66008 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU52 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Contiguous United 

States Distinct Population Segment of 

the Canada Lynx 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for the 

contiguous United States distinct 

population segment of the Canada lynx 

(Lynx canadensis) (lynx) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

1,841 square miles (mi2) (4,768 square 

kilometers (km2)) fall within the 

boundaries of the critical habitat 

designation, in three units in the States 

of Minnesota, Montana, and 

Washington. 

DATES: This rule becomes effective on 

December 11, 2006. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for public 

inspection, by appointment, during 

normal business hours, at the Montana 

Ecological Services Office, 585 Shepard 

Way, Helena, Montana 59601 (telephone 

406/449–5225). The final rule, 

environmental assessment, and 

economic analysis are available via the 

Internet at http://mountainprairie.fws.gov/species/mammals/lynx/ 

criticalhabitat.htm. 

FOR FURTHER INFORMATION CONTACT: 

Mark Wilson, Field Supervisor, 

Montana Fish and Wildlife Office, at the 

above address, (telephone 406/449– 

5225); Gordon Russell, Field Supervisor, 

Maine Field Office (207/827–5938); 

Tony Sullins, Field Supervisor, Twin 

Cities Field Office (Minnesota) (612/ 

725–3548); or Susan Martin, Field 

Supervisor, Upper Columbia Fish and 

Wildlife Office (Washington) (509/891– 

6839). 

SUPPLEMENTARY INFORMATION:

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under section 4(b)(2) of the 

Act, there are significant limitations on 

the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) designation provides additional 

protection to habitat only where there is 

a Federal action, known as a ‘‘nexus’’, 

that triggers consultation under section 

7 of the Act; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat. However, designation of 

critical habitat does not require specific 

actions to restore or improve habitat. 

Currently, only 475 species, or 36 

percent of the 1,310 listed species in the 

U.S. under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,310 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, the section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

originally proposed for designation, we 

evaluated the benefits of designation in 

light of Gifford Pinchot Task Force v. 

United States Fish and Wildlife Service. 

In that case, the Ninth Circuit 

invalidated the Service’s regulation 

defining ‘‘destruction or adverse 

modification of critical habitat.’’ In 

response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

critical habitat designation does not use 

the invalidated regulation in our 

consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to completion to ensure that an 

adequate analysis has been conducted 

that is informed by the Director’s 

guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66009 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.)). These costs 

directly reduce the funds available for 

direct and tangible conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

rule. For more information, refer to the 

proposed critical habitat rule published 

in the Federal Register on November 9, 

2005 (70 FR 68294); the notice 

reopening the public comment period 

and clarifying the proposed critical 

habitat designation, published on 

February 16, 2006 (71 FR 8258); the 

notice reopening the comment period 

that published on September 11, 2006 

(71 FR 53,355); the final listing rule 

published on March 24, 2000 (65 FR 

16052); and the clarification of findings 

published on July 3, 2003 (68 FR 

40076). 

Previous Federal Actions 

For more information on previous 

Federal actions concerning the lynx, 

refer to the final listing rule published 

in the Federal Register on March 24, 

2000 (65 FR 16052), and the 

clarification of findings published in the 

Federal Register on July 3, 2003 (68 FR 

40076). As a result of litigation from 

Defenders of Wildlife, et al., the U.S. 

District Court for the District of 

Columbia instructed us to propose 

critical habitat by November 1, 2005, 

and to issue a final rule for critical 

habitat by November 1, 2006. The 

proposed rule to designate critical 

habitat for the lynx was published in the 

Federal Register on November 9, 2005 

(70 FR 68294). A notice reopening the 

public comment period and clarifying 

the proposed critical habitat designation 

was published on February 16, 2006 (71 

FR 8258). A Notice of Availability of the 

draft economic analysis and draft 

environmental assessment was 

published on September 11, 2006 (71 FR 

53355). This final rule has been 

completed in compliance with the Court 

order. 

On September 29, 2006, U.S. District 

Court for the District of Columbia 

remanded one element of the 2000 

listing decision for lynx. The Court 

requires the Service to explain how 

‘‘[c]ollectively the Northeast, Great 

Lakes, and Southern Rockies do not 

constitute a significant portion of the 

[Lynx] DPS.’’ The Court reasoned that 

‘‘an explanation of an important finding 

in that prior decision, especially when 

the explanation (or even the 

modification or rejection of that 

explanation) may be relevant to the new 

rationale it is offering for that decision.’’

The Court hoped that the Service can 

accomplish its task within 90 days, but 

did not identify a deadline for the 

remanded decision in its Order. The 

Service anticipates it will address this 

issue before the end of this year or early 

next year, and will make its explanation 

available in the Federal Register. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for the lynx published 

on November 9, 2005 (70 FR 68294). A 

notice reopening the public comment 

period and clarifying the proposed 

critical habitat designation was 

published on February 16, 2006 (71 FR 

8258). We also contacted appropriate 

Federal, State, and local agencies; tribes; 

scientific organizations; and other 

interested parties and invited them to 

comment on the proposed rule. The 

comment period was open from 

November 9, 2005, to February 7, 2006. 

It was reopened on February 16 for an 

additional 74 days until April 30, 2006. 

On September 11, 2006 (71 FR 53355), 

the comment period was reopened to 

receive comment on the draft economic 

analysis and draft environmental 

assessment. Comments and new 

information received that were relevant 

to the final designation are addressed in 

the following summary and 

incorporated into the final rule as 

appropriate. 

During the comment period for the 

proposed rule that was open between 

November 9, 2005, and April 30, 2006, 

we received a total of 8,028 comment 

letters. For the comment period open 

from September 11, 2006 to October 11, 

2006 we received 1,118 comments. A 

majority of the comments received were 

form letters. Comments were received 

from Federal, State, tribal and local 

governments, non-government 

organizations, private businesses, and 

individuals. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from eleven knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

seven of the peer reviewers. The peer 

reviewers had differing assessments of 

our methods and conclusions and 

provided additional information, 

clarifications, and suggestions to 

improve the final critical habitat rule. 

Peer reviewer comments are addressed 

in the following summary and 

incorporated into the final rule as 

appropriate. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding critical habitat for 

the lynx and addressed them in the 

following summary. 

Peer Reviewer Comments 

1. Comment: Some peer reviewers 

believed that our criteria (especially 

regarding evidence of occupancy and 

reproduction) for defining lynx critical 

habitat were too narrow and/or 

arbitrary, and resulted in us not 

including areas they consider important 

to lynx conservation, particularly the 

Kettle Range, the Greater Yellowstone 

Area, the Southern Rockies/Colorado, 

and a slightly more extensive area in 

Minnesota. Additionally, we received 

general comments recommending we 

designate critical habitat according to 

the lynx recovery outline, which 

included the areas of concern noted 

above by peer reviewers in addition to 

areas considered secondary or 

peripheral to recovery. General 

comments also were concerned with our 

criteria, asserting we should not restrict 

our designation solely to areas with 

confirmed evidence of the presence of 

reproducing lynx populations because 

lynx surveys have not been adequate to 

detect all reproducing lynx populations. 

Our response: Critical habitat 

contributes to the overall conservation 

of listed species, but does not by itself 

achieve conservation. It is not the intent 

of the Act to designate critical habitat 

for every population or occurrence of 

lynx. In the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of the proposed 

and final critical habitat rules, we 

describe the parameters used for 

delineating areas that contain the 

physical and biological features 

essential to the conservation of lynx, as 

required by the definition of critical 


jlentini on PROD1PC65 with RULES3
66010 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

habitat when considering occupied 

areas. We determined that occupied 

areas containing the features essential to 

the conservation of lynx support the 

majority of recent lynx records and 

evidence of breeding lynx populations 

since 1995, and have direct connectivity 

with lynx populations in Canada. We 

relied on records since 1995 to ensure 

that the proposed critical habitat 

designation was based on the data that 

most closely represented the current 

status of lynx in the contiguous United 

States and the geographic area occupied 

by the species. Although the average life 

span of a wild lynx is not known, we 

assumed that a lynx born in 1995 could 

have been alive in 2000 or 2003, the 

dates of publication of the final listing 

rule and the clarification of findings. 

Furthermore, lynx-related research in 

the contiguous United States 

substantially increased after the 1998 

proposal to list, providing additional 

information on which to base this 

proposed critical habitat designation. 

We recognize that adequate surveys to 

confirm the presence of breeding lynx 

populations have not occurred 

everywhere throughout the species’

range; however, no information was 

provided to us to suggest where there 

might be undetected breeding 

populations that we should more 

closely evaluate for designation as 

critical habitat other than the areas we 

already considered. We found the 

additional areas suggested by 

commenters were not essential to the 

conservation of the lynx. 

The areas we considered in our 

methodology for defining critical habitat 

for the lynx did not mirror the exact 

areas identified in the recovery outline, 

but it did reflect the biological concepts 

considered important in the recovery 

plan. We used the best science available 

in determining those areas that 

contained the features essential for the 

conservation of lynx. As explained on 

pages 68302 to 68303 of the critical 

habitat proposal (November 9, 2005; 70 

FR 68294), the areas we determined to 

be essential for the conservation of lynx 

do not include all the areas identified in 

the recovery outline. This is because the 

criteria we used for determining areas 

essential to the conservation of lynx for 

the critical habitat designation based on 

the critical habitat requirements of the 

Act which are were more selective than 

those used for delineating the recovery 

areas in the lynx recovery outline. 

The recovery outline more broadly 

encompassed older records of lynx and 

did not focus solely on areas directly 

connected with populations in Canada, 

although in the recovery outline it was 

recognized that maintaining 

connectivity with Canadian lynx 

populations was important. 

Furthermore, the areas in the recovery 

outline were mapped conceptually and, 

therefore, include substantial areas 

which do not contain PCEs for Lynx, 

which are unoccupied, and therefore 

not essential to the conservation of 

Lynx. We refined our mapping for the 

purposes of designating critical habitat 

in order to meet the statutory 

requirements associated with a 

rulemaking designating critical habitat. 

As a result, areas determined to be 

essential to the conservation of lynx for 

the purposes of critical habitat did not 

include the entire areas delineated in 

the recovery outline. 

Specifically, following our 

methodology, the Kettle Range (WA) 

and Greater Yellowstone core areas and 

the Southern Rockies provisional core 

area were determined not to be essential 

to the conservation of lynx for the 

purposes of critical habitat as described 

in detail in the Criteria Used To Identify 

Critical Habitat section of the proposed 

rule (November 9, 2005; 70 FR 68294). 

To summarize: There is no evidence 

that a lynx population has occupied the 

Kettle Range since 1995. In the Greater 

Yellowstone Ecosystem, lynx habitat 

appears to be of lower quality as 

indicated by the low numbers of lynx 

records, and it is not directly connected 

to lynx populations in Canada. In the 

Southern Rockies it is still uncertain 

whether a self-sustaining lynx 

population will become established as a 

result of Colorado’s reintroduction 

effort, but we recognize this 

reintroduction has been an important 

step, although not essential, toward the 

recovery of lynx, and thus it is included 

in the recovery plan, but not the critical 

habitat designation. Finally, the 

Southern Rockies are not directly 

connected to lynx populations in 

Canada. 

A substantial portion of the lynx 

habitat in the Kettle range, the Greater 

Yellowstone Area, and the Southern 

Rockies areas is on Federal lands, 

particularly U.S. Forest Service (USFS) 

lands, which conveys considerable 

management attention for lynx; as a 

result, these areas do not meet the 

critical habitat definition. Under a 

formal conservation agreement with the 

Service, the USFS committed to largely 

avoiding adverse effects to lynx and 

using the Lynx Conservation 

Assessment and Strategy (LCAS) to 

guide section 7 effects determinations 

for lynx pending amendments to Land 

and Resource Management Plans 

(LRMPs) that provide guidance for the 

conservation of lynx (USFS and Service 

2006, entire). The LCAS is based on the 

best available science for lynx (see 

section 3(5)(A) discussion below). As a 

result, lynx habitat in these three areas 

is not in need of special management or 

protection. 

2. Comment: Some peer reviewers 

disagreed with or didn’t understand our 

rationale for removing USFS and Bureau 

of Land Management (BLM) lands from 

the designation because these lands 

support a majority of lynx habitat or 

lynx occurrence records in their 

respective geographic regions. One peer 

reviewer supported removing such 

lands. Additionally, we received 

numerous general comments either 

opposing or supporting the removal of 

USFS and BLM lands, concerned that 

not all the LRMPs are complete or will 

change over time. Others are concerned 

that recent changes to the 2005 National 

Forest System Land and Resource 

Management Planning rules weaken the 

protective measures in LRMPs. 

Our response: U.S. Forest Service 

lands have been removed from the 

designation because either their LRMP 

has already been revised to incorporate 

lynx conservation measures, as is the 

situation with the Superior National 

Forest (NF), or the other National 

Forests that are operating under a 

Conservation Agreement with the 

Service in which the USFS agreed to use 

the LCAS to guide section 7 effects 

determinations for lynx (see Application 

of Section 3(5)(A) discussion, below). 

The LCAS is the basis for implementing 

this Conservation Agreement and the 

Superior NF plan revision. As explained 

starting on page 68307 of the proposed 

rule, the LCAS is based on the best 

available science for lynx. Bureau of 

Land Management lands, including the 

Garnet Resource Area and the Spokane 

District, were removed from the 

proposed designation because they had 

already incorporated the provisions of 

the LCAS into their Resource 

Management Plans (see Application of 

Section 3(5)(A) of the Endangered 

Species Act discussion, below). 

Regarding concerns that the 2005 

National Forest System Land and 

Resource Management Planning rules 

weaken protective measures in the 

LRMPs, to date, none of the plan 

amendments for lynx have been 

completed under the USFS 2005 

Planning Rules, and so any conclusions 

regarding the effect of the rules is 

speculative. However, we note that 

future revisions to Forest Service 

Management Plans will consider the 

LCAs and include plan direction to 

provide for the needs of the lynx, 

pursuant to the MOU between the FWS 

and USFS. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66011 

3. Comment: Some peer reviewers 

were concerned about using the LCAS 

as a basis for removing lands, such as 

USFS, from the designation because it is 

not yet known from a scientific 

standpoint if the measures in the LCAS 

will be adequate to conserve lynx. 

Another peer reviewer agreed that the 

LCAS was based on the best available 

science, but was concerned whether it 

would be kept up-to-date as new 

information becomes available. Some 

peer reviewers believed the 

management scope of the LCAS is 

limited and, therefore, is unlikely to 

provide the level of conservation that 

would be achieved under a critical 

habitat designation. Additionally, we 

received general comments with similar 

concerns about the LCAS or suggesting 

the LCAS isn’t being implemented 

appropriately. 

Our response: As explained starting 

on page 68307 of the proposed rule, the 

LCAS is based on the best available 

science for lynx. The LCAS describes 

how and when updates will occur and 

that such updates will be based on the 

best current lynx science. In fact, 

revision of the LCAS is currently 

underway. Commenters did not provide 

specific examples of how the LCAS has 

not been properly implemented, and we 

have no information indicating this is 

the case. As described in the 

Application of Section 3(5)(A) of the 

Endangered Species Act discussion, 

below, USFS and Service are parties to 

a conservation agreement that requires 

the FS to use the LCAS to guide section 

7 effects determinations for lynx; all 

projects in lynx habitat on USFS lands 

undergo section 7 review and we have 

no indication the USFS is not adhering 

to the guidance in the LCAs. 

4. Comment: One peer reviewer 

questioned our determination that nonFederal lands require special 

management because lynx currently use 

a variety of non-Federal lands that 

support good lynx habitat as a result of 

past forest management practices. Prey 

densities in 15 to 20 years will be 

determined by current forest 

management. 

Our response: We agree and for this 

reason, in addition to other reasons, we 

have excluded all non-Federal lands 

from the designation (see Exclusions 

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

discussion, below). 

General Comments 

1. Comment: Many commented that 

our discussion of the value of 

designating critical habitat, and the 

procedural and resource difficulties 

involved, was inappropriate and should 

be addressed in a different forum, not in 

a critical habitat rule. 

Our response: As discussed in the 

sections ‘‘Designation of Critical Habitat 

Provides Little Additional Protection to 

Species,’’ ‘‘Role of Critical Habitat in 

Actual Practice of Administering and 

Implementing the Act,’’ and 

‘‘Procedural and Resource Difficulties in 

Designating Critical Habitat’’ and other 

sections of this and other critical habitat 

designations, we believe that, in most 

cases, other conservation mechanisms 

provide greater incentives and 

conservation benefits than does the 

designation of critical habitat. These 

other mechanisms include the section 4 

recovery planning process, section 6 

funding to the States, section 7 

consultations, the section 9 protective 

prohibitions of unauthorized take, the 

section 10 incidental take permit 

process, and cooperative programs with 

private and public landholders and 

Tribal nations. 

2. Comment: Many commenters 

agreed with our discussions in 

‘‘Designation of Critical Habitat 

Provides Little Additional Protection to 

Species,’’ ‘‘Role of Critical Habitat in 

Actual Practice of Administering and 

Implementing the Act,’’ and 

‘‘Procedural and Resource Difficulties in 

Designating Critical Habitat’’ and, as a 

result, questioned why we would 

designate critical habitat for the lynx. 

Additional comments suggested that 

critical habitat should not be designated 

because lynx are doing fine without it. 

Our response: Section 4(a)(3) of the 

Act requires that critical habitat be 

designated for listed species. The lynx 

was listed as a threatened species under 

the Act on March 24, 2000 (65 FR 

16052). Under section 4(b)(2), the Act 

requires that a critical habitat 

designation be made on the basis of the 

best scientific data available and after 

taking into consideration the economic 

impact and any other relevant impact of 

specifying any particular area as critical 

habitat. Furthermore, the Service is 

under an order from the U.S. District 

Court for the District of Columbia to 

issue a final rule for critical habitat by 

November 1, 2006. 

In developing this final rule, we 

considered whether some areas should 

be designated as critical habitat given 

the issue the commenters identified 

about the status of lynx without critical 

habitat. We took a closer look at the 

necessity of designating critical habitat 

on lands managed by non-Federal 

landowners to determine whether 

current management was sufficient to 

conserve lynx. As a result of our 

additional analysis, we have excluded 

additional lands from this final rule 

based on the sufficiency of current 

management and other reasons (see 

Exclusions Under Section 4(b)(2) of the 

Act discussion, below). 

3. Comment: Numerous commenters 

asserted that the designation of critical 

habitat results in an increased 

regulatory burden, increased landowner 

costs, and restricted land uses and 

property rights. Specifically, many 

private landowners, particularly private 

timber companies, State, and county 

entities, commented that this 

designation would cause them harm 

economically and delay projects 

through the regulatory process. 

Our response: We have excluded all 

non-Federal lands from the final 

designation for the reasons described 

below in the ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ discussion, which 

resolves these concerns. The 

designation of critical habitat does not 

itself result in the regulation of nonFederal actions on private lands. 

However, as discussed in the sections 

‘‘Designation of Critical Habitat 

Provides Little Additional Protection to 

Species,’’ ‘‘Role of Critical Habitat in 

Actual Practice of Administering and 

Implementing the Act,’’ and 

‘‘Procedural and Resource Difficulties in 

Designating Critical Habitat,’’ and other 

sections of this and other critical habitat 

designations, we believe that, in most 

cases, other conservation mechanisms 

provide greater incentives and 

conservation benefits than does the 

designation of critical habitat. These 

other mechanisms include the section 4 

recovery planning process, section 6 

funding to the States, the section 9 

protective prohibitions of unauthorized 

take, the section 10 incidental take 

permit process, and cooperative 

programs with private and public 

landholders and Tribal nations. We note 

that on non-Federal lands there often 

are no Federal actions necessitating 

evaluation under section 7 of the Act. 

The economic issues raised have been 

addressed in the economic analysis and 

have been considered during the 

designation process. 

4. Comment: Some commenters 

suggested that the designation will 

result in an increased regulatory burden 

because State or local governments 

(such as county land use planning 

boards) could promulgate local rules to 

conserve designated lynx critical 

habitat. 

Our response: We recognize that State 

and local governments can promulgate 

regulations or local rules that may be 

linked to a critical habitat designation. 

This issue will not be a concern because 

we have excluded all lands from the 

final designation except National Parks 


jlentini on PROD1PC65 with RULES3
66012 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

(see ‘‘Exclusions Under Section 4(b)(2) 

of the Act’’ discussion below). 

5. Comment: Some commenters stated 

that our comment periods for the 

proposed rule, NEPA document, and 

economic analysis were inadequate to 

allow the public to understand and 

comment meaningfully on the proposed 

rule. 

Our response: The proposed critical 

habitat rule for the lynx was available to 

the public for review and comment for 

90 days (November 9, 2005, to February 

7, 2006.) It was reopened on February 

16 for an additional 74 days until April 

30, 2006. The amount of time available 

for the public to comment on the 

proposed rule was substantially more 

than for most critical habitat proposals, 

and was the maximum time practical 

given the one-year period we had to 

finalize the rule. The comment period 

for the economic analysis and NEPA 

document was open for 30 days, from 

September 11 to October 11, 2006. We 

believe the length of the comment 

period was adequate. 

6. Comment: Some commenters stated 

that the Service did not adequately 

notify landowners about the proposal or 

where proposed critical habitat was 

located. 

Our response: Because of the large 

scope of the proposed designation it was 

not possible to contact each landowner. 

However, we issued a widelydisseminated news release regarding our 

proposal, and published legal notices in 

major newspapers in areas involved in 

the proposal. We published Federal 

Register notices, including the critical 

habitat proposal, reopening of the 

comment period, and the notice of 

availability of draft documents. We sent 

hundreds of letters, cards, and e-mails 

to State and Federal agencies, tribal 

governments, local governments, private 

individuals, private companies, nongovernment organizations, and elected 

officials announcing the proposal, 

document availability, and public 

meetings and hearings. We also issued 

press releases concurrent with Federal 

Register notice announcements. A Web 

page of lynx critical habitat materials 

and information has been maintained at 

http://mountain-prairie.fws.gov/species/ 

mammals/lynx/criticalhabitat.htm. 

Public hearings, open houses, and 

meetings on the published proposal 

were held on the following dates and 

locations: December 7, 2005, Duluth, 

MN; December 14, 2005, Orono, ME; 

January 4, 2006, Helena, MT; January 5, 

2006, Great Falls, MT; January 10, 2006, 

Kalispell, MT; January 18, 2006, Twisp, 

WA. In the proposed rule we provided 

contact information for four Service 

Field Offices for anyone seeking 

assistance with the proposed critical 

habitat. Therefore, we believe that we 

made a conscientious effort to reach all 

interested parties and provide avenues 

for them to obtain information 

concerning our proposal and supporting 

documents. 

We recognize the scale of the maps 

published in the Federal Register made 

it difficult to accurately identify 

whether particular parcels of land were 

included within the proposed 

designation. However, the descriptions 

that begin on page 68313 of the 

proposed rule (November 9, 2005; 70 FR 

68294) were provided to assist the 

public in understanding exactly which 

lands were proposed as critical habitat. 

7. Comment: Many commenters 

expressed concern that commercial and 

recreational activities such as logging, 

mining, snowmobiling, off-road 

vehicles, and downhill skiing, would be 

prohibited or severely restricted by a 

designation of critical habitat. 

Our response: This issue is no longer 

a concern because we have excluded all 

lands from the final designation except 

National Parks (see ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ discussion 

below). All other lands were removed or 

excluded from the final designation 

because of existing conservation 

commitments or because the benefits of 

excluding these areas exceeded the 

benefits of including the areas (see 

Application of Section 3(5)(A) of the 

Endangered Species Act and Exclusions 

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

discussions, below). 

Section 7(a)(2) of the Act requires 

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of such a species or result in 

the destruction or adverse modification 

of critical habitat. If a Federal agency 

action, such as an action by the National 

Park Service (NPS), may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Through this consultation, the 

action agency ensures that their actions 

do not destroy or adversely modify 

critical habitat. Section 7 of the Act does 

not apply to activities on private or 

other non-Federal lands where there is 

not a Federal action that triggers 

consultation, and critical habitat 

designation would not provide any 

additional protections under the Act for 

private or non-Federal activities. Critical 

habitat would not prohibit private or 

commercial activities from occurring 

unless they were occurring on the 

designated National Park System lands 

and we determined through a 

consultation that they would destroy or 

adversely modify critical habitat. We 

think this outcome would be highly 

unlikely given that the mission of the 

NPS largely prevents private or 

commercial activities that would result 

in major impacts to habitat. All 

parties—Federal, State, private, and 

tribal—are unable to take (e.g., harm, 

harass, pursue) listed species under 

section 9 without the appropriate 

permit. 

8. Comment: Some comments 

recommended excluding areas where 

landowners participate in the 

Sustainable Forestry Initiative (SFI) 

program. 

Our response: The SFI program is a 

condition for membership in the 

American Forest and Paper Association. 

The SFI program is a comprehensive 

system of principles, objectives and 

performance measures developed by 

foresters, conservationists and 

scientists, that combines the perpetual 

growing and harvesting of trees with the 

protection of wildlife, plants, soil and 

water quality (American Forest and 

Paper Association 2006). The SFI 

program appears well-intentioned, and 

can provide benefits to wildlife, and 

promotes wildlife conservation. The SFI 

program contains a number of 

principles and objectives that generally 

pertain to overall forest health. The 

objective that is most pertinent to lynx 

conservation is ‘‘[t]o manage the quality 

and distribution of wildlife habitats and 

contribute to the conservation of 

biological diversity by developing and 

implementing stand- and landscapelevel measures that promote habitat 

diversity and the conservation of forest 

plants and animals, including aquatic 

fauna.’’ Therefore, participation in the 

SFI program is partially a basis for our 

decision to exclude non-Federal lands 

managed for commercial forestry from 

the designation (see Exclusions Under 

Section 4(b)(2) of the Act discussions, 

below). 

9. Comment: Some commenters 

asserted the designation of critical 

habitat constitutes an uncompensated 

taking of private property and is 

therefore illegal. 

Our response: This issue is no longer 

a concern because we have excluded all 

lands from the final designation except 

National Parks (see Exclusions Under 

Section 4(b)(2) of the Act discussion 

below). Additionally, the mere 

promulgation of a regulation, like the 

enactment of a statute, does not take 

private property unless the regulation 

on its face denies the property owners 

all economically beneficial or 

productive use of their land. Further, in 

accordance with Executive Order 12630 

(‘‘Government Actions and Interference 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66013 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

designating critical habitat for the lynx 

in a takings implications assessment. 

The takings implications assessment 

concludes that this designation of 

critical habitat for the lynx does not 

pose significant takings implications 

10. Comment: Some commenters 

asserted that the proposed rule failed to 

adequately identify the physical or 

biological features (primary constituent 

element or PCE) essential to the 

conservation of the lynx. Some 

commenters stated the PCE needs to be 

more narrowly defined. Some 

commenters suggested that lynx use a 

wider variety of forest types than those 

described in the PCE or that lynx subsist 

on prey other than snowshoe hares. A 

few commenters claimed that snow is 

not essential to the lynx because there 

is no snow in summer. 

Our response: The features essential 

for the conservation of the species were 

determined based on the best scientific 

data available on lynx and snowshoe 

hare ecology. As more thoroughly 

described in the ‘‘Primary Constituent 

Element’’ section of the proposed rule, 

starting on page 68299, we determined 

the PCE to be (1) Boreal forest 

landscapes supporting a mosaic of 

differing successional forest stages and 

containing: (a) presence of snowshoe 

hares and their preferred habitat 

conditions, which include dense 

understories of young trees or shrubs 

tall enough to protrude above the snow; 

(b) winter snow conditions that are 

generally deep and fluffy for extended 

periods of time; and (c) sites for denning 

that have abundant, coarse woody 

debris, such as downed trees and root 

wads. We recognize the value of 

observable or measurable standards. 

Unfortunately, current science is not 

sufficient to tell us, for example, the 

minimum density of snowshoe hares 

necessary to support a reproducing lynx 

population, nor is there reliable 

scientific information regarding a 

specific density or size of coarse woody 

debris such that a lynx would select for 

a den site, nor the precise snow 

conditions (such as depth or other 

properties) that provide a lynx an 

advantage over other potential 

competitors such as coyote or bobcat. As 

a result, our description of the PCE is as 

specific as the current science will 

allow. 

The best scientific information has 

demonstrated that lynx are highly 

adapted to preying on snowshoe hares 

and that snowshoe hare density is the 

most important factor explaining the 

persistence of lynx populations (see 65 

FR 16052, March 24, 2000; 68 FR 40076, 

July 3, 2003; background section of 70 

FR 68294, November 9, 2005; Steury 

and Murray 2004, p.136). As a result, we 

determined that habitats containing the 

features essential to the conservation of 

lynx are those that support snowshoe 

hares, despite the fact that lynx are 

known to prey opportunistically on 

other small mammals and birds. Lynx 

populations are found in habitats that 

support abundant snowshoe hares. Such 

habitats are generally described as 

boreal forest or cold temperate forests 

(Frelich and Reich 1995, p, 325; Agee 

2000 pp. 43–46). Because lynx are 

capable of traveling long distances, they 

have been documented in a variety of 

habitat types, but habitat types that are 

incapable of supporting abundant 

snowshoe hares are not considered 

essential to the conservation of lynx. 

The commenters are correct that most of 

the areas included in the lynx critical 

habitat designation do not have snow in 

summer. Lynx and snowshoe hares are 

highly evolved to survive deep and/or 

fluffy snow, which is why we specified 

winter snow conditions as a component 

of the PCE. The presence of deep, fluffy 

snow in the winter gives lynx the 

competitive advantage over similarsized carnivores and is a reliable 

indicator of the most important habitat 

for lynx persistence in the contiguous 

United States. All of the areas we are 

designating as critical habitat have deep, 

fluffy snow in winter, and this feature 

is essential to lynx conservation. 

11. Comment: Some commenters 

stated that many of the lands included 

in the proposed designation do not 

contain the physical and biological 

features (PCE) identified as being 

essential to the conservation of the lynx. 

Additional comments asserted the 

boundaries we used (such as the 4,000- 

foot (ft) (1,219-meter (m)) elevation 

contour or highways) were arbitrary or 

overly broad. 

Our response: The 4,000-ft (1,219–m) 

elevation contour is used to delineate 

the boundary within Glacier National 

Park west of the Continental Divide and 

the boundary within North Cascades 

National Park east of the Crest of the 

Cascade Mountains. As described on 

page 68299 of the Methods section of 

the proposed rule (November 9, 2005; 

70 FR 68294), the features essential to 

the conservation of lynx, the majority of 

lynx records, the evidence of 

reproduction, and the boreal forest types 

are found above 4,000 ft in these areas. 

Based on recently received landscapescale vegetation maps for the Northern 

Rockies and Cascades proposed critical 

habitat units, we removed public land 

survey sections that were primarily 

unforested from the designation. We 

reviewed aerial photos for particular 

parcels identified by commenters as not 

supporting the PCE (such as Minnesota 

Power and Cleveland Cliffs in Unit 2), 

and determined that these parcels do 

not support the PCE. On that basis we 

removed them from the designation. A 

1-mi (1.6-km) buffer along the Lake 

Superior shoreline and a 10-mi (16-km) 

circular buffer around Duluth, MN, were 

removed based on aerial photography 

showing that existing development in 

Unit 2 is concentrated in these areas 

(Industrial Economics, Incorporated 

2006, p. 4–12)., limiting the potential of 

any lynx habitat intermingling in these 

areas 

12. Comment: Some commenters 

recommended that we designate critical 

habitat in unoccupied habitat. Others 

suggested that critical habitat units 

should encompass all lynx occurrence 

records. 

Our response: As explained on page 

68298 of the proposed rule (November 

9, 2005; 70 FR 68294), the data that 

define the current and historical range 

of the lynx at the time of listing 

constitute the geographic area occupied 

by the species. At the time of listing, we 

did not consider any areas within the 

current or historical range to be 

unoccupied because the lynx is highly 

mobile and survey information was 

spotty and incomplete. We considered 

critical habitat in areas that have the 

highest likelihood of supporting 

reproducing populations of lynx based 

on: (1) The presence of the PCE; (2) the 

majority of recent lynx records; (3) 

recent evidence of breeding lynx 

populations; and (4) direct connectivity 

with lynx populations in Canada. Many 

historic records of lynx occur in areas 

that do not support extensive boreal 

forest and abundant snowshoe hares. No 

evidence suggests that these areas ever 

supported self-sustaining populations of 

lynx in the past 100 years (e.g., Oregon) 

(Aubry 2006, p.2). Pursuant to section 

3(5)(A) of the Act, critical habitat shall 

not include the entire geographical area 

that can be occupied by the species 

unless otherwise determined by the 

Secretary. We have concluded that not 

all occupied habitat is essential to the 

conservation of the lynx. 

13. Comment: Some commenters 

stated that private lands have few to no 

Federal actions requiring consultation 

under section 7 of the Act, suggesting 

little need or benefit of designating 

critical habitat on private lands. 

Our response: We agree. The fact that 

Federal actions requiring consultation 

under section 7 of the Act occur 

infrequently on private lands weighed 

into our decision to exclude all private 


jlentini on PROD1PC65 with RULES3
66014 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

lands from the designation, including 

lands managed for commercial forestry, 

small landowners, and lands not 

managed for commercial forestry 

because the benefit of excluding these 

areas exceeded the benefit of including 

them (see ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ discussion, below). 

Small land parcels and lands not 

managed for commercial forestry have a 

minor influence on the features 

essential to the conservation of lynx 

because they are small in size relative to 

the large landscape required to support 

lynx, particularly compared to the 

important role and large scale of 

National Forest lands and lands 

managed for commercial forestry. 

