaluate 
``any DPS's (distinct population segments) and subspecies'' of the 
western gray squirrel throughout its range. The petitioner did not 
provide any

[[Page 58116]]

information supporting any western gray squirrel DPS. The petitioner 
also requested that we consider emergency listing ``the squirrel in 
Washington and the population isolate on the California-Nevada 
border.'' The letter contained the name, address, and signature of the 
petitioning organization's representative. However, it was not 
initially clear that the comment letter was intended to be a new 
petition to list the entire species Sciurus griseus. We contacted the 
IWP on January 16, 2003, to determine whether the letter was intended 
to be a new petition. On January 17, 2003, IWP responded that their 
letter was, in fact, a petition to list. On February 21, 2003, we 
responded with a letter acknowledging receipt of the petition and 
advising IWP that budget limitations would not allow us to complete a 
90-day petition finding until fiscal year 2004. We also stated that our 
initial review of the petition did not indicate that an emergency 
situation existed, but that if conditions changed such that an 
emergency listing became warranted an emergency rule could be 
developed.
    On March 19, 2004, IWP filed a complaint in federal district court 
alleging, among other things, that we failed to make the 90-day 
petition finding on their petition to list the western gray squirrel as 
an endangered species under the Act and that we failed to make a 
finding on their petition for emergency listing. We are making this 90-
day petition finding in response to a court order to complete this 
finding within 60 days of the Court's order of July 26, 2004 (Institute 
for Wildlife Protection v. Norton, Case No. C04-0594RSM (W.D. Wash.)).
    In the comment-petition letter, the petitioner discusses the 
reduction and fragmentation of oak savannahs and woodlands and provides 
information on how much of this habitat has been lost. The petitioner 
also discusses threats to this habitat including sudden oak death 
disease, fire suppression, livestock grazing, habitat fragmentation, 
and threats to the western gray squirrel including competition with 
other tree and ground squirrels; the unpredictable nature of its food 
supplies; automobiles; house cats; and susceptibility to risk of 
extinction from genetic demographic and stochastic fluctuations in 
effective population sizes. However, no citations specific to the 
western gray squirrel literature are included to document how these 
potential threats have affected the species.
    The attachment ``Biological Effects To Be Considered in a Status 
Review of the Western Gray Squirrel (Sciurus griseus)'' is an extensive 
discussion of biological and ecological factors that should be 
considered when determining whether any species may be threatened or 
endangered. However, this document does not provide specific western 
gray squirrel data or information to indicate that any or all of these 
threats have resulted in the western gray squirrel being in danger of 
becoming threatened or endangered throughout all or a significant 
portion of its range. This document does not use the phrase ``western 
gray squirrels,'' but refers to ``these squirrels,'' ``this species,'' 
and ``the species'' in a very general context that suggests this 
attachment is intended to be a generic document that can be used in 
petitions to list a variety of species. The discussion of the threats 
does not include specific citations from western gray squirrel 
literature.
    A review of the ``Supplemental Bibliography'' attachment found no 
literature citations specifically addressing western gray squirrels. 
None of the literature cited in our previous petition findings for the 
Washington western gray squirrel populations are included in the 
``Supplemental Bibliography.'' Only two references directly pertaining 
to any squirrel species are included. Those literature citations relate 
to Mt. Graham red squirrel (Tamiascurus hudsonicus grahamensis) and red 
squirrels (Tamiascurus hudsonicus). A number of citations are 
highlighted in bold font, but many of these are bird-related literature 
citations.
    We reviewed the information provided in the comment-petition letter 
and the attachments with reference to the guidelines for evaluating 
petitions provided in 50 CFR 424.14(b)(2). Although the petitioner 
discusses potential threats to western gray squirrels, there is no 
detailed narrative justification for listing the western gray squirrel 
as threatened or endangered rangewide. No information is provided on 
past and present numbers and distribution of the three subspecies, or 
possible DPSs, involved. There are no data regarding the status of 
western gray squirrels over all or a significant portion of the 
species' range, or the status of each of the three subspecies or 
potential DPSs. There is little documentation in the form of 
bibliographic references specific to western gray squirrels, and no 
reprints of pertinent publications, copies of reports, letters from 
authorities, or maps supporting the possibility that the western gray 
squirrel is threatened or endangered throughout all or a significant 
portion of its range.
    In addition to using information provided by the petitioner, we 
also assess information available in our files at the time of the 
petition finding. We recently reviewed the status of one subspecies of 
western gray squirrel, Sciurus griseus griseus, in response to a 
petition to list the Washington populations of this subspecies. Most of 
the information in our files was gathered while completing the recent 
90-day and 12-month petition findings for the Washington populations. 
In addition, in preparing this 90-day finding for the petition to list 
the western gray squirrel rangewide, we again contacted all of the Fish 
and Wildlife Service field offices within the species' range to ask for 
any additional information received since completing the petition 
findings for the Washington populations.

