83 FR 50574 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Coastal Distinct Population Segment of the Pacific Marten

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 83, Issue 195 (October 9, 2018)

Page Range		50574-50582
FR Document		2018-21794

We, the U.S. Fish and Wildlife Service (Service), propose to list the coastal distinct population segment (DPS) of Pacific marten (Martes caurina), a mammal species from coastal California and Oregon, as a threatened species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species. The effect of this regulation will be to add this species to the List of Endangered and Threatened Wildlife.

Federal Register, Volume 83 Issue 195 (Tuesday, October 9, 2018)

[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Proposed Rules]
[Pages 50574-50582]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-21794]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2018-0076; 4500030113]
RIN 1018-BD19

Endangered and Threatened Wildlife and Plants; Threatened Species
Status for Coastal Distinct Population Segment of the Pacific Marten

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the coastal distinct population segment (DPS) of Pacific marten
(Martes caurina), a mammal species from coastal California and Oregon,
as a threatened species under the Endangered Species Act (Act). If we
finalize this rule as proposed, it would extend the Act's protections
to this species. The effect of this regulation will be to add this
species to the List of Endangered and Threatened Wildlife.

DATES: We will accept comments received or postmarked on or before
December 10, 2018. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m.
Eastern Time on the closing date. We must receive requests for public
hearings, in writing, at the address shown in FOR FURTHER INFORMATION
CONTACT by November 23, 2018.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2018-0076,
which is the docket number for this rulemaking. Then, in the Search
panel on the left side of the screen, under the Document Type heading,
click on the Proposed Rules link to locate this document. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2018-0076; U.S. Fish and Wildlife
Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA
22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Dan Everson, Field Supervisor, U.S.
Fish and Wildlife Service, Arcata Ecological Services Field Office,
1655 Heindon Road, Arcata, California 95521, or by telephone 707-822-
7201. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

Public Comments

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from the public, other concerned governmental
agencies, Native American tribes, the scientific community, industry,
or any other interested parties concerning this proposed rule. We
particularly seek comments concerning:
(1) The coastal marten's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on activities that are necessary and advisable for
the conservation of the coastal marten to include in a 4(d) rule for
the species. Section 4(d) of the Act provides that when a species is
listed as a threatened species, the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of such species. The Service has proposed such measures
here and will evaluate ideas provided by the public in considering the
prohibitions that are appropriate to include in the 4(d) rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include. Please
note that submissions merely stating support for or opposition to the
action under consideration without providing supporting information do
not provide substantial information necessary to support a
determination. Section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Arcata Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

[[Page 50575]]

Public Hearing

Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.

Species Status Assessment

A species status assessment (SSA) team prepared an SSA report for
the coastal marten. The SSA team was composed of Service biologists,
who worked throughout the process with other species experts. The SSA
report represents a compilation of the best scientific and commercial
data available concerning the status of the species, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the species. The SSA report underwent independent
peer review by scientists with expertise in carnivore biology, habitat
management, and stressors (factors negatively affecting the species) to
the species. The SSA report and other materials relating to this
proposal can be found on the Arcata Ecological Services Field Office
website at https://www.fws.gov/arcata/ and at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076, and at the
Arcata Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).

Previous Federal Action

On September 28, 2010, we received a petition from the Center for
Biological Diversity (CBD) and the Environmental Protection Information
Center (EPIC), requesting that we consider for listing the (then-
classified) subspecies Humboldt marten (Martes americana
humboldtensis), or the (now-recognized) subspecies Humboldt marten (M.
caurina humboldtensis), or the Humboldt marten DPS of the Pacific
marten (M. caurina). The petitioners further stipulated that, based on
recent genetic analyses indicating that populations of marten from
coastal Oregon (considered members of M. a. caurina) are more closely
related to M. a. humboldtensis than to M. a. caurina in the Cascades of
Oregon (citing Dawson 2008, Slauson et al. 2009a), the range of the
subspecies or DPS of the Humboldt marten should be expanded to include
coastal Oregon populations of martens. In a letter to the petitioners
dated October 22, 2010, we responded that we reviewed the information
presented in the petition and determined that issuing an emergency
regulation temporarily listing the species under section 4(b)(7) of the
Act was not warranted.
On January 12, 2012, we published in the Federal Register a 90-day
finding (77 FR 1900) that the petition presented substantial
information indicating that listing may be warranted, and,
subsequently, we initiated a status review. For purposes of the 90-day
finding, the common name Humboldt marten referred to the then-
classified American marten (M. americana) populations in coastal
northern California and coastal Oregon.
On June 23, 2014, we published a scoping notice in the Federal
Register (79 FR 35509) that summarized the uncertainty regarding the
taxonomic classification of the subspecies (based on current genetics
information) and indicated our intent to conduct an evaluation (for the
12-month finding) of a potential DPS of martens in coastal northern
California and coastal Oregon relative to the full species
classification level. On April 7, 2015, we published a not-warranted
12-month finding on the September 2010 petition (80 FR 18742).
On December 12, 2015, the Center for Biological Diversity and EPIC
filed a complaint for declaratory and injunctive relief, alleging that
our determination on the coastal marten violated the Act. By Order Re:
Summary Judgment issued on March 28, 2017, the District Court for the
Northern District of California remanded for reconsideration the
Service's 12-month finding. On May 3, 2017, the court issued a
stipulated order that the Service was to submit a 12-month finding to
the Federal Register by October 1, 2018. This document serves as our
12-month finding on the September 2010 petition.