14. Comment: Some commenters were 

concerned that critical habitat 

designation will create a disincentive 

for lynx conservation on private lands 

because consultation under the Act is 

triggered when landowners participate 

in Federal programs such as 

conservation easements or receive 

Federal funding. Owners of private 

timber lands said they would be 

reluctant to accept Federal funding 

intended to encourage the conservation 

of private forest lands, such as the USFS 

Forest Legacy Program, because of the 

consultation requirement. 

Our response: We considered this 

factor in weighing whether the benefit 

of exclusion of lands from critical 

habitat designation exceeded the benefit 

of their inclusion in critical habitat (see 

‘‘Exclusions Under Section 4(b)(2) of the 

Act’’ discussion of section 4(b)(2) 

exclusions below). As a result, we have 

excluded non-Federal lands from the 

final designation. We are obligated to 

note that Federal funding for 

conservation on private lands would 

still be subject to section 7 consultation 

in areas that are occupied by lynx. 

However, this requirement has existed 

since the lynx was listed and is 

unchanged by our designation of critical 

habitat. 

15. Comment: Some commenters 

believe that designation of critical 

habitat prior to completion of a lynx 

recovery plan or other lynx conservation 

guidance is premature. 

Our response: Section 4(a)(3) of the 

Act requires that critical habitat be 

designated for listed species within a 

year of listing. The lynx was listed as a 

threatened species under the Act in 

2000 (March 24, 2000; 65 FR 16052). 

The designation is made on the basis of 

the best scientific data available and 

after taking into consideration the 

economic impact and any other relevant 

impact of specifying any particular area 

as critical habitat. Furthermore, the 

Service is under an order from the U.S. 

District Court for the District of 

Columbia to issue a final rule for critical 

habitat by November 1, 2006. Therefore, 

we must proceed with the designation 

although a recovery plan has not yet 

been drafted for the lynx. 

16. Comment: Some commenters 

pointed out that some of the occurrence 

data we used to support the proposed 

critical habitat designation were based 

on winter track surveys, particularly 

from Maine, although in the proposed 

rule we said we only used winter track 

survey data when confirmed by genetic 

(DNA) testing. 

Our response: We did not include any 

lands in Maine in the final designation; 

therefore, this issue is moot. The 

pooling of snow track survey results 

with other verified evidence of lynx 

occurrence was an oversight. However, 

because of the stringent protocols used 

in confirming tracks as lynx and the 

minimal number of species in the area 

with which lynx tracks could be 

misidentified in Maine (McCollough 

2006), we have high confidence in the 

accuracy of the Maine snow track data 

that was incorporated into the data used 

for the proposed designation. 

17. Comment: Some commenters 

suggested that better snow information 

should have been used to delineate 

critical habitat boundaries. 

Our response: As explained on page 

68301 of the proposed rule (November 

9, 2005; 70 FR 68294), snow conditions 

also determine the distribution of lynx. 

However, available scientific 

information does not allow us to 

identify whether a precise snow depth 

and/or other quality, such as surface 

hardness or sinking depth, defines lynx 

use or preference. Information on 

average snow depth is limited to areas 

with good coverage by weather stations 

that record snow depth data. We were 

able to use average snow depth maps 

based on weather station data to inform 

our consideration of lands in Maine and 

Minnesota. However, in mountainous 

areas such as the Northern Rockies and 

Cascades, few weather stations exist, 

and local topography strongly 

influences snow conditions. Therefore, 

snow depth maps were not used for the 

Northern Rockies or Cascades units, 

where we relied on lynx occurrence 

records, vegetation data, and elevation. 

18. Comment: Some commenters 

suggested the critical habitat units or the 

PCEs do not encompass all the areas or 

features essential to the conservation of 

lynx. Specifically mentioned were areas 

that would mitigate the effect of climate 

change on lynx habitat, provide habitat 

for dispersing lynx to colonize (such as 

portions of New Hampshire, New York, 

North Dakota, Wyoming, Utah, 

Washington, and Oregon), or lynx travel 

corridors both within the United States 

and between the United States and 

Canada. 

Our response: The PCE and the areas 

proposed as critical habitat represent 

the features essential to the conservation 

of lynx. The Act states at section 

3(5)(A), that except in particular 

circumstances determined by the 

Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species. It is 

not the intent of the Act to designate 

critical habitat for every population and 

every documented historical location of 

a species. As described on page 68299 

of the proposed rule (November 9, 2005; 

70 FR 68294), the areas proposed as 

critical habitat serve a variety of 

functions, including providing habitat 

that may serve as travel corridors to 

facilitate dispersal and exploratory 

movements. At this time the biological 

or physical features of habitats lynx 

choose for travel or colonization is not 

well-understood. The extent that 

climate change might affect lynx habitat 

is not known, nor do we know if any 

areas within the contiguous United 

States would mitigate for habitat 

changes due to climate change. 

Therefore, we did not have sufficient 

data to accurately delineate areas in the 

contiguous United States that might 

provide travel, serve as sites for 

colonization or corridors, or mitigate for 

climate change. 

19. Comment: Many commenters 

assert that the presence of lynx 

demonstrates that present and past 

timber management practices (i.e., those 

that started around 20 years ago and 

continue today) have created the current 

habitat conditions that are good for 

lynx; therefore, critical habitat should 

not be designated on such lands. 

Our response: We agree and for this 

reason, in addition to others, we have 

excluded all non-federal lands managed 

for commercial forestry from the 

designation (see Exclusions Under 

Section 4(b)(2) of the Act discussion, 

below). 

20. Comment: Washington State 

Department of Natural Resources 

requested that their lands be removed 

from the designation because the agency 

has implemented a Lynx Habitat 

Management Plan since 1996 that has 

been effective in the conservation of 

lynx habitat and updated the Habitat 

Management Plan in 2006 to include 

modifications to avoid the incidental 

take of lynx. 

Our response: We determined that 

Washington State Department of Natural 

Resources lands should be removed 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66015 

from the critical habitat because 

Washington DNR’s plan provides 

sufficient management so that special 

management or protection is not 

required and thus the identified lands 

do not meet the definition of critical 

habitat. First, the plan is complete: The 

original plan was completed in 1996, 

updates and modifications to the plan 

were completed in 2006. Second, the 

plan provides specific provisions for 

lynx foraging (snowshoe hare) habitat 

and denning habitat on a landscape 

scale based on the best available science 

on lynx and snowshoe hare ecology. 

Third, the plan has been implemented 

since 1996. The Service found that 

implementation of the 1996 plan will 

maintain the function of the landscape 

and its capability to support lynx 

reproduction and was not likely to 

result in mortality or injury to lynx 

through significant impairment of 

breeding, feeding or sheltering or other 

essential behaviors (Martin 2002). 

Finally, implementation and 

effectiveness monitoring reports are 

provided and are incorporated into the 

2006 plan. This issue is discussed in 

more detail in Exclusions Under Section 

4(b)(2) of the Act, below. 

21. Comment: Montana Department of 

Natural Resources and Conservation 

requested that Montana State Trust 

Lands be excluded from designation 

because of Montana Department of 

Natural Resources and Conservation’s 

pending Habitat Conservation Plan that 

will specifically address lynx 

conservation. 

Our response: We determined that 

Montana State Trust Lands should be 

excluded from the designation of critical 

habitat because the benefits of excluding 

these lands covered by the pending HCP 

outweigh the benefits of including them 

in the designation (see Exclusions 

Under Section 4(b)(2) of the Act, below). 

The Lynx Conservation Strategy portion 

of the pending HCP has undergone 

public review pursuant to State law and 

provides for the PCE in that it will 

provide multistoried boreal forest 

stands, foraging habitat (i.e., snowshoe 

hare habitat), lynx denning habitat, and 

protection for known den sites. 

22. Comment: Tribes submitted 

comments requesting their lands be 

excluded from the designation. We 

received other comments opposing the 

exclusion of tribal lands from the 

designation. 

Our response: In accordance with 

Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997); 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175 ‘‘Consultation and 

Coordination with Indian Tribal 

Governments;’’ and the relevant 

provision of the Departmental Manual 

of the Department of the Interior (512 

DM 2), we believe that fish, wildlife, 

and other natural resources on tribal 

lands are better managed under tribal 

authorities, policies, and programs than 

through Federal regulation wherever 

possible and practicable. Such 

designation is often viewed by tribes as 

an unwanted intrusion into tribal self 

governance, thus compromising the 

government-to-government relationship 

essential to achieving our mutual goals 

of managing for healthy ecosystems 

upon which the viability of threatened 

and endangered species populations 

depend. 

We contacted all tribes potentially 

affected by the proposed designation 

and met with some of them to discuss 

their ongoing or future management 

strategies for lynx. Several tribes 

subsequently submitted letters 

requesting exclusion based on their 

sovereign rights and concerns about the 

economic impact and affects on their 

ability to manage natural resources. As 

described on page 68310 of the 

proposed rule, we have determined that 

conservation of lynx can be achieved off 

tribal lands within the critical habitat 

units and/or with the cooperation of 

tribes. The tribal lands included in the 

proposed designation are found only in 

the Maine and Minnesota units and the 

size of the areas are relatively small 

(approximately 223 and 192 km2, 

respectively [86 and 74 mi2]). Therefore, 

these tribal lands are excluded from 

final designation as critical habitat 

pursuant to section 4(b)(2) of the Act 

(see Exclusions Under Section 4(b)(2) of 

the Act discussion, below). 

23. Comment: Some commenters are 

concerned the designation provides a 

mechanism for increased third party 

litigation. 

Our response: We have designated 

critical habitat for the lynx based upon 

the statutory obligations and definitions 

pursuant to sections 3 and 4 of the Act 

after taking into consideration the best 

available scientific and commercial 

information. Further, we have finalized 

our designation for lynx critical habitat 

following an evaluation of all 

conservation measures and 

partnerships, economics, and other 

relevant factors and subsequently 

weighing the benefits of inclusion 

against the benefits of exclusion 

pursuant to section 4(b)(2) of the Act. 

Thus, we believe that we have proposed 

and designated critical habitat according 

to the provisions of the Act and our 

implementing regulations. However, the 

final designation can be subject to 

litigation and those affected by the 

designation may also be vulnerable to 

third-party litigation if determined not 

to be in compliance with the provisions 

and protection of the regulation. 

24. Comment: Some commenters 

believe that the analysis for justifying 

removing USFS lands from the 

designation was inadequate. 

Our response: We have noted the 

comment and provide an expanded 

discussion in Application of Section 

3(5)(A) of the Act, below. We have 

concluded that the conservation 

agreement, proposed plan amendments, 

and existing LRMPs that include lynx 

conservation provide sufficient special 

management for lynx. 

25. Comment: Some commenters 

believe that because USFS lands are 

being managed for lynx under the 

Conservation Agreement, the lands 

require special management and, 

therefore, should not be removed from 

the designation under section 3(5)(A). 

Additionally, commenters suggest that 

removal of USFS lands from the 

designation violates Center for 

Biological Diversity v. Norton (2003). 

Our response: Under the definition of 

critical habitat, an area must be both 

essential to a species’ conservation and 

require ‘‘special management 

considerations or protections.’’ Our 

interpretation is that special 

management or protections are not 

required if adequate management or 

protections are already in place. 

Adequate special management or 

protection is provided by a plan or 

agreement that addresses the 

maintenance and improvement of the 

primary constituent element for the 

species and manages for the long-term 

conservation of the species (see 

Application of Section 3(5)(A) of the 

Act, below). In our final designation, we 

analyzed whether the lands containing 

the features essential to the conservation 

of lynx required special management 

above and beyond what was currently 

being implemented. Because the USFS’s 

current lynx management conserves 

lynx, we did not include any USFS 

lands in the final designation. 

26. Comment: Removing Federal 

lands from the designation unfairly and 

disproportionately places the burden of 

lynx conservation on non-federal 

landowners. 

Our response: We have excluded all 

non-federal lands from the final 

designation for the reasons described 

below in the Exclusions Under Section 

4(b)(2) of the Act discussion, which 

resolves these concerns. 


jlentini on PROD1PC65 with RULES3
66016 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

27. Comment: Voluntary, nonregulatory, cooperative conservation 

strategies would provide more effective 

lynx conservation than the critical 

habitat designation. 

Our response: In general, we agree 

with this comment. We responded to 

this comment by weighing the benefits 

of exclusion against the benefit of 

inclusion pursuant to 4(b)(2) of the Act. 

The benefits of non-regulatory 

conservation on private, state, and 

county lands were factored into our 

decision not to include such lands in 

the final designation. See Exclusions 

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

discussion below for a complete 

discussion. 

28. Comment: Designation of critical 

habitat would be harmful to lynx 

conservation because the regulation will 

make current land use (e.g., logging) 

unprofitable, causing landowners to sell 

to developers and resulting in a loss of 

lynx habitat. 

Our response: Our decision to include 

only National Park Service lands in the 

final designation resolves these 

concerns. No logging occurs within NPS 

lands. It is relevant to note, however, 

that our economic analysis did not 

indicate logging would be made 

unprofitable by the designation of lynx 

critical habitat. The cost of the 

designation on timber lands was 

relatively small on a per-acre basis. 

Thus, the exclusion of these areas in the 

final designation was not due to 

economic impacts. Please refer to our 

draft and final economic analyses for 

further detail concerning our estimate of 

potential economic impacts resulting 

from the proposed and this final 

designation. 

29. Comment: Lands covered by Plum 

Creek Timber Company’s Native Fish 

Habitat Conservation Plan should be 

excluded from the designation because 

the plan conserves riparian zones that 

function as snowshoe hare habitat, lynx 

denning habitat, and lynx travel 

corridors. 

Our response: Plum Creek lands are 

not included in the final designation in 

part because the company has 

demonstrated it is a willing partner in 

fish and wildlife conservation efforts, 

such as the Native Fish Habitat 

Conservation Plan, which provides 

some ancillary benefits to lynx, as 

described below in the Exclusions 

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

discussion, which resolves this concern. 

We believe partnerships are essential for 

the conservation and recovery of lynx. 

30. Comment: Private lands in 

Montana covered by the Swan Valley 

Grizzly Bear Conservation Agreement 

should be excluded from the 

designation. 

Our response: Private lands in 

Montana are not included in the final 

designation for the reasons described 

below in the Exclusions Under Section 

4(b)(2) of the Act discussion, which 

resolves this concern. We believe that 

preserving cooperative partnerships 

such as demonstrated with the Swan 

Valley Grizzly Bear Agreement, which 

provides some ancillary benefits to lynx, 

is essential for the conservation and 

recovery of lynx. 

31. Comment: Dense forests required 

by lynx and snowshoe hares increases 

the risk of wildfires. 

Our response: Wildfire is not thought 

to be a threat to lynx, and often results 

in beneficial effects when burned areas 

regenerate into good lynx foraging 

habitat. The designation of critical 

habitat will not prohibit protection of 

defensible space around homes or the 

wildland-urban interface. As described 

in the final rule listing the lynx, natural 

fire plays an important role in creating 

the mosaic of vegetation patterns, forest 

stand ages, and structure that provide 

good lynx and snowshoe hare habitat, 

particularly in the western Great Lakes 

region and in the western mountain 

ranges of the United States (Agee 2000, 

pp. 47–56). The final designation 

includes only National Parks. The 

National Park Service manages wildfire 

risk in accordance with the National 

Fire Plan. We routinely coordinate with 

NPS on fire projects that may affect 

listed species pursuant to section 7 of 

the Act. Typically, NPS fire 

management projects do not result in 

adverse effects to lynx. We anticipate 

that future projects are unlikely to 

adversely modify its critical habitat. 

32. Comment: Some commenters 

questioned the adequacy of the 

Environmental Assessment (EA) and 

other aspects of our compliance with 

NEPA. They believe the Service should 

prepare an Environmental Impact 

Statement (EIS) on this action. 

Our Response: An EIS is required 

only in instances where a proposed 

Federal action is expected to have a 

significant impact on the human 

environment. In order to determine 

whether designation of critical habitat 

would have such an effect, we prepared 

an EA of the effects of the proposed 

designation. We published a Notice of 

the Availability of the draft EA for 

public comment on September 11, 2006 

(71 FR 53355). Following consideration 

of public comments, we prepared a final 

EA and determined that critical habitat 

designation does not constitute a major 

Federal action having a significant 

impact on the human environment. That 

determination is documented in our 

Finding of No Significant Impact 

(FONSI). Both the final EA and FONSI 

are available on our Web site (see 

ADDRESSES section). 

33. Comment: Commenters believe 

that designating State School Trust 

lands as critical habitat will harm 

schools and school children because the 

lands will not be able to be used to fund 

the School Trust. 

Our response: We have excluded all 

State lands from the final critical habitat 

designation for the reasons described 

below in the Exclusions Under Section 

4(b)(2) of the Act discussion, which 

resolves this concern. 

34. Comment: Some commenters were 

concerned that the Maine Forest 

Practices Act (MFPA), which regulates 

forestry in Maine, is not adequate to 

provide for the habitat requirements of 

lynx and, therefore, compliance with 

the Act should not be a basis for 

excluding lands from the critical habitat 

designation. 

Our response: We have previously 

recognized that the shift away from 

clear-cutting towards partial cutting in 

Maine creates uncertainty as to the longrange suitability of habitat for lynx. This 

shift is in large part a result of 

implementation of the Maine Forest 

Practices Act (MFPA) starting in 1989 

when it was enacted. In our 2003 

Remanded Determination regarding the 

listing of the lynx as a threatened 

species, we noted that ‘‘if harvest 

practices cease to provide early 

successional forest with dense 

understories or stand-replacing 

disturbances (such as provided by a 

large clear-cut) in proportions similar to 

historic conditions, habitat conditions 

for snow shoe hares and lynx will be 

diminished.’’ 68 FR 40076, 40094 (July 

3, 2003) (emphasis added). In that 

notice, we also stated that ‘‘at this time, 

we do not know if future timber harvest 

practices will continue to provide forest 

conditions that are capable of 

supporting snowshoe hare densities that 

can, in turn, support a resident lynx 

population.’’ Id. Our 2005 Lynx 

Recovery Outline also acknowledges 

this uncertainty: ‘‘harvest management 

in Maine has shifted away from clearcutting and now favors partial cutting, 

which in some situations, may result in 

less favorable conditions for snowshoe 

hare and lynx.’’ Recovery Outline, p.9 

(emphasis added). 

We agree that this uncertainty 

remains. As we have previously noted, 

lynx preference for regenerating clearcuts has been well-documented by 

analyses at landscape- and stand-level 

scales (Hoving et al. 2004, pp. 291–292; 

Fuller 2006, p. 31; Robinson 2006, pp. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66017 

119–129). Maine lynx habitat models 

document that lynx avoid partial 

harvest stands (Hoving et al. 2004, p. 

292) or that partial harvested areas are 

not statistically associated with lynx 

occurrence at home range and landscape 

scales (Robinson 2006, pp.122–123). 

Furthermore, partial harvest stands 

support substantially lower snowshoe 

hare densities than regenerating 

clearcuts (Robinson 2006, p. 9), with 

many stands below a threshold of 1.1 

hares/ha believed necessary to support 

a lynx population (Steury and Murray 

2004, p. 137). But, at least one Maine 

study suggests that, under certain 

circumstances, lynx may prefer 

partially-harvested stands (Fuller 2006, 

p. 31). We recognize that this study, as 

with most, has certain limitations, but it 

does represent a somewhat different 

conclusion than previous studies about 

the suitability for lynx of various 

habitats created through forest 

management in Maine. 

But, long-range habitat suitability in 

Maine also depends on the distribution, 

amount, and longevity of habitats 

created through forest management. 

Thus another critical question is 

whether the mosaic created by clearcutting, which is anticipated to last 

another 10–15 years, may be replaced 

over time by across the landscape by 

other practices. 

Neither the MFPA nor its regulations 

provide prescriptions for age class, 

distribution of forest, or coarse woody 

debris. It is important to note that 

although the MFPA regulates clearcutting it does not eliminate this 

practice altogether as some have 

suggested in their comments. The MFPA 

allows for the possibility of large clearcuts (up to 400 acres) so long as such 

harvesting is accompanied by proper 

documentation and permits. In 1989, 

clear-cuts accounted for 45% of the land 

area harvested and partial harvests 55% 

(Maine Forest Service 1995, summary 

statistics). In 1999, clear-cuts accounted 

for only 3%, whereas partial harvests 

accounted for 96% (Maine Forest 

Service 2000, summary statistics). This 

new silvicultural paradigm has 

landscape level implications for lynx 

because larger areas must be logged to 

supply mills with an equivalent volume 

of wood. The annual number of acres 

that is partially harvested has increased 

21% from 398,743 acres in 1993 to 

481,153 acres in 2004 (Maine Forest 

Service 2005, summary statistics). As 

currently implemented, MFPA is 

adequately providing for the habitat 

requirements of lynx. 

Partnerships will be essential in 

resolving both these scientific as well as 

management uncertainties, especially 

given that the majority of lynx habitat 

and occurrences occur on private lands 

managed for commercial forestry in 

Maine. Agreements and commitments 

with private landowners to allow access 

to lands, provide research capabilities 

and funding, map habitat and correlate 

it to past and existing forest 

management practices is necessary to 

address and reconcile uncertainties 

about which type and distribution of 

habitats lynx prefer. Because the 

amount and quality lynx habitat may 

ultimately depend on the types and 

locations of harvesting that are pursued 

under the MFPA, maintaining working 

relationships with the commercial 

timber industry is important, this is 

especially so because commercial 

timber operations in Maine typically do 

not involve Federal actions that would 

trigger consultation under Section 7 of 

the Act. 

35. Comment: Some commenters are 

concerned that certification programs 

and voluntary agreements were not 

working well on corporate forestlands in 

Maine and Montana and, therefore, 

should not be a basis for excluding such 

lands from the final critical habitat 

designation. Specific information was 

provided about Maine Department of 

Inland Fisheries and Wildlife’s 

(MDIFW) concern about Plum Creek’s 

reluctance to abide by voluntary, 

cooperative deer wintering area 

agreements that were negotiated with 

the previous owner. Commenters 

asserted that Plum Creek’s land 

management in Montana includes 

activities that may threaten lynx, such 

as precommercial thinning that 

decreases the quality of snowshoe hare 

habitat; and divesting of its land 

holdings, which may then be developed. 

Our response: Several corporate forest 

landowners in Maine, including Plum 

Creek, have voluntary agreements with 

MDIFW to manage deer wintering 

habitat. These agreements enable the 

state to work in partnership with forest 

industry to manage for deer wintering 

habitat. Given the significant turnover 

in corporate forest land ownership in 

Maine in the last 15 years, agreements 

with previous companies need to be 

renegotiated with the new owners. New 

landowners sometimes do not honor the 

agreements made by previous 

landowners and cut in deer wintering 

areas. Deer wintering areas are large 

areas of mature softwood, usually in 

riparian areas. Although these are boreal 

habitats, they generally do not provide 

quality habitat for snowshoe hares or 

lynx. Lynx in Maine prefer young, 

regenerating softwood stands. Cutting 

deer wintering habitat may have created 

lynx habitat. 

The lynx forest management strategy 

offered by the Maine Forest Products 

Council applies to about 400 member 

landowners that comprise about 84% of 

the proposed Maine Unit of the critical 

habitat. The lynx management specified 

in the strategy applies to current and 

future landowners. Thus, as landowners 

change, there is a good probability that 

the lynx strategy will apply to future 

corporate forestry landowners. 

Section 7 of the Act only applies to 

activities on private lands where there 

is a Federal action that triggers 

consultation; critical habitat designation 

would not provide any additional 

protections under the Act to address 

activities on private lands that do not 

involve a Federal action. We weighed 

the benefits of exclusion against the 

benefit of inclusion pursuant to section 

4(b)(2) of the Act. The benefits of 

preserving effective partnerships with 

private landowners and encouraging 

non-regulatory conservation on private 

lands managed for commercial forestry 

factored into our decision to exclude 

such lands. Specifically, Plum Creek has 

demonstrated it is a willing and 

effective partner in various fish and 

wildlife conservation efforts; it 

contributes funding for lynx research 

and allows research to occur on its 

properties, as well as managing habitat 

that supports lynx and other species, 

both protected and unprotected. See 

Exclusions Under Section 4(b)(2) of the 

Act discussion below for a complete 

discussion of specific exclusions. 

Comments on Economic Issues 

General Comments on Methodology and 

Scope 

1. Comment: Cook County 

commented that the draft economic 

analysis (DEA) does not include a 

breakdown of economic impacts by 

county. Similarly, Lutsen-Tolfte 

Tourism Association and Lutsen 

Mountains Ski resort suggested that the 

Service should separately analyze the 

developed portion of Cook County in 

Northeastern Minnesota, as it comprises 

the majority of the existing development 

and industry in the County. 

Our response: As described in Section 

2.1, an economic analysis of this type 

must make a determination of the 

geographic level at which to present 

results. In this case, the DEA provides 

economic impacts at the subunit level, 

which is defined by landowner type 

(e.g., private timberlands, State lands, 

etc.). Landowner type was selected as 

the geographic scale of the analysis, as 

impacts across land use types were 

expected to be more homogenous than 

across political boundaries, such as 


jlentini on PROD1PC65 with RULES3
66018 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

cities or counties. Impacts of lynx 

conservation on Cook County lands are, 

therefore, summarized according to the 

subunits that intersect Cook County in 

Unit 2. These are the Superior National 

Forest, Unknown Private Landowner, 

MN Department of Natural Resources, 

Private Mining Company Lands, and 

Tribal Lands subunits. 

2. Comment: One comment stated that 

the DEA refers to a ‘‘one mile buffer 

along the coast of Lake Superior’’ as 

being excluded from the economic 

analysis. The commenter requests 

clarification regarding the actual 

delineation of critical habitat as Section 

4(b)(2) of the Act requires economic 

analysis of areas proposed to be 

included in the designation, and thus 

including the 1-mile buffer as critical 

habitat without analyzing the economic 

data would be a violation of the Act. 

Our response: The DEA does not refer 

to the 1-mile buffer surrounding Lake 

Superior as being excluded from the 

economic analysis. These areas were 

explicitly considered in the DEA as 

described in Section 4.3.2. 

3. Comment: One commenter stated 

that the DEA should include the direct 

cost to the private sector and Federal 

agencies of dealing with critical habitat 

through interactions with Federal 

agencies regarding permits or sales. This 

commenter also stated that the DEA 

should consider the indirect costs of 

dealing with project delays and the legal 

costs associated with critical habitat 

designation that accrue to both the 

public and private sector. 

Our response: Appendix A of the DEA 

quantifies the administrative costs to 

public and private entities of section 7 

consultations, a direct impact of critical 

habitat designation. These impacts of 

complying with section 7 of the Act are 

included in the total economic impact 

estimates provided in the DEA. The 

DEA also considers the impact of project 

delays. For example, the analysis 

quantifies construction of new roads to 

access timber or mining projects to 

avoid delays associated with lynx 

conservation concerns. 

4. Comment: One comment 

highlighted that the DEA does not 

quantify impacts to mines, 

development, and grazing in the area. 

Another comment questioned why the 

DEA presents the full value estimates 

for development and mining. 

Our response: Since the publication of 

the DEA, a supplemental analysis of 

impacts to development was undertaken 

and will be incorporated in the Final 

Economic Analysis (Final EA). As 

described in Section 6.5 of the DEA, 

absent information regarding how or 

whether grazing activities may be 

impacted by lynx conservation, the DEA 

provides information on the geographic 

areas grazed and the full value of the 

grazing within the study area. While not 

an impact estimate, this information is 

useful for decision making by 

identifying the distribution of grazing 

activity across the study area. Section 8 

of the economic analysis does quantify 

impacts to mining activities. 

5. Comment: Plum Creek Timber 

Company, Inc. commented that the DEA 

does not consider that an acre of land 

may have both timber and potentially 

substantial future additional value, and 

thus the DEA underestimates the 

potential value at risk associated with 

critical habitat designation. The 

comment further stated that all of Plum 

Creek’s lands have some future value 

(including recreation, conservation, and 

higher and better uses) in addition to 

current use values, regardless of Plum 

Creek’s ultimate use of the land. The 

assumption that an acre of land is 

primarily used for one use (rendering 

the value of secondary uses negligible), 

therefore, underestimates the total 

acreage at risk of losing value. 

Our response: The DEA does not 

assume that the primary land use of an 

acre is its only value, or that other 

components of the total value are 

negligible. Rather, the DEA recognizes 

that the value of an acre encompasses 

the value of all of its foreseeable future 

uses. The DEA uses existing zoning and 

land use information to identify acres 

that are expected to have a value 

associated with the option for future 

development. For land parcels for 

which the only foreseeable future use is 

timber (based on available data), 

however, the potential of that parcel to 

be developed is unknown within the 

timeframe of the analysis, and, 

therefore, the parcel does not have an 

estimated development option value in 

the DEA. This characterizes the majority 

of the Plum Creek lands in both Maine 

and Montana. Communication with 

land value appraisers in Montana 

confirmed that the appraised value of 

parcels for which timber management is 

the only current and known future use 

do not include a measurable value 

associated with the option for future 

development. To the extent that these 

lands may be developed in the future 

absent lynx conservation, the DEA 

underestimates impacts related to 

development on these parcels. 

6. Comment: Defenders of Wildlife 

commented that the DEA omits 

assessment of benefits from increased 

direct uses including welfare gains for 

participants in non-motorized recreation 

activities that benefit from restrictions 

on snowmobiling, or avoided loss of 

scenic beauty for recreationists due to 

prevented destruction of habitat for 

development. 

Our response: As discussed in Section 

1.2.4 of the DEA, these types of benefits 

are considered in the analysis. However, 

similar to the calculation of benefits 

related to viewing lynx, information 

regarding the number of nonsnowmobilers recreating in the area is 

not readily available, and the extent to 

which lynx-related restrictions increases 

enjoyment of non-motorized recreation 

due to reduced noise pollution, or 

increases the scenic beauty of the study 

area, is unknown. 

7. Comment: Defenders of Wildlife 

stated that the DEA violates its own 

study parameters in order to incorporate 

project costs that occur beyond the 20- 

year timeframe of the analysis. In 

particular, the commenter notes that 

pre-commercial thinning impacts would 

change from a net cost to a net benefit 

if the DEA respected its own temporal 

boundaries of analysis. 

Our response: As stated in Section 

1.3, the DEA forecasts impacts to 

activities that are considered 

‘‘reasonably foreseeable.’’ Where 

information is available to reliably 

forecast economic activity beyond the 

20-year timeframe, this analysis 

incorporates that information. For 

timber management, silvicultural 

planning typically occurs over a long 

time horizon (e.g., 100 years). The DEA, 

therefore, forecasts impacts to activities 

in the timber industry accordingly. 

Reporting only the first 20 years of 

impacts of restrictions on 

precommercial thinning would result in 

the reporting of a net benefit of these 

restrictions, as the costs of these 

restrictions are experienced at the time 

of harvest (e.g., reduced yield). 

Reporting a net benefit or precluding 

precommercial thinning from the 

analysis would be misleading, however, 

as precommercial thinning would not 

likely be undertaken if it did not offer 

a long-term benefit to landowners. 

8. Comment: Pingree Associates, Inc., 

commented that the DEA was prepared 

based on substandard information with 

no peer review and that there was no 

adherence to any appraisal standards in 

determining values of forestlands. 

Our response: The DEA applies the 

best available information, and was 

peer-reviewed by forest economists from 

both Maine and Montana. As described 

in Section 4 and Appendix D, the land 

appraisal information applied in the 

DEA is from recent appraisals by the 

Maine Revenue Service. This 

information is used by the Land Use 

Regulatory Commission in Maine, and 

was cross-checked with a number of 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66019 

stakeholders, including the University 

of Maine and the Maine Department of 

Inland Fisheries and Wildlife. 

Comments on Timber Analysis 

9. Comment: A comment provided by 

Maine Audubon asserted that the DEA 

overestimates the number of acres likely 

to be precommercially thinned. The 

DEA estimates that over a 100-year 

period, 6.1 million acres will be 

precommercially thinned; Maine 

Audubon estimates that this should be 

closer to 2.1 million acres. The 

comment further states that timber 

impacts in Maine should be estimated 

over a 30-year projection, rather than 

100 years due to the short tenure of 

most timberland ownerships. 

Our response: The DEA applied the 

best available information regarding the 

potential impact of precluding 

precommercial thinning in Maine. The 

estimates are based on previously 

conducted modeling by the University 

of Maine Cooperative Forestry Research 

Unit as described in Section 3 and 

Appendix D. Results applied in the DEA 

from the existing model are estimated 

benefits of precommercial thinning on a 

per-acre basis for the entire State of 

Maine over a 100-year timeframe, based 

on the recent, observed level of 

precommercial thinning. The 

application of this model to the DEA 

was reviewed and considered 

reasonable by multiple stakeholders and 

peer reviewers. Further, the tenure of a 

landowner is not relevant to the 

timeframe of the analysis, as the impacts 

estimated are not specific to current 

landowners, but to land parcels. 

10. Comment: The Montana Wood 

Products Association commented that 

the assumption in the DEA that there is 

no market for precommercially thinned 

material is incorrect. In Montana 

existing facilities that function on 

residuals from timber harvesting would 

be impacted by restrictions on 

precommercial thinning. This comment 

further stated that the assumption that 

future stumpage prices will be 

comparable to past prices is unfounded. 

Our response: As described in Section 

3.2 of the DEA, Scenario 2 of timber 

analysis assumes that no ready market 

exists for slash from precommercial 

thinning. To the extent that a market for 

this residual does exist within the study 

area, the DEA acknowledges in Exhibit 

3–7 and on page 3–9 that timber impacts 

could be underestimated. An increase in 

biomass energy production would create 

demand and provide a market for 

residuals from precommercial thinning. 