Status of the Western Gray Squirrel

    The western gray squirrel ranges through parts of Washington, 
Oregon, California, and Nevada. There are three subspecies: (1) Sciurus 
griseus nigripes, which ranges from south of San Francisco Bay in the 
central California Coast Range to San Luis Obispo County; (2) Sciurus 
griseus anthonyi, which ranges from the southern tip of the Coast 
Range, near San Luis Obispo, into south-central California; and (3) 
Sciurus griseus griseus, which ranges from central Washington to the 
western Sierra Nevada Range in central California (Hall 1981). There is 
also a small, disjunct population of Sciurus griseus griseus in west-
central Nevada.
    Western gray squirrels are uncommon in Nevada and found only in the 
Carson Range in west-central Nevada (Biological Resources Division, 
University of Nevada-Reno 2003). The Nevada western gray squirrel 
population likely represents a migrant population from the Sierra 
Nevada in California on the fringe of the subspecies' range (Biological 
Resources Division, University of Nevada-Reno 2003). The subspecies has 
never been wide-ranging in Nevada, and its limited range in Nevada may 
be related to the absence of oak trees (Johnson 1954). The western gray 
squirrel is a protected species under the Nevada Administrative Code 
(NAC) (NAC 503.030), and there is no open hunting season on species 
classified as protected. The National Heritage Status Rank for the 
western gray squirrel in Nevada is S4 (Apparently Secure) (NatureServe 
Explorer 2002). Current distribution and population sizes in Nevada 
have not been documented. However, western gray squirrels in the 
California-Nevada border population isolate are apparently common and 
well-adapted to urban environments in the Lake Tahoe area (Peter 
Maholland,

[[Page 58117]]