Background

A thorough review of the taxonomy, life history, and ecology of the
coastal marten is presented in the SSA report (Service 2018; available
at https://www.fws.gov/arcata/ and at http://www.regulations.gov under
Docket No. FWS-R8-ES-2018-0076).
Our SSA report synthesizes the biology and status of the DPS of the
Pacific marten (Martes caurina) in coastal Oregon and northern coastal
California, commonly referred to as the coastal marten. On June 23,
2014, we published a notice in the Federal Register (79 FR 35509) that
summarized the taxonomic classification of the subspecies (based on
current genetic information) and indicated our intent to conduct an
evaluation of a potential DPS of martens in coastal Oregon and coastal
northern California relative to the full species classification level.
On April 7, 2015, we published a DPS analysis (80 FR 18742) concluding
that Pacific martens in coastal Oregon and northern coastal California
were both discrete and significant and constituted a listable entity
referred to collectively as the ``coastal DPS of the Pacific marten.''
This document and the associated SSA reflect our analysis of that DPS.
Preliminary results of genetic evaluation of the Pacific marten
indicate that coastal Oregon and northern coastal California marten
populations likely represent a single subspecies (Slauson et al. 2009a,
pp. 1338-1339; Schwartz et al. 2016, unpublished report) but the
taxonomic change has not yet been published. In this case, our listable
entity may be a subspecies, but the analysis maintains its validity.
The coastal marten is a medium-sized carnivore that historically
occurred throughout the coastal forests of northwestern California and
Oregon. Martens have a long and narrow body type typical of the
mustelid family (e.g., weasels, minks, otters, and fishers): Overall
brown fur with distinctive coloration on the throat and upper chest
that varies from orange to yellow to cream, large and distinctly
triangular ears, and a bushy tail that is proportionally equivalent to
about 75 percent of the head and body length. They are polygamous, with
females solely responsible for raising young. Females do not mate until
15 months of age and, due to delayed implantation, will not produce
their first litters until they are at least 24 months old. Juveniles
disperse from their natal home range at around 6 months of age. Martens
exhibit intrasexual territoriality, and dominant males maintain home
ranges that encompass one or more female's home ranges.
In the wild, most martens live less than 5 years. In light of
delayed implantation, a small proportion of female martens, perhaps 10
percent at best, are reproducing for more than 3 years, contributing to
a slow reproductive output.
Coastal martens have a generalist diet that changes seasonally with
prey availability. Overall, their diet is dominated by mammals, but
birds, insects, and fruits are seasonally important. They need to eat
15-25 percent of their body mass daily to meet their metabolic
requirements.
Martens tend to select older forest stands (e.g., late-
successional, old-

[[Page 50576]]

growth, large-conifer, mature, late-seral, structurally complex). These
forests have a mixture of old and large trees, multiple canopy layers,
snags and other decay elements, dense understory development, and
biologically complex structure and composition.