This comment suggests that the market 

for residuals from precommercial 

thinning exists in certain areas of the 

proposed critical habitat. As timber 

harvests would not be precluded under 

any of the scenarios considered in the 

DEA, it is unlikely that this market 

would be completely eliminated, 

however, as there would still be residual 

material from harvests available for 

these facilities. 

11. Comment: One comment 

highlighted that Exhibit 3–7 of the DEA 

states that differences in quality 

between thinned and unthinned stands 

are not taken into consideration, and 

noted that precommercial thinning 

would not be undertaken if it had no 

purpose. 

Our response: Following discussions 

with a variety of timberland 

stakeholders, the DEA timber analysis 

focused on the benefits in quantity and 

timing of the harvest resulting from 

precommercial thinning rather than the 

potential increases in quality of the 

wood harvested. Benefits related to an 

increased quality are highly dependent 

on the initial quality of the stand, which 

was unknown across the study area. To 

the extent that restricting 

precommercial thinning leads to 

decreased quality of wood harvested 

from a stand, the analysis may 

underestimate impacts, as noted in 

Exhibit 3–7. 

12. Comment: One commenter noted 

that the impacts cited in the Section 3 

did not match those in the Executive 

Summary, and were significantly 

higher. 

Our response: The figure of $808 

million referred to in the Key Findings 

for the Timber analysis in page ES–3 of 

the DEA was a rounding error and has 

been corrected to show $809 million. 

Other timber analysis results cited in 

the Executive Summary are correct and 

match those in Section 3. 

13. Comment: Maine Forest Products 

Council asserted that the full value of 

timberland estimated for Maine was 

understated because the $300/per acre 

value applied did not account for the 

entire ‘‘timber capital value.’’ The 

commenter stated that many timberland 

transactions have occurred that have 

exceeded those values. 

Our response: As described in 

Appendix D of the DEA, the average 

per-acre timber value of $300 applied in 

the DEA for Maine represents the value 

of land as a silvicultural input, which 

generally reflects the present value of 

the standing timber. This estimate is 

based on information regarding 

appraised value of lands where timber 

is the only use. This value represented 

an average value, thus, it is likely that 

there have been transactions exceeding 

this value. The $300-per-acre average 

value was confirmed with a number of 

stakeholders and peer reviewers. 

14. Comment: One commenter 

expressed concern that the DEA does 

not consider the broader economic 

impacts that stem from the effect critical 

habitat designation could have on the 

overall strength of the forest products 

industry in Maine and its global 

competitiveness. 

Our response: The DEA provides 

information on the full value of the 

timberland within the study area, as 

well as information regarding the 

potential impacts to the timber industry 

under two scenarios, one with 

restrictions on precommercial thinning, 

and one without. As described in 

Section 3.2 of the DEA, under Scenario 

1, no impacts to the quantity of timber 

harvested on private lands is forecast, 

while under Scenario 2, impacts to 

timber harvest quantity are forecast in 

the future as a result of restrictions on 

precommercial thinning practices. The 

full value of the timberland in Maine is 

presented along with the impact of lynx 

conservation on the timber resource to 

provide context to the impact estimate, 

and its relative effect on the regional 

timber industry. 

15. Comment: The Maine Forest 

Products Council commented that the 

DEA does not address the impact of the 

designation on spruce plantations. 

Additionally, the commenter is 

concerned that the report does not 

address the potential for a future spruce 

budworm outbreak and the impact the 

designation could have on the ability of 

the State and its timberland owners to 

deal with the next outbreak. 

Our response: The analysis of impacts 

to the timber industry did not focus on 

impacts to plantations as this was not 

the focus of the timber-related 

conservation guidelines described in the 

LCAS. As discussed in Section 1.4 of 

the DEA, the LCAS is considered by the 

Service to be the best information 

available regarding conservation 

measures for the lynx. The DEA 

assumes that, absent more specific 

information, public and private 

landowners across the proposed critical 

habitat will use the LCAS as a model for 

lynx conservation needs. To the extent 

that limiting precommercial thinning 

can multiply the impact of an upcoming 

spruce-budworm epidemic, the analysis 

may have underestimated impacts to the 

timber industry. No models are 

available, however, to link restrictions 

on precommercial thinning with 

increased probability or severity of 

spruce budworm outbreaks. 

16. Comment: One comment stated 

that the DEA does not address the 

impact of changes in wood supply 


jlentini on PROD1PC65 with RULES3
66020 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

within the study area on industry 

located outside the study area. 

Our response: Scenario 2 of the timber 

analysis in the DEA quantifies impacts 

to future timber harvest resulting from 

a restriction on precommercial thinning 

practices. The DEA does not make any 

assumptions about where the harvested 

timber is delivered, within or outside of 

the proposed critical habitat, but instead 

focuses on the estimated decreased 

value of a timber stand to the landowner 

as a result of restrictions on 

precommercial thinning. Any impacts to 

mills associated with a decreased 

supply of timber as a result of 

precommercial thinning restrictions 

would occur at the time of harvest, 

which may be 60 to 100 years 

(depending on harvest rotation 

schedules) from the time the restrictions 

on thinning are implemented. Further, 

while Section D.1.2 of the DEA states 

that the best available information 

indicates that approximately 1 percent 

of the timber lands are precommercially 

thinned per year, information is not 

readily available describing which 

particular parcels would be thinned in 

a given year, or which specific mills 

(within or outside of the study area) rely 

on those particular stands. 

17. Comment: Comments from 

Pingree Associates, Inc., and the 

American Forest and Paper Association 

(AFPA) stated that limiting the 

discussion on forest management 

impacts to precommercial thinning 

restrictions is inadequate and 

misleading. Pingree Associates asserted 

that, from past experience with critical 

habitats for other species, a high 

probability exists that designation of 

critical habitat will require additional 

set-asides and lead to restrictions on 

commercial thinning and harvesting. 

AFPA cited the Washington State 

Department of Natural Resources 

standards, which they believe, if 

applied across the critical habitat, 

would result in a greatly increased 

calculation of economic impact. 

Our response: The DEA applies 

information from the LCAS regarding 

the types of habitat-related conservation 

measures that may be requested to 

benefit the lynx. Information in the 

LCAS and from review of past 

consultations does not indicate that 

additional set-asides or restrictions on 

commercial thinning will be 

recommended for the benefit of the 

lynx. While the WADNR standards are 

similar to the LCAS, the LCAS has been 

applied to a broader geographic area. 

18. Comment: The American Forest 

and Paper Association (AFPA) argues 

that using full value of timberlands 

shown in Exhibit 3–2 in the DEA would 

provide a more appropriate ‘high 

impact’ benchmark for measuring and 

weighing the benefits and economic 

impacts of the critical habitat 

designation. 

Our response: The DEA does not 

consider the full values of designated 

timberland to be a valid estimate of 

impacts of lynx habitat-related 

conservation, as there is no basis to 

assume this full value could be lost due 

to the proposed critical habitat. Rather, 

the DEA is based on information 

contained in the LCAS about how 

timber activities would be expected to 

change under the proposed critical 

habitat designation as described in 

Section 3.2. 

19. Comment: The Montana Wood 

Products Association stated the 

assumption that future stumpage prices 

will be comparable to past prices is 

unfounded. Similarly, the American 

Forest and Paper Association stated that 

rising stumpage prices resulting from 

restrictions in timber management may 

also place in jeopardy portions of the 

pulp and paper industry or solid wood 

products industry in the affected States. 

Our response: As stated in Exhibit 3–

7, the DEA made the simplifying 

assumption that future stumpage prices 

would be similar to past stumpage 

prices. Specifically, the analysis utilized 

the most recent information available 

(from 2005) for stumpage prices for 

Minnesota and Montana, and relied on 

analyses provided by the University of 

Maine, Idaho Department of Lands, and 

Washington State Department of Natural 

Resources for impacts in those areas. 

This assumption and impact analysis 

method was peer reviewed by forest 

economists in both Maine and Montana. 

20. Comment: F.H. Stoltze Land and 

Lumber Company commented that it is 

a small family-owned business that is 

directly affected by the critical habitat 

through purchase of USFS sales, Special 

Use Permits for access and radio towers, 

contract road maintenance, and 

participation in stewardship contracts, 

and that none of these issues are 

considered in the DEA. The commenter 

further stated that the estimated $652 

per acre of timberland in Western 

Montana is not the appropriate market 

value and that the DEA underestimates 

that value of thinning and returns to 

forest landowners. F.H. Stoltze Land 

and Lumber Company also commented 

that the DEA does not reflect the use of 

fertilization, which is also used on 

Stoltze lands. The commenter further 

states that studies have shown they can 

achieve a 50 to 60 percent increase in 

growth rates by using the 20-foot 

spacing and fertilization and that these 

lost revenues and costs should be 

considered in the economic analysis. 

Our response: Impacts related to 

special use permits and road 

maintenance on Federal lands were 

considered in Section 3 of the DEA. The 

estimated per-acre value is an average; 

thus, it is not surprising that some sales 

of specific lands will be well above this 

average due to factors such as location, 

access and quality. Also, as discussed in 

Section 1.4 of the DEA, the DEA 

assumes that the LCAS is the best 

information available regarding 

conservation measures for the lynx and 

the LCAS does not suggest any habitatrelated conservation measures related to 

the use of fertilizers; thus no impacts to 

fertilization activities are expected. 

Stoltze lands are excluded from critical 

habitat in the final designation for 

biological reasons. 

Comments on Development Analysis 

21. Comment: One commenter stated 

that because the DEA relies on existing 

zoning status, it underestimates the 

amount of land in Maine that may be 

subject to development as future 

changes in zoning may occur. 

Our response: Section 4.2 of the DEA 

highlights that, while the analysis does 

not account for potential changes in 

future zoning across the study area, the 

relatively rural character of the area 

does not suggest that significant levels 

of re-zoning will be necessary to 

accommodate the existing development 

pressure. To the extent that 

development pressure increases in this 

region and rezoning occurs, however, 

the DEA will underestimate the number 

of developable acres in the study area in 

Maine. 

22. Comment: Maine Audubon 

commented that the DEA calculates 

revenues likely to be lost if no 

development is allowed on lands 

currently zoned for development in 

Maine. The comment argued that this 

assumes that there is no silvicultural 

value of those lands, and that no 

development will be allowed under the 

designation, and these are unlikely 

assumptions. 

Our response: The DEA does not 

calculate lost revenues as a result of 

restrictions on development, but rather 

reduced value of land as a result of 

precluding the option to develop. 

Further, the DEA does assume that 

silviculture is a potential use of these 

lands and, therefore, if development is 

precluded, the land retains its 

silvicultural value. While the DEA 

provides information on the full value 

of the option to develop the study area, 

it does so due to lack of information 

regarding how development projects 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66021 

may be modified for the benefit of the 

lynx as described in Section 4.2 and 

does not assume that all development 

within the study area will be precluded 

as a result of lynx conservation. 

23. Comment: A comment from Cook 

County, Minnesota, noted that, although 

the DEA provides information on the 

full value of developable land in Unit 2 

($1.56 billion), the total economic 

impacts of lynx conservation provided 

is an underestimate of costs because 

impacts to the developable lands are not 

assessed and added. 

Our response: The comment correctly 

highlights that the DEA did not quantify 

impacts to potential development 

activities, but rather provides the full 

option value of future development 

within the study area. Since the 

publication of the DEA, a supplemental 

analysis of impacts to development was 

completed by the economists, and will 

be incorporated in the Final Economic 

Analysis (Final EA). The supplemental 

development analysis estimated impacts 

to development in Unit 2 to be $658 

million to $709 million. 

24. Comment: Plum Creek Timber 

Company, Inc., commented that the 

DEA should consider conservation 

easement values as a proxy for future 

development value, as development 

value of timber acres is overlooked in 

the DEA. Maine Forest Products Council 

commented that the analysis of 

development in Maine does not look at 

any development proposals, empirical 

market information, analysis of 

comparable market sales, or appraisal 

information, and it posits no build-out 

scenarios. This commenter also 

expressed concern that there is no 

consideration of development value on 

backland, which they suggest could be 

based on available information from the 

sale of conservation easements. The 

commenter provides information on two 

conservation easement sales and applies 

these per-acre values to estimate 

potential development value of some 

lands in the study area in Maine. 

Our response: The values of 

conservation easements can serve as a 

proxy for the value of a parcel for 

development. Research was undertaken 

in the development of the DEA on peracre values of conservation easements in 

the study area. In order to transfer the 

value of development from a 

conservation easement to other parcels, 

however, information is needed on the 

relationship between land attributes, 

such as distance from existing 

development and roads, proximity to 

water bodies, etc., and the easement 

values. Without information on the 

attributes of specific parcels that may be 

developed, values of conservation 

easements could not be transferred from 

easement lands to the specific parcels as 

a proxy of their development value. 

25. Comment: A comment provided 

by Cook County, Minnesota, states that 

the DEA underestimates the amount of 

developable land in Cook County. 

Our response: As highlighted in this 

comment, approximately 91 percent of 

the lands in Cook County are public 

forest lands; the private lands in the 

County are primarily inholdings within 

these public forests. Where information 

was available to identify the private 

inholdings among the public lands, 

those private lands were considered 

developable. For example, 291 acres in 

the southwestern corner of Cook County 

were identified as privately owned, and 

considered developable in the DEA. 

Best available data regarding 

landownership within Unit 2, however, 

is imperfect and may not identify all of 

the private inholdings within the 

forests, in which case impacts may be 

underestimated. 

26. Comment: A comment provided 

by Lutsen Mountains Ski Area asserted 

that the DEA should consider ‘‘other 

relevant impacts’’ of the designation, 

including any resulting increased local 

standards on land use decisions, such as 

zoning and issuance of building 

permits. This may require hiring of 

experts, analysis, and public hearings 

before the planning commission and 

county board. 

Our response: The area of Cook 

County, Minnesota, to which this 

comment refers is a developed area, 

containing recreational, commercial, 

and residential infrastructure. Existing 

development and infrastructure is 

excluded from critical habitat in the 

proposed rule. The analysis, therefore, 

does not quantify impacts associated 

with increased standards on local land 

use regulation associated with lynx 

conservation. 

27. Comment: A comment from F.H. 

Stoltze Land and Lumber Company 

asserted that the use of $932 per acre as 

the value for development in Montana 

is too low. 

Our response: As described in Section 

4.3.3, the DEA did not apply an average 

per-acre value for developable lands in 

Montana but instead applied parcelspecific appraisal data from the 

Montana Department of Administration, 

Information Technology Services. The 

average per-acre value is presented for 

context, although the specific values of 

parcels ranged across the region. 

Comments on the Recreation Analysis 

28. Comment: Two comments 

asserted that the DEA should consider 

the benefit to the economy of wildlife 

watching, including having lynx 

available to watch. One commenter 

highlights the National Survey of 

Fishing, Hunting, and WildlifeAssociated Recreation estimates that 

778,000 people participated in wildlifewatching in Maine in 2001, spending an 

average of $445 per participant. 

Our response: Section 1.2.4 of the 

DEA acknowledges the potential for 

benefits to the wildlife-viewing 

community of lynx conservation efforts. 

Three pieces of information would be 

required to estimate economic benefits 

derived from lynx-viewing: (1) The 

number of visitors that may engage in 

lynx-viewing (the National Survey 

evidences the importance of wildlifeviewing for all species in the entire 

State, not that specifically related to 

lynx or within the lynx habitat area); 

(2) the extent to which the likelihood of 

viewing lynx may be increased due to 

the lynx conservation efforts described 

in this analysis; and (3) the incremental 

value of a wildlife-viewing trip 

associated with lynx sightings. These 

data are not available. To the extent that 

the conservation efforts quantified in 

the DEA increase the likelihood of a 

lynx sighting, and wildlife-viewing 

participants positively value that 

opportunity, impacts in the DEA may be 

overestimated. 

29. Comment: A comment from 

Lutsen Mountains Ski Area stated that, 

while the DEA considers impacts 

associated with increased congestion on 

snowmobiling trails and costs of hunter 

and trapper education, it does not 

consider recreation activities occurring 

in Cook County, including alpine skiing, 

golfing, hiking, cross country skiing, 

and mountain biking. 

Our response: The DEA considers 

activities that represent a conservation 

threat to the lynx, and how they may be 

affected by lynx conservation. As 

described in Section 4.2 of the DEA, 

existing infrastructure related to 

recreation, such as ski resorts or golf 

courses, are not considered critical 

habitat as described in the proposed 

rule and, therefore, are not expected to 

be impacted by lynx conservation as 

they do not support the lynx (70 FR 

68304–5). The DEA looks at expansions 

of existing recreation areas and 

developments of new trails that may 

impact the proposed critical habitat for 

the lynx. Accordingly, the DEA 

quantifies impacts in Cook County 

associated with precluding the 

development of new trails, which may 

be used, for example, for snowmobiling. 

30. Comment: Maine Audubon and 

Defenders of Wildlife commented that 

the recreation analysis in the DEA 

should not include the costs of hunter 


jlentini on PROD1PC65 with RULES3
66022 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

and trapper education programs as these 

programs are required regardless of 

critical habitat designation because the 

lynx is a threatened species. 

Our response: As described in Section 

1.2 of the DEA, due to the difficulty in 

making a credible distinction between 

listing and critical habitat effects within 

critical habitat boundaries, this analysis 

considers all future conservation-related 

impacts to be co-extensive with the 

designation. 

31. Comment: One comment provided 

on the DEA states that roadless areas of 

the National Forest System are the best 

hunting areas, and the DEA should 

therefore consider that the enhancement 

and maintenance of fish and wildlife 

species as a result of designating critical 

habitat will also enhance hunting and 

tourism sectors of local economies. 

Our response: While maintenance and 

enhancement of hunting areas provides 

a benefit to hunters, and potentially 

tourism, within the region, the extent to 

which the conservation efforts 

quantified in the DEA contribute to the 

improved quantity (area) and/or quality 

(e.g., game density) of the forests for 

hunting is unknown. In the case that 

restrictions on development within the 

habitat area increase the total amount of 

land available for hunting in the future, 

information is required regarding 

whether additional hunters would use 

the region, or whether density of 

hunters across the region would 

decrease, to provide an associated 

welfare benefit. 

32. Comment: The Maine Forest 

Products Council asserted that the 

analysis should weigh the impact of 

fewer snowmobilers recreating in Maine 

with the demand for purchasing lands 

in the study area, including impacts on 

forestland value, lease-lot values, 

conservation easement values, and 

backland camplot values. 

Our response: This comment asserts 

that demand for purchasing lands in the 

study area will decrease as a result of 

decreases in the number of 

snowmobilers recreating in the region. 

As described in Section 5.2, the DEA 

assumes there will be no decrease in the 

number of snowmobilers recreating in 

the study area in Maine. Rather, the 

DEA assumes that the same number of 

snowmobilers will be recreating on 

fewer trails in the future, as it assumes 

snowmobilers will not be deterred by 

the increased densities projected. 

Therefore, the DEA does not estimate a 

decreased demand on land purchases. 

33. Comment: The Northwest 

Environmental Defense Center 

commented that the analysis of impacts 

to the snowmobiling industry is flawed. 

The DEA uses the results of a study of 

the impacts of increased crowding of 

snowmobilers at Yellowstone National 

Park. The Northwest Environmental 

Defense Center asserts that Yellowstone 

National Park is significantly more 

crowded than the areas in question in 

the DEA. 

Our response: Appendix E of the DEA 

discusses the limitations associated 

with applying the results of the 

Yellowstone study to the impacts to 

snowmobilers in the DEA, and 

acknowledges the comment raised 

above. However, this study represents 

the best available information regarding 

the impacts of increased crowding of 

snowmobilers. The commenter states 

that the baseline density of 

snowmobilers in Yellowstone is higher 

than that in the study area. For this 

reason, Scenario 1 of the recreation 

impact analysis assumes that 

snowmobilers do not experience a 

reduced value for snowmobiling trips as 

described in Section 5.2 of the DEA. 

34. Comment: A comment provided 

by the Washington State Snowmobile 

Association asserted that the DEA failed 

to consider impacts to the regional 

economy in Washington of curtailing 

snowmobiling. It further states that, 

although there are only 29 miles of 

affected snowmobile trails in 

Washington, those trails provide access 

to over 429 miles of trails outside of the 

proposed habitat area. Similarly, F.H. 

Stoltze Land and Lumber Company 

commented that the DEA fails to 

consider impacts to local guides that 

charge for OHV use. 

Our response: As described in Section 

5 of the DEA, Scenario 2 of the 

recreation analysis quantifies the 

impacts of increased congestion on 

snowmobile trails as a result of 

restrictions on creating new trails. 

Because the analysis quantifies impacts 

of increased congestion as opposed to 

reduced participation, no impacts to 

regional businesses benefiting from 

participation in snowmobiling are 

expected. Regarding the access issue, 

the DEA does not assume that existing 

trails will be decommissioned, as this is 

not described in the LCAS or in the past 

consultation history as a habitat-related 

conservation measure for the lynx. 

Accordingly, there is no economic 

impact forecast associated with 

accessing trails outside of the study area 

from existing trails within the study 

area. 

35. Comment: The Cook County ATV 

Club commented that the DEA should 

have considered impacts to ATV use in 

addition to other types of recreation, 

such as snowmobiling. 

Our response: The DEA applies 

habitat-related conservation measures 

from the LCAS and consultation history 

to determine how land use activities 

may be impacted by lynx conservation. 

Neither the LCAS nor the consultation 

history cite ATV use specifically as a 

conservation threat to the lynx or 

suggest that this activity may be 

impacted by lynx conservation. 

Comments on the Public Lands and 

Conservation Lands Management 

Analysis 

36. Comment: Maine Audubon 

commented that the DEA estimate to 

prepare a habitat management plan of 

$5.73 per acre overestimates the true 

costs. The comment argued that the 

costs would be closer to a range of $1 

to $3 per acre. 

Our response: The average per-acre 

cost estimate to prepare a lynx habitat 

management plan is a weighted average 

of all known lynx management plans in 

the region. Some of these plans cost on 

the order of $1 to $3 per acre, and others 

were significantly greater, as described 

in Exhibit 6–4. 

37. Comment: The Washington 

Cattlemen’s Association commented 

that the DEA downplays the impact of 

lynx conservation on grazing in 

Washington by comparing the impacts 

to the grazing activities in Okanogan 

County to the entire Washington State 

livestock industry. 

Our response: Section 6.5 of the DEA 

quantifies the value of grazing in the 

study area. The DEA recognizes that 

impacts to rural communities may be 

significant even when small compared 

to the statewide industry. The value of 

the grazing resource in Washington 

State was presented alongside the value 

of grazing in the critical habitat area in 

order to provide additional information 

on the impacts of critical habitat to the 

statewide economy. The final rule has 

excluded areas that are currently grazed, 

and, therefore, there will be no grazing 

impact as a result of this rule. 

38. Comment: F.H. Stoltze Land and 

Lumber, Co. commented that page 6–18 

of the DEA highlights that fencing to 

limit livestock grazing is a conservation 

measure related to the lynx, but does 

not quantify impacts of this effort. 

Our response: As noted in Section 6.5 

of the DEA, fencing of foraging areas 

specifically for lynx and snowshoe hare 

is a habitat-related conservation effort 

for the lynx. The DEA further states, 

however, that while information is 

available regarding the level of grazing 

activity in the habitat area overall, the 

extent to which grazing occurs 

specifically within foraging habitat is 

unknown. The amount and location of 

fencing that may be requested for the 

benefit of the lynx is, therefore, 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66023 

uncertain. The DEA thus presents the 

full value of the grazing resource within 

the potential critical habitat area as a 

resource at risk of being impacted by 

lynx conservation within the study area. 

39. Comment: The Okanogan County 

Farm Bureau commented that fires burn 

thousands of acres of lynx habitat in the 

North Cascades, and broad designation 

of critical habitat will severely restrict 

the thinning necessary to prevent fire 

losses that threaten homes and lives. 

F.H. Stoltze Land and Lumber Company 

also commented that management of 

fires has been important in Western 

Montana. 

Our response: The DEA relies on the 

conservation measures outlined in the 

LCAS to determine how land use 

activities may be affected by lynx 

conservation. As described in Section 

6.6. of the DEA, the LCAS does not 

recommend precluding burn 

management as a lynx conservation 

measure, but suggests that lynx 

conservation be taken into consideration 

in planning burn management, for 

example, by promoting response by 

shrub and tree species favored by the 

snowshoe hare or other prey species, 

avoiding construction of permanent 

firebreaks, and minimizing temporary 

construction of roads. 

Comments on the Transportation 

Analysis 

40. Comment: One commenter was 

concerned about the impact the 

designation could have on the ability to 

maintain and improve Route 11 in 

Maine; in particular, the commenter was 

concerned about impacts on the ability 

of the sawmills in Portage and Ashland 

to get wood. 

Our response: We have excluded all 

lands in Maine from this final 

designation of critical habitat for the 

lynx pursuant to section 4(b)(2) of the 

Act; thus, this concern about impacting 

Route 11 maintenance is no longer an 

issue. 

Comments on the Mining Analysis 

41. Comment: The Northwest Mining 

Association commented that the DEA 

did not consider impacts to three mines 

in Western Montana (Troy, Rock Creek, 

and Montanore), Formation Capital’s 

cobalt project near Salmon, ID, or 

Kinross Gold’s Buckhorn project in 

Okanagan County, WA. 

Our response: As described in Section 

2.1, the geographic scope of the DEA is 

limited to those areas proposed for 

designation and those areas considered 

for exclusion from critical habitat in the 

proposed rule; these lands are referred 

to as the ‘‘study area’’ of the DEA. None 

of the mines referenced in this comment 

are within the study area. 

42. Comment: The Northwest Mining 

Association stated that the economic 

analysis should have analyzed the 

impact of the loss of mining activity on 

Federal lands due to the LCAS. 

Our response: Mining expansions or 

expected new mining projects were 

considered in the analysis of mining 

activity in Section 8 regardless of 

whether they were expected to occur on 

Federal lands or otherwise. 

Comments on the Initial Regulatory 

Flexibility Analysis (IRFA) 

43. Comment: The Small Business 

Administration (SBA), Office of 

Advocacy commented that the 

development analysis in the DEA 

should include more information on the 

number of small entities to which the 

proposed rule will apply, similar to how 

impacts to small timber-related 

businesses are considered in the DEA. 

Our response: Because the DEA did 

not provide estimates of impact to 

development activities, entities related 

to development were not considered in 

the draft IRFA. A supplemental analysis 

estimating impacts to development 

activities conducted during the public 

comment period provided more 

information on how landowners may be 

affected by the proposed rule. The IRFA 

in the Final EA is, therefore, updated to 

include numbers of developmentrelated small entities. Further, this 

updated information was taken into 

consideration in the development of this 

final rule. 

44. Comment: The SBA commented 

that the DEA does not include data on 

the economic impacts of the proposed 

rule on small entities in the 

development industry, which include 

developers, builders, and other types of 

small entities in addition to landowners. 

Our response: The supplemental 

development analysis incorporated in 

the Final EA quantifies impacts to land 

values associated with restrictions on 

development for the purposes of lynx 

conservation. The IRFA assumes that 

the primary impact of decreased 

development is to the landowner in the 

form of decreased land value. The 

analysis further assumes that, to the 

extent that decreased development leads 

to impacts on related businesses, these 

businesses are small. This is because the 

majority (90 to 100 percent depending 

on the sector) of the businesses in 

related industries (e.g., construction, 

planning, and landscaping) are small in 

the counties containing proposed 

critical habitat. While more detailed 

information became available to us for 

consideration of potential economic 

impacts on small business entities 

through the supplemental analysis, 

because only National Park Service 

lands remain in the final designation, 

we do not anticipate significant impacts 

to a substantial number of small 

business entities. Please refer to our 

discussion concerning compliance with 

the Regulatory Flexibility Analysis later 

in the rule. 

45. Comment: The SBA expressed 

concern that the IRFA does not include 

impacts to the timber industry such as 

decreased employment, decreased 

number of businesses or foregone 

revenue, or profit per business. The 

comment further stated that small 

entities are worried that further 

regulatory restrictions from the State 

and local government will further 

burden the timber industry. Another 

comment on the DEA stated that the 

IRFA is inadequate and requested that 

the IRFA be revised to consider the 

impacts to small businesses that rely on 

the resources on public lands. The 

comment further asserted that the IRFA 

should look at small business impacts in 

individual communities as opposed to 

the habitat as a whole. 

Our response: The draft IRFA 

contained within the DEA represents an 

initial examination of potential impacts 

to small businesses to provide 

information regarding whether the rule 

may result in a significant impact on a 

substantial number of small businesses, 

and, therefore, whether a full Regulatory 

Flexibility Analysis should be 

completed, which would require 

additional research, outreach, and 

analysis. However, because only 

National Park Service lands remain in 

the final designation, we do not 

anticipate significant impacts to a 

substantial number of small business 

entities. Please refer to our discussion 

concerning compliance with the 

Regulatory Flexibility Analysis later in 

the rule. 

46. Comment: One commenter 

expressed concern about the reliability 

of data sources used to estimate the 

number of small businesses in the study 

area. 

Our response: As stated in the notes 

to Exhibit C–3, the number of small 

timber-related businesses in the study 

area is from the Dun & Bradstreet 

database, a frequently cited source of 

business information, and was acquired 

in February 2006. The numbers of small 

businesses estimated are for all counties 

containing critical habitat, and not just 

for the study area within the county as 

this information is not readily available 

at a more refined geographic scale than 

county. 


jlentini on PROD1PC65 with RULES3
66024 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

Summary of Changes From Proposed 

Rule 

In preparing the final critical habitat 

designation for the lynx, we reviewed 

and considered comments from the 

public on the proposed designation of 

critical habitat published on November 

9, 2005 (70 FR 68294). We published a 

Notice of Availability of the DEA and 

draft environmental assessment on 

September 11, 2006 (71 FR 53355). As 

a result of comments received on the 

proposal, the DEA, draft environmental 

assessment and a reevaluation of the 

proposed critical habitat boundaries we 

made changes to our proposed 

designation as follows: 

(1) We reevaluated the proposed 

critical habitat units based on peer 

review, public comments, and biological 

information received during the public 

comment period. We excluded areas 

based on Tribal ownership, lands with 

existing lynx management plans or 

pending HCPs for lynx, lands managed 

for commercial forestry because of 

existing management practices and 

partnerships, and small landowners and 

lands not managed for commercial 

forestry because of their minor role in 

the conservation of lynx compared to 

efforts taken by larger landowners on 

adjacent and nearby lands who have an 

important role in the conservation of 

lynx habitat. 

(2) Portions of units that did not 

contain PCEs or where development 

was concentrated were removed from 

the final designation based on available 

maps. 

(3) Collectively, we excluded or 

removed a total of approximately 41,922 

km2 (16,190 mi2) of land from this final 

critical habitat designation. Please refer 

to Table 1 for the differences in the 

amount of area proposed for designation 

and the areas designated in this final 

rule. For a detailed discussion of all 

exclusions and exemptions, please refer 

to Exclusions Under Section 4(b)(2) of 

the Act section below. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act means to use and 

the use of all methods and procedures 

which are necessary to bring any 

endangered species 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. Conservation 

is a process which contributes to 

improving the status of the species. 

Individual actions may still be 

considered conservation even though in 

and of themselves they do not remove 

the species’ need for protection under 

the Act. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of 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 does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

subspecies must first have features that 

are essential to the conservation of the 

subspecies. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the subspecies (i.e., areas on 

which are found the primary constituent 

elements, as defined at 50 CFR 

424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management 

considerations or protection. Thus, we 

do not include areas where existing 

management is sufficient to conserve 

the subspecies. (As discussed below, 

such areas may also be excluded from 

critical habitat pursuant to section 

4(b)(2).) Accordingly, when the best 

available scientific data do not 

demonstrate that the conservation needs 

of the subspecies require additional 

areas, we will not designate critical 

habitat in areas outside the geographical 

area occupied by the subspecies at the 

time of listing. An area currently 

occupied by the subspecies but was not 

known to be occupied at the time of 

listing will likely, but not always, be 

essential to the conservation of the 

subspecies and, therefore, typically 

included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service 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 determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include 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, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

subspecies. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66025 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. 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, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat, we consider 

those physical and biological features 

(PCEs) that are essential to the 

conservation of the subspecies, and 

within areas occupied by the subspecies 

at the time of listing, that may require 

special management considerations and 

protection. These 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, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The area designated as critical habitat 

provides boreal forest habitat for 

breeding, non-breeding, and dispersing 

lynx in metapopulations across the 

species’ range in the contiguous United 

States. No areas are being designated 

solely because they provide habitat for 

dispersing animals. At this time, the 

biological or physical features of 

habitats lynx choose for dispersal are 

not well-understood; while it is 

assumed lynx would prefer to travel 

where there is forested cover, the 

literature contains many examples of 

lynx crossing large, unforested openings 

(e.g., Roe et al. 2000, p. 30–33). The 

areas being designated as critical habitat 

serve a variety of functions that include 

acting as a source of dispersing animals 

and providing habitat that may serve as 

travel corridors to facilitate dispersal 

and exploratory movements. The 

features or habitat components essential 

for the conservation of the species were 

determined from studies of lynx and 

snowshoe hare ecology. 