California Tahoe Conservancy, pers. comm. 2002; J. Shane Romsos, Tahoe 
Regional Planning Agency (NV), pers. comm. 2002; Kevin Kritz, Service, 
pers. comm. 2004).
    The western gray squirrel is fairly common and is a game species in 
California. California Department of Fish and Game (CDFG) estimates 
approximately 30 million acres (ac) (12 million hectares (ha)) of 
western gray squirrel habitat, not including orchards, are occupied by 
approximately 18 million squirrels just before the breeding season 
(CDFG 2002). Their estimates include a net increase of about 1.2 
million squirrels annually after consideration of a 50 percent juvenile 
mortality, a 50 percent adult mortality, and a harvest rate due to 
hunting of less than 1 percent each year, although environmental and 
density-dependent mechanisms help keep the populations in check with 
their habitats. CDFG concludes that hunting mortality does not 
adversely affect western gray squirrel populations (CDFG 2002). Hunting 
for tree squirrels is permitted within the range of Sciurus griseus 
griseus and S. g. nigripes, but is not permitted in southern California 
within most of the range of S. g. anthonyi. There are no data showing 
populations of the western gray squirrel having declined such that the 
subspecies may be threatened or endangered in California. The National 
Heritage Status Rank for the western gray squirrel in California is S4 
(Apparently Secure) and S5 (Secure) (NatureServe Explorer 2002). 
Separate rankings are not provided for each subspecies in California.
    Additionally, several conservation programs, policies, and 
regulations help maintain western gray squirrel habitat in California, 
including the Integrated Hardwood Range Management Program, the Oak 
Woodlands Conservation Fund created by the Oak Woodlands Conservation 
Act, the California Forest Practice Rules, and California Partners in 
Flight. The 1985 hardwood conservation policy and 1989 hardwood 
guidelines developed by the California Fish and Game Commission are 
used as references to ensure hardwood conservation measures are 
considered in all project proposals reviewed under the California 
Environmental Quality Act (Patrick Lauridson, CDFG, in litt. 2002).
    There are no population data for western gray squirrels in Oregon, 
but their numbers and distribution in Oregon are considered to be much 
reduced based on Bailey (1936) and anecdotal information (Marshall et 
al. 1996). The Natural Heritage Rank for the western gray squirrel in 
Oregon is S4? (not rare and apparently secure, but with cause for long-
term concern; a ``?'' indicates assigned rank is uncertain) (Oregon 
Natural Heritage Program 2001). The western gray squirrel is classified 
as a ``sensitive species'' of ``undetermined status,'' which indicates 
the species may be susceptible to population decline of sufficient 
magnitude that it could qualify for endangered, threatened, critical, 
or vulnerable status, but additional research is needed (Oregon 
Department of Fish and Wildlife 1997). Despite their classification as 
a sensitive species, western gray squirrels are legally hunted in 
Oregon; however, hunting restrictions delay and shorten the hunting 
season in north-central Oregon (Marshall et al. 1996).
    The comment letter-petition describes the degradation, 
fragmentation, and loss of oak habitats in Oregon, but does not provide 
data specific to western gray squirrels documenting that the species is 
threatened or endangered due to these habitat losses. The historical 
distribution of the western gray squirrel apparently corresponded with 
the distribution of Oregon white oak (Quercus garryana) (Hall 1981; 
Stein 1990). However, the species uses a variety of food sources, 
although oak mast is believed to be an important part of the western 
gray squirrel's diet (Carraway and Verts 1994; Marshall et al. 1996). 
Western gray squirrels also forage in nut orchards (Carraway and Verts 
1994; Susan Weston, in litt. 2002). At least two populations, the 
northern Cascades population in Washington and the California-Nevada 
population isolate, occur outside the range of oak communities. In 
addition, western gray squirrels have adapted to urban environments, 
particularly in Oregon, as well as in the Lake Tahoe area in Nevada (S. 
Weston, in litt. 2002; P. Maholland, pers. comm. 2002; S. Romsos, pers. 
comm. 2002; K. Kritz, pers. comm. 2004). We previously contacted the 
Oregon Department of Fish and Wildlife concerning the status of the 
species in Oregon. Although that agency recognizes the changes in oak 
habitat, the level of concern for the western gray squirrel is not such 
that they are tracking actively the status of the species with surveys 
(Charlie Bruce, Oregon Department of Fish and Wildlife, pers. comm. 
2002). In summary, we conclude at this time, based on the information 
in the petition and information in our files, that there is not 
substantial information indicating that the western gray squirrel may 
be threatened or endangered in Oregon.
    In Washington, our recent review of the status of western gray 
squirrels was extensive. The western gray squirrel in Washington was 
more widely distributed in prehistoric times, probably ranging 
throughout western Washington and the Cascade Mountains in association 
with oak communities. However, the species' distribution has diminished 
in recent times along with the decrease in distribution of oak 
woodlands (Rodrick 1987, WDW 1993). Currently the western gray squirrel 
is distributed in Washington in three geographically isolated 
populations: one in the Puget Trough, one in the southern Cascades, and 
one in the northern Cascades (Bayrakci et al. 2001, WDW 1993). The 
western gray squirrel was classified as a threatened species by the 
Washington Fish and Wildlife Commission in 1993 (Washington 
Administrative Code (WAC) 23212011). The Natural Heritage Status Rank 
for the western gray squirrel in Washington is S2 (imperiled) 
(NatureServe Explorer 2002).
    The western gray squirrel was once common on the partially wooded 
prairies adjacent to Puget Sound (Bowles 1920, 1921). However, the 
surviving Puget Trough population, which is at a high risk of 
extirpation (Bayrakci et al. 2001), is now centered on Fort Lewis in 
southern Pierce and northern Thurston Counties where the largest area 
of oak woodland remains (Bayrakci et al. 2001; Ryan and Carey 1995). 
The southern Cascade Mountains population, currently the largest 
remaining population of western gray squirrels in Washington, is widely 
distributed across Klickitat County. The northern Cascade Mountains 
population is the least documented population, and no population or 
trend data are available. This population occurs in an ecological 
setting that differs from the Puget Trough and southern Cascades 
populations. The north Cascades population probably resulted from a 
range expansion northward from Yakima County and beyond the native 
range of oaks (Stein 1990), which required adaptation to habitats 
lacking oaks.
    Hunting for western gray squirrels in Washington has not been 
allowed since 1943, with the exception of special seasons in 1949 and 
1950 in Pierce and Thurston Counties (WDW 1993). The Washington 
Department of Fish and Wildlife is developing a recovery plan for the 
western gray squirrel. Fort Lewis has developed a 10-year oak woodland 
management strategy that includes management strategies for western 
gray squirrels (GBA Forestry 2002).
    The 12-month petition finding (68 FR 34628), in which we 
specifically addressed whether the Washington