Summary of Biological Status and Threats

The Act directs us to determine whether any species is an
endangered species or a threatened species because of factors affecting
its continued existence as set forth in section 4(a)(1) of the Act. The
SSA report documents the results of our comprehensive biological status
review for the coastal marten, including an assessment of the potential
stressors to the species. It does not represent a decision by the
Service on whether the species should be proposed for listing as an
endangered or threatened species under the Act. It provides the
scientific basis that informs our regulatory decision, which involves
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the SSA report.
To evaluate the biological status of the coastal marten both
currently and into the future, we assessed a range of conditions to
allow us to consider the species' resiliency, redundancy, and
representation (together, the 3Rs). The coastal marten needs multiple
resilient populations distributed widely across its range to maintain
persistence into the future and to avoid extinction. If populations
lose resiliency, they are more vulnerable to extirpation, with
resulting losses in representation and redundancy. Several factors
influence whether coastal marten populations will increase to maximize
habitat occupancy, which increases the resiliency of a population to
stochastic events. These factors include the connectivity between
populations, amount of suitable habitat for establishing home ranges,
and amount of habitat that allows for predator avoidance. As we
consider the future viability of the species, more populations with
high resiliency distributed across the known range of the species are
associated with higher overall species viability.
Coastal marten historically ranged throughout coastal Oregon and
coastal northern California, but the species has not recently been
detected throughout much of the historical range, despite extensive
surveys. The species currently exists in four small (<100) populations
and is absent from the northern and southern ends of its historical
range. This current range is approximately 7.3 percent of its known
historical range, with two populations in Oregon and two populations in
California. The species has been extirpated from Sonoma and Mendocino
Counties, CA, and largely from Humboldt, Del Norte, and Siskiyou
Counties, CA. In Oregon, coastal martens have been largely extirpated
from much of the inland counties within the historical range and are
known to currently occur in Coos, Curry, Josephine, Douglas, Lane, and
Lincoln Counties.
We have assessed the coastal marten's levels of resiliency,
redundancy, and representation currently and into the future by first
ranking the condition of each population. We ranked the four
populations into three categories (high, moderate, and low) based on
key population factors and habitat elements: Three between-population
factors (least-cost path distance, filters, and number of populations
in proximity) and four within-population factors (population size,
available male home ranges, available female home ranges, and
proportion of habitat subject to high predation risk). Least-cost path
distance describes the distance a marten must travel for dispersal
needs in order to reach the next closest population. Filters are
barriers to this movement and can be either natural or manmade, such as
large rivers or highways. This analysis provided condition categories
to describe the resiliency of each population. A summary of this
analysis is provided in Table 1.
Maintaining representation in the form of genetic or ecological
diversity is important to maintain the coastal marten's capacity to
adapt to future environmental changes. We consider the coastal marten
to have representation in the form of two different ecological
settings. Some animals are adapted to the dunes ecosystems of coastal
dune forest, and others are adapted to late-seral forest and serpentine
ridges. One population represents the dune ecological setting, and
three represent the forest and serpentine ecological settings. Genetic
variation between populations is unknown at this time, as no studies
have been conducted to determine the degree of genetic variation
between the four populations.
The coastal marten needs to have multiple resilient populations
distributed throughout its range to provide for redundancy. The more
populations, and the wider the distribution of those populations, the
more redundancy the species exhibits. Based on the distributions of
current verifiable marten detections and adjacent suitable habitat, we
identified four extant population areas (EPAs) within coastal Oregon
and northern coastal California:
(1) Central Coastal Oregon Extant Population Area;
(2) Southern Coastal Oregon Extant Population Area;
(3) Oregon-California Border Extant Population Area; and
(4) Northern Coastal California Extant Population Area.
Additional detections of coastal martens have occurred outside of
the current EPAs but they did not meet the criteria of a population
(most likely, they represent transient individuals in search of new
territories) according to methods used in the Humboldt Marten
Conservation Strategy and Assessment, a synthesis of literature on
marten ecology developed by the Humboldt Marten Conservation Group.
This group is made of State, Federal, Tribal, private, and non-
governmental organizations in coastal Oregon and northwestern
California to conserve and manage coastal martens.

Table 1--Resiliency of Coastal Marten Populations
[Data used to assign categories are included for each population and each factor]
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Between-population factors Within-population factors
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Population (quantity of suitable Number of Proportion of
habitat out of minimum convex Least-cost path populations in Number of Number of suitable habitat Overall current
polygon) distance through Number of filters proximity (6-45 Population Size available male available female that allows for condition
suitable habitat km) home ranges home ranges predator avoidance
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Central Coastal Oregon--62 km\2\/ Low, 201 km....... Low, >1........... Low, 0............ Low, 71........... Low, 30........... Low, 44........... Low, 15%.......... Low.
403 km\2\.
Southern Coastal Oregon--1,103 Low, 65 km........ Low, >1........... Low, 0............ Low, 12-<100...... High, 276-368..... High, 173-230..... Moderate, 65%..... Low.
km\2\/2,420 km\2\.