The specific biological and physical 

features, otherwise known as the 

primary constituent elements, essential 

to the conservation of the lynx are: 

(1) Boreal forest landscapes 

supporting a mosaic of differing 

successional forest stages and 

containing: 

(a) Presence of snowshoe hares and 

their preferred habitat conditions, 

which include dense understories of 

young trees, shrubs or overhanging 

boughs that protrude above the snow; 

and 

(b) Winter snow conditions that are 

generally deep and fluffy for extended 

periods of time; and 

(c) Sites for denning that have 

abundant coarse woody debris, such as 

downed trees and root wads. 

A description of the primary 

constituent elements is provided below. 

Boreal Forest Landscapes (Space for 

Individual and Population Growth and 

Normal Behavior) 

Lynx populations respond to biotic 

and abiotic factors at different scales. At 

the regional scale, snow conditions, 

boreal forest and competitors (especially 

bobcat) influence the species’ range 

(Aubry et al. 2000, p. 378–380; 

McKelvey et al., 2000b p. 242–253; 

Hoving et al., 2005 p. 749). At the 

landscape scale within each region, 

natural and human-caused disturbance 

processes (e.g., fire, wind, insect 

infestations and forest management) 

influence the spatial and temporal 

distribution of lynx populations by 

affecting the distribution of good habitat 

for snowshoe hares (Agee 2000, pp. 47–

73; Ruediger et al. 2000, pp. 1–3, 2–2—

2–6, 7–3). At the stand-level scale, 

quality, quantity, and juxtaposition of 

habitats influence home range size, 

productivity, and survival (Aubry et al 

2000, pp. 380–390; Vashon et al. 2005a, 

pp. 9–11). At the substand scale, spatial 

distribution and abundance of prey and 

microclimate influence movements, 

hunting behavior, den, and resting site 

locations. 

All of the constituent elements of 

critical habitat for lynx are found within 

large landscapes in what is broadly 

described as the boreal forest or cold 

temperate forest (Frelich and Reich 

1995, p. 325, Agee 2000, pp. 43–46). In 

the contiguous United States, the boreal 

forest is more transitional rather than 

true boreal forest of northern Canada 

and Alaska (Agee 2000, pp. 43–46). This 

difference is because the boreal forest is 

at its southern limits in the contiguous 

United States, where it transitions to 

deciduous temperate forest in the 

Northeast and Great Lakes and 

subalpine forest in the west (Agee 2000, 

pp. 43–46). We use the term ‘‘boreal 

forest’’ because it generally 

encompasses most of the vegetative 

descriptions of the transitional forest 

types that comprise lynx habitat in the 

contiguous United States (Agee 2000, 

pp. 40–41). 

At a regional scale, lynx habitat is 

within the areas that support deep snow 

for extended periods and that support 

boreal forest vegetation types (see below 

for more detail). In eastern North 

America, lynx distribution was strongly 

associated with areas of deep snowfall 

and 100 km2 (40 mi2)) landscapes with 

a high proportion of regenerating forest 

(Hoving 2001, pp. 75,143). Hoving et al. 

(2004, p. 291) concluded that the broad 

geographic distribution of lynx in 

eastern North America is most 

influenced by snowfall, but within areas 

of similarly deep snowfall, measures of 

forest succession become more 

important factors in determining lynx 

distribution. 

Boreal forests used by lynx are 

generally cool, moist and dominated by 

conifer tree species, primarily spruce 

and fir (Agee 2000, pp. 40–46; Aubry et 

al. 2000, pp. 378–382; Ruediger et al. 

2000, pp. 4–3, 4–8—4–11, 4–25—4–26, 

4–29—4–30). Boreal forest landscapes 

used by lynx are a heterogeneous 

mosaic of vegetative cover types and 

successional forest stages created by 

natural and human-caused disturbances 

(McKelvey et al. 2000a, pp. 426–434). 

Periodic vegetation disturbances 

stimulate development of dense 

understory or early successional habitat 

for snowshoe hares (Ruediger et al. 

2000, pp. 1–3—1–4, 7–4—7–5). In 

Maine, lynx were positively associated 

with landscapes altered by clearcutting 

15 to 25 years previously (Hoving et al. 

2004, p. 291). 

The overall quality of the boreal forest 

landscape matrix and juxtaposition of 

stands in suitable condition within the 

landscape is important for both lynx 

and snowshoe hares in that it can 

influence connectivity or movements 

between suitable stands, availability of 

food and cover and spatial structuring of 

populations or subpopulations (Hodges 

2000b, pp. 184–195; McKelvey et al. 

2000a, pp. 431–432; Walker 2005, pp. 

79). For example, lynx foraging habitat 

must be near denning habitat to allow 

females to adequately provision 

dependent kittens, especially when the 

kittens are relatively immobile. In northcentral Washington, hare densities were 

higher in landscapes with an abundance 

of dense boreal forest interspersed with 


jlentini on PROD1PC65 with RULES3
66026 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

small patches of open habitat, in 

contrast to landscapes composed 

primarily of open forest interspersed 

with few dense vegetation patches 

(Walker 2005, p. 79). Similarly, in 

northwest Montana, connectivity of 

dense patches within the forest matrix 

benefited snowshoe hares (Ausband and 

Baty 2005, p. 209). In mountainous 

areas, lynx appear to prefer flatter slopes 

(Apps 2000, p. 361; McKelvey et al. 

2000d, p. 333; von Kienast 2003, p. 21, 

Table 2; Maletzke 2004, pp. 17–18). 

Individual lynx require large portions 

of boreal forest landscapes to support 

their home ranges and to facilitate 

dispersal and exploratory travel. The 

size of lynx home ranges is believed to 

be strongly influenced by the quality of 

the habitat, particularly the abundance 

of snowshoe hares, in addition to other 

factors such as gender, age, season, and 

density of the lynx population (Aubry et 

al. 2000, pp. 382–385; Mowat et al. 

2000, pp. 276–280). Generally, females 

with kittens have the smallest home 

ranges while males have the largest 

home ranges (Moen et al. 2005, p. 11). 

Reported home range sizes vary greatly 

from 31 km2 (12 mi2) for females and 68 

km2 (26 mi2) for males in Maine 

(Vashon et al. 2005a, p. 7), 21 km2 (8 

mi2) for females to 307 km2 (119 mi2) for 

males in Minnesota (Moen et al. 2005, 

p. 12), and 88 km2 (34 mi2) for females 

and 216 km2 (83 mi2) for males in 

northwest Montana (Squires et al. 

2004b, pp. 15–16). 

Forest Type Associations 

Maine 

Lynx were more likely to occur in 100 

km2 (40 mi2) landscapes with 

regenerating forest, and less likely to 

occur in landscapes with recent clearcut 

or partial harvest, (Hoving et al. 2004, 

pp. 291–292). Lynx in Maine select 

softwood-dominated (spruce and fir) 

regenerating stands (Vashon et al. 

2005a, p. 8). Regenerating stands used 

by lynx generally develop 15–30 years 

after forest disturbance and are 

characterized by dense horizontal 

structure and high stem density within 

a meter of the ground. These habitats 

support high snowshoe hare densities 

(Homyack 2003, p. 63; Fuller and 

Harrison 2005, pp. 716,719; Vashon et 

al. 2005a, pp. 10–11). At the stand scale, 

lynx in northwestern Maine selected 

older (11 to 26 year-old), tall (4.6 to 7.3 

m (15 to 24 ft)) regenerating clearcut 

stands and older (11 to 21 year-old) 

partially harvested stands (A. Fuller, 

University of Maine, unpubl. data). 

Minnesota 

In Minnesota, lynx primarily occur in 

the Northern Superior Uplands 

Ecological Section of the Laurentian 

Mixed Forest Province. Historically, this 

area was dominated by red pine (Pinus 

resinosa) and white pine (P. strobus) 

mixed with aspen (Populus spp.), paper 

birch (Betula papyrifera), spruce, 

balsam fir (A. balsamifera) and jack pine 

(P. banksiana) (Minnesota Department 

of Natural Resources [Minnesota DNR] 

2003, p. 2). 

Preliminary research suggests lynx in 

Minnesota generally use younger stands 

(less than 50 years) with a conifer 

component in greater proportion than 

their availability (R. Moen, University of 

Minnesota, unpubl. data). Lynx prefer 

predominantly upland forests 

dominated by red pine, white pine, jack 

pine, black spruce (P. mariana), paper 

birch, quaking aspen (P. tremuloides), or 

balsam fir (R. Moen, unpubl. data). 

Washington 

In the North Cascades in Washington, 

the majority of lynx occurrences were 

found above 1,250 m (4,101 ft) 

(McKelvey et al. 2000b, p. 243, 2000d, 

p. 321; von Kienast 2003, p. 28, Table 

2; Maletzke 2004, p. 17). In this area, 

lynx selected Engelman spruce (P. 

engelmanii)-subalpine fir (A. lasiocarpa) 

forest cover types in winter (von Kienast 

2003, p. 28, Maletzke 2004, pp. 16–17). 

Lodgepole pine (P. contorta) is a 

dominant tree species in the earlier 

successional stages of these climax 

cover types. Seral lodgepole stands 

contained dense understories and 

therefore received high use by snowshoe 

hares and lynx (Koehler 1990, pp. 847–

848; McKelvey et al. 2000d, pp. 332–

335). 

Northern Rockies 

In the Northern Rocky Mountains, the 

majority of lynx occurrences are 

associated with the Rocky Mountain 

Conifer Forest or Western Spruce-Fir 

Forest vegetative class (Kuchler 1964, p. 

4; McKelvey et al. 2000b, p. 246) and 

occur above 1,250 m (4,101 ft) elevation 

(Aubry et al. 2000, pp. 378–380; 

McKelvey et al. 2000b, pp. 243–245). 

The dominant vegetation that 

constitutes lynx habitat in these areas is 

subalpine fir, Engelman spruce and 

lodgepole pine (Aubry et al. 2000, p. 

379; Ruediger et al. 2000, pp. 4–8—4–

10). As in the Cascades, lodgepole pine 

is an earlier successional stage of 

subalpine fir and Engelman spruce 

climax forest cover types. 

a. Snowshoe Hares (Food) 

Snowshoe hare density is the most 

important factor explaining the 

persistence of lynx populations (Steury 

and Murray 2004, p. 136). A minimum 

snowshoe hare density necessary to 

maintain a persistent, reproducing lynx 

population within the contiguous 

United States has not been determined, 

although Ruggiero et al. (2000, pp. 446–

447) suggested that at least 0.5 hares per 

hectare (ha) (0.2 hares per acre (ac)) may 

be necessary. Steury and Murray (2004, 

p. 137)) modeled lynx and snowshoe 

hare populations and predicted that a 

minimum of 1.1 to 1.8 hares per ha (0.4 

to 0.7 hares per ac) was required for 

persistence of a reintroduced lynx 

population in the southern portion of 

the lynx range. 

The boreal forest landscape must 

contain a mosaic of forest stand 

successional stages to sustain lynx 

populations over the long term as the 

condition of individual stands changes 

over time. If the vegetation potential (or 

climax forest type) of a particular forest 

stand is conducive to supporting 

abundant snowshoe hares, it likely will 

also go through successional phases that 

are unsuitable as lynx foraging 

(snowshoe hare habitat) or lynx denning 

habitat (Agee 2000, p. 62–72; Buskirk et 

al. 2000b, pp. 403–408). For example, a 

boreal forest stand where there has been 

recent disturbance, such as fire or 

timber harvest, resulting in little or no 

understory structure is unsuitable as 

snowhoe hare habitat for lynx foraging. 

That temporarily unsuitable stand may 

regenerate into suitable snowshoe hare 

(lynx foraging) habitat within 10 to 25 

years, depending on local conditions 

(Ruediger et al. 2000, pp. 1–3—1–4, 2–

2—2–5). Forest management techniques 

that thin the understory, however, may 

render the habitat unsuitable for hares 

and, thus, for lynx (Ruediger et al. 2000, 

pp. 2–4—3–2; Hoving et al. 2004, pp. 

291–292). Stands may continue to 

provide suitable snowshoe hare habitat 

for many years until woody stems in the 

understory become too sparse, as a 

result of undisturbed forest succession 

or management (e.g., clearcutting or 

thinning). Thus, if the vegetation 

potential of the stand is appropriate, a 

stand that is not currently in a condition 

that is suitable to support abundant 

snowshoe hares for lynx foraging or 

coarse woody debris for den sites has 

the capability to develop into suitable 

habitat for lynx and snowshoe hares 

with time. 

As described previously, snowshoe 

hares prefer boreal forest stands that 

have a dense horizontal understory to 

provide food, cover and security from 

predators. Snowshoe hares feed on 

conifers, deciduous trees and shrubs 

(Hodges 2000b, pp. 181–183). Snowshoe 

hare density is correlated to understory 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66027 

cover between approximately 1 to 3 m 

(3 to 10 ft) above the ground or snow 

level (Hodges 2000b, p. 184). Habitats 

most heavily used by snowshoe hares 

are stands with shrubs, stands that are 

densely stocked, and stands at ages 

where branches have more lateral cover 

(Hodges 2000b, p. 184). In Maine, the 

snowshoe hare densities were highest in 

stands supporting high conifer stem 

densities (Homyack 2003, p. 195, 

Robinson 2006, p. 69). In northcentral 

Washington, snowshoe hare density was 

highest in 20-year-old lodgepole pine 

stands where the average density of 

trees and shrubs was 15,840 stems per 

ha (6,415 stems per ac) (Koehler 1990, 

p. 848). Generally, earlier successional 

forest stages support a greater density of 

horizontal understory and more 

abundant snowshoe hares (Buehler and 

Keith 1982, p. 24; Wolfe et al. 1982, p. 

668–669; Koehler 1990, pp. 847–848; 

Hodges 2000b, pp. 184–191; Griffin 

2004, pp. 84–88); however, sometimes 

mature stands also can have adequate 

dense understory to support abundant 

snowshoe hares (Griffin 2004, p. 88). In 

Montana, lynx favor multistory stands, 

often in older-age classes, where the tree 

boughs touch the snow surface but 

where the stem density is low (Squires 

2006, p. 4). 

In Maine, the highest snowshoe hare 

densities were found in regenerating 

softwood (spruce and fir) and 

mixedwood stands with high conifer 

stem densities (Fuller and Harrison 

2005, pp. 716,719, Robinson 2006, p. 

69). In the north Cascades, the highest 

snowshoe hare densities were found in 

20-year-old seral lodgepole pine stands 

with a dense understory (Koehler 1990, 

p. 847–848). In montane and subalpine 

forests in northwest Montana, the 

highest snowshoe hare densities in 

summer were generally in younger 

stands with dense forest structure, 

whereas in winter, snowshoe hare 

densities were as high or higher in 

mature stands with dense understory 

forest structure (Griffin 2004, p. 53). 

Snowshoe hare studies are just 

underway in Minnesota (Moen et al. 

2005, p. 18); therefore, results on habitat 

relationships are still preliminary. 

Habitats supporting abundant 

snowshoe hares must be present in a 

large proportion of the landscape to 

support a viable lynx population. Broadscale snowshoe hare density estimates 

are not available for the areas being 

designated as lynx critical habitat; 

available snowshoe hare density 

estimates are only applicable for the 

immediate area and time frame for 

which the study was conducted and 

cannot be extrapolated further. 

b. Snow Conditions (Other 

Physiological Requirements) 

Snow conditions also determine the 

distribution of lynx and snowshoe 

hares. Deep, fluffy snow conditions 

likely restrict potential competitors such 

as bobcat or coyote from effectively 

encroaching on or hunting in winter 

lynx habitat. Snowfall was the strongest 

predictor of lynx occurrence at a 

regional scale (Hoving et al. 2005, p. 

746, Table 5). In addition to snow 

depth, other snow properties, including 

surface hardness or sinking depth, are 

important factors in the spatial, 

ecological, and genetic structuring of the 

species (Stenseth et al. 2004, p. 75). 

In the northeastern United States, 

lynx are most likely to occur in areas 

with a 10-year mean annual snowfall 

greater than 268 cm (105 in) (Hoving 

2001, p. 75). The Northern Superior 

Uplands section of Minnesota receives 

more of its precipitation as snow than 

any section in the State, has the longest 

period of snow cover, and the shortest 

growing season (Minnesota DNR 2003, 

p. 2). Mean annual snowfall from 1971 

to 2000 in this area was generally 

greater than 149 cm (55 in) (University 

of Minnesota 2005 Web page). 

Information on average snowfall or 

snow depths in mountainous areas such 

as the Cascades or northwest Montana is 

limited because there are few weather 

stations in these regions that have 

measured snow fall or snow depth over 

time. An important consideration is that 

the topography strongly influences local 

snow conditions. In the Cascades, at the 

Mazama station, average annual 

snowfall from 1948 to 1976 was 292 cm 

(115 in) (Western Regional Climate 

Center 2005 Web page). In Montana, at 

the Seeley Lake Ranger Station, average 

annual snowfall from 1948 to 2005 was 

315 cm (124 in), while at the Troy 

station the average total snowfall from 

1961 to 1994 was 229 cm (90 in) 

(Western Regional Climate Center 2005 

Web page). 

c. Denning Habitat (Sites for 

Reproduction and Rearing of Offspring) 

Lynx den sites are found in mature 

and younger boreal forest stands that 

have a large amount of cover and 

downed, large woody debris. The 

structural components of lynx den sites 

are common features in managed 

(logged) and unmanaged (e.g., insect 

damaged, wind-throw) stands. Downed 

trees provide excellent cover for den 

sites and kittens and often are 

associated with dense woody stem 

growth. 

Sub-stand characteristics were 

evaluated for 26 lynx dens from 1999 to 

2004 in northwest Maine. Dens were 

found in several stand types. Modeling 

of den site variables determined that tipup mounds (exposed roots from fallen 

trees) alone best explained den site 

selection (J. Organ, Service, unpubl. 

data). Tip-up mounds may purely be an 

index of downed trees, which were 

abundant on the landscape. Horizontal 

cover at 5 m (16 ft) alone was the next 

best performing model (J. Organ, 

unpubl. data). Dead downed trees were 

sampled, but did not explain den site 

selection as well as tip-up mounds and 

cover at 5 m (16 ft). Lynx essentially 

select dense cover in a cover-rich area 

for denning. 

In the North Cascades, Washington, 

lynx denned in mature (older than 250 

years) stands with an overstory of 

Engelman spruce, subalpine fir and 

lodgepole pine with an abundance of 

downed woody debris (Koehler 1990, p. 

847). In this study, all den sites were 

located on north-northeast aspects 

(Koehler 1990, p. 847). In northwest 

Montana, the immediate areas around 

dens were in a variety of stand ages but 

all contained abundant woody debris 

including downed logs, blowdowns, 

and rootwads, and dense understory 

cover (Squires et al. 2004b, Table 3). 

Information on den site characteristics 

in Minnesota has not yet been reported 

(Moen et al. 2005, p. 8). 

This critical habitat designation is 

designed for the conservation of the PCE 

essential to the conservation of the lynx 

and necessary to support lynx life 

history functions. The PCE comprises 

the essential features of boreal forest 

that (1) provide adequate prey resources 

necessary for the persistence of local 

populations and metapopulations of 

lynx through reproduction; (2) act as a 

possible source of lynx for more 

peripheral boreal forested areas; (3) 

enable the maintenance of home ranges; 

(4) incorporate snow conditions for 

which lynx are highly specialized that 

give lynx a competitive advantage over 

potential competitors; (5) provide 

denning habitat; and (6) provide habitat 

connectivity for travel within home 

ranges, exploratory movements, and 

dispersal. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available in determining critical habitat. 

We have reviewed the approach to the 

conservation of the lynx provided in a 

recovery outline (Service 2005, entire); 

information from State, Federal and 

tribal agencies; and information from 

academia and private organizations that 

have collected scientific data on lynx. 


jlentini on PROD1PC65 with RULES3
66028 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

The focus of our strategy in 

considering lands for designation as 

critical habitat was on boreal forest 

landscapes of sufficient size to 

encompass the temporal and spatial 

changes in habitat and snowshoe hare 

populations to support interbreeding 

lynx populations or metapopulations 

over time. Individual lynx maintain 

large home ranges; the areas identified 

to have features essential to the 

conservation of the lynx are large 

enough to encompass multiple home 

ranges. A secondary consideration is 

that, in addition to supporting breeding 

populations, these areas provide 

connectivity among patches of suitable 

habitat (e.g., patches containing 

abundant snowshoe hares), whose 

locations in the landscape shift through 

time. 

We reviewed available information 

that pertains to the habitat requirements 

of this species and its principal prey, 

the snowshoe hare. This information 

included data in reports submitted by 

researchers holding recovery permits 

under section 10(a)(1)(A) of the Act; 

research published in peer-reviewed 

articles, presented in academic theses, 

agency reports and unpublished data; 

and various Geographic Information 

System (GIS) coverages (e.g., land cover 

type information, land ownership 

information, snow depth information, 

topographic information, locations of 

lynx obtained from radio- or GPS-collars 

and locations of lynx confirmed via 

DNA analysis or other verified records). 

In designating critical habitat for the 

lynx we used the best scientific data 

available to evaluate areas that possess 

those physical and biological features 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection. In evaluating areas as critical 

habitat, we first determined the 

geographic area occupied by the species. 

We utilized data providing verified 

evidence of the occurrence of lynx and 

evidence of the presence of breeding 

lynx populations as represented by 

records of lynx reproduction. We 

focused on records since 1995 to ensure 

that this critical habitat designation is 

based on the data that most closely 

represents the current status of lynx in 

the contiguous United States and the 

geographic area occupied by the species. 

Data that define the historic and current 

range of the lynx (e.g., McKelvey et al. 

2000b, pp. 207–232; Hoving et al. 2003, 

entire) constitute the geographic area 

that may be occupied by the species; 

therefore, we determined that areas 

outside the historic distribution are not 

essential to the conservation of the 

species. Although the average life span 

of a wild lynx is not known, we have 

assumed that a lynx born in 1995 could 

have been alive in 2000 or 2003, the 

dates of publication of the final listing 

rule and the clarification of findings. 

Recent verified lynx occurrence records 

were provided by Federal research 

entities, state wildlife agencies, 

academic researchers, and private 

individuals or organizations working on 

lynx (K. Aubry, Pacific Northwest 

Research Station, unpubl. data; S. 

Gehman, Wildthings Unlimited, unpubl. 

data; S. Gniadek, Glacier National Park, 

unpubl. data; S. Loch, Independent 

Scientist, and E. Lindquist, Superior 

National Forest, unpubl. data; K. 

McKelvey, Rocky Mountain Research 

Station; unpubl. data; Minnesota DNR 

2005 Web site; R. Moen, University of 

Minnesota, Natural Resources Research 

Institute, unpubl. data.; J. Squires, 

Rocky Mountain Research Station, 

unpubl. data; J. Vashon, Maine 

Department of Inland Fisheries and 

Wildlife, unpubl. data). 

By accepting only verified recent lynx 

records, we restricted the available lynx 

occurrence dataset because we wanted 

reliable data for the purposes of 

evaluating areas and features for critical 

habitat designation. The reliability of 

lynx occurrence reports can be 

questionable because the bobcat, a 

common species, can be confused with 

the lynx, which is similar in 

appearance. Additionally, many surveys 

are conducted by snow tracking in 

which correct identification of tracks 

can be difficult because of variable 

conditions affecting the quality of the 

track and variable expertise of the 

tracker. Our definition of a verified lynx 

record is modified from McKelvey et al. 

(2000b, p. 209)—(1) an animal (live or 

dead) in hand or observed closely by a 

person knowledgeable in lynx 

identification, (2) genetic (DNA) 

confirmation, (3) snow tracks only when 

confirmed by genetic analysis (e.g., 

McKelvey et al. 2006, entire) or (4) 

location data from radio- or GPScollared lynx. Documentation of lynx 

reproduction consists of lynx kittens in 

hand, or observed with the mother by 

someone knowledgeable in lynx 

identification, or snow tracks 

demonstrating family groups traveling 

together, as identified by a person 

highly knowledgeable in identification 

of carnivore tracks. However, we made 

an exception and accepted snow track 

data from Maine because of the stringent 

protocols used in confirming tracks as 

lynx and the minimal number of species 

in the area with which lynx tracks could 

be misidentified (McCollough 2006, 

entire). 

The geographical area occupied by the 

species was then delineated to 

encompass areas containing features 

essential to the conservation of the lynx, 

the majority of recent lynx records, 

evidence of breeding lynx populations, 

the boreal forest type that is currently 

occupied by lynx in that particular 

region and direct connectivity with lynx 

populations in Canada. Lynx 

populations in the contiguous United 

States seem to be influenced by lynx 

population dynamics in Canada (Thiel 

1987; McKelvey et al. 2000a, p. 427, 

2000c, p. 33). Many of these populations 

in Canada are directly interconnected 

with United States’ populations, and are 

likely a source of emigration into the 

contiguous United States, lynx from the 

contiguous United States are known to 

move into Canada. Therefore, we 

assume that retaining connectivity with 

larger lynx populations in Canada is 

important to ensuring long-term 

persistence of lynx populations in the 

United States. We assume that, 

regionally, lynx within the contiguous 

United States and adjacent Canadian 

provinces interact as metapopulations. 

Where available, data on historic 

average snow depths and bobcat harvest 

provided additional insight for refining 

and delineating appropriate boundaries 

for consideration as critical habitat. 

In the North Cascades and Northern 

Rockies, the features essential to the 

conservation of lynx, the majority of 

lynx records, evidence of reproduction, 

and the boreal forest types are found 

above 4,000 feet (ft) (1,219 meters [m]) 

in elevation (McKelvey et al. 2000b, 

pp. 243–245; McAllister et al. 2000, 

entire). Thus, we limited the delineation 

of critical habitat to lands above this 

elevation. Additionally, in the North 

Cascades, features essential to the 

conservation of the lynx and the 

majority of the lynx records and 

evidence of reproduction occur east of 

the crest of the Cascade Mountains. 

Once we determined which lands 

contained the physical and biological 

features essential to the conservation of 

lynx, we did not include lands that did 

not require additional special 

management according for the 

definition of critical habitat, and lands 

where the benefits of exclusion 

outweighed the benefits of inclusion. 

Finally, we excluded Tribal lands in 

accordance with Secretarial Order 3206, 

et al. 

Lands that we did not include 

because they did not require special 

management included lands with 

management plans to conserve lynx, 

such as the Superior National Forest; 

Garnet Resource Area, Bureau of Land 

Management; Flathead Indian 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66029 

Reservation, and the Spokane District, 

Bureau of Land Management. We also 

did not include USFS Lands Covered by 

a Conservation Agreement for Lynx, 

which includes portions of the Flathead 

National Forest, Helena National Forest, 

Idaho Panhandle National Forests, 

Kootenai National Forest, Lewis and 

Clark National Forest, Lolo National 

Forest and the Okanogan-Wenatchee 

National Forest. Please refer to 

Application of Section 3(5)(A) of the 

Endangered Species Act discussion 

below. 

We determined that the benefits of 

exclusion outweighed the benefits of 

inclusion for the Montana Department 

of Natural Resources and Conservation 

Forested State Trust lands that are 

covered by a pending Habitat 

Conservation Plan for lynx and other 

species, Washington Department of 

Natural Resource (WDNR) lands 

managed under Lynx Habitat 

Management Plan, lands managed for 

commercial forestry, small landowners, 

and other lands not managed for 

commercial forestry but that benefit 

from conservation measures taken by 

adjacent or nearby landowners (which 

includes inholdings within National 

Parks and National Forests). These 

exclusions are described in more detail 

in section 4(b)(2) below. 

We excluded Tribal lands in 

accordance with Secretarial Order 3206, 

‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ and 

other orders and directives. These 

include Houlton Band of Maliseet 

Indians, Aroostook Band of Micmac 

Indians, Passamaquoddy Tribe, 

Penobscot Indian Nation, Grand Portage 

Indian Reservation, Vermillion Lake 

Indian Reservation. 

Based on comments received, the 

availability of better maps and 

inspection of aerial photos, we removed 

sections of lands that were not forested. 

We then removed a 1 mile strip along 

the entire Lake Superior shoreline in 

Minnesota and the area within a 10-mile 

radius of Duluth, MN, because this is 

where existing development is 

concentrated (Industrial Economics, 

Incorporated 2006, pp. 4–12), limiting 

the potential of any lynx habitat 

intermingling in these areas. 

As a result of stepping through this 

process, we are not designating any 

critical habitat in Maine, and only 

National Park Service lands in 

Minnesota (Voyageurs National Park), 

Montana (Glacier National Park), and 

Washington (North Cascades National 

Park including Lake Chelan National 

Recreation Area). 

Given the scale of the critical habitat 

units, it was not feasible to completely 

avoid encompassing waterbodies, 

including lakes, reservoirs and rivers, 

grasslands, or human-made structures 

such as buildings, paved and gravel 

roadbeds, parking lots, and other 

structures that lack the PCEs for the 

lynx. Any such developed areas and the 

land on which such structures are 

located inside critical habitat 

boundaries, are excluded by text and are 

not designated critical habitat. 

Therefore, Federal actions limited to 

these areas would not trigger section 7 

consultation, unless they affect the 

species and/or primary constituent 

element in adjacent critical habitat. 

When considering what areas to 

include as critical habitat, we focused 

closely on areas with reliable evidence 

of lynx occurrence and reproduction 

since 1995. For example, because there 

is no verified evidence of lynx 

occupation or reproduction in New 

Hampshire or western Maine since 

1995, we did not consider these areas to 

be essential to the conservation of the 

lynx. In addition, while evaluating 

information for the critical habitat 

proposal, we received bobcat harvest 

data for Minnesota showing abundant 

bobcat harvest and reduced lynx 

presence in the area west of the critical 

habitat unit in Minnesota, which 

suggests the western portion of the area 

preliminarily delineated as core in 

Minnesota may not be of high quality 

for lynx. 

We determined that the Kettle Range 

in northcentral Washington and the 

Greater Yellowstone Ecosystem did not 

contain the features essential to the 

conservation of the listed entity and 

thus did not include them in either our 

proposed or final critical habitat rules. 

The Kettle Range historically supported 

lynx populations (Stinson 2001, pp.13–

14). However, although boreal forest 

habitat within the Kettle Range appears 

of high quality for lynx, there is no 

evidence that the Kettle Range is 

currently occupied by a lynx population 

(Koehler 2005 entire). In particular, we 

have no information to suggest a lynx 

population has occupied the Kettle area 

since 1995 so it did not meet our criteria 

for consideration as critical habitat. 

Therefore, we did not propose the Kettle 

Range as critical habitat. 

Although lynx currently occupy the 

Greater Yellowstone Ecosystem 

(Murphy et al. 2004, entire; J. Squires, 

Rocky Mountain Research Station, 

unpubl. data; S. Gehman, Wildthings 

Unlimited, unpubl. data), their presence 

has been at a lower level compared to 

areas we considered as critical habitat. 

In the clarification of findings published 

in the Federal Register on July 3, 2003 

(68 FR 40076), we concluded this was 

because habitat in this area is less 

capable of supporting snowshoe hares 

because it is naturally marginal (more 

patchy and drier forest types) and 

because the Greater Yellowstone 

Ecosystem is disjunct from likely source 

populations. Within Yellowstone 

National Park, few lynx were detected 

during recent surveys (Murphy et al. 

2004, pp.8–9) and snowshoe hare 

densities were very low (Hodges and 

Mills 2005, pp. 5–6). Murphy et al. 

(2004, pp. 9–10) concluded that 

elevations and slope aspects cause lynx 

habitat in this area to be naturally 

highly fragmented, resulting in low lynx 

densities. Few lynx were documented in 

the Wyoming Mountain Range in the 

southern portion of the ecosystem 

(Squires and Laurion 2000, pp. 343–345; 

Squires et al. 2001, pp. 9–10). On study 

sites on the western edge of the Greater 

Yellowstone Ecosystem in Idaho, the 

subalpine fir vegetation series that 

comprises lynx and snowshoe hare 

habitat was found only in small, 

discontinuous patches (McDaniel and 

McKelvey 2004, pp. 15–18). In this 

study area, few stands supported 

snowshoe hare densities similar to areas 

known to support lynx (McKelvey and 

McDaniel 2001, pp. 11–18). Therefore, 

because the habitat is of lower quality 

as indicated by the low numbers of lynx 

and snowshoe hares, we did not 

consider the habitat within the Greater 

Yellowstone Ecosystem to have the 

features that are essential for the 

conservation of lynx. 

Native lynx were functionally 

extirpated from their historic range in 

Colorado and southern Wyoming in the 

Southern Rocky Mountains by the time 

the lynx was listed in 2000. In 1999, the 

State of Colorado began an intensive 

effort to reintroduce lynx. Although it is 

too early to determine whether the 

introduction will result in a selfsustaining population, the reintroduced 

lynx have produced kittens and now are 

distributed throughout the lynx habitat 

in Colorado and southern Wyoming. 

These animals are not designated as 

experimental under section 10(j) of the 

Act. Although Colorado’s reintroduction 

effort is an important step toward the 

recovery of lynx, we determined that the 

Southern Rockies does not have features 

that are essential to the conservation of 

lynx and require special management. 

Many areas within the contiguous 

United States have one or more 

individual lynx records with no 

evidence of persistent, reproducing lynx 

populations. It is possible some of these 

areas may support undocumented 

persistent populations of lynx. 


jlentini on PROD1PC65 with RULES3
66030 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

However, most of these records are 

likely a result of wide-ranging dispersal 

events, occur in habitat that is less 

suitable for lynx than in the core areas, 

and are mostly disjunct from areas that 

contain persistent lynx populations. We 

consider these areas as secondary or 

peripheral and their role in sustaining 

persistent lynx populations is unclear; 

such areas may provide habitat to 

dispersing lynx, especially when 

populations are extremely high and 

some of these animals may eventually 

settle in areas capable of supporting 

lynx populations. We do not believe 

these areas require special management 

for lynx. 