[[Page 58118]]

populations of western gray squirrels should be listed as a threatened 
or endangered DPS, details our current knowledge of the status of the 
Washington population. In that finding, we determined that the 
Washington population does not warrant listing as a DPS and that the 
Washington population does not represent a significant portion of the 
subspecies' range. This decision was challenged in federal district 
court, which upheld the Service's petition finding on August 2, 2004 
(Northwestern Ecosystem Alliance v. U.S. Fish and Wildlife Service, 
Case No. CV 03-1505-PA (D. Or.)).
    Under the requirements of our DPS policy (61 FR 4722), we use three 
elements to assess whether a population segment under consideration for 
listing may be recognized as a DPS: (1) Discreteness of the population 
segment in relation to the remainder of the species to which it 
belongs; (2) the significance of the population segment to the taxon to 
which it belongs; and (3) the population segment's conservation status 
in relation to the Act's standards for listing. The discreteness 
standard must be met before considering the significance standard. Both 
the discreteness and significance standards must be met before 
considering the conservation status of the population segment.
    Although the Washington population met the discreteness standard, 
we concluded this population did not meet the significance standard, 
and therefore was not a listable entity. This petition presents no new 
information that would change this conclusion. Based on the information 
in our files, we are unable to determine that the Oregon populations 
are discrete from California populations. The comment-petition letter 
provided no information to address DPSs. Also, we lack sufficient 
information to determine the population on the California-Nevada border 
is sufficiently isolated from other California western gray squirrel 
populations to meet the discreteness standard. Genetic analyses also 
may be used as a measure of discreteness. Preliminary genetic analyses 
indicated there is considerably more genetic differentiation between 
the Washington populations and either Oregon or California populations 
than there is between Oregon and California populations. We have no 
genetic analyses that include the California-Nevada population isolate. 
In any case, western gray squirrels in the California-Nevada population 
isolate in the Lake Tahoe area are apparently common and well-adapted 
to urban environments. Consequently, we do not have sufficient 
information to determine that any of the California, Oregon, or Nevada 
populations are discrete. Thus it is not necessary to determine whether 
any of these populations could meet the significance standard.
    Further, we do not have substantial information either from the 
petition or in our files indicating that any subspecies may be 
endangered or threatened over all or a significant portion of their 
ranges. Sciurus griseus griseus is abundant in California where 
extensive habitat remains, and hunting for tree squirrels is permitted 
in much of the state. In Nevada, the subspecies is abundant and well-
adapted to urban environments in the Lake Tahoe area. Information on 
the status of S. griseus griseus in Oregon is limited. Although there 
have been extensive reductions in oak habitat, the level of concern for 
the status of the subspecies has not led the Oregon Department of Fish 
and Wildlife to complete surveys for the species. Also, hunting for 
tree squirrels is permitted, or is restricted, in parts of the State. 
In Washington, a large population of the subspecies is found in the 
southern Cascades. The State does not permit hunting, and the 
Washington Department of Fish and Wildlife is developing a recovery 
plan for S. griseus griseus. Therefore, we have determined that, based 
on information presented in the petition and in our files, listing S. 
griseus griseus, throughout all or in any a significant portion of the 
subspecies' range as a DPS, is not warranted.
    We have no information in our files on the historical or current 
population status and distribution of the other two subspecies, Sciurus 
grisues nigripes and, S. g anthonyi. The petitioner did not provide any 
information or data specific to these subspecies.
    Finally, we do not have substantial information, either presented 
by the petition or in our files, indicating that the species as a whole 
may be endangered or threatened over all or a significant portion of 
the species' range. For the same reason, we do not have sufficient 
information to indicate any of the three subspecies or any DPSs of 
western gray squirrels warrant listing as threatened or endangered, we 
do not have sufficient information to indicate the species as a whole 
may be endangered or threatened over all or a significant portion of 
the species' range.

