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###### Department of the Interior

###### Fish and Wildlife Service 

          - 50 CFR Part 17 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice of petition finding.

# 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                           ( print 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,                           ( print 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                           ( print 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                           ( print 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] 

BILLING CODE 4310-55-P