Secondary and peripheral areas 

contain only periodic records of lynx 

over time, and they lack evidence of 

reproducing lynx populations. Habitat 

suitability for lynx has not been 

assessed throughout the secondary and 

peripheral areas, so we are not certain 

whether the PCEs are present. However, 

the relative lack of lynx records over 

time, and, in particular the lack of 

evidence of reproducing populations, 

may suggest that habitat (snowshoe hare 

densities, in particular) has not been 

adequate historically, nor is it currently 

adequate, to support reproducing lynx 

populations. Additionally, some of the 

peripheral areas are naturally disjunct 

and support few historical records of 

lynx. 

Special Management Considerations or 

Protections 

We believe the areas designated as 

critical habitat in this final rule will 

require some level of management and/ 

or protection to ensure the conservation 

of the lynx; the General Management 

Plans for the National Parks designated 

lack direction specific to conserve lynx. 

The areas we designated are 

components of the areas containing the 

features essential to the conservation of 

lynx, which provide connectivity to the 

larger lynx populations in Canada. This 

connectivity is important to maintain, as 

the conservation of lynx in the United 

States may not be possible without it. 

The designation of critical habitat does 

not imply that lands outside of critical 

habitat do not play an important role in 

the conservation of the lynx. Federal 

activities outside of critical habitat are 

still subject to review under section 7 of 

the Act if they may affect the lynx or its 

critical habitat (such as activities on 

Federal lands, Clean Water Act permits, 

etc.). Prohibitions of section 9 of the Act 

also continue to apply both inside and 

outside of designated critical habitat. A 

detailed discussion of threats to the lynx 

and its habitat can be found in the final 

listing rule (65 FR 16052, March 24, 

2000) and the clarification of findings 

(68 FR 40076, July 3, 2003). 

Critical Habitat Designation 

We are designating three units as 

critical habitat for the lynx (Table 1). 

The critical habitat areas described 

below constitute our best assessment at 

this time of areas: (1) Determined to be 

occupied at the time of listing, (2) 

contain the primary constituent 

elements essential for the conservation 

of the species, and (3) possibly requiring 

special management. The three areas 

designated as critical habitat are 

Voyageurs National Park in Minnesota, 

portions of Glacier National Park in 

Montana, and portions of North 

Cascades National Park in Washington. 

To further understand the location of 

these designated areas, please see the 

associated maps found within this final 

rule (also available at our Web site: 

http://mountain-prairie.fws.gov/species/ 

mammals/lynx/). 

Table 1. Critical Habitat Units 

designated for the lynx. Area Proposed 

for Designation includes the area 

meeting the definition of critical habitat 

for the lynx (see the November 9, 2005 

(70 FR 68294) proposed rule for a 

detailed description). Excluded Area 

includes the area excluded from the 

final critical habitat designation. Area 

Designated includes the final designated 

area. 

Critical habitat units 

Area proposed for 

designation km2

(mi2) 

Excluded area 

km2 (mi2) Land ownership Area designated km2 (mi2) 

Unit 1: Maine .......................................... 27,530 (10,633) 27,530 (10,633) None designated ................................... 0 

Unit 2: Minnesota ................................... 9,183 (3,546) 8363 (3,229) Voyageurs National Park ...................... 822 (317) 

Unit 3: Northern Rocky Mountains (MT 

and ID).

9,192 (3,549) 5,594 (2,160) Glacier National Park ............................ 3598 (1,389) 

Unit 4: North Cascades ......................... 785 (303) 435 (168) North Cascades National Park ............. 348 (135) 

Total ................................................ .............................. .............................. ................................................................ 4,768 (1,841) 

Below we provide a description of 

those lands being designated as critical 

habitat for the Canada lynx in this final 

rule. Please refer to the November 9, 

2005 (70 FR 68294) proposed rule for a 

detailed description of the lands 

proposed. 

Unit 1: Maine 

All lands essential to the conservation 

of the Canada lynx that meet the 

definition of critical habitat have been 

excluded from this unit pursuant to 

section 4(b)(2) of the Act. Please refer to 

the Application of Section 3(5)(A) of the 

Endangered Species Act Exclusions 

Under Section 4(b)(2) of the Act sections 

below. 

Unit 2: Minnesota 

Voyageurs National Park constitutes 

the lands designated as critical habitat 

in this unit. All other lands that met the 

definition of critical habitat have been 

excluded from this unit pursuant to 

section 4(b)(2) of the Act. Please refer to 

the Application of Section 3(5)(A) of the 

Endangered Species Act Exclusions 

Under Section 4(b)(2) of the Act sections 

below. This unit supports the PCE and 

requires special management to address 

the lack of direction in the General 

Management Plan specific to conserve 

lynx. 

Unit 3: Northern Rocky Mountains 

The lands of Glacier National Park 

above 4,000 ft (122 m) on the west side 

of the Continental Divide and to the 

Park borders east of the Continental 

Divide constitute the critical habitat 

designation in this unit. All other lands 

that met the definition of critical habitat 

have been excluded from this unit 

pursuant to section 4(b)(2) of the Act. 

Please refer to the Application of 

Section 3(5)(A) of the Endangered 

Species Act Exclusions Under Section 

4(b)(2) of the Act sections below. This 

unit supports the PCE and requires 

special management to address the lack 

of direction in the General Management 

Plan specific to conserve lynx. 

Unit 4: North Cascades 

The lands of North Cascades National 

Park above 4,000 feet elevation east of 

the Cascade Crest, including Lake 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66031 

Chelan National Recreation Area, 

constitute the critical habitat 

designation in this unit. All other lands 

that met the definition of critical habitat 

have been excluded from this unit 

pursuant to section 4(b)(2) of the Act. 

Please refer to the Application of 

Section 3(5)(A) of the Endangered 

Species Act Exclusions Under Section 

4(b)(2) of the Act sections below. This 

unit supports the PCE and requires 

special management to address the lack 

of direction in the General Management 

Plan specific to conserve lynx. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition. Pursuant to current national 

policy and the statutory provisions of 

the Act, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; the results of a formal conference 

are typically transmitted in a conference 

opinion. Conference opinions on 

proposed critical habitat are typically 

prepared according to 50 CFR 402.14, as 

if the proposed critical habitat were 

designated. We may adopt the 

conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

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 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of 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 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

lynx or its designated critical habitat 

will require section 7 consultation 

under the Act. Activities on State, tribal, 

local or private lands requiring a 

Federal permit (such as a permit from 

the Corps under section 404 of the Clean 

Water Act or a permit under section 

10(a)(1)(B) of the Act from the Service) 

or involving some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, tribal, 

local or private lands that are not 

federally-funded, authorized, or 

permitted, do not require section 7 

consultations. 


jlentini on PROD1PC65 with RULES3
66032 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the Lynx 

and Its Critical Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service has applied 

an analytical framework for lynx 

jeopardy analyses that relies heavily on 

the importance of core area populations 

to the survival and recovery of the lynx. 

The section 7(a)(2) analysis is focused 

not only on these populations but also 

on the habitat conditions necessary to 

support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the lynx in a qualitative 

fashion without making distinctions 

between what is necessary for survival 

and what is necessary for recovery. 

Generally, if a proposed Federal action 

is incompatible with the viability of the 

affected core area population(s), 

inclusive of associated habitat 

conditions, a jeopardy finding is 

considered to be warranted, because of 

the relationship of each core area 

population to the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum is used to complete 

section 7(a)(2) analyses for Federal 

actions affecting lynx critical habitat. 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for the lynx is appreciably 

reduced. Activities that, when carried 

out, funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for the 

lynx include, but are not limited to: 

(1) Actions that would reduce or 

remove understory vegetation within 

boreal forest stands on a scale 

proportionate to the large landscape 

used by lynx. Such activities could 

include, but are not limited to, fuels 

treatment of forest stands. These 

activities could significantly reduce the 

quality of snowshoe hare habitat such 

that the landscape’s ability to produce 

adequate densities of snowshoe hares to 

support persistent lynx populations is at 

least temporarily diminished. 

(2) Actions that would cause 

permanent loss or conversion of the 

boreal forest on a scale proportionate to 

the large landscape used by lynx. Such 

activities could include, but are not 

limited to, recreational area 

developments; certain types of mining 

activities and associated developments; 

and road building. Such activities could 

eliminate and fragment lynx and 

snowshoe hare habitat. 

(3) Actions that would increase traffic 

volume and speed on roads that divide 

lynx critical habitat. Such activities 

could include, but are not limited to, 

transportation projects to upgrade roads 

or development of a new tourist 

destination. These activities could 

reduce connectivity within the boreal 

forest landscape for lynx and could 

result in increased mortality of lynx 

within the critical habitat units, as lynx 

are highly mobile and frequently cross 

roads during dispersal, exploratory 

movements or travel within their home 

ranges. 

If you have questions regarding 

whether specific activities may 

constitute destruction or adverse 

modification of critical habitat, contact 

the Supervisor of the appropriate 

Ecological Services Field Office (see list 

below). 

State Address Phone No. 

Minnesota ................................................ 4101 East 80th Street Bloomington, Minnesota 55425 .......................................... (612) 725–3548 

Montana ................................................... 585 Shepard Way Helena, Montana 59601 ............................................................ (406) 449–5225 

Washington .............................................. 11103 E. Montgomery Drive Spokane, Washington 99206 .................................... (509) 893–8015 

All of the units designated as critical 

habitat, as well as those specific areas 

that have been excluded or that do not 

meet the definition of critical habitat, 

contain features essential to the 

conservation of the lynx. All units are 

within the geographic range of the 

species, and all were occupied by the 

species at the time we last formally 

reviewed the status of the species under 

the Act in 2003, based on surveys and 

research documenting the presence and 

reproduction of lynx (68 FR 40076, July 

3, 2003). Federal agencies already 

consult with us on activities in areas 

currently occupied by the lynx, or if the 

species may be affected by the action, to 

ensure that their actions do not 

jeopardize the continued existence of 

the lynx. 

Application of Section 3(5)(A) of the 

Endangered Species Act 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographical area occupied 

by the species on which are found those 

physical and biological features (i) 

essential to the conservation of the 

species, and (ii) which may require 

special management considerations or 

protection. Therefore, areas within the 

geographical area occupied by the 

species that do not contain the features 

essential to the conservation of the 

species are not, by definition, critical 

habitat. Similarly, areas within the 

geographical area occupied by the 

species that require no special 

management or protection also are not, 

by definition, critical habitat. 

There are multiple ways to provide 

management for species habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. Finally, State, local, or 

private management plans, as well as 

management under Federal agency 

jurisdiction can provide protection and 

management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan, as a whole, 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent, overall. In 

making this determination, we examine 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66033 

whether the plan provides management, 

protection, or enhancement of the PCE 

that is at least equivalent to that 

provided by a critical habitat 

designation, and whether there is a 

reasonable expectation that the 

management, protection, or 

enhancement actions will continue into 

the foreseeable future. Each review is 

particular to the species and the plan, 

and some plans may be adequate for 

some species and inadequate for others. 

During development of final critical 

habitat for the lynx, we first determined 

which physical and biological features 

are essential to the species’ conservation 

and delineated the specific areas that 

contain those features and recent 

verified records of lynx presence and 

reproduction. Next, we refined the 

delineation of the designation to include 

only those lands that contained 

essential features that require special 

management or protection pursuant to 

the definition of critical habitat in 

3(5)(A) of the Act. 

During this process, we identified 

several areas where current land 

management results in no special 

management or protection being 

necessary. These areas include National 

Forests that are covered under a 

conservation agreement between us and 

the USFS (USFS and Service 2006 

entire), or lands with management plans 

that adequately conserve the lynx and 

its habitat. 

National Forest Service Lands Covered 

by a Conservation Agreement for Lynx 

Since we proposed to list the lynx in 

1999, the USFS has been an active 

partner in lynx conservation and 

recovery. The cooperation of the USFS 

in lynx conservation and recovery has 

been essential because the USFS 

manages the majority of lynx habitat in 

the contiguous United States. Thus, the 

USFS has substantial influence in 

addressing the primary threat to lynx 

identified at time of listing, that of 

inadequate regulatory mechanisms on 

Federal lands. The USFS was an 

instrumental partner in the 

development of the Lynx Conservation 

and Assessment Strategy (LCAS) 

(Ruediger et al. 2000, entire). The LCAS, 

described in more detail below, 

constitutes the best available 

information for conserving lynx. In 

2000, we signed a conservation 

agreement with the USFS wherein the 

USFS committed to largely avoiding 

adverse effects to lynx until their 

LRMPs could be amended to 

incorporate lynx conservation (USFS 

and Service 2000, entire). The 

conservation agreement has been 

renewed twice (USFS and Service 2005 

and 2006, entire). The 2006 agreement 

expires December 31, 2010, unless 

renewed (USFS and Service 2006, p. 8). 

At the time of this final rule, the 

conservation agreement applies to all 

National Forests that have not yet 

amended their Land Resource 

Management Plans (LRMPs) to provide 

measures for lynx conservation (USFS 

and Service 2006, entire). The 

agreement applies to 31 national forests 

(USFS and Service 2006, Table 1). Of 

these, we determined that seven 

national forests meet the first prong of 

the definition of critical habitat under 

3(5)(A) of containing physical or 

biological features essential to the 

conservation of lynx (see Table 2). Our 

next step was to evaluate whether these 

areas may require special management 

or protection pursuant to the definition 

of critical habitat in 3(5)(A) of the Act. 

The conservation agreement ensures 

that these seven forests will continue to 

be managed for lynx conservation by: (1) 

continuing to manage these lands 

consistent with the LCAS until their 

LRMPs are revised to provide guidance 

to conserve lynx, which we have 

determined largely avoids adverse 

effects to lynx in the interim period 

(Service 2000, p. 47); and (2) ensuring 

sufficient conservation of the lynx and 

its habitat upon revision of LRMPs with 

guidance to conserve lynx. All projects 

in lynx habitat on USFS lands undergo 

section 7 review and we have no 

indication the USFS is not adhering to 

the guidance in the conservation 

agreement. 

TABLE 2.—NATIONAL FORESTS COVERED BY THE CANADA LYNX CONSERVATION AGREEMENT WITHIN AREAS WITH

FEATURES ESSENTIAL TO THE CONSERVATION OF LYNX

Critical habitat unit National forest 

North Cascades ........................................................................................ Okanogan-Wenatchee National Forest. 

Flathead National Forest. 

Helena National Forest. 

Northern Rocky Mountains ....................................................................... Idaho Panhandle National Forests. 

Kootenai National Forest. 

Lewis and Clark National Forest. 

Lolo National Forest. 

Minnesota ................................................................................................. None. 

Maine ........................................................................................................ None. 

The USFS is actively in the process of 

amending LRMPs in all the forests listed 

above except for the OkanoganWenatchee National Forest. Until such 

time as the plans are amended to 

provide guidance for lynx, the USFS 

will largely avoid projects that would 

have any adverse effects to lynx within 

these seven forests (USFS and Service 

2006, p. 6). The more protective 

standards in the conservation agreement 

will be implemented the longest in the 

Okanogan-Wenatchee National Forest, 

where revision of the Forest Plan has 

recently been initiated. The 

commitment to avoid adverse effects in 

the conservation agreement is extremely 

protective of the lynx and its habitat, 

and is well beyond any protections or 

conservation benefits that would result 

from the designation of critical habitat. 

This is because under normal section 7, 

projects with adverse effects on lynx 

habitat could proceed without 

modification as long as the adverse 

effects do not reach levels that adversely 

modify critical habitat. According to the 

LCAS, projects that adversely affect lynx 

habitat adversely affect lynx as well. 

Thus under the conservation agreement, 

the vast majority of projects that 

adversely affect lynx habitat cannot 

proceed until Forest Plans are amended. 

To determine the level of protection 

that lynx within the forests identified in 

Table 2 (with the exception of the 

Okanogan-Wenatchee National Forest as 

indicated above) are likely to receive 

upon LRMP amendment, we analyzed 

three documents that constitute the best 

available information on the subject. 

These documents are the USFS draft 

Environmental Impact Statement for the 

Northern Rockies Lynx Amendment 

(DEIS) (USFS 2004, entire); a biological 


jlentini on PROD1PC65 with RULES3
66034 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

assessment prepared for the Northern 

Rockies Lynx Amendment (USFS 2005, 

entire); and a supplement to the 

biological assessment (USFS 2006, 

entire). On January 5, 2004, the USFS 

announced the availability of the Draft 

Environmental Impact Statement (DEIS) 

that included a preferred alternative to 

conserve lynx while addressing issues 

related to wildland fire (USFS 2004, pp. 

30–53). On November 23, 2005, the 

USFS requested formal consultation 

from us on the effects of their proposed 

action to amend management plans for 

18 national forests to include lynx 

conservation while addressing wildland 

fire issues (Kimbell 2005, entire). We 

have not finalized our biological 

opinion but anticipate doing so in early 

2007. The proposed action in the 

USFS’s biological assessment indicates 

that the USFS will continue to conserve 

lynx habitat in the future as they have 

over the past 6 years. 

We have analyzed the proposed 

action in the Biological Assessment 

(USFS 2005) for the purposes of this 

final rule to determine whether the six 

forests within the Northern Rockies that 

we identified as meeting the first prong 

of the definition of critical habitat are in 

need of special management or 

protection pursuant to 3(5)(A) of the 

Act. We have determined that the 

proposed LRMP amendments 

incorporate substantial and relevant 

conservation measures from the LCAS, 

or the equivalent thereof, based on 

updated information. Overall, the 

proposed action would increase 

conservation for lynx over the direction 

in the current LRMPs. Essential lynx 

habitat may be adversely affected by 

some of the proposed actions, mostly 

from fire and fuels management and a 

small amount of pre-commercial 

thinning activities. However, given 

adherence to LCAS guidelines that are 

proposed, these adverse effects would 

not amount to adverse modification, as 

the guidelines have been written to 

avoid significant large scale effects. 

Furthermore, these adverse effects are 

counterbalanced by a commitment to 

lynx conservation that applies to 94 

percent of lynx habitat within the six 

Northern Rockies Forests containing the 

features essential to the conservation of 

the lynx, which provides a net 

conservation benefit for lynx. 

Both the conservation agreement and 

the proposed plan amendments that 

follow from the agreement address the 

single most important threat identified 

at time of listing: the inadequacy of 

existing regulatory mechanisms. The 

conservation agreement and proposed 

amendments ensure that adequate 

habitat of sufficient quality is available 

to support the long-term persistence of 

lynx populations on these seven forests 

and would provide for connectivity 

between adjacent lynx populations in 

Canada or the United States. The 

conservation agreement and proposed 

amendments address the primary threat 

to the lynx (inadequate regulatory 

measures) by addressing the major 

adverse impacts of Federal land 

management on lynx, as well as several 

other potential impacts or influences 

that do not rise to the level of a threat 

to the lynx. Thus, special management 

or protection pursuant to 3(5)(A) of the 

Act is not required for the seven 

national forests identified in Table 3. 

Because Federal lands within these 

seven national forests do not meet the 

definition of critical habitat pursuant to 

section 3(5)(A) of the Act, we have not 

included these lands in the final critical 

habitat designation. 

Lands With Management Plans That 

Conserve Lynx 

Several management plans have been 

amended or revised to incorporate the 

lynx management strategy as outlined in 

the Lynx Conservation Assessment and 

Strategy (LCAS) (Ruediger et al. 2000, 

entire) or comparable programs. The 

USFS, Bureau of Land Management 

(BLM), National Park Service (NPS), and 

the Service developed the LCAS using 

the best available science specifically to 

provide a consistent and effective 

approach to conserve lynx and lynx 

habitat on Federal lands (Ruediger et al. 

2000, p. 1). The overall goals of the 

LCAS were to recommend lynx 

conservation measures, to provide a 

basis for reviewing the adequacy of 

USFS and BLM land and resource 

management plans with regard to lynx 

conservation, and to facilitate 

conferencing and consultation under 

section 7 of the Act. The LCAS 

identifies an inclusive list of 17 

potential risk factors for lynx or lynx 

habitat that may be addressed under 

programs, practices, and activities 

within the authority and jurisdiction of 

Federal land management agencies. By 

addressing these potential risk factors, 

the Federal agencies could address the 

primary threat identified in the 2000 

listing rule for the lynx, that of 

inadequate regulatory mechanisms to 

protect lynx on Federal lands. 

The risks identified in the LCAS are 

based on effects to either individual 

lynx, lynx populations, both, or lynx 

habitat. Potential risk factors the LCAS 

addresses that may affect lynx 

productivity include: timber 

management, wildland fire 

management, recreation, forest/ 

backcountry roads and trails, livestock 

grazing, and other human developments 

(Ruediger et al. 2000, pp. 2–2—2–15). 

Potential risk factors the LCAS 

addresses that may affect lynx mortality 

include: trapping, predator control, 

incidental or illegal shooting, 

competition and predation as 

influenced by human activities and 

highways (Ruediger et al. 2000, pp. 2–

15—2–17). Potential risk factors the 

LCAS addresses that may affect lynx 

movement include: highways, railroads 

and utility corridors, land ownership 

pattern, and ski areas and large resorts 

(Ruediger et al. 2000, pp. 2–17—2–19). 

Other potential large-scale risk factors 

for lynx addressed by the LCAS include: 

fragmentation and degradation of lynx 

refugia, lynx movement and dispersal 

across shrub-steppe habitats and habitat 

degradation by non-native and invasive 

plant species (Ruediger et al. 2000, pp. 

2–19—2–21). 

The LCAS ensures the appropriate 

mosaic of habitat is provided for lynx on 

Federal lands. To facilitate use of the 

LCAS in project planning and allow for 

the assessment of the potential effects of 

a project on an individual lynx, the 

USFS and BLM delineated Lynx 

Analysis Units (LAUs). The scale of an 

LAU approximates the size of area used 

by an individual lynx (25 to 50 mi2 (65 

to 130 km2)) (Ruediger et al. 2000, p. 7- 

3). The LCAS recognizes that LAUs will 

likely encompass both lynx habitat and 

other areas (e.g., lakes, low elevation 

ponderosa pine (Pinus ponderosa) 

forest, and alpine tundra). The LCAS 

provides habitat-related standards to 

address potential risks include: (1) If 

more than 30 percent of lynx habitat in 

an LAU is currently in unsuitable 

condition, no further reduction of 

suitable condition shall occur as a result 

of vegetation management activities by 

Federal agencies; (2) within an LAU, 

maintain denning habitat in patches 

generally larger than 5 acres, comprising 

at least 10 percent of lynx habitat; (3) 

maintain habitat connectivity within 

and between LAUs; (4) management 

actions (e.g., timber sales, salvage sales) 

shall not change more than 15 percent 

of lynx habitat within an LAU to an 

unsuitable condition within a 10-year 

period; (5) pre-commercial thinning will 

only be allowed when stands no longer 

provide snowshoe hare habitat; (6) on 

Federal lands in lynx habitat, allow no 

net increase in groomed or designated 

over-the-snow routes and snowmobile 

play areas by LAU (Ruediger et al. 2000, 

pp. 7–3—7–9). 

Lynx conservation depends on 

supporting boreal forest landscapes of 

sufficient size to encompass the 

temporal and spatial changes in habitat 

and snowshoe hare populations to 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66035 

support interbreeding lynx populations 

or metapopulations over time. We have 

determined that management plans that 

incorporate the LCAS provide adequate 

management or protection for lynx 

because they meet the three criteria 

identified above. Specifically—(1) the 

management plans have been finalized 

and incorporate the provisions of the 

LCAS, which provides the best 

scientifically-based conservation 

measures known for lynx at this time; at 

a minimum, the incorporation of the 

LCAS conservation measures to address 

risk factors affecting lynx productivity 

into a management plan provides 

adequate management and protection 

for lynx and features essential to the 

conservation of lynx; (2) where Federal 

agencies and non-federal entities 

(including Tribes) have amended or 

revised their management plans to 

incorporate provisions of the LCAS, 

these provisions become the 

management direction for that particular 

land base; conservation measures in the 

LCAS are designed to be implemented 

at the programmatic and project level 

scale; and (3) the land management 

entities have incorporated provisions of 

the LCAS in order the provide for the 

conservation of the lynx; the 

conservation measures in the LCAS are 

intended to conserve lynx and to reduce 

or eliminate adverse effects from the 

spectrum of management activities on 

Federal lands (or other lands where the 

conservation measures are applied). At 

this time, there is no other scientificallybased land management guidance 

available for lynx; these management 

plans are in effect until future plan 

revisions or plan amendments 

supercede the current plans. 

We evaluated areas to determine if 

they meet the definition of critical 

habitat by (1) containing physical or 

biological features essential to the 

conservation of the lynx, and (2) if the 

essential features may require special 

management or protection. We 

determined that these lands did contain 

features essential to the conservation of 

the lynx. However, based on the 

provisions in the LCAS beneficial to the 

lynx, we determined that the essential 

features on lands covered by 

management programs or plans that 

have been revised or amended to adopt 

the LCAS do not require special 

management or protection and, 

therefore, these lands do not meet the 

definition of critical habitat pursuant to 

section 3(5)(A) of the Act. These lands, 

described below, are not included in the 

designation: 

Superior National Forest 

The Superior National Forest located 

in northeastern Minnesota has revised 

its Land and Resource Management Plan 

(LRMP) to include specific measures to 

conserve lynx based on the LCAS 

(Ruediger et al. 2000, entire; USFS 

2004a, Appendix E; USFS 2004b, p. 16; 

Service 2004, p. 2). Much of the boreal 

forest habitat in northeastern Minnesota 

is found on Superior National Forest 

(Service 2004, p. 28), and a large 

proportion of the recent lynx records in 

Minnesota have been detected on the 

Superior National Forest (Moen et al. 

2004, p. 10; Minnesota DNR 2005 Web 

page). The revised LRMP went through 

stakeholder meetings, section 7 

consultation with the Service, and 

public review. The LRMP will guide 

day-to-day management decisions for 

the next 15 years, whereupon the LRMP 

will again undergo revision (USFS 

2004a section 1, pp. 2 and 4). 

The Superior LRMP adopted the 

standards, guidelines, and objectives of 

the LCAS (Ruediger et al. 2000, entire; 

McAllister 2002, entire) that the USFS 

determined were appropriate and 

relevant to lynx conservation in 

Minnesota, in consultation with the 

Service. To remove redundancies with 

other management direction, the LRMP 

excluded certain LCAS standards, 

guidelines, and objectives and 

reclassified some to increase their 

potential to benefit lynx, to avoid 

confusion with terms found elsewhere 

in the LRMP, and to allow for 

management flexibility that would not 

compromise lynx conservation. In 

addition, it designated the Boundary 

Waters Canoe and Wilderness Area as a 

Lynx Refugium, in which natural 

processes will be the predominant 

determinant of lynx habitat conditions 

with some active management that 

would be ‘‘compatible with wilderness 

values’’ (USFS 2004a, Appendix E, p. 5 

and section 3, p. 58). 

The Superior National Forest has 

delineated Lynx Analysis Units (LAUs) 

within which it applies the lynx 

conservation measures prescribed in the 

LRMP. The LAUs are the smallest 

landscape scale analysis units upon 

which direct, indirect, and cumulative 

effects analyses for lynx will be 

performed (Ruediger et al. 2000, p. 7–2; 

USFS 2004a Appendix E, p. 4). They 

encompass lynx habitat (on all 

ownerships) within the administrative 

unit that has been mapped (in 

coordination with adjacent management 

agencies and the Service) using specific 

criteria to identify appropriate 

vegetation and environmental 

conditions (U.S. Forest Service 2004a 

Appendix E, p. 4). 

On the basis of the conservation 

benefits afforded the lynx from the 

measures in the approved, revised 

LRMP and the definition of critical 

habitat contained in section 3(5)(A) of 

the Act, we have not included those 

lands encompassed in LAUs mapped by 

the Superior National Forest or 

delineated by the Forest as a Lynx 

Refugium in this designation because 

we have determined that special 

management or protection of these lands 

and the features essential to the 

conservation of the lynx is not required. 

The Superior National Forest manages 

its lands within the LAUs with 

measures to conserve lynx and features 

essential to its conservation and takes 

into consideration habitat conditions for 

lynx throughout a LAU regardless of 

land ownership. Therefore, the 

numerous small non-federal inholdings 

within the proclamation boundary of 

the Forest were removed from the 

designation because, although such 

lands may support lynx habitat, they 

have a negligible influence on the 

features essential to the conservation of 

the lynx compared to the significant role 

of the Superior National Forest lands. 

Based on public comments and 

information received following the 

publication of the proposed designation, 

we coordinated with the Superior 

National Forest on those lands that 

remained within the proposed 

designation. We reevaluated these lands 

relative to the LRMP for the Superior 

National Forest to determine if the 

essential features within these areas 

were being managed for and protected 

under the plan. Based on our 

discussions with the National Forest 

and a further review of the plan, we 

have determined that the features 

within these lands are being adequately 

managed and protected for lynx 

conservation, and therefore do not meet 

the definition of critical habitat 

pursuant to section 3(5)(A) of the Act. 

As such, these lands have been removed 

from the final designation of critical 

habitat for the lynx. 

Garnet Resource Area, Bureau of Land 

Management 

The BLM’s Garnet Resource 

Management plan has been amended to 

incorporate all provisions of the LCAS 

(BLM 2003, entire; Wilson 2004, entire). 

The Garnet Resource Area supports 

blocks of boreal forest that currently 

support lynx populations on the 

southern edge of the Northern Rockies 

Unit. The amendment to the 

management plan went through public 

review and consultation with us under 


jlentini on PROD1PC65 with RULES3
66036 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

section 7 of the Act; a finding of no 

significant impact was issued by BLM in 

2004 (BLM 2003, entire; Wilson 2004, 

entire). 

On the basis of the conservation 

benefits afforded the lynx and features 

essential to its conservation from the 

measures in the amended Garnet 

Resource Management Plan and the 

definition of critical habitat contained 

in section 3(5)(A) of the Act, we have 

not included those lands that are within 

the boundaries of the approved Garnet 

Resource Management Plan in this 

designation of critical habitat for the 

lynx. These lands, and essential features 

thereon, are being adequately managed 

and protected for lynx and, as a result, 

do not meet the definition of critical 

habitat pursuant to section 3(5)(A) of the 

Act. Because the BLM already manages 

these lands, and features thereon, 

consistent with lynx conservation, we 

have determined that no special 

management or protection pursuant to 

section 3(5)(A) of the Act is required. 

Flathead Indian Reservation 

The tribal lands in the Northern 

Rockies unit (portions of the Flathead 

Indian Reservation) are managed by the 

Confederated Salish and Kootenai 

Tribes (CSKT) under their Forest 

Management Plan that incorporates the 

provisions of the LCAS (CSKT 2000, p. 

285). On the basis of the conservation 

benefits afforded the lynx from the 

measures in the CSKT’s Forest 

Management Plan and the definition of 

critical habitat contained in section 

3(5)(A) of the Act, we have not included 

lands that are within the boundaries of 

the Flathead Indian Reservation in this 

designation of critical habitat for the 

lynx. These lands, and physical or 

biological features essential to the 

conservation of the lynx thereon, are 

being adequately managed and 

protected for lynx and, as a result, do 

not meet the definition of critical 

habitat. Because the Tribes already 

manage these lands, and essential 

features thereon, consistent with lynx 

conservation, no special management or 

protection pursuant to section 3(5)(A) of 

the Act is required. 

Spokane District, Bureau of Land 

Management 

Small portions of lands administered 

by the BLM’s Spokane District are 

encompassed in the area containing 

features essential to the conservation of 

the lynx in the North Cascades unit in 

Washington. The BLM Spokane District 

Resource Management Plan was 

modified in 2003 to incorporate all of 

the provisions of the LCAS through 

what is called ‘‘Resource Management 

Plan Maintenance’’ (BLM 2003, entire). 

On the basis of the conservation 

benefits afforded the lynx and the 

physical and biological features 

essential to its conservation from the 

measures in the approved Spokane 

District Resource Management Plan 

Maintenance and the definition of 

critical habitat contained in section 

3(5)(A) of the Act, we have not included 

those lands that are within the 

boundaries of the BLM’s Spokane 

District Resource Management Plan in 

this designation of critical habitat for 

the lynx. The BLM already manages this 

area, and essential features thereon, 

consistent with lynx conservation; 

therefore, special management or 

protection pursuant to 3(5)(A)of the Act 

is not required. 

In summary, we find that these 

management plans protect essential 

lynx features and habitat and provide 

appropriate management to provide for 

the conservation of lynx and features 

essential to its conservation. The 

management plans have been finalized 

and incorporate the provisions of the 

LCAS, which, as described above 

provides the best, scientifically-based 

conservation measures for lynx and 

features essential to its conservation 

known at this time. Federal land and 

resource management plans provide the 

overarching direction under which 

Federal lands are managed until future 

plan revisions or plan amendments 

supercede the current plans. 

The conservation measures in the 

LCAS are intended to conserve lynx and 

to reduce or eliminate adverse effects 

from the spectrum of management 

activities on Federal lands (or other 

lands where the conservation measures 

are applied). At this time, it constitutes 

the best and only scientifically-based 

land management guidance available for 

lynx. By not including areas in the 

designation that are already being 

managed for lynx conservation, land 

managers are encouraged to proactively 

institute lynx conservation measures 

and reduce administrative effort and 

costs associated with engaging in 

consultations for critical habitat 

pursuant to section 7 of the Act. 

Exclusions Under Section 4(b)(2) of the 

Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, 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 if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

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 that determination, 

the Secretary is afforded broad 

discretion and the Congressional record 

is clear that in making a determination 

under this section, the Secretary has 

discretion regarding which factors will 

be used and how much weight will be 

given to any factor. 