Emergency Listing and Critical Habitat Designation

    Petitions for emergency listing are not expressly provided for by 
the Act. However, we may address the need for an emergency rule under 
section 4(b)(7) of the Act (16 U.S.C. 1533(b)(7)). We may issue an 
emergency rule to list a species if threats to the species constitute 
an emergency posing significant risk to the well-being of any species 
of fish and wildlife or plants (4(b)(7)).
    We reviewed the best available information on the status of the 
western gray squirrel throughout its range, including information in 
the petition and from other sources. We do not find there is a threat 
that constitutes an emergency posing significant risk to the well-being 
of the western gray squirrel across all or a significant portion of the 
species' range as discussed above. Western gray squirrel populations 
are apparently secure in California and Nevada. Based on information in 
the petition and information in our files, there is not substantial 
information indicating that the western gray squirrel may be threatened 
or endangered in Oregon. In our recent 12-month petition finding (68 FR 
34628), we established that the Washington population does not meet the 
requirements of the DPS policy. Therefore, the Washington population 
alone cannot be considered for an emergency listing. Also, we do not 
have sufficient information indicating that the Oregon population, the 
California-Nevada isolate, or any other population of western gray 
squirrels meets the requirements of our DPS policy. Thus, these 
populations are not listable entities such that a separate emergency 
listing for one or more DPSs would be possible. Again, western gray 
squirrels in the California-Nevada population isolate in the Lake Tahoe 
area are apparently common and well-adapted to urban environments. We 
have determined that we have insufficient information to indicate an 
emergency listing is appropriate for Sciurus griseus rangewide or for 
any of the three subspecies. We also have insufficient information to 
identify any DPSs of the western gray squirrel species, or any of the 
subspecies, such that an emergency listing for any population segment 
is possible.

Petition Finding

    We have reviewed the petition, including the attached ``Biological 
Effects To Be Considered in a Status Review of the Western Gray 
Squirrel (Sciurus griseus)'' and the ``Supplemental Bibliography,'' as 
well as other literature and information in our files. We find that 
neither the petition nor information in our files present substantial 
information that the western gray squirrel or any of its subspecies may 
be endangered or threatened over all or a significant portion of its 
range. This finding is

[[Page 58119]]

based on insufficient information to: (1) Determine if the species or 
any subspecies is declining throughout all of a significant portion of 
its range; (2) identify threats to the species, or the individual 
subspecies, that suggest a threatened or endangered status is 
appropriate; or (3) determine whether there are any DPSs of the western 
gray squirrel. Also, we do not have substantial information either from 
the petition or in our files to list either the Washington population, 
as reflected by our recent 12-month petition finding (68 FR 34628), or 
any other populations, particularly the California-Nevada population 
isolate, as a DPS. Also, we do not have substantial information either 
from the petition or in our files to emergency list the Sciurus griseus 
rangewide or any of the three subspecies.

References Cited

    A complete list of all references cited is available on request 
from the Western Washington Fish and Wildlife Office (see ADDRESSES 
above).

Author

    The primary author of this document is Dr. L. Karolee Owens (see 
ADDRESSES above).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 21, 2004.
Marshall Jones,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-21800 Filed 9-28-04; 8:45 am]
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