[[Page 50577]]

CA-OR Border--56 km\2\/206 km\2\ High, 14 km....... Moderate, 1....... Moderate, 1....... Low, 12-<100...... Low, 14-19........ Low, 7-9.......... High, 82%......... Low-Moderate.
Northern Coastal CA--704 km\2\/ High, 14 km....... Moderate, 1....... Moderate, 1....... Low, 80-100....... High, 176-235..... Moderate, 96-128.. Moderate, 52%..... Moderate.
1,170 km\2\.
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Our analysis of the past, current, and future influences on what
the coastal marten needs for long-term viability revealed that two
factors pose the largest risk to future viability of the species. These
risks are primarily related to habitat loss and associated changes in
habitat quality and distribution and include: (1) A decrease in
connectivity between populations; and (2) habitat conversion from that
suitable for martens to that suitable for generalist predators and
competitors, thereby increasing potential interactions and subsequent
marten injury, mortality, or predation. These factors are all
influenced by vegetation management, wildfire, and changing climate.
Predation of martens (Factor B) has increased due to the changes in
forest composition. Bobcats are their predominant predator, with
predation accounting for 41 percent of marten mortalities in one study,
and the sources of all those predations being bobcat. Bobcats prefer
regenerating harvested stands less than 30 years old, and are nearly
absent from older forests, the preferred marten habitat. Martens are
vulnerable to predation and increased competition in habitats that have
been subject to either high-moderate severity fires or intensive
logging in the last 40 years because both of these events remove the
structural characteristics of the landscape that provide escape cover
and are important to marten viability (canopy cover, shrub cover,
etc.). These older forests have declined substantially from historical
amounts: Older forests historically encompassed >75 percent of the
coastal California area, 50 percent of the Klamath and Siskiyou region
in northern California and southwest Oregon, and 25 to 85 percent of
the Oregon Coast Range. Remaining older forests in the redwood region,
Oregon Coast Range, and Klamath-Siskiyou region is estimated around 5,
20, and 38 percent, respectively, of what occurred historically.
In addition to logging, fires are a regular occurrence where the
southern 3 marten populations occur; between 2000 and 2014,
approximately 17 percent of the suitable habitat in the north coastal
California population was burned. In the California--Oregon border
population area, roughly 12 percent of suitable habitat was burned in
the Longwood Fire of 1987. Substantial amounts of marten habitat in a
population area can be burned in single fire events or over a few years
at varying severities. Climate change is projected to result in longer
fire seasons, producing more and larger fires. Fires large enough to
totally encompass all or most of all four individual population areas
are already occurring and are expected to increase, raising concern
over the resiliency of at least the three southern marten population
areas, which have been most affected by recent fires and are in a fire
regime particularly vulnerable to future fires.
Dispersal is the means by which marten populations maintain and
expand their distribution. Successful dispersal functional habitat
between patches of habitat suitable for reproduction to maintain or
expand population size and distribution. A resilient coastal marten
population would have suitable habitat between populations that
provides important habitat for key prey, abundant daily resting sites,
and a maximum distance within the range of their average dispersal
distance. Both Oregon populations do not have functional connectivity
to any other population and if a stochastic or catastrophic event
eliminated either of them, natural recolonization would not be
feasible. The two California populations have connectivity to one
another but not the Oregon populations.
In addition to being mostly isolated, all four populations are
relatively small and face other threats in addition to habitat loss.
Since 1980, 19 mortalities of coastal martens caused by vehicles
(Factor E) have been documented, all in Oregon and mostly along U.S.
Highway 101. We expect that some unknown amount of marten roadkills go
undetected, so this is likely an underestimate of the number of martens
killed by cars. Exposure to rodenticides (Factor E) through direct
ingestion or the consumption of exposed prey has lethal and sub-lethal
effects on coastal martens. Illegal marijuana cultivation sites on
public, tribal, and private forest lands are implicated as the likely
source of these rodenticides. In a similar carnivore species, 85% of
carcasses tested were exposed to rodenticides, with the exposure in 13%
being the direct cause of death.
Certain diseases (Factor C) are also a concern to martens and other
carnivore populations, including canine distemper viruses (CDV), rabies
viruses, parvoviruses, and the protozoan (single-celled organism)
Toxoplasma gondii. We acknowledge that there has been limited testing
of coastal martens for the presence of pathogens or exposure to
pathogens, but exposure levels and ultimate effect on populations are
difficult to document until an outbreak is actually observed. While
larger populations might display a mass mortality as a result of
disease infections, extinction or extirpation is rare. With population
sizes estimated at less than 100 each for all four coastal marten
populations, an outbreak in an individual population puts it at a
higher risk for extirpation, particularly when diseases act
synergistically with other threats.
The coastal marten faces a variety of risks including loss of
habitat, wildfire, and increased predation risk. These risks play a
large role in the resiliency and future viability of the coastal
marten. Given the uncertainty regarding connectivity between
populations, suitable habitat, and increases in predation within the
populations, we forecasted what the coastal marten may have in terms of
resiliency, redundancy, and representation under three plausible future
scenarios. All three scenarios were forecast out over the next 15, 30,
and 60 years. A range of