Under section 4(b)(2), in considering 

whether to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that we considered 

relevant to the benefits of including and 

excluding lands. The text of these 

sections applies to all lands that we 

have excluded from this designation. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995) and 

at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12 percent of listed species were 

found almost exclusively on Federal 

lands (that is, 90 to100 percent of their 

known occurrences restricted to Federal 

lands) and that 50 percent of federally 

listed species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66037 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as Habitat 

Conservation Plans, Safe Harbor 

Agreements, Candidate Conservation 

Agreements, Candidate Conservation 

Agreements with Assurances, and 

conservation challenge cost-share. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal Government, while wellintentioned and required by law, under 

certain circumstances can have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (such as reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). 

The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. The 

Department of the Interior’s Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation—is the foundation for 

developing the tools of conservation. 

These tools include conservation grants, 

funding for Partners for Fish and 

Wildlife Program, the Coastal Program, 

and cooperative-conservation challenge 

cost-share grants. Our Private 

Stewardship Grant program and 

Landowner Incentive Program provide 

assistance to private land owners in 

their voluntary efforts to protect 

threatened, imperiled, and endangered 

species, including the development and 

implementation of Habitat Conservation 

Plans. 

Conservation agreements with nonFederal landowners (such as Habitat 

Conservation Plans (HCPs), contractual 

conservation agreements, easements, 

and stakeholder-negotiated State 

regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854; 

December 2, 1996). 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. The 

designation can help focus and promote 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for the lynx. In 

general, the educational benefit of a 

critical habitat designation always 

exists, although in some cases it may be 

redundant with other educational 

effects. For example, Federal land 

management plans have significant 

public input and may largely duplicate 

the educational benefit of a critical 

habitat designation. This benefit is 

closely related to a second, more 

indirect benefit: that designation of 

critical habitat would inform State 

agencies and local governments about 

areas that could be conserved under 

State laws or local ordinances. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where a Federal action or ‘‘nexus’’

occurs—if there is no Federal nexus, 

designation itself does not restrict 

actions that destroy or adversely modify 

critical habitat. Second, it only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure those 

areas that contain the physical and 

biological features essential to the 

conservation of the species or 

unoccupied areas that are essential to 

the conservation of the species are not 

eroded. Critical habitat designation 

alone, however, does not require 

specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. The Court ruled that the 


jlentini on PROD1PC65 with RULES3
66038 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

Service could no longer equate the two 

standards and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, we 

believe the conservation achieved 

through implementing Federal land 

management plans, habitat conservation 

plans (HCPs), or other habitat 

management plans is typically greater 

than what would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. This is 

especially true for lynx populations that 

require differing successional stages of 

habitat juxtaposed appropriately 

throughout large landscapes. The 

majority of lynx habitat is located on 

large land ownerships, including 

Federal, State, county, conservation 

organization, and private corporate 

forestlands, capable of influencing forest 

management at a landscape-scale. 

Management plans or other 

commitments on these large land 

holdings can commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one, and possibly other, listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project; they are not 

committed to provide conservation or 

long-term benefits to areas not affected 

by the proposed project. Thus, in most 

cases, an HCP or management plan 

which considers enhancement or 

recovery as the management standard 

will always provide as much or more 

benefit than a consultation for critical 

habitat designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Benefits of Excluding Lands From 

Critical Habitat With Management 

Plans or HCPs 

The benefits of excluding lands with 

management plans or HCPs from critical 

habitat designation include relieving 

landowners, communities, counties, and 

States of any additional regulatory 

burden that might be imposed by a 

critical habitat designation even if it is 

only the administrative burden of 

confirming no harm to the critical 

habitat. Most conservation plans take 

many years to develop and, upon 

completion, are, in most cases, 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. In fact, designating 

critical habitat in areas covered by a 

pending conservation plan or HCP 

could result in the loss of some species’

benefits if participants abandon the 

planning process, in part because of the 

strength of the perceived additional 

regulatory compliance that such 

designation would entail. For example, 

the time and cost of regulatory 

compliance for a critical habitat 

designation do not have to be quantified 

for the regulated public to perceive 

them as additional Federal regulatory 

burden sufficient to discourage 

continued participation in plans 

targeting listed species’ conservation. 

A related benefit of excluding lands 

within management plans from critical 

habitat designation is the unhindered, 

continued ability to seek new 

partnerships with future plan 

participants including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within approved management plan 

areas are designated as critical habitat, 

it would likely have a negative effect on 

our ability to establish new partnerships 

to develop these plans, particularly 

plans that address landscape-level 

conservation of species and habitats. For 

example, by excluding these lands, we 

preserve our current partnerships and 

encourage additional conservation 

actions in the future. 

Furthermore, a Federal land 

management plan or an HCP application 

must itself be consulted upon. Such a 

consultation would review the effects of 

all activities covered by the 

management plan or HCP which might 

adversely impact the species under a 

jeopardy standard, including possibly 

significant habitat modification (see 

definition of ‘‘harm’’ at 50 CFR 17.3), 

even without the critical habitat 

designation. Similarly, land 

management plans on private lands paid 

for by Federal landowner incentive 

programs (e.g., NRCS Healthy Forest 

Reserve Program, USFWS Landowner 

Incentive Program) must also be 

consulted upon. In addition, Federal 

actions not covered by the management 

plan or HCP in areas occupied by listed 

species would still require consultation 

under section 7 of the Act even absent 

a critical habitat designation and would 

be reviewed for possibly significant 

habitat modification in accordance with 

the definition of harm referenced above. 

After consideration under section 

4(b)(2) of the Act, specific lands have 

been excluded from the designation of 

critical habitat for the lynx. A detailed 

analysis of our exclusion of these lands 

under section 4(b)(2) of the Act by 

critical habitat unit is provided in the 

paragraphs that follow. 

Relationship of Critical Habitat to 

Tribal Lands 

Tribal lands included in the proposed 

designation were those of the Houlton 

Band of Maliseet Indians, Aroostook 

Band of Micmac Indians, 

Passamaquoddy Tribe, and Penobscot 

Indian Nation in the Maine unit and 

Grand Portage Indian Reservation and 

Vermillion Lake Indian Reservation in 

the Minnesota unit. The amount of 

tribal lands proposed was relatively 

small in size (totaling approximately 

223 km2 (86 mi2) in the Maine unit and 

192 km2 ( 74 mi2) in the Minnesota 

unit). As previously mentioned, we 

contacted and met with a number of 

tribes to discuss the proposed 

designation and we also received 

comments from tribes requesting that 

their lands not be designated as critical 

habitat because of their sovereign rights, 

in addition to concerns about economic 

impacts and the effect on their ability to 

manage natural resources. 

Benefits of Inclusion 

The benefit of including these tribal 

lands in critical habitat for the lynx is 

low. The lands are fairly small in size 

relative to the large landscape required 

to sustain the lynx population in these 

areas. The larger landscape in Maine is 

lands managed for commercial forestry, 

and in Minnesota the larger landscape is 

managed by the Superior National 

Forest that has revised its forest plan to 

address the needs for lynx. Therefore, 

although these tribal lands support lynx 

habitat and the PCE, they have a minor 

role in lynx conservation compared to 

the commercial forestlands in Maine 

and Superior National Forest in 

Minnesota. 

Benefits of Exclusion 

In accordance with Secretarial Order 

3206, ‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ (June 

5, 1997); the President’s memorandum 

of April 29, 1994, ‘‘Government-toGovernment Relations with Native 

American Tribal Governments’’ (59 FR 

22951); Executive Order 13175 

‘‘Consultation and Coordination with 

Indian Tribal Governments;’’ and the 

relevant provision of the Departmental 

Manual of the Department of the Interior 

(512 DM 2), we believe that fish, 

wildlife, and other natural resources on 

tribal lands are better managed under 

tribal authorities, policies, and programs 

than through Federal regulation 

wherever possible and practicable. Such 

designation is often viewed by tribes as 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66039 

an unwanted intrusion into tribal self 

governance, thus compromising the 

government-to-government relationship 

essential to achieving our mutual goals 

of managing for healthy ecosystems 

upon which the viability of threatened 

and endangered species populations 

depend. 

For example, through Federal grant 

programs, the Passamaquoddy Tribe is 

conducting surveys and habitat models 

for lynx and snowshoe hare, the 

Houlton Band of Maliseet Indians is 

conducting lynx surveys and lynx 

habitat is being assessed on Grand 

Portage Reservation lands. Information 

from these efforts will be used to inform 

management plans or strategies to 

promote the conservation of lynx on 

Tribal lands. Additionally, we received 

general comments from Tribes and/or 

authorities representing the natural 

resource interests of Tribes voicing their 

commitment to ensuring that lynx 

remain a viable part of the ecosystem. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

We believe that conservation of lynx 

can be achieved off of Tribal lands 

within the critical habitat unit and on 

tribal lands with the cooperation of 

Tribes. Given the importance of our 

government-to-government relationship 

with Tribes, the benefit of maintaining 

our commitment to the Executive Order 

by excluding these lands outweighs the 

benefit of including them in critical 

habitat. Therefore, Tribal lands have not 

been designated as critical habitat 

pursuant to section 4(b)(2) of the Act. 

Unit 1 (Maine) 

Lands Managed for Commercial 

Forestry 

This category of specific properties 

include private lands on which timber 

is grown, harvested, and processed for 

wood and wood fiber for the 

manufacture of pulp and paper, and the 

production of solid and engineered 

wood products. These lands are 

generally large in size and comprise the 

majority of the lands in Maine we 

considered for inclusion in our critical 

habitat designation. 

Benefits of Inclusion 

As previously discussed, we believe 

that there may be some education 

benefits to designating critical habitat 

for lynx on lands managed for 

commercial forestry. However, we 

believe that there is already substantial 

awareness of the lynx and conservation 

issues related to the lynx through the 

species being listed; through the public 

review process for the critical habitat 

proposal; information provided to the 

public from Maine Department of Inland 

Fisheries and Wildlife, North Maine 

Woods Association; information 

provided from University of Maine 

Department of Wildlife Ecology, Maine 

Cooperative Fish and Wildlife Research 

Unit, and the Maine Cooperative 

Forestry Research Unit; the Service’s 

numerous contacts with Federal 

agencies that may have projects in 

northern Maine; the State-listing process 

in 2006; and extensive media coverage 

on the status of the Canada lynx in 

Maine. 

Commercial forest lands in northern 

Maine are considered to be occupied by 

the lynx. Detailed habitat maps and 

habitat models (Hoving et al. 2004, p. 

290, 2005, p. 747 Robinson 2006 pp. 

107–119) and a lynx occurrence 

database maintained by Maine Inland 

Fisheries and Wildlife provide the 

Service with the most recent 

interpretation of the distribution of lynx 

and their habitat. For Federal actions, 

consultation under section 7 of the Act 

is required if an action may affect the 

lynx or its habitat. Accordingly, there 

are few opportunities for the Service to 

influence silviculture in Maine through 

Section 7 of the Act, especially at a 

landscape scale. Forest management and 

associated activities require no Federal 

permits, and Federal funding is rarely 

employed on private forest lands. Since 

listing the lynx in 2000, the Service has 

consulted on fewer than 50 projects in 

Maine under Section 7 of the Act. 

Consultation has been limited primarily 

to small woodlot owners and tribes 

applying for Federal assistance. All 

consultations were concluded 

informally with fewer than five 

requiring any measures to conserve 

lynx. Most have been small projects 

(less than 6 ha (15 ac)), are located on 

small ownerships (less than 202 ha (500 

ac)), and were located on the periphery 

of the lynx range in Maine. Given the 

historically low level of consultations, 

the opportunity to address forestry 

practices on private lands managed for 

commercial forestry, especially at a 

large landscape scale, through 

consultation is limited. 

Accordingly, we believe the benefits 

of inclusion are few. Because of our 

limited opportunities to consult under 

section 7 we believe we will achieve 

greater benefit from the ongoing 

management and partnerships than from 

the regulation that results from 

designating critical habitat on private 

lands in northern Maine. Maintaining a 

strong working relationship with both 

the State and private landowners is 

essential to ensuring continued 

voluntary management that conserves 

lynx, past and continuing voluntary 

forest management has been and 

continues to be beneficial to lynx in 

Maine. Timber salvaging associated 

with the eastern spruce budworm 

(Choristoneura fumiferana) outbreak of 

1972 to 1986 resulted in hundreds of 

thousands of acres of clearcuts, which 

created contiguous stands of 

regenerating spruce-fir as large as 2,023 

ha (5,000 ac) across much of northern 

Maine. These areas are now in an 

advanced stage of regeneration and 

support high hare densities (Fuller and 

Harrison 2005, p. 716; Homyack et al. 

2006; Robinson 2006, p. 9), which is 

sustaining the lynx population (Hoving 

et al. 2004, pp. 291–292; Fuller 2006, 

pp. 36–47; Robinson 2006, p. 122). 

Spruce budworm salvage created 

extensive mosaics of habitat within 

Maine that support lynx and features 

essential to the conservation of the lynx, 

such as structure for denning and dense 

understories within boreal forest able to 

support snowshoe hares and lynx. 

These optimal habitat conditions will 

persist for the next 10 to 15 years until 

the regenerating clearcut stands mature 

to an age and structure (∼30 years old) 

when they will no longer provide 

optimal habitat for hares and lynx. 

Forest practices in Maine generally 

are favorable to lynx. For example, 

many of the timber lands in Maine 

considered for inclusion in lynx critical 

habitat are managed under forest 

certification programs (e.g., Sustainable 

Forestry Initiative (SFI), Forest 

Stewardship Council (FSC)) that require 

members to maintain coarse woody 

debris, which provides lynx denning 

habitat (although denning habitat does 

not seem to be limited in northern 

Maine). Land managers participating in 

these programs are audited regularly for 

compliance (for example, Plum Creek is 

SFI certified and was audited as 

recently as 2005). 

The Huber Resource Corporation 

provided maps of current and future 

lynx habitat based on the Maine Forest 

Products Council analysis (see below). 

Currently, 36 percent of their 102,291 ha 

(252,766 ac) of forest ownership is in 

large blocks of early successional 

softwoods (spruce and fir). J. D. Irving 

concluded there would be no significant 

change in the spatial arrangement or 

amount of habitat in the next 10 to 20 

years (Gilbert 2006, p2). Plum Creek 

provided information to the Service 

demonstrating that they have four lynx 

habitat units (47,000, 43,000, 33,000, 

and 30,000 acres) that contain optimal 

mid-regeneration conditions for lynx in 

the Moosehead Lake area. 

The Maine Forest Products Council 

provided a comprehensive lynx 


jlentini on PROD1PC65 with RULES3
66040 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

landscape-level habitat analysis of 

current and future lynx habitat (20 years 

hence) for their member landowners 

and landowner representative lands, 

which comprise the majority of the 

proposed critical habitat. The map 

suggests that about 404,686 ha (1 

million ac) of lynx habitat currently 

exists in Maine and 404,686 ha (1 

million ac) of future lynx habitat will be 

present 20 years hence and widely 

distributed on the landscape. Lynx 

habitat models for Maine (Hoving et al. 

2004 , pp. 291–292, 2005; Robinson 

2006, p. 122) corroborate the fact that 

current habitat is prevalent and widely 

distributed. We agree that lynx habitat 

in Maine is abundant and widespread, 

and acknowledge that this is largely due 

to management for timber harvest. 

Most of the lands we considered for 

inclusion as lynx critical habitat are in 

unorganized townships and within the 

jurisdiction of the Maine Land Use 

Regulation Commission. Most of the 

area is zoned for commercial forestry, 

and development is sparse except for a 

few organized towns around the 

periphery of the proposed critical 

habitat. 

The Maine Land Use Regulation 

Commission and Plum Creek have 

recently shared plans with the Service 

for a proposed rezoning of about 

172,396 ha (426,000 ac) in the 

Moosehead Lake area to implement a 

concept plan to develop 975 new 

residential lots, resorts, and other 

facilities covering approximately 1,497 

ha (3,700 ac). Plum Creek is offering 

mitigation in the form of a 162,684-ha 

(402,000-ac) Conservation Framework, 

including a 108,860-ha (269,000-ac) 

conservation easement (some donated) 

and 21,044 ha (52,000 ac) sale to 

conservation groups. This is the largest 

development project in Maine’s history. 

The Maine Land Use Regulation 

Commission will make a determination 

on the concept plan in 2007. The 

proposed developments occur within 

the areas we considered for inclusion as 

lynx critical habitat and include areas 

that are known to be occupied by lynx. 

Major developments such as this 

proposal usually require Clean Water 

Act permits, which provide a Federal 

nexus for a consultation under section 

7 of the Act. Any Federal actions related 

to development of these lands that may 

affect the lynx will undergo 

consultation between with the Service 

and Federal permitting agencies. We 

believe the current scale of the 

development project can be effectively 

evaluated through section 7 

consultation in a way to protect lynx 

and conserve its habitat with or without 

a critical habitat designation because the 

project is not likely to be at a scale that 

would adversely modify the critical 

habitat. 

The area of the proposed lynx critical 

habitat is highly roaded with small, 

single-lane, gravel or dirt logging roads. 

Road density typically varies from 50–

120 km of road/100km2 township (31–

75 mi of road/38mi2 township). Lynx 

road mortality (12 animals) documented 

in Maine has occurred on logging roads 

(n = 9) and paved public roads (n = 3) 

(MDIFW, unpub. data). Most logging 

road mortality occurred on two-lane 

haul roads where higher traffic volume 

and speed would occur. We do not 

know if mortality is from forestryrelated or visitor vehicles because these 

roads are open to the public. Road 

complexes on commercial forest land 

have largely been built out. It is unlikely 

that a substantial number of new woods 

roads will be built in northwestern 

Maine. It is also unlikely that roads will 

be upgraded or paved into two-lane high 

speed roads that would increase risk to 

lynx. Road building for forest purposes 

is exempt from Clean Water Act wetland 

permits and thus, there is no Federal 

nexus to address forest roads through 

Section 7. However, we do not 

anticipate an increase in forest road 

building in northern Maine in the 

foreseeable future. 

Benefits of Exclusion 

Forest landowners in Maine 

expressed concerns about the stigma, 

‘‘shadow-effect,’’ or uncertainty 

associated with imposing a new farreaching Federal regulation on their 

lands. Until recently, the traditional 

owners of large tracts of forest lands in 

northern Maine were forest products 

companies with their own mills and 

their own timberland base to supply 

fiber. Landowners expressed concerns 

that another Federal regulation over 

their land would add a layer of 

uncertainty that could affect land 

valuation, deter investors, or cause 

hardships through costly litigation. 

In addition, the current environment 

of timber land sales and mill closures in 

Maine has led to efforts to conserve the 

north Maine woods. Conservation 

groups have purchased conservation 

easements on hundreds of thousands of 

acres of forestland. These easements are 

negotiated with private timber 

companies to assure protection from 

development and promote sustainable 

forestry and wildlife management. Most 

of these easements have required 

significant Federal funds, especially 

from Forest Legacy and the North 

American Wetland Conservation Act. 

Currently, about 809,371 ha (2 million 

ac) of the of 2.6 million ha (6.4 million 

ac) in Maine considered for inclusion in 

lynx critical habitat are under 

permanent easements, with several 

hundred thousand acres more under 

negotiation. Easement negotiations are 

often tenuous, and several landowners 

expressed concern that designation of 

critical habitat may create a Federal 

nexus that would discourage 

landowners against accepting Federal 

funding and participating in future 

easement negotiations. Maine Inland 

Fisheries and Wildlife expressed 

concerns that if these landscape-level 

conservation efforts fail in the future 

because of this perception, conservation 

of lynx will be set back. Landowners 

expressed sincere concerns about the 

uncertainty of legal actions related to a 

critical habitat designation and how this 

would affect their interest in entering 

into future conservation easement 

agreements. 

The primary benefit of excluding 

corporate forest lands from critical 

habitat is preserving the partnerships 

that have been and will be developed to 

conserve habitat for the lynx. The 

Service believes that partnerships and 

cooperative conservation have proved to 

be beneficial in Maine and are the most 

effective means of achieving 

conservation for the lynx on private 

lands. Partnerships have many benefits, 

including access by researchers and 

State and Federal biologists to private 

lands; cooperation with industry in 

funding research, monitoring, and 

management; and development of forest 

management plans on private lands. 

Maine forest industry has 

demonstrated cooperation by providing 

access to State and Federal wildlife 

agencies. For example, since 1999, 

Clayton Lake Woodlands, Seven Islands, 

and J. D. Irving Limited provided access 

and housing to Maine Inland Fisheries 

and Wildlife biologists to conduct radiotelemetry studies of lynx. Many 

landowners have granted permission for 

State and Federal biologists to conduct 

winter snow tracking surveys for lynx. 

Many landowners have granted 

permission for University of Maine 

graduate students to access lands to 

conduct studies and assess snowshoe 

hare populations. Landowners have also 

provided access to sensitive corporate 

data on forest stands to help State and 

Federal agencies with lynx and hare 

research. Landowners have suggested 

that future access to lands and data may 

be limited if critical habitat is 

designated, which would preclude us 

from getting valuable information on 

lynx distribution in Maine and which 

would be counter to lynx recovery 

efforts. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66041 

Since 1975, corporate landowners 

have pooled research funds to support 

research to improve forest management 

through the University of Maine’s 

Cooperative Forestry Research Unit. The 

Unit currently consists of 27 members, 

including most of the large corporate 

landowners within the Maine critical 

habitat unit. Since 2000, the effect of 

forest management on snowshoe hares 

and lynx has been a research priority. 

The Unit has joined the Service in 

funding six graduate students studying 

forest management, hares, and lynx. 

Many landowners are also members of 

the National Council for Air and Stream 

Improvement, Inc., which has also 

provided substantial funding support 

for the aforementioned research 

projects. The Maine Cooperative Fish 

and Wildlife Research Unit and 

University of Maine Department of 

Wildlife Ecology have been 

instrumental in conducting this 

research. These partnerships have 

allowed open dialogue and productive 

information sharing between 

landowners and Federal, State, and 

university biologists. Landowners have 

expressed concerns that designating 

critical habitat could jeopardize these 

valuable partnerships. These 

partnerships are essential for conserving 

lynx in Maine. 

The Maine Forest Products Council 

has represented Maine forest industry 

for over 40 years and currently has 

about 400 member companies. 

Collectively, their members own 2.2 

million ha (5.4 million ac) (∼84 percent) 

of the land we considered for inclusion 

in lynx critical habitat within Maine. 

Fourteen of their members own greater 

than 20,234 ha (50,000 ac) and will have 

a significant role in conserving current 

and future lynx habitat in Maine. The 

Council received unanimous backing 

from their members to act on their 

behalf and submitted comments to the 

Service regarding the critical habitat 

proposal. Included in their comments 

was a proposal in the form of a 

Conservation Strategy for the Canada 

Lynx in Maine. The strategy would 

provide a 10-year commitment to 

forestry practices that maintain and 

enhance lynx habitat by regenerating 

spruce fir forests, conducting a 

landscape assessment of lynx habitat 

every 5 years, continuing to support 

lynx and hare research, and meeting 

with the State and Federal wildlife 

agencies annually to share information 

and discuss research priorities. The 

specifics of this conservation strategy 

were provided to the Service in a draft 

Memorandum of Understanding. While 

the MOU has not yet been finalized it 

demonstrates the Council’s commitment 

to continued lynx conservation. 

According to the Strategy, at the end of 

the 10-year period, the Council, Service, 

and State would conduct a joint 

evaluation to determine if the lynx 

strategy should be renewed for another 

10-year period. 

Maine forest industry’s Conservation 

Strategy for the Canada Lynx in Maine 

offers a framework for the Service to 

work in partnership with forest 

landowners to achieve recovery for the 

lynx and provides substantial benefits 

over what can be achieved through 

adverse modification standards of 

critical habitat through section 7 of the 

Act. The Strategy provides planning and 

cooperation at a landscape level 

meaningful to lynx; allows the 

opportunity for coordination and 

planning for lynx habitat across 

multiple land ownerships; allows 

researchers access to corporate 

landscape-level habitat information; and 

promotes continued funding support by 

corporate landowners for habitat-related 

research that will inform future 

conservation planning. Most 

importantly, the Strategy establishes a 

framework for landowners, Federal and 

State governments and university 

researchers to work together to protect 

and enhance lynx habitat in Maine 

while preserving and enhancing Maine’s 

working forest. The Service 

acknowledges that forest practices have 

created the abundant lynx habitat in 

Maine today and can continue to do so 

in the future. 

Individual landowner lynx 

management plans are important for the 

recovery of lynx in the Northeast. The 

Service’s recovery outline for the 

Canada lynx notes that ‘‘timber harvest 

and associated activities on non-federal 

lands exert the most influence to lynx 

habitat in the Northeast and have 

created the favorable conditions that 

currently exist for lynx and snowshoe 

hares in northern Maine’’ (Service 2005, 

p. 9), and that one of the most important 

recovery actions needed is to ‘‘establish 

management commitments in core areas 

that will provide for adequate quality 

and quantity of habitat such that there 

is a reasonable expectation that 

persistent lynx populations can be 

supported * * * for at least the next 

100 years.’’ The Maine Forest Products 

Council offers a memorandum of 

understanding or agreement whereby 

the Service ‘‘will work with and provide 

incentives to the Council and its 

members to develop forest management 

plans whose objectives are to promote 

the strategy and preserve Maine’s 

working forest environment.’’ Our lynx 

recovery outline (Service 2005, p. 12) 

provides a recovery action ‘‘on nonFederal core areas, develop and 

implement best management practices 

and long-term management agreements 

for lynx with key State, private, and/or 

tribal forest managers.’’

In July, 2006, the Natural Resources 

Conservation Service (NRCS) and 

Service offered financial incentives to 

landowners to prepare lynx 

management plans through the pilot 

Healthy Forest Reserve Program. NRCS 

successfully enrolled three landowners 

in the Maine Unit, the Passamaquoddy 

Tribe, the Maine Chapter of the Nature 

Conservancy, and the Forest Society of 

Maine acting on behalf of a conservation 

easement holder for the West Branch 

Project, which will result in lynx 

management plans on 201,533 ha 

(498,000 ac), or about 8 percent of the 

lands considered for inclusion in lynx 

critical habitat in Maine. Other large 

landowners in Maine attended the 

Healthy Forest information meetings 

and expressed interest in these kinds of 

programs. The Service believes this 

demonstrates the interest and 

willingness of landowners to step down 

the Maine Forest Products Council 

Strategy to individual landowner plans, 

especially if Healthy Forest or other 

cooperative conservation incentives are 

provided in the future. 

The genuine commitment of Maine 

forest industry to develop individual 

and collective lynx management plans 

represents a significant benefit of 

excluding corporate forest landowners 

from the critical habitat. The discussion 

of lynx habitat planning has been 

greatly accelerated during our 

development of this critical habitat rule. 

Throughout the process, the Maine 

forest industry has been open and 

forthright about its commitments and its 

offer of a strategy, and the memorandum 

of understanding documents this 

commitment. These commitments may 

be off the table if critical habitat is 

designated, which would be a major 

setback to lynx recovery. The Service 

believes lynx forest management plans 

can conserve lynx at the landscape 

scales meaningful to lynx and will be far 

more effective at achieving the 

conservation essential to the recovery of 

lynx than small-scale site-by-site 

evaluations of adverse modification in 

Section 7 consultations. 

We have evaluated the recent past and 

current forestry practices for lands 

managed for commercial forestry within 

the proposed designation of critical 

habitat for the lynx in Maine and found 

that they have produced a mosaic of 

lands important for lynz conservation. 

We also recognize that it is unlikely 

federal section 7 consultations could 


jlentini on PROD1PC65 with RULES3
66042 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

achieve the same conservation and 

recovery benefits provided by these 

voluntary activities. Based on this 

evaluation, we find that the benefits of 

excluding these specific lands include: 

maintaining relationships with existing 

partners, encouraging new partnerships 

with landowners, and avoiding 

potential costly regulations having 

limited conservation benefits. The 

preservation and/or initiation of 

partnerships is essential for the 

conservation and recovery of lynx in 

part because it is crucial to the ongoing 

research and surveys for lynx, snowshoe 

hare, and lynx habitat relationships. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding lands managed for 

commercial forestry as critical habitat 

outweigh the benefits of including them 

as critical habitat for the lynx. As we 

discuss above, we believe that there 

would be greater benefit from excluding 

lands managed for commercial forestry 

from the final designation because it 

will maintain or encourage partnerships 

and allow for continued access to these 

lands for research and monitoring of 

lynx, snowshoe hares, and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052), the primary threat to the lynx 

was the lack of Federal land 

management plan guidance to conserve 

lynx. We have concluded that the 

threats to the lynx in Maine have been 

ameliorated through voluntary actions 

of the Maine Forest Products Council. In 

addition, the proposed Conservation 

Strategy for the Canada Lynx in Maine, 

which covers more than 85 percent of 

the lands containing features essential 

to the conservation of the lynx in Maine 

demonstrates the Council’s voluntary 

commitment extends into the future. 

Subsequent lynx forest management 

plans with individual landowners will 

further strengthen landscape-level 

habitat protection. In addition, we 

believe that critical habitat designation 

provides little gain in the way of 

increased public recognition and 

education because of the information 

provided from ongoing research and 

monitoring, material provided on 

various Web sites, and other 

information provided to the public in 

Maine. We also believe that there would 

be few, if any, little additional 

conservation benefit realized through 

the regulatory burden of a critical 

habitat designation on these lands under 

section 7 of the Act because Federal 

actions are uncommon. Therefore, on 

the basis of the above discussion and 

the conservation measures provided the 

lynx and features essential to its 

conservation through the Maine Forest 

Products Council Conservation Strategy 

for the Canada Lynx in Maine, we do 

not believe that the exclusion of lands 

managed for commercial forestry in this 

unit would result in the extinction of 

the lynx. 

State Lands 

State land ownership (about 225,441 

ha (557,077 ac), or about 9 percent of 

the lands considered for inclusion in 

lynx critical habitat in Maine) is 

comprised of Baxter State Park (83,137 

ha (205,436 ac)), Maine Department of 

Conservation Bureau of Parks and Lands 

(140,295 ha (346,676 ac)), and Maine 

Inland Fisheries and Wildlife 

management areas (2,009 ha (4,965 ac)). 

A small part of Baxter State Park, the 

Scientific Forest Management Area, and 

many Bureau of Parks and Public Lands 

lots are managed for sustainable 

forestry. Collectively, these lands 

comprise a small part of the landscape 

occupied by lynx. 

Benefits of Inclusion 

We believe that there may be some 

education benefits to designating critical 

habitat for lynx on State-owned lands. 

However, we believe that there is 

already substantial awareness of the 

lynx and conservation issues related to 

the lynx through the species being 

listed, through the public review 

process for considering the lynx for 

State listing in 2006, information 

provided from Maine Department of 

Inland Fisheries and Wildlife, and 

research being conducted through the 

University of Maine’s Department of 

Wildlife Ecology, Cooperative Fish and 

Wildlife Research Unit, and Maine 

Cooperative Forestry Research Unit, and 

through the publication, and subsequent 

outreach and public hearings for the 

proposed critical habitat. 

Other benefits of including State 

lands in critical habitat are low. Lands 

under State ownership are considered to 

be occupied by the lynx. As such, 

Federal actions require consultation 

under section 7 of the Act if the action 

may affect the lynx or its habitat. On 

these State lands, it is uncommon for 

there to be a Federal action that triggers 

consultation under section 7 of the Act, 

therefore little benefit would be realized 

through section 7 consultation if such 

lands were included in the designation. 

Since the lynx was listed in 2000, there 

have been no consultations on Federal 

expenditures or permits on State-owned 

lands in the area of Maine considered 

for inclusion in critical habitat. 

Therefore, if there are few consultations, 

critical habitat would not be of much 

benefit to lynx. 

Further, the benefits of inclusion are 

low because of appropriate current 

management of State lands. We believe 

the benefits of including State lands 

managed for commercial forestry in the 

designation are low due to recent past 

and current silviculture practices on 

managed State lands that are similar to 

those on adjacent corporate forest land 

that have created mosaics of habitat 

supporting lynx and features essential to 

the conservation of the lynx, such as 

structure for denning and dense 

understories within boreal forest able to 

support snowshoe hares and lynx. At 

this time we have no specific evidence 

to suggest that large-scale changes in 

these practices are planned on State 

lands. Other State lands (the majority of 

Baxter State Park, Allagash Wilderness 

Waterway, and other small State parks) 

are managed in a ‘‘forever wild’’ status. 

Given that lynx in Maine respond to 

young forests regenerating from a 

disturbance, there is little opportunity 

to manage for lynx in State parks unless 

natural disturbance regimes—fire, insect 

infestation, wind throw—create habitat 

conditions favorable to lynx. We are 

aware of no State policies or 

management in State parks that would 

adversely modify critical habitat. 

The Maine Bureau of Parks and Lands 

has an Integrated Resource Policy 

(http://www.maine.gov/doc/parks/ 

programs/planning/) that requires 10- 

year management plans on public 

reserved and nonreserved lands that 

require ‘‘exemplary land management 

practices, including silvicultural, 

wildlife, and recreation practices as a 

demonstration of State policies 

governing forested and related types of 

lands.’’ These plans require 

identification of important wildlife 

areas, including a policy to work with 

the Service and Maine Inland Fisheries 

and Wildlife to conserve biodiversity 

and habitat for federally State-listed 

endangered and threatened species. 

