03-6291. Endangered and Threatened Wildlife and Plants; Reopening of Comment Period for Final Rule To List the Contiguous United States Distinct Population Segment of the Canada Lynx

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule; notice of reopening of comment period.

SUMMARY:

The U.S. Fish and Wildlife Service (Service), in response to the December 26, 2002, memorandum opinion and order of the United States District Court for the District of Columbia, in the case of Defenders of Wildlife v. Norton, Civil Action No. 00-2996 (GK) and pursuant to the Endangered Species Act of 1973, as amended (Act), provides this notice opening a comment period on the contiguous United States Distinct Population Segment (DPS) of the Canada lynx (Lynx canadensis) (lynx). This comment period has been opened to acquire information regarding issues identified by the Court that we need to consider in the above-referenced case. Moreover, we invite comment on specific information that has become available since the listing of the lynx that pertains to the issues we will consider on remand. Upon close of the comment period, the Service will evaluate the status of the lynx in the contiguous United States considering the range of the species.

DATES:

Comments must be postmarked or e-mailed by April 16, 2003.

ADDRESSES:

Written comments and materials concerning this notice should be sent to the Field Supervisor, U.S. Fish and Wildlife Service, Montana Field Office, 100 N. Park Avenue, Suite 320, Helena, Montana 59601; or e-mail [e-mail]. Comments and material received will be available for public inspection, by appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT:

Lori Nordstrom, Biologist, Montana Field Office, (see ADDRESSES section) (telephone [phone] extension 208; facsimile 406/449-5339; e-mail [e-mail]). The Internet is the best mechanism for obtaining the specific information that has become available since the listing of the lynx that we intend to consider for this remanded decision. This information can be retrieved from the Internet at http://mountain-prairie.fws.gov/​endspp/​lynx. If you do not have access to the Internet and would like copies of these documents, please call the Montana Field Office at the above phone number.

SUPPLEMENTARY INFORMATION:

Background

On March 24, 2000 (65 FR 16052), the Service published a final rule listing the contiguous United States DPS of the lynx as threatened under the Act. As described in the final rule, the range of the lynx where listed includes portions of the States of Colorado, Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah, Vermont, Washington, Wisconsin, and Wyoming.

After the final rule was published, plaintiffs in the case of Defenders of Wildlife v. Norton, Civil Action No. 00-2996 (GK)(D.D.C.) challenged the listing of the lynx as threatened, alleging violations of the Act and the Administrative Procedure Act (5 U.S.C. 551 et seq.). Plaintiffs argued that the Service acted arbitrarily and capriciously when it—(1) Failed to treat the four lynx geographic regions as separate DPSs, (2) determined that the lack of guidance for conservation of lynx in National Forest Land and Resource Plans and Bureau of Land Management Land Use Plans is the single factor threatening the contiguous United States DPS of lynx, (3) failed to designate critical habitat for the lynx, and (4) determined that the Northeast, Great Lakes, and Southern Rockies do not constitute a significant portion of the range of the DPS.

On December 26, 2002, the Court issued its memorandum opinion and order, deciding that the Service's determination that “[c]ollectively, the Northeast, Great Lakes and Southern Rockies do not constitute a significant portion of the range of the DPS” must be set aside and “remanded to the agency for further consideration of the lynx's status under the ESA consistent with the analysis set forth in the accompanying memorandum opinion.” The Court explained that the Service's determination about the four regions was “counterintuitive and contrary” to the plain meaning of the Act's phrase “significant portion of the range.” The Court required us to complete a new determination in 180 days. The Court did not address the plaintiffs' issues concerning the threats and the DPSs. The Court also ordered the Service to “undertake prompt rulemaking” in order to designate critical habitat for lynx and ordered injunctive relief directed at section 7 consultation.

This notice addresses the issues we will consider on remand. This notice does not address critical habitat for the lynx. We will request public comment on a proposed rule for critical habitat when it is published.

Significant Portion of Its Range

The Act defines the term “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act generally defines the term “endangered species” as a species which is in danger of extinction throughout all or a significant portion of its range. In the final rule, we found that “[c]ollectively, the Northeast, Great Lakes and Southern Rockies do not constitute a significant portion of the range of the DPS” and listed the species as threatened in 14 States. As directed by the Court, we are re-evaluating that determination.

Therefore, our re-evaluation will include an analysis of—(1) The quantity of lynx habitat and (2) the quality of lynx habitat in its range. In assessing habitat quality for lynx, we examine a variety of elements, such as primary prey (snowshoe hare) abundance, forest type, forest structure, snow conditions, denning habitat, inherent habitat patchiness, and connectivity with larger lynx populations and habitat in Canada. Lynx reproduction and recruitment into the population are indicators of habitat quality. Some qualitative information addressing some of these elements is contained in the administrative record for the final rule listing the lynx. In the brief time available to us, we will also re-examine available data on habitat quantity and any other factors relevant to the new determinations required by the court.

Listing decisions under the Act must be based on the best scientific information available. Additional information has become available since the lynx was listed in March 2000 that will be helpful to our analysis of what constitutes the “significant portion” of the lynx's range.

Public Comments Solicited

We are reopening the comment period on our determination concerning the significant portion of the range of the lynx. In particular, we are seeking comment on—(1) The quantity of lynx habitat and (2) the quality of lynx habitat. We also invite comments on other elements relevant to our determination concerning the significant portion of the range of the lynx. Our re-assessment will not be limited solely to the information identified in this notice or available on our website.

We intend to examine the following information that has become available since the listing of the lynx in March 2000 and may be pertinent to our analysis of a significant portion of the range for lynx—(1) Research on the historical occurrence and habitat ecology of lynx in eastern North America, (2) research on lynx movements, survival, habitat use, reproduction, and interspecific competition in Maine, (3) evidence of recent lynx occurrence and reproduction in Minnesota, (4) a report on historic lynx occurrence in Michigan, (5) research on the ecology of lynx in western Montana, (6) information from lynx reintroductions into Colorado, (7) information from the National Lynx Survey, (8) any available estimates of amount of lynx habitat on Federal lands, and (9) any additional information that may be applicable to our determination concerning the significant portion of the range issue that States, Tribes, or others have not already submitted to us prior to the listing in March 2000. This information will be included in the administrative record for this remanded determination.

The information identified above can be retrieved from the Internet at http://mountain-prairie.fws.gov/​endspp/​lynx. The Internet is the best method for making this information rapidly available. If you cannot access this information through the Internet, please call the Montana Field Office (see ADDRESSES section). Your written comments on the information identified above, or any additional information to help us assess the significant portion of the range for lynx, must be postmarked or emailed by the date specified above under DATES to the Service's Montana Field Office (see ADDRESSES section). The comment period is necessarily short because of the time given by the Court (180 days from the decision) to complete our remanded decision.

Author

The author of this notice is Lori Nordstrom, U.S. Fish and Wildlife Service, Montana Field Office (see ADDRESSES section).

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

Dated: March 10, 2003.

Steve Williams,

Director, U.S. Fish and Wildlife Service.