Plans for the Seboomook and Flagstaff 

units and Allagash Wilderness 

Waterway (all considered for inclusion 

as critical habitat) are under 

development. The Service is unaware 

whether the plans being drafted 

incorporate habitat planning for lynx, 

but we believe the State will incorporate 

habitat planning for lynx per their 

policies. 

Benefits of Exclusion 

The primary benefit of excluding 

State lands from critical habitat is the 

partnerships that have and will be 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66043 

developed to conserve habitat for the 

lynx. The Service believes that 

partnerships and cooperative 

conservation are the most effective 

means of achieving conservation for the 

lynx on private lands. Partnerships have 

many benefits, including funding 

research, monitoring, and management; 

and development of forest management. 

The State of Maine has been an 

excellent partner for lynx conservation. 

The Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2), we have 

determined that the benefits of 

excluding State lands in the Maine Unit 

as critical habitat outweigh the benefits 

of including them as critical habitat for 

the lynx. As we discuss above, we 

believe there would be greater benefit 

from excluding State lands because it 

will maintain or encourage partnerships 

and allow for continued access to these 

lands for research and monitoring of 

lynx, snowshoe hares and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052), the primary threat to the lynx 

was the lack of Federal land 

management plan guidance to conserve 

lynx. We believe that the threats to the 

lynx have been ameliorated because of 

the Maine Bureau of Parks and Lands 

policy to manage parks for multiple-use, 

including managing habitat for 

endangered species, and requiring the 

development of management plans. In 

addition, we believe that critical habitat 

designation provides little gain in the 

way of increased public recognition and 

education because of the information 

provided from ongoing research and 

monitoring, material provided on 

various Web sites and other information 

provided to the public in Maine. We 

also believe that there would be little 

additional conservation benefit realized 

through the regulatory burden of a 

critical habitat designation on these 

lands under section 7 of the Act because 

Federal actions are uncommon. 

Therefore, on the basis of the above 

discussion and the conservation 

measures required by the policies of the 

Maine Bureau of Parks and Lands, we 

do not believe that the exclusion of 

State lands in this unit would result in 

the extinction of the lynx. 

Lands Owned by the Nature 

Conservancy 

Lands owned by The Nature 

Conservancy (over 80,937 ha (200,000 

ac), or about 3 percent of the lands 

considered for inclusion in critical 

habitat within Maine) are comprised of 

the St. John River unit, Katahdin Forest, 

and Debsconeag Lakes unit. In addition, 

The Nature Conservancy is the 

conservation easement holder on several 

hundred thousand acres of private 

commercial forest land within the area 

proposed as critical habitat in Maine. 

Benefits of Inclusion 

We believe that there may be some 

education benefits to designating critical 

habitat for lynx on lands owned by The 

Nature Conservancy in the Maine Unit. 

However, we believe that there is 

already substantial awareness of the 

lynx and conservation issues related to 

the lynx through the species being 

listed, through the public review 

process for considering the lynx for 

State listing in 2006, information 

provided from Maine Department of 

Inland Fisheries and Wildlife, and 

research being conducted through the 

University of Maine’s Department of 

Wildlife Ecology, Cooperative Fish and 

Wildlife Research Unit, and Maine 

Cooperative Forestry Research Unit, and 

through the publication, and subsequent 

outreach and public hearings for the 

proposed critical habitat. 

Lands owned by The Nature 

Conservancy are considered to be 

occupied by the lynx. For Federal 

actions, consultation under Section 7 of 

the Act is required if the action may 

affect the lynx or its habitat. On these 

lands, it is uncommon for there to be a 

Federal action that triggers consultation 

under section 7 of the Act, therefore 

little benefit would be realized through 

section 7 consultation if such lands 

were included in the designation. Since 

the lynx was listed in 2000, there have 

been no consultations on Federal 

expenditures or permits on The Nature 

Conservancy lands in Maine. Therefore 

the benefit of including The Nature 

Conservancy lands is low because there 

is seldom a Federal action on these 

lands. 

The benefit of inclusion of The Nature 

Conservancy lands is also low because 

of ongoing management of the lands for 

conservation. The Nature Conservancy 

is committed to continued forest 

management on their largest 72,843-ha 

(180,000-ac) ownership in the upper St. 

John River region. The Conservancy’s 

management plan includes plans for 

maintaining lynx habitat. The 

Conservancy recently enrolled its St. 

John River lands in the Healthy Forest 

Reserve Program and is committed to 

developing a forest management plan 

using Canada lynx as an umbrella 

species for young forest species and 

pine marten as an umbrella species for 

mature forest species. The plan will 

incorporate lynx management 

guidelines and will be developed with 

the cooperation of The Forest Society of 

Maine, University of Maine Department 

of Wildlife Ecology, Maine Inland 

Fisheries and Wildlife, and the Service. 

We believe the benefits of including 

managed lands in the designation are 

low because the recent past and current 

forestry practices on Conservancy lands 

are similar to those on adjacent 

corporate forest land, which have 

created mosaics of habitat supporting 

lynx and features essential to the 

conservation of the lynx, such as 

structure for denning and dense 

understories within boreal forest able to 

support snowshoe hares and lynx. At 

this time we have no specific evidence 

to suggest that large-scale changes in 

these practices are planned. Other 

Conservancy lands (the majority of 

Debsconeag Lakes Unit, 16,592 ha 

(41,000 ac) will be managed in a 

‘‘forever wild’’ status as ecological 

reserves. We are aware of no 

Conservancy policies or management in 

their ecological reserve lands that would 

adversely modify critical habitat. 

Benefits of Exclusion 

The Conservancy has policies 

regarding biodiversity and endangered 

species conservation (www.nature.org) 

that compliment the State and Service 

missions to conserve endangered 

wildlife. The Service has no 

reservations about the quality of lynx 

habitat conservation plans that The 

Nature Conservancy will develop for 

their lands in Maine. Therefore, the 

Service believes that its ongoing 

partnership with The Nature 

Conservancy will be improved from the 

exclusion of these lands from critical 

habitat. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding The Nature Conservancy 

lands in Maine as critical habitat 

outweigh the benefits of including them 

as critical habitat for the lynx. As 

discussed above, we believe there 

would be greater benefit from excluding 

The Nature Conservancy lands because 

it will maintain or encourage 

partnerships and allow for continued 

access to these lands for research and 

monitoring of lynx, snowshoe hares and 

their habitat. Further, as indicated in the 

final rule listing the lynx (March 24, 

2000; 65 FR 16052), the primary threat 

to the lynx was the lack of Federal land 

management plan guidance to conserve 

lynx. We believe that the threats to the 


jlentini on PROD1PC65 with RULES3
66044 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

lynx have been ameliorated because of 

The Nature Conservancy policies to 

manage their lands for biodiversity and 

endangered species. In addition, we 

believe that critical habitat designation 

provides little gain in the way of 

increased public recognition and 

education because of the information 

provided from ongoing research and 

monitoring, material provided on 

various Web sites and other information 

provided to the public in Maine. We 

also believe there would be little 

additional conservation benefits 

realized through the regulatory burden 

of a critical habitat designation on these 

lands under section 7 of the Act because 

Federal actions are uncommon. 

Therefore, on the basis of the above 

discussion and the conservation 

measures required by the policies of The 

Nature Conservancy, we do not believe 

that the exclusion of Conservancy lands 

in this unit would result in the 

extinction of the lynx. 

Small Landowners and Lands Not 

Managed for Commercial Forestry 

Lands owned by small landowners 

and lands not managed for commercial 

forestry (about 100,128 ha (247,421 ac), 

or about 4 percent of the area 

considered for inclusion in lynx critical 

habitat in Maine) are primarily 

comprised of small woodlot owners 

near the towns of Ashland, Millinocket, 

Eagle Lake, Smyrna Mills, and 

Greenville. Such lands also include 

National Park Service lands consisting 

of a linear buffer along the Appalachian 

Trail to its northern terminus at Mt. 

Katahdin. Collectively, these lands 

comprise a small percentage of the area 

occupied by lynx. 

Benefits of Inclusion 

We believe that there may be some 

education benefits to designating critical 

habitat for lynx on lands owned by 

small landowners and other lands not 

managed for commercial forestry in 

Maine. However, we believe that there 

is already substantial awareness of the 

lynx and conservation issues related to 

the lynx through the species being 

listed, through the public review 

process for considering the lynx for 

State listing in 2006, information 

provided from Maine Department of 

Inland Fisheries and Wildlife, and 

research being conducted through the 

University of Maine’s Department of 

Wildlife Ecology, Cooperative Fish and 

Wildlife Research Unit, and Maine 

Cooperative Forestry Research Unit, and 

through the publication, and subsequent 

outreach and public hearings for the 

proposed critical habitat. 

Lands owned by small landowners 

and lands not managed for commercial 

forestry are considered to be occupied 

by the lynx. As such, for Federal 

actions, consultation under section 7 of 

the Act is required if those actions may 

affect the lynx or its habitat. On these 

lands it is uncommon for there to be a 

Federal action that triggers consultation 

under section 7 of the Act, therefore 

little benefit would be realized through 

section 7 consultation if such lands 

were included in the designation. Maine 

averages about 10 to 15 consultations 

per year that involve Canada lynx. Most 

of these lynx consultations in Maine 

have involved small landowners (less 

than 121 ha (300 ac) ownerships) 

requesting Federal assistance through 

the Natural Resource Conservation 

Service’s Wildlife Habitat Incentive 

Program or Maine Forest Service’s 

Woodswise Program (U.S. Forest 

Service funding). Nearly all of these 

forestry projects are small (less than 4 

ha (10 ac)), occur around the periphery 

of the Maine Unit, and have no adverse 

effects on lynx because of the small 

scale and nature of the projects. Because 

actions on these lands rarely, if ever, 

adversely affect lynx, designation of 

critical habitat would be of little 

conservation value. 

We believe the benefits of including 

these lands in the designation are low 

because such lands are fairly small in 

size relative to the large landscape 

required by an individual lynx to 

support its home range. Therefore, 

although such lands may support lynx 

habitat, they have a negligible influence 

on the features essential to the 

conservation of the lynx, especially 

compared to the significant role of the 

corporate lands managed for 

commercial forestry. 

Benefits of Exclusion 

We have evaluated lands owned by 

small landowners and lands not 

managed for commercial forestry within 

the proposed designation of critical 

habitat for the lynx. Based on this 

evaluation, we find that the benefits of 

excluding these specific lands include 

maintaining relationships with 

landowners and a reduction of potential 

regulations having limited conservation 

benefits. Partnerships are essential for 

the conservation and recovery of lynx, 

in part because they are crucial to the 

ongoing research and surveys for lynx, 

snowshoe hare, and lynx habitat 

relationships. The educational benefits 

of critical habitat, including informing 

the public of areas that are essential for 

the long-term conservation of the lynx, 

are still accomplished from ongoing 

research and surveys as discussed 

above, various Web sites, and through 

public notice-and-comment procedures. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding small landowners and lands 

not managed for forestry in Maine as 

critical habitat outweigh the benefits of 

including them as critical habitat for the 

lynx. As discussed above, we believe 

there would be greater benefit from 

excluding these lands because it will 

maintain or encourage partnerships and 

allow for continued access to these 

lands for research and monitoring of 

lynx, snowshoe hares and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052), the primary threat to the lynx 

was the lack of Federal land 

management plan guidance to conserve 

lynx. We believe that critical habitat 

designation provides little gain in the 

way of increased public recognition and 

education because of the information 

provided from ongoing research and 

monitoring, material provided on 

various Web sites and other information 

provided to the public in Maine. We 

also believe that there would be little 

additional conservation benefits 

realized through the regulatory burden 

of a critical habitat designation on these 

lands under section 7 of the Act because 

Federal actions are uncommon and 

because of the small scale, adverse 

modification is very unlikely. Therefore, 

on the basis of the above discussion, we 

do not believe that the exclusion of 

small landowners and lands not 

managed for forestry in this unit would 

result in the extinction of the lynx. 

Unit 2 (Minnesota) 

Lands Managed for Commercial 

Forestry 

This category of specific properties 

includes private, county, and State 

lands on which timber is grown, 

harvested, and processed for wood and 

wood fiber for the manufacture of pulp 

and paper, and the production of solid 

and engineered wood products. These 

lands constitute a relatively large land 

base within the area considered for 

inclusion as critical habitat, and are 

generally adjacent to the much larger 

Superior National Forest, which 

supports the majority of lands 

containing features essential to the 

conservation of the lynx in Minnesota. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66045 

Benefits of Inclusion 

As previously discussed, we believe 

there may be some education benefits to 

designating critical habitat for lynx on 

lands managed for commercial forestry. 

However, we believe there is already 

substantial awareness of the lynx and 

conservation issues related to the lynx 

through the species being listed, 

through the public review process for 

revision and implementation of the 

Superior National Forest Land and 

Resource Management Plan, information 

provided by Minnesota Department of 

Natural Resources (http:// 

www.dnr.state.mn.us/ 

ecological_services/nhnrp/research/ 

lynx_sightings.html), research being 

conducted by the University of 

Minnesota’s Natural Resources Research 

Institute (http://www.nrri.umn.edu/ 

lynx/), and through the publication of 

the proposed critical habitat and 

associated outreach and public hearings. 

Lands under this category are 

considered to be occupied by the lynx. 

As such, for Federal actions, 

consultation under section 7 of the Act 

is required if those actions may affect 

the lynx or its habitat. Some forestry 

practices may affect the lynx or its 

habitat. However, the ability to address 

such forestry practices through 

consultation is limited because, since 

the lynx has been listed, instances 

where a Federal action occurred on nonfederal lands managed for commercial 

forestry that would trigger consultation 

under section 7 of the Act have been 

infrequent, therefore, the benefit of 

including these lands is low. 

Further, we believe the benefits of 

including these lands in the designation 

are low because of recent past and 

current forestry practices that have 

created a mosaic of differing 

successional boreal forest stages within 

this unit. Some components of this 

mosaic support lynx and features 

essential to the conservation of the lynx, 

including dense understories within 

boreal forest able to support snowshoe 

hares and lynx and structure for 

denning. At this time we have no 

specific evidence to suggest that largescale changes in these practices are 

planned. Thus, because of the limited 

Federal nexuses and the recent past and 

current forestry practices, we believe 

there would be little benefit obtained 

from including these lands in the 

designation. 

Many of the lands managed for 

commercial forestry are enrolled in the 

Sustainable Forestry Initiative (SFI) 

program. The SFI program, which is 

described in more detail above in 

response to comment number 8, has a 

number of principles and objectives that 

generally pertain to overall forest health. 

The SFI objective that is most pertinent 

to lynx conservation is ‘‘To manage the 

quality and distribution of wildlife 

habitats and contribute to the 

conservation of biological diversity by 

developing and implementing standand landscape-level measures that 

promote habitat diversity and the 

conservation of forest plants and 

animals, including aquatic fauna.’’ As 

discussed above, recent past and current 

forestry practices have created a mosaic 

of differing successional boreal forest 

stages within this unit that supports 

lynx and features essential to the 

conservation of the lynx; SFI 

participation has provided some 

oversight for these land management 

activities. Thus, because SFI 

participation has partially been 

responsible for the forestry practices 

that have created the extensive mosaic 

of lynx habitat in this unit, we believe 

there would be little benefit from 

including these lands in the 

designation. 

Finally, the primary factor causing the 

lynx to be listed was inadequate 

regulatory mechanisms on Federal 

lands. In Minnesota, the Superior 

National Forest lands are the most 

important for the conservation of lynx 

because they support the majority of 

lynx occurrence records and lynx 

habitat containing the features essential 

to the conservation of lynx. Since the 

lynx was listed, the Superior National 

Forest has revised its Land and 

Resource Management Plan to 

incorporate conservation measures for 

lynx (see 3(5)(A) discussion above). 

Because factors on non-Federal lands 

played a subordinate role in the listing 

and conservation of the lynx compared 

to National Forest and BLM lands, we 

believe there is little benefit of 

including non-Federal lands managed 

for commercial forestry in the 

designation. 

Benefits of Exclusion 

We have evaluated the recent past and 

current practices for lands managed for 

commercial forestry within the 

proposed designation of critical habitat 

for the lynx. Based on this evaluation, 

we find that the benefits of excluding 

these specific lands include maintaining 

relationships with existing partners and 

encouraging the potential establishment 

of new partnerships with public and 

private landowners. Partnerships are 

essential for the conservation and 

recovery of lynx in part because it is 

crucial to the ongoing research and 

surveys for lynx, snowshoe hare, and 

lynx habitat relationships. For example, 

these landowners allow lynx researchers 

access to their lands, without access to 

these lands, research and monitoring 

that inform our understanding of lynx 

ecology would be severely restricted. 

The educational benefits of critical 

habitat, including informing the public 

of areas that are essential for the longterm conservation of the lynx, are still 

accomplished from ongoing research 

and surveys as discussed above and 

outreach. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding lands managed for 

commercial forestry as critical habitat 

outweigh the benefits of including them 

as critical habitat for the lynx. As we 

discuss above, we believe that there 

would be greater benefit from excluding 

lands managed for commercial forestry 

from the final designation because it 

will maintain or encourage partnerships 

and allow for continued access to these 

lands for research and monitoring of 

lynx, snowshoe hares and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052) the primary threat to the lynx 

was the lack of Federal land 

management plan guidance to conserve 

lynx. We believe that within this unit 

the threats to the lynx have been 

ameliorated because the Superior 

National Forest, which supports the 

majority of lands containing features 

essential to the conservation of the lynx 

in this unit, has revised its LRMP to 

provide conservation measures for the 

lynx. Thus, while non-Federal lands 

managed for commercial forestry 

provide habitat for lynx, they only 

supplement those lynx management 

efforts on Superior National Forest. In 

addition, we believe that critical habitat 

designation provides little gain in the 

way of increased public recognition and 

education. The public may become 

aware of the location and importance of 

lynx habitat via the information 

provided from ongoing research and 

monitoring, information provided to the 

public (e.g., on various Web sites), and 

from the publication of the proposed 

critical habitat and associated outreach 

and public hearings. We also have 

concluded that there would be little 

additional conservation benefits 

realized through the regulatory burden 

of a critical habitat designation on these 

lands under section 7 of the Act because 

Federal actions are uncommon. 

Therefore, on the basis of the above 

discussion and the conservation 


jlentini on PROD1PC65 with RULES3
66046 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

measures provided the lynx and features 

essential to its conservation through the 

Superior National Forest, we do not 

believe that the exclusion of lands 

managed for commercial forestry in this 

unit would result in the extinction of 

the lynx. 

Small Landowners and Lands Not 

Managed for Commercial Forestry 

This category of specific properties 

includes private, county, municipal, 

National Monument, and State lands 

that have a myriad of uses and 

individually are small compared to the 

large spatial scale required by lynx. 

Cumulatively, these lands constitute a 

limited land base within the proposed 

critical habitat unit compared to the 

Superior National Forest lands and are 

scattered throughout the proposed unit. 

Benefits of Inclusion 

As previously discussed, we believe 

that there may be some educational 

benefits to designating critical habitat 

for lynx on non-Federal lands not 

managed for commercial forestry. 

However, we believe that there is 

already substantial awareness of the 

lynx and conservation issues related to 

the lynx as a result of ongoing outreach 

conducted by the Service and its 

partners. 

Lands under this category are 

considered to be occupied by the lynx. 

As such, for actions having a Federal 

nexus, consultation under section 7 of 

the Act is required if a Federal action 

may affect the lynx or its habitat. 

Federal actions having adverse affects 

on lynx on these lands may be 

addressed through a section 7 

consultation. Since the lynx was listed 

the opportunity to address such actions 

through consultation has been limited 

because there is infrequently a Federal 

nexus on these lands. Therefore, the 

benefit of designation of these lands as 

critical habitat is low because there are 

few instances in which a Federal nexus 

occurs. 

Further, we believe the benefits of 

including these lands in the designation 

are low because such lands are fairly 

small in size relative to the large 

landscape required by an individual 

lynx to support its home range and they 

are scattered throughout the proposed 

unit. Therefore, although such lands 

may support lynx habitat, they have a 

minor influence on the features 

essential to the conservation of the lynx, 

especially compared to the significant 

role of the Superior National Forest 

lands. Thus, due to the negligible affect 

of these small properties and lands not 

managed for commercial forestry on the 

features essential to the conservation of 

lynx and the infrequency of Federal 

actions we believe that there would be 

little benefit obtained from including 

these lands in the designation. 

Benefits of Exclusion 

We have evaluated lands not managed 

for commercial forestry within the 

proposed designation of critical habitat 

for the lynx. Based on this evaluation, 

we find that the benefits of excluding 

these specific lands include maintaining 

the potential to develop relationships 

with landowners. Partnerships are 

essential for the conservation and 

recovery of lynx in part because it is 

crucial to the ongoing research and 

surveys for lynx, snowshoe hare, and 

lynx habitat relationships. These 

landowners allow researchers access to 

their lands, without which, research and 

monitoring would be hampered. As 

previously discussed, we believe that 

there may be some educational benefits 

to designating critical habitat for lynx 

on small properties and lands not 

managed for commercial forestry. 

However, we believe that there is 

already substantial awareness of the 

lynx and conservation issues related to 

the lynx as a result of ongoing outreach 

conducted by the Service and its 

partners. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding lands not managed for 

commercial forestry as critical habitat 

outweigh the benefits of including them 

as critical habitat for the lynx. As we 

discuss above, we believe that there 

would be greater benefit from excluding 

these smaller properties and lands not 

managed for commercial forestry from 

the final designation because it will 

maintain relationships and allow for 

continued access to these lands for 

research and monitoring of lynx, 

snowshoe hares and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052) the primary threat to the lynx 

was the lack of Federal land 

management plan guidance to conserve 

lynx. We believe that within this unit 

the threats to the lynx have been 

ameliorated because the Superior 

National Forest, which supports the 

majority of lands containing features 

essential to the conservation of the lynx 

in this unit, has revised its LRMP to 

provide conservation measures for the 

lynx. Smaller land holdings that are not 

managed for commercial forestry have a 

minor influence on the features 

essential to the conservation of lynx 

compared to the National Forest lands. 

In addition, we believe that critical 

habitat designation provides little gain 

in the way of increased public 

recognition and education because of 

the information provided from ongoing 

research and monitoring. We also 

believe that there would be little 

additional conservation benefits 

realized through the regulatory burden 

of a critical habitat designation on these 

lands under section 7 of the Act because 

Federal nexuses are uncommon. 

Therefore, on the basis of the above 

discussion and the conservation 

measures provided the lynx and features 

essential to its conservation through the 

Superior National Forest, we do not 

believe that the exclusion of lands not 

managed for commercial forestry in this 

unit would result in the extinction of 

the lynx. 

Unit 3 (Northern Rockies—(Montana 

and Idaho)) 

Montana Department of Natural 

Resources and Conservation Forested 

Trust Land Habitat Conservation Plan 

(MDNRC HCP) 

The MDNRC HCP encompasses 

241,108 ac (377 mi2) (97,573 ha/976 

km2) of State Forested Trust lands 

distributed throughout northwestern, 

southwestern and central Montana. 

Lynx have been documented to occur 

throughout these areas, primarily in the 

northwest and southwest areas where 

MDNRC has delineated Lynx 

Management Areas (LMAs). A portion of 

these lands occur within the area 

proposed as critical habitat. Although 

the MDNRC HCP is not yet final, the 

lynx conservation strategy portion of the 

HCP has undergone technical and 

public review (Pierce 2005, entire); 

MDNRC entered into an agreement with 

the Service wherein the MDNRC 

committed to develop an HCP using 

Congressionally appropriated funding 

(USFWS and MDNRC 2000, entire, 

Clinch 2002, entire; Wilson 2003, 

entire); scoping for an Environmental 

Impact Statement (EIS) is complete and 

development of the EIS is underway (81 

FR 22412 Apr 28, 2003; Parametrix 

2004, entire). The incidental take permit 

for the HCP is anticipated to be issued 

in 2008 (O’Herron 2006). 

The MDNRC HCP contains measures 

to minimize and mitigate potential 

impacts to the lynx and its habitat from 

forest management activities. The 

primary components for minimization 

and mitigation include: minimizing 

potential for disturbance to known 

active den sites; mapping winter 

foraging habitat, young foraging habitat, 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66047 

other suitable habitat and temporary 

non-suitable habitat; providing stand 

structure or attributes that offer habitat 

for prey species, particularly in winter; 

retaining coarse woody debris and other 

denning attributes on managed sites; 

limiting conversion of suitable lynx 

habitat to temporary non-suitable 

habitat per decade in key geographic 

areas of notable importance for lynx 

(LMAs); ensuring that adequate amounts 

of foraging habitat are maintained in 

defined LMAs; providing for habitat 

connectivity on the landscape where 

vegetation and ownership patterns 

allow; providing assurances for 

maintenance of suitable lynx habitat on 

DNRC scattered lands outside LMAs 

(MDNRC 2005, entire). All of these 

measures provide the features essential 

to the conservation of the lynx. 

The MDNRC HCP and its 

accompanying Implementing 

Agreement, which will delineate the 

responsibilities of the Service and 

MDNRC for the implementation of the 

HCP, are designed to minimize the 

impacts of forest management activities 

on lynx and to manage for habitat 

elements important for lynx and prey 

that contribute to their landscape-scale 

occurrence. 

Furthermore, MDNRC has had lynx 

habitat management guidance in place 

since 1998, prior to lynx being listed 

under the Act. In 2003, MDNRC 

developed a mapping protocol for 

identifying lynx habitat on State lands 

and adopted administrative rules for 

lynx conservation. 

Benefits of Inclusion 

We expect the MDNRC HCP to 

provide substantial protection of 

features essential to the conservation of 

lynx on MDNRC Forested Trust Lands 

and to provide a greater level of 

management for the lynx on these State 

lands than would designation of critical 

habitat on State lands. Habitat 

management provisions for lynx are 

already in place on MDNRC lands. 

Moreover, inclusion of these nonFederal lands as critical habitat would 

not necessitate additional management 

and conservation activities that would 

exceed the MDNRC HCP and its 

implementing agreement upon 

approval. As a result, we do not 

anticipate any action on these lands 

would destroy or adversely modify the 

areas designated as critical habitat. 

Therefore, we do not believe that 

including these lands in the final 

designation would lead to any changes 

to actions on the MDNRC Forested Trust 

lands to avoid destroying or adversely 

modifying that habitat. 

On these State lands it is uncommon 

for there to be a Federal action that 

triggers consultation under section 7 of 

the Act, therefore little benefit would be 

realized through section 7 consultation 

if such lands were included in the 

designation. The MDNRC HCP will 

undergo section 7 consultation prior to 

permit issuance. 

As previously discussed, we believe 

there may be some education benefits to 

designating critical habitat for lynx on 

MDNRC Forested Trust lands. However, 

we believe there is already substantial 

awareness of the lynx and conservation 

issues related to the lynx through the 

species being listed, through the public 

review process for the MDNRC HCP and 

the USFS Northern Rockies Lynx 

Amendment, lynx and snowshoe hare 

research being conducted by the USFS 

Rocky Mountain Research Station and 

the University of Montana, surveys 

conducted by Montana Fish, Wildlife 

and Parks, and independent researchers, 

various Web sites and through the 

publication of the proposed critical 

habitat and associated outreach and 

public hearings. 

Benefits of Exclusion 

The exclusion of these lands from 

critical habitat will help preserve the 

partnerships that we have developed 

with the MDNRC, particularly in the 

development of the MDNRC HCP, 

which provides for long-term lynx 

conservation. Comments received from 

MDNRC explain that the agency has a 

long history of lynx conservation efforts 

and, therefore, designation on MDNRC 

lands is unnecessary and inappropriate 

(Sexton 2006, p. 2). The educational 

benefits of critical habitat, including 

informing the public of areas that are 

essential for the long-term conservation 

of the lynx, are still accomplished from 

ongoing research and surveys as 

discussed above, various Web sites, and 

through public notice-and-comment 

procedures. For these reasons, we 

believe that designating critical habitat 

has little benefit in areas covered by the 

MDNRC HCP. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding MDNRC Forested Trust Lands 

as critical habitat outweigh the benefits 

of including them as critical habitat for 

the lynx. As we discuss above, we 

believe that there would be greater 

benefit from excluding MDNRC 

Forested Trust Lands from the final 

designation because it will preserve our 

partnership with MDNRC. The 

provisions of the MDNRC HCP are 

expected to provide greater benefits to 

the features essential to the conservation 

of lynx than would be provided under 

a critical habitat designation. 

We also believe that there would be 

little additional conservation benefits 

realized through the regulatory burden 

of a critical habitat designation on these 

lands under section 7 of the Act because 

Federal nexuses are uncommon. 

Therefore, on the basis of the above 

discussion and the habitat conservation 

measures that are already being 

provided to the lynx on MDNRC lands 

and the detailed minimization and 

mitigation measures of the pending 

MDNRC HCP that will further address 

the features essential to conservation of 

the lynx, we do not believe that the 

exclusion of MDNRC lands would result 

in the extinction of the lynx. 

Lands Managed for Commercial 

Forestry 

This category of specific properties 

includes private lands on which timber 

is grown, harvested, and processed for 

wood and wood fiber for the 

manufacture of pulp and paper, and the 

production of solid and engineered 

wood products. These lands constitute a 

substantially smaller land base than that 

of the National Forests (Flathead 

National Forest, Helena National Forest, 

Idaho Panhandle National Forests, 

Kootenai National Forest, Lewis and 

Clark National Forest, and the Lolo 

National Forest) that constitute the vast 

majority of habitat containing the 

features essential to the conservation of 

lynx in this unit. The owner of the 

majority of private lands managed for 

commercial forestry in this unit is Plum 

Creek Timber Company. 

Benefits of Inclusion 

As previously discussed, we believe 

there may be some education benefits to 

designating critical habitat for lynx on 

lands managed for commercial forestry 

in Montana. However, we believe there 

is already substantial awareness of the 

lynx and conservation issues related to 

the lynx through the species being 

listed, through the USFS Northern 

Rockies Lynx Amendment, lynx and 

snowshoe hare research being 

conducted by the USFS Rocky 

Mountain Research Station and the 

University of Montana, surveys 

conducted by Montana Fish, Wildlife 

and Parks and independent researchers, 

various Web sites and through the 

publication of the proposed critical 

habitat and associated outreach and 

public hearings. For example, Plum 

Creek Timber Company is clearly aware 


jlentini on PROD1PC65 with RULES3
66048 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

of issues related to the Act, in general, 

and lynx, in particular, based on 

comments the company submitted on 

the critical habitat proposal (Kraft 

2006a, b, entire). 

Lands under this category are 

considered to be occupied by the lynx. 

As such, for Federal actions, 

consultation under section 7 of the Act 

is required if those actions may affect 

the lynx or its habitat. Some forestry 

practices may affect the lynx or its 

habitat, however, the ability to address 

such forestry practices through 

consultation is limited because, since 

the lynx has been listed, it is uncommon 

for there to be a Federal action on 

private lands managed for commercial 

forestry that would trigger consultation 

under section 7 of the Act. Because 

there is a low likelihood of projects 

involving a Federal action on these 

lands, the benefits of inclusion are low. 

Many of the lands managed for 

commercial forestry are enrolled in the 

SFI program. The SFI program, which is 

described in more detail above in 

response to comment number 8, has a 

number of principles and objectives that 

generally pertain to overall forest health. 

The SFI objective most pertinent to lynx 

conservation is ‘‘To manage the quality 

and distribution of wildlife habitats and 

contribute to the conservation of 

biological diversity by developing and 

implementing stand- and landscapelevel measures that promote habitat 

diversity and the conservation of forest 

plants and animals, including aquatic 

fauna.’’ As discussed above, lands 

managed for commercial forestry in this 

unit support lynx and lynx habitat. SFI 

participation has provided some 

oversight for these land management 

activities. Plum Creek Timber Company 

is a participant in the SFI program. 

Plum Creek notes its structure retention 

program that provides lynx denning 

habitat as an example of its compliance 

with the above objective (Kraft 2006a, p. 

7 technical comments). Additionally, 

Plum Creek cites implementation 

examples for Montana that include its 

continued experimentation with 

alternative precommercial thinning 

methods to enhance snowshoe hare 

habitat (based on university research) 

and distributing a biodiversity and 

threatened species brochure to over 500 

small private landowners to broaden the 

practice of sustainable forestry, 

including management practices to 

benefit lynx (Kraft 2006a p. 7, technical 

comments). 

Thus, because SFI participation has 

partially been responsible for the 

forestry practices that have created the 

extensive mosaic of lynx habitat in this 

unit, we believe there would be little 

benefit from including these lands in 

the designation. 

Finally, the primary factor causing the 

lynx to be listed was inadequate 

regulatory mechanisms on Federal 

lands. In the Northern Rockies, six 

National Forests and BLM lands provide 

an extensive mosaic of boreal forest 

supporting different successional stages 

that provide features essential to the 

conservation of lynx. These Forests are 

in the process of amending their LRMPs 

to incorporate conservation measures 

for lynx (see 3(5)(A) discussion above). 

Currently, these six Forests adhere to a 

conservation agreement that ensures 

that these Forests will continue to be 

managed for lynx conservation by: (1) 

continuing to manage these lands 

consistent with the LCAS until their 

LRMPs are revised, which we have 

determined largely avoids adverse 

effects to lynx in the interim period 

(Service 2000, p. 47); and (2) ensuring 

sufficient conservation of the lynx and 

its habitat upon revision of LRMPs (see 

Application of Section 3(5)(A) of the 

Endangered Species Act discussion, 

above). Because factors on non-federal 

lands played a subordinate role in the 

listing and conservation of the lynx 

compared to National Forest and BLM 

lands, we believe there is little benefit 

of including non-federal lands managed 

for commercial forestry in the 

designation. 

Benefits of Exclusion 

We have evaluated lands managed for 

commercial forestry within the 

proposed designation of critical habitat 

for the lynx. Based on this evaluation, 

we find that the benefits of excluding 

these specific lands include maintaining 

relationships with existing partners and 

encouraging the establishment of new 

partnerships with landowners and a 

reduction of potential regulations 

having limited conservation benefits. 

Partnerships are essential for the 

conservation and recovery of lynx in 

part because it is crucial to the ongoing 

research and surveys for lynx, snowshoe 

hare, and lynx habitat relationships. For 

example, these landowners, especially 

Plum Creek, allow researchers access to 

their lands; without access to these 

lands, research and monitoring that 

informs our understanding of lynx 

ecology would be severely restricted. 

Additionally, Plum Creek provides 

funding and other resources to enable 

lynx and snowshoe hare research. Plum 

Creek Timber Company has 

demonstrated its willingness to be a 

partner in the conservation of fish and 

wildlife through its Native Fish Habitat 

Conservation Plan and from being a 

signatory to the Swan Valley Grizzly 

Bear Conservation Agreement, both of 

which provide some ancillary benefits 

to lynx. The educational benefits of 

critical habitat, including informing the 

public of areas that are essential for the 

long-term conservation of the lynx, are 

still accomplished from ongoing 

research and surveys as discussed 

above, various Web sites and through 

public notice-and-comment procedures. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding lands managed for 

commercial forestry as critical habitat 

outweigh the benefits of including them 

as critical habitat for the lynx. As we 

discuss above, we believe that there 

would be greater benefit from excluding 

lands managed for commercial forestry 

from the final designation because it 

will maintain or encourage partnerships 

and allow for continued access to these 

lands for research and monitoring of 

lynx, snowshoe hares and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052) the primary threat to the lynx 

was the inadequacy of regulatory 

mechanisms on Federal lands. National 

Forest lands support the vast majority of 

lynx habitat and the features essential to 

the conservation of lynx in the Northern 

Rockies. We believe that within this 

unit the threats to the lynx have been 

ameliorated because the USFS adheres 

to a conservation agreement that ensures 

that these Forests will continue to be 

managed for lynx conservation. Thus, 

while non-federal lands managed for 

commercial forestry provide habitat for 

lynx, they only supplement those lynx 

habitat management efforts on National 

Forest lands. In addition, we believe 

that critical habitat designation provides 

little gain in the way of increased public 

recognition and education because of 

the information provided from ongoing 

research and monitoring, materials 

provided on various Web sites, through 

the public review process for the 

MDNRC HCP and the USFS Northern 

Rockies Lynx Amendment, and through 

the publication of the proposed critical 

habitat and associated outreach and 

public hearings. As described above, 

based on Plum Creek Timber Company’s 

comments on the critical habitat 

proposal, the company is aware of 

issues related to the Act, in general, and 

lynx, in particular. We also believe that 

there would be little additional 

conservation benefits realized through 

the regulatory burden of a critical 

habitat designation on these lands under 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66049 

section 7 of the Act because Federal 

actions that would trigger consultation 

are uncommon. Therefore, on the basis 

of the above discussion and the 

conservation measures provided the 

lynx and features essential to its 

conservation through the National 

Forests, we do not believe that the 

exclusion of lands managed for 

commercial forestry in this unit would 

result in the extinction of the lynx. 

Small Landowners and Lands Not 

Managed for Commercial Forestry 

This category of specific properties 

includes private, county, municipal 

government, conservation lands (e.g., 

The Nature Conservancy), Federal 

(except National Forest or National Park 

lands) and State lands that have a 

myriad of uses and individually are 

small-scale compared to the large spatial 

scale required by lynx. Cumulatively, 

these lands constitute an extremely 

limited land base within the proposed 

critical habitat unit compared to the 

amount of lynx habitat provided by 

seven National Forests, and are 

scattered throughout the proposed unit. 

Benefits of Inclusion 

As previously discussed, we believe 

that there may be some education 

benefits to designating critical habitat 

for lynx on lands not managed for 

commercial forestry. However, we 

believe that these is already substantial 

awareness of the lynx and conservation 

issues related to the lynx through the 

species being listed, through the public 

review process for the MDNRC HCP and 

the USFS Northern Rockies Lynx 

Amendment, lynx and snowshoe hare 

research being conducted by the USFS 

Rocky Mountain Research Station and 

the University of Montana, surveys 

conducted by Montana Fish, Wildlife 

and Parks, and independent researchers, 

various Web sites (e.g., http:// 

www.nature.org/wherewework/ 

northamerica/states/montana/press/ 

press2654.html) and through the 

publication of the proposed critical 

habitat and associated outreach and 

public hearings. 

Lands under this category are 

considered to be occupied by the lynx. 

As such, for Federal actions, 

consultation under section 7 of the Act 

is required if a Federal action may affect 

the lynx or its habitat. While actions 

having adverse affects for lynx may be 

addressed through a consultation, since 

the lynx was listed the opportunity to 

address such actions through 

consultation has been extremely limited 

because there have been few 

consultations under section 7 of the Act 

for actions on these lands because there 

is rarely a Federal action. Therefore the 

benefits of inclusion are low because of 

the few instances in which projects are 

federally funded, permitted or approved 

on these lands. 

Further, we believe the benefits of 

including these lands in the designation 

are low because such lands are fairly 

small in size relative to the large 

landscape required by an individual 

lynx to support its home range and 

these lands are scattered throughout the 

proposed unit. Therefore, although such 

lands may support lynx habitat, they 

have a negligible influence on the 

features essential to the conservation of 

the lynx, especially compared to the 

significant role of the National Forest 

lands. Thus, due to the negligible affect 

of these small properties on the features 

essential to the conservation of lynx and 

the infrequency of Federal actions we 

believe that there would be little benefit 

obtained from including these lands in 

the designation. 

Benefits of Exclusion 

We have evaluated lands not managed 

for commercial forestry within the 

proposed designation of critical habitat 

for the lynx. Based on this evaluation, 

we find that the benefits of excluding 

these specific lands include maintaining 

relationships with landowners and a 

reduction of potential regulations 

having limited conservation benefits. 

Partnerships are essential for the 

conservation and recovery of lynx in 

part because it is crucial to the ongoing 

research and surveys for lynx, snowshoe 

hare, and lynx habitat relationships. The 

educational benefits of critical habitat, 

including informing the public of areas 

that are essential for the long-term 

conservation of the lynx, are still 

accomplished from ongoing research 

and surveys as discussed above, various 

Web sites, and through public noticeand-comment procedures. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding lands not managed for 

commercial forestry as critical habitat 

outweigh the benefits of including them 

as critical habitat for the lynx. As we 

discuss above, we believe that there 

would be greater benefit from excluding 

these smaller properties from the final 

designation because it will maintain 

relationships and allow for continued 

access to these lands for research and 

monitoring of lynx, snowshoe hares and 

their habitat. Further, as indicated in the 

final rule listing the lynx (March 24, 

2000; 65 FR 16052) the primary threat 

to the lynx was the inadequacy of 

regulatory mechanisms on Federal 

lands. National Forest lands support the 

vast majority of lynx habitat and the 

features essential to the conservation of 

lynx in the Northern Rockies. We 

believe that within this unit the threats 

to the lynx have been ameliorated 

because the USFS adheres to a 

conservation agreement that ensures 

that these Forests will continue to be 

managed for lynx conservation. These 

smaller properties that are not managed 

for commercial forestry have a minor 

influence on the features essential to the 

conservation of lynx compared to that of 

the National Forest lands. In addition, 

we believe that critical habitat 

designation provides little gain in the 

way of increased public recognition and 

education because of the information 

provided from ongoing research and 

monitoring, materials provided on 

various Web sites, through the public 

review process for the MDNRC HCP and 

the USFS Northern Rockies Lynx 

Amendment, and through the 

publication of the proposed critical 

habitat and associated outreach and 

public hearings. We also believe that 

there would be little additional 

conservation benefits realized through 

the regulatory burden of a critical 

habitat designation on these lands under 

section 7 of the Act because Federal 

actions are rare. Therefore, on the basis 

of the above discussion and the 

conservation measures provided the 

lynx and features essential to its 

conservation through the National 

Forests, we do not believe that the 

exclusion of lands not managed for 

commercial forestry in this unit would 

result in the extinction of the lynx. 

Unit 4 (North Cascades (Washington)) 

Washington Department of Natural 

Resources Lynx Habitat Management 

Plan for DNR-Managed Lands (WDNR 

HMP) 

The WDNR HMP encompasses 

126,212 ac (197 mi2) (51,076 ha/511 

km2) of WDNR-managed lands 

distributed throughout northcentral and 

northeastern Washington in areas 

delineated as Lynx Management Zones 

in the Washington state recovery plan 

for the lynx (Stinson 2001, p. 39; WDNR 

2006 pp. 5–13 (January draft). The 

WDNR HMP was finalized in 2006 and 

is a revision of the lynx plan that WDNR 

has been implementing since 1996 

(WDNR 1996, entire). The 1996 plan 

was developed as a substitute for a 

species-specific critical habitat 

designation required by Washington 

Forest Practices rules in response to the 


jlentini on PROD1PC65 with RULES3
66050 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

lynx being State-listed as threatened 

(WDNR 2006, p. 5). The 2006 HMP 

provides further provisions to avoid the 

incidental take of lynx (Martin 2002, 

entire; WDNR 2006, p. 6). Washington 

DNR is committed to following the HMP 

until 2076 or until the lynx is delisted, 

whichever is shorter (WDNR 2006, p. 6). 

The WDNR HMP contains measures 

to guide WDNR in creating and 

preserving quality lynx habitat through 

its forest management activities. The 

objectives and strategies of the HMP are 

developed for multiple planning scales 

(Ecoprovince and Ecodivision, Lynx 

Management Zone, Lynx Analysis Unit 

(LAU), and Ecological community) and 

include: encouraging genetic integrity at 

the species level by preventing 

bottlenecks between British Columbia 

and Washington by limiting size and 

shape of temporary non-habitat along 

the border and maintaining major routes 

of dispersal between British Columbia 

and Washington; maintaining 

connectivity between subpopulations by 

maintaining dispersal routes between 

and within zones and arranging timber 

harvest activities that result in 

temporary non-habitat patches among 

watersheds so that connectivity is 

maintained within each zone; 

maintaining the integrity of requisite 

habitat types within individual home 

ranges by maintaining connectivity 

between and integrity within home 

ranges used by individuals and/or 

family groups; and providing a diversity 

of successional stages within each LAU 

and connecting denning sites and 

foraging sites with forested cover 

without isolating them with open areas 

by prolonging the persistence of 

snowshoe hare habitat and retaining 

coarse woody debris for denning sites 

(WDNR 2006, p. 29). The plan identifies 

specific guidelines to achieve the 

objectives and strategies at each scale; it 

also describes how WDNR will monitor 

and evaluate the implementation and 

effectiveness of the HMP (WDNR 2006, 

pp. 29–63). 

Benefits of Inclusion 

We expect the WDNR HMP to provide 

substantial protection of features 

essential to the conservation of lynx on 

WDNR managed lands and to provide a 

greater level of management for the lynx 

on these State lands than would 

designation of critical habitat on State 

lands. The measures contained in the 

WDNR HMP exceed any measures that 

may result from critical habitat 

designation because the HMP provides 

lynx-specific objectives and strategies 

for different planning scales, provides 

guidelines to meet the objectives and 

monitoring to evaluate the 

implementation and effectiveness of the 

HMP. As a result, we do not anticipate 

any action on these lands would destroy 

or adversely modify the areas 

designated as critical habitat. Therefore, 

we do not expect that including these 

areas in the final designation would 

lead to any changes to actions on the 

WDNR managed lands to avoid 

destroying or adversely modifying that 

habitat, and therefore the benefits of 

inclusion are low. Furthermore, on 

these State lands it is uncommon for 

there to be a Federal action that triggers 

consultation under section 7 of the Act, 

therefore little benefit would be realized 

through section 7 consultation if such 

lands were included in the designation. 

As previously discussed, we believe 

there may be some education benefits to 

designating critical habitat for lynx on 

WDNR managed lands. However, we 

believe there is already substantial 

awareness of the lynx and conservation 

issues related to the lynx through the 

species being listed both under the Act 

and Washington State law; through the 

public review process for the WDNR 

HMP, Washington’s Lynx Recovery Plan 

and the revision of the OkanoganWenatchee Forest Plan; lynx and 

snowshoe hare research being 

conducted by the USFS Pacific 

Northwest Research Station, 

Washington State University, University 

of Washington, and the University of 

Montana, among others; surveys 

conducted by Washington Department 

of Fish and Wildlife and the USFS; State 

of Washington Web sites, among others 

(e.g., http://wdfw.wa.gov/wlm/diversty/ 

soc/recovery/lynx/lynx.htm, 

www.dnr.wa.gov/htdocs/amp/sepa/ 

lynx/1_toc.pdf) and through the 

publication of the proposed critical 

habitat and associated outreach and 

public hearings. 

Benefits of Exclusion 

The exclusion of these lands from 

critical habitat will help preserve the 

partnerships that we have developed 

with the WDNR over the years of 

development and implementation of 

both this 2006 HMP and the original 

1996 lynx plan, which provides for 

long-term lynx conservation. The 

educational benefits of critical habitat, 

including informing the public of areas 

that are essential for the long-term 

conservation of the lynx, are still 

accomplished from ongoing research 

and surveys as discussed above, various 

Web sites, and through public noticeand-comment procedures. For these 

reasons, we believe that designating 

critical habitat has little benefit on State 

lands covered by the WDNR HMP. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding WDNR managed lands as 

critical habitat outweigh the benefits of 

including them as critical habitat for the 

lynx. As we discuss above, we believe 

that there would be greater benefit from 

excluding WDNR managed lands from 

the final designation because it will 

preserve our partnership with WDNR. 

The provisions of the WDNR HMP will 

provide greater benefits to the features 

essential to the conservation of lynx 

than would be provided under a critical 

habitat designation. 

We also believe that there would be 

little additional conservation benefits 

realized through the regulatory burden 

of a critical habitat designation on these 

lands under section 7 of the Act because 

Federal actions are uncommon. 

Therefore, on the basis of the above 

discussion and the habitat conservation 

measures that are already being 

provided to the lynx on WDNR managed 

lands under the WDNR HMP that 

address the features essential to 

conservation of the lynx, we do not 

believe that the exclusion of WDNR 

HMP lands would result in the 

extinction of the lynx. 

Small Landowners and Lands Not 

Managed for Commercial Forestry 

This category of specific properties 

includes private lands that are smallscale compared to the large spatial scale 

required by lynx. Cumulatively, these 

lands constitute an extremely limited 

land base within the proposed critical 

habitat unit compared to the amount of 

lynx habitat provided by the OkanoganWenatchee National Forest, and are 

scattered fragments within the proposed 

unit. 

Benefits of Inclusion 

As previously discussed, we believe 

that there may be some education 

benefits to designating critical habitat 

for lynx on small private lands not 

managed for commercial forestry. 

However, we believe there is already 

substantial awareness of the lynx and 

conservation issues related to the lynx 

through the species being listed both 

under the Act and Washington State 

law; through the public review process 

for the WDNR HMP, Washington’s Lynx 

Recovery Plan and the revision of the 

Okanogan-Wenatchee Forest Plan; lynx 

and snowshoe hare research being 

conducted by the USFS Pacific 

Northwest Research Station, 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66051 

Washington State University, University 

of Washington, University of Montana, 

among others; surveys conducted by 

Washington Department of Fish and 

Wildlife and the USFS; State of 

Washington Web sites, among others, 

and through the publication of the 

proposed critical habitat and associated 

outreach and public hearings. 

On these private lands it is rare for 

there to be a Federal action that triggers 

consultation under section 7 of the Act, 

therefore, little benefit would be 

realized through section 7 consultation 

if such lands were included in the 

designation. 

Further, we believe the benefits of 

including these lands in the designation 

are low because such lands are 

extremely small in size relative to the 

large landscape required by an 

individual lynx to support its home 

range. Therefore, although such lands 

may support lynx habitat, they have a 

negligible influence on the features 

essential to the conservation of the lynx, 

especially compared to the significant 

role of the National Forest lands in this 

area. Thus, due to the negligible affect 

of these small properties on the features 

essential to the conservation of lynx and 

the infrequency of Federal actions 

triggering consultation, we believe that 

there would be little benefit obtained 

from including these lands in the 

designation. 

Benefits of Exclusion 

We have evaluated small private 

lands not managed for commercial 

forestry within the proposed 

designation of critical habitat for the 

lynx. Based on this evaluation, we find 

that the benefits of excluding these 

specific lands include maintaining 

relationships with landowners and a 

reduction of potential regulations 

having limited conservation benefits. 

Partnerships are essential for the 

conservation and recovery of lynx in 

part because it is crucial to the ongoing 

research and surveys for lynx, snowshoe 

hare, and lynx habitat relationships. 

These landowners might allow 

researchers access to their lands, 

without which, research and monitoring 

would be hampered. The educational 

benefits of critical habitat, including 

informing the public of areas that are 

essential for the long-term conservation 

of the lynx, are still accomplished from 

ongoing research and surveys as 

discussed above, various Web sites and 

through public notice-and-comment 

procedures. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act, 

we have determined that the benefits of 

excluding small private lands not 

managed for commercial forestry as 

critical habitat outweigh the benefits of 

including them as critical habitat for the 

lynx. As we discuss above, we believe 

that there would be greater benefit from 

excluding these smaller properties from 

the final designation because it will 

maintain relationships to promote 

research and monitoring of lynx, 

snowshoe hares and their habitat. 

Further, as indicated in the final rule 

listing the lynx (March 24, 2000; 65 FR 

16052) the primary threat to the lynx 

was the inadequacy of regulatory 

mechanisms on Federal lands. National 

Forest lands support the vast majority of 

lynx habitat and the features essential to 

the conservation of lynx in the North 

Cascades. These smaller properties that 

are not managed for commercial forestry 

have a minor influence on the features 

essential to the conservation of lynx 

compared to that of the OkanoganWenatchee National Forest lands. In 

addition, we believe that critical habitat 

designation provides little gain in the 

way of increased public recognition and 

education because of the information 

provided from ongoing research and 

monitoring, materials provided on 

various Web sites, through the public 

review process for the WDNR HMP, 

Washington’s Lynx Recovery Plan and 

the revision of the Okanogan-Wenatchee 

Forest Plan; lynx and snowshoe hare 

research being conducted by the USFS 

Pacific Northwest Research Station, 

Washington State University, University 

of Washington, University of Montana, 

among others; and through the 

publication of the proposed critical 

habitat and associated outreach and 

public hearings. We also believe that 

there would be little additional 

conservation benefits realized through 

the regulatory burden of a critical 

habitat designation on these lands under 

section 7 of the Act because Federal 

actions are rare. Therefore, on the basis 

of the above discussion and the 

conservation measures provided the 

lynx and features essential to its 

conservation through the National 

Forests, we do not believe that the 

exclusion of small private lands not 

managed for commercial forestry in this 

unit would result in the extinction of 

the lynx. 

Correction of Administrative Error 

In this final rule, we are correcting an 

administrative error that occurred in the 

listing of the Canada lynx. The State of 

Pennsylvania should not be listed in the 

Historic Range column for this species 

in the table in 50 CFR 17.11(h). 

Therefore, we are removing 

Pennsylvania from the list of States in 

the Historic Range column. 

Economic Analysis 

Section 4(b)(2)of the Act requires us 

to designate critical habitat on the basis 

of the best scientific information 

available and to consider the economic 

and other relevant impacts of 

designating a particular area as critical 

habitat. We may exclude areas from 

critical habitat upon a determination 

that the benefits of such exclusions 

outweigh the benefits of specifying such 

areas as critical habitat. We cannot 

exclude such areas from critical habitat 

when such exclusion will result in the 

extinction of the species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

September 11, 2006 (71 FR 53355). We 

accepted comments on the draft analysis 

until October 11, 2006. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

lynx. This information is intended to 

assist the Secretary in making decisions 

about whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections and conservation efforts that 

may be co-extensive with the listing of 

the species. It also addresses 

distribution of impacts, including an 

assessment of the potential effects on 

small entities and the energy industry. 

This information can be used by the 

Secretary to assess whether the effects of 

the designation might unduly burden a 

particular group or economic sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 


jlentini on PROD1PC65 with RULES3
66052 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

impacts that result from these types of 

protections are not included in the 

analysis, as they are considered to be 

part of the regulatory and policy 

baseline. 

As discussed in the September 11, 

2006, notice announcing the availability 

of the draft economic analysis ((71 FR 

53355), the draft analysis estimates the 

potential total future costs to range from 

$175 million to $889 million in 

undiscounted dollars over the next 20 

years. Discounted future costs are 

estimated to be from $125 million to 

$411 million over 20 years ($8.38 

million to $27.6 million annually) using 

a 3 percent discount rate, or $99.9 

million to $259 million over 20 years 

($9.43 million to $24.4 million 

annually) using a 7 percent discount 

rate. After taking into consideration 

public comment on the proposal, the 

draft economic analysis and the draft 

NEPA document, we evaluated the 

benefits of conservation programs, 

plans, and partnerships relative to the 

regulatory benefits of critical habitat 

pursuant to section 4(b)(2) of the Act. 

Please refer to Exclusions Under Section 

4(b)(2) of the Act section of this final 

rule. As a result, we are only finalizing 

critical habitat for the lynx lands within 

Voyageurs, Glacier, and North Cascades 

National Parks. Based on our final 

analysis of potential economic cost 

resulting from this designation, we have 

determined that the annualized 

potential cost to the National Parks 

would be approximately $18,150. 

A copy of the draft and final 

economic analysis with supporting 

documents are included in our 

administrative record and may be 

obtained by contacting U.S. Fish and 

Wildlife Service, Montana Field Office 

(see ADDRESSES section) or for 

downloading from the Internet at 

http://mountain-prairie.fws.gov/species/ 

mammals/lynx/criticalhabitat.htm. 

Pursuant to section 4(b)(2) of the Act, 

we must consider relevant impacts in 

addition to economic ones. We have 

determined that no lands being 

designated as critical habitat for the 

lynx are owned or managed by the 

Department of Defense. We anticipate 

no impact to national security, 

partnerships, or HCPs from this final 

critical habitat designation. Further, we 

do not believe that this final designation 

will result in any substantial and 

disproportionate economic impacts. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, the 

agency will then need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement pursuant to the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat, providing the benefits of 

such exclusion outweigh the benefits of 

specifying the area as critical habitat 

and that such exclusion would not 

result in the extinction of the species. 

As such, we believe that the evaluation 

of the inclusion or exclusion of 

particular areas, or combination thereof, 

in a designation constitutes our 

regulatory alternative analysis. 

In the development of this final 

designation we took into consideration 

conservation partnerships, programs, 

and management plans. On the basis of 

our evaluation of the benefits of 

including lands covered under these 

programs, plans or partnerships, we 

determined that greater conservation 

benefits for the lynx would be realized 

from the exclusion of these lands from 

this final designation. As a result, we 

are only finalizing critical habitat for the 

lynx lands within Voyageurs, Glacier, 

and North Cascades National Parks. 

Based on our final analysis of potential 

economic cost resulting from this 

designation, we have determined that 

the annualized potential cost to the 

National Parks would be approximately 

$18,150. Thus, this final designation of 

critical habitat for the lynx will not have 

an annual effect on the economy of $100 

million or more or affect the economy 

in a material way. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

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 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The Service has concluded that there 

will not be a substantial impact on a 

significant number of small entities as a 

result of this final rule. The only areas 

designated are owned by the National 

Park Service (NPS). The NPS said, in its 

comments on this rule, it would likely 

not change its management of park 

lands as a result of this proposal. Any 

small entities likely to be affected by 

this rule would be park concessionaires 

or contractors. However, activities that 

are conducted by these small businesses 

are unlikely to result in adverse 

modification of lynx critical habitat. 

Therefore, there will be no impact on 

small entities from this rule. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (Number 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

final rule to designate critical habitat for 

the lynx is considered a significant 

regulatory action under Executive Order 

12866, as it may raise novel legal and 

policy issues. However, because this 

final designation is restricted to 

National Park Service lands, it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action and no Statement of Energy 

Effects is required. 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66053 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq. 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) 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, 

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; AFDC 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 do not 

destroy or adversely modify critical 

habitat under section 7. While nonfederal entities receiving Federal 

funding, assistance, or permits, or 

otherwise requiring 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 on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments, because this final 

designation is restricted to National 

Park Service lands; towns and 

developed areas have been excluded. As 

such, we do not believe that a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the lynx in a takings 

implications assessment. The takings 

implications assessment concludes that 

this designation of critical habitat for 

the lynx does not pose significant 

takings implications. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with Department of the Interior policy, 

we requested information from, and 

coordinated development of, the critical 

habitat designation with appropriate 

State resource agencies in Idaho, Maine, 

Minnesota, Montana, and Washington. 

We believe that this resulting final 

designation of critical habitat for the 

lynx will have little incremental impact 

on State and local governments and 

their activities. The designation may 

have some benefit to these governments 

in that the areas important to the 

conservation of the species are more 

clearly defined, and the primary 

constituent element of the habitat 

essential to the survival and 

conservation of the species is 

specifically identified. While making 

this definition and identification does 

not alter where and what federally 

sponsored activities may occur, it may 

assist these local governments in longrange planning (rather than waiting for 

case-by-case section 7 consultations to 

occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

designated critical habitat in accordance 

with the provisions of the Act. This 

final designation uses standard property 

descriptions and identifies the primary 

constituent element within the 

designated areas to assist the public in 

understanding the habitat needs of the 

lynx. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This final rule does not contain any 

new collections of information that 

require approval by OMB under the 

Paperwork Reduction Act. This rule will 

not impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We have undertaken a NEPA analysis 

for this critical habitat designation and 

notified the public of the availability of 

the draft environmental assessment for 

the proposed rule on September 11, 

2006. The final environmental 

assessment, as well as a Finding of No 

Significant Impact (FONSI), is available 

upon request from the Field Supervisor, 

Montana Fish and Wildlife Office (see 

ADDRESSES section) or on our Web site 

at http://mountain-prairie.fws.gov/ 

species/mammals/lynx/ 

criticalhabitat.htm. 

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), Executive 

Order 13175 ‘‘Consultation and 

Coordination With Indian Tribal 

Governments,’’ and the Department of 

the Interior Manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal tribes on a 

government-to-government basis. Tribal 

lands have been excluded from this 

critical habitat designation. Please refer 

to our discussion of tribal lands under 

the Relationship of Critical Habitat to 

Tribal Lands section of this final rule. 


jlentini on PROD1PC65 with RULES3
66054 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Web site http://mountainprairie.fws.gov/species/mammals/lynx/ 

or upon request from the Field 

Supervisor, Montana Field Office (see 

ADDRESSES). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

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—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h), revise the entry for 

‘‘Lynx, Canada’’ under ‘‘MAMMALS’’ to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

Mammals 

* * * * * * * 

Lynx, Canada .......... Lynx canadensis ..... U.S.A. (AK, CO, ID, 

CO, ID, ME, MI, 

MN, MT, NH, NY, 

OR, UT, VT, WA, 

WI, WY), Canada, 

circumboreal.

CO, ID, ME, MI, 

MN, MT, NH, NY, 

OR, UT, VT, WA, 

WI, WY.

T 692 17.95(a) 17.40(k) 

* * * * * * * 

■ 3. In § 17.95(a), add critical habitat for 

‘‘Canada lynx’’ in the same alphabetical 

order as this species occurs in § 17.11(h) 

to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Canada lynx (Lynx canadensis) 

(1) Critical habitat units are depicted 

on the maps below for the following 

States and counties: 

(i) Minnesota: Koochiching and St. 

Louis counties; 

(ii) Montana: Flathead and Glacier 

counties; and 

(iii) Washington: Chelan County. 

(2) Within these areas, the primary 

constituent elements for the Canada 

lynx are boreal forest landscapes 

supporting a mosaic of differing 

successional forest stages and 

containing: 

(i) Presence of snowshoe hares and 

their preferred habitat conditions, 

which include dense understories of 

young trees or shrubs tall enough to 

protrude above the snow; 

(ii) Winter snow conditions that are 

generally deep and fluffy for extended 

periods of time; and 

(iii) Sites for denning having 

abundant, coarse woody debris, such as 

downed trees and root wads. 

(3) Critical habitat does not include 

waterbodies, including lakes, reservoirs, 

or rivers, or human-made structures 

existing on the effective date of this 

rule, such as buildings, paved and 

gravel roadbeds, and the land on which 

such structures are located. 

(4) Note: Index map for Canada lynx 

critical habitat follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66055 


jlentini on PROD1PC65 with RULES3ER09NO06.001</GPH>
66056 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

(5) Unit 1: Maine Unit; all lands 

within Unit 1 (Maine) were excluded 

from the final designation of critical 

habitat for the Canada lynx pursuant to 

section 4(b)(2) of the Act. 

(6) Unit 2: Minnesota Unit; 

Koochiching, and St. Louis Counties, 

Minnesota. Coordinate Projection: UTM, 

NAD83, Zone 15, Meters; Coordinate 

Definition: (easting, northing) 

(i) Starting at the intersection 

(coordinate: 488708, 5385732) of the 

Minnesota/Canada border and 

Voyageurs National Park (NP) boundary, 

follow the Voyageurs NP boundary to 

the beginning. 

(ii) Starting at coordinate (485661, 

5382447), follow the Voyageurs NP 

boundary to the beginning. 

(iii) Starting at coordinate (486994, 

5381780), follow the Voyageurs NP 

boundary to the beginning. 

(iv) Starting at coordinate (487475, 

5383250), follow the Voyageurs NP 

boundary to the beginning. 

(v) Note: Map 1: Unit 2 (Minnesota) 

follows: 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66057 


jlentini on PROD1PC65 with RULES3ER09NO06.002</GPH>
66058 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

(7) Unit 3: Northern Rocky Mountains 

Unit; Flathead and Glacier counties, 

Montana. Coordinate Projection: UTM, 

NAD83, Zone 12, Meters; Coordinate 

Definition: (easting, northing). 

(i) Starting at the intersection 

(coordinate: 309104, 5430544) of the 

Montana/Canada border and Glacier 

National Park (NP) boundary, follow the 

Glacier NP boundary to the intersection 

with the 4,000-foot elevation contour at 

coordinate (309305, 5346020). Follow 

the 4,000-foot elevation contour to the 

intersection of the Montana/Canada 

border at coordinate (247220, 5433213). 

Follow the Montana/Canada border to 

the intersection with the 4,000-foot 

elevation contour at coordinate (247373, 

5433204). Follow the 4000 foot 

elevation contour to the intersection 

with the Montana/Canada border at 

coordinate (247562, 5433194). Follow 

the Montana/Canada border to the 

beginning. This area is found within the 

following USGS 1:24000 Quads; 

Trailcreek, Kintla Lake, Kintla Peak, 

Mount Carter, Porcupine Ridge, Mount 

Cleveland, Gable Mountain, Chief 

Mountain, Polebridge, Quartz Ridge, 

Vulture Peak, Mount Geduhn, Ahern 

Pass, Many Glacier, Lake Sherburne, 

Babb, Demers Ridge, Camas Ridge West, 

Camas Ridge East, Mount Cannon, 

Logan Pass, Rising Sun, Saint Mary, 

McGee Meadow, Lake McDonald West, 

Lake McDonald East, Mount Jackson, 

Mount Stimson, Cut Bank Pass, Kiowa, 

West Glacier, Nyack, Stanton Lake, 

Mount Saint Nicholas, Mount Rockwell, 

Squaw Mountain, East Glacier Park, 

Pinnacle, Essex, Blacktail, Summit, 

Nimrod, and Mount Bradley. 

(ii) Starting at coordinate (269763, 

5390173), follow the 4,000-foot 

elevation contour to beginning. This 

area is found within the following USGS 

1:24000 Quads: Huckleberry Mountain, 

McGee Meadow, and Hungry Horse. 

(iii) Note: Map 2: Unit 3 (Northern 

Rockies) follows: 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66059 


jlentini on PROD1PC65 with RULES3ER09NO06.003</GPH>
66060 Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 

(8) Unit 4: North Cascades Unit; 

Chelan County, Washington. Coordinate 

Projection: UTM, NAD83, Zone 11, 

Meters; Coordinate Definition: (easting, 

northing). 

(i) Starting at the intersection 

(coordinate: 221473, 5379664) of the 

‘‘Cascade Crest’’ and the North Cascades 

National Park (NP) boundary, follow the 

North Cascades NP/Lake Chelan 

National Recreation Area boundary to 

the intersection of the 4,000-foot 

elevation contour at coordinate (232788, 

5352734). Follow the 4,000-foot 

elevation contour to the intersection of 

the North Cascades NP boundary at 

coordinate (207433, 5371068). Follow 

the North Cascades NP boundary to 

intersection with the ‘‘Cascade Crest’’ at 

coordinate (201400, 5372276). Follow 

the ‘‘Cascade Crest’’ to the beginning. 

This area is found within the following 

USGS 1:24000 Quads: Mount Logan, 

Mount Arriva, McGregor Mountain, 

McAlester Mountain, Gilbert, Sun 

Mountain, Stehekin, Goode Mountain, 

and Cascade Pass. 

(ii) Note: Map 3: Unit 4 (North 

Cascades) follows: 


jlentini on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / Rules and Regulations 66061 

* * * * * Dated: October 30, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–9090 Filed 11–8–06; 8:45 am] 

BILLING CODE 4310–55–C 


jlentini on PROD1PC65 with RULES3ER09NO06.004</GPH>