[[Page 50578]]

timeframes with a multitude of possible scenarios allows us to create a
``risk profile'' for the coastal marten and its viability into the
future. Scenario 1 evaluates the future condition of the coastal marten
if there is no change in trends in threats to the populations from what
exists today, while the other two scenarios evaluate the response of
the species to increases or decreases in the major factors that are
influencing marten viability. While we do not expect every condition
for each scenario to be realized, we are using these scenarios to bound
the range of possibilities. Scenarios 2 and 3 are considered the
``outside bounds'' for the range of potential plausible future
conditions. For each scenario we describe the stressors that would
occur in each population. We use the best available science to predict
trends in future stressors (timber harvest, wildfire, etc.). Data
availability varies across States and populations. Where data on future
trends is not available, we look to past trends and evaluate if it is
reasonable to assume these trends will continue. The results of the
analysis of resiliency in our plausible future scenarios are described
in further detail in the SSA report and summarized in Table 2.

Table 2--Coastal Marten Population Conditions Under Each Scenario
----------------------------------------------------------------------------------------------------------------
Current Years into
Population condition the future Scenario 1 Scenario 2 Scenario 3
----------------------------------------------------------------------------------------------------------------
Central Oregon.............. Low............ 15 Low............ Low............ Low.
30 Low............ Low............ Low-0.
60 Low-0 *........ Low............ Low-0
Southern Oregon............. Low............ 15 Low............ Low............ Low.
30 Low............ Low............ Low.
60 Low............ Low............ Low.
CA-OR Border................ Low-Mod........ 15 Low-Mod........ Low-Mod........ Low-Mod.
30 Low-Mod........ Low-Mod........ Low-Mod.
60 Low-Mod........ Low-Mod........ Low-Mod.
Northern Coastal California. Moderate....... 15 Moderate....... Moderate....... Moderate.
30 Moderate....... Mod-High....... Moderate.
60 Low-Mod........ Mod-High....... Low-Mod.
----------------------------------------------------------------------------------------------------------------
* 0 = extirpated.

Determination

Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations in title 50 of the Code of Federal Regulations (at 50 CFR
part 424), set forth the procedures for adding species to the Federal
Lists of Endangered and Threatened Wildlife and Plants. Under section
4(a)(1) of the Act, we may list a species based on (A) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (B) Overutilization for commercial, recreational, scientific, or
educational purposes; (C) Disease or predation; (D) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the coastal marten. The Act defines an endangered species as any
species that is ``in danger of extinction throughout all or a
significant portion of its range'' and a 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.'' A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1) of the Act, either singly or in combination. A thorough
analysis and discussion of the threats that may impact the coastal
marten are included in the final SSA report (Service 2018, entire)
associated with this document, and here we apply those threats to the
statutory listing criteria to which they apply. We considered whether
the coastal marten is presently in danger of extinction and determined
that proposing endangered status is not appropriate. While threats are
currently acting on the species and many of those threats are expected
to continue into the future (see below), we did not find that the
species is currently in danger of extinction throughout all of its
range. With four populations occurring across the range of the species,
the current condition of the species still provides for enough
resiliency, redundancy, and representation such that it is not at risk
of extinction now.
However, estimates of future resiliency, redundancy, and
representation for the coastal marten are low. As discussed in greater
detail in the SSA, the species faces a variety of threats including
loss of habitat (Factor A) due to wildfire, timber harvest, and
vegetation management. Trapping (Factor B), collisions with vehicles
(Factor E), and rodenticides (Factor E) are all impacting marten
individuals, and the threat of disease (Factor C) carries the risk of
further reducing populations. Changes in vegetation composition and
distribution have also made coastal martens more susceptible to
predation (Factor C) from larger carnivores. These threats, which are
expected to be exacerbated by the species' small and isolated
populations (Factor E) and the effects of climate change (Factor E),
were central to our assessment of the future viability of the coastal
marten.
Given current and future decreases in resiliency, populations will
become more vulnerable to extirpation from stochastic events, in turn,
resulting in concurrent losses in representation and redundancy. The
range of plausible future scenarios for coastal marten predicts
decreased resiliency in all four currently extant populations. Under
most modeled scenarios, the species is likely to lose enough
resiliency, redundancy, and representation such that it is at risk of
not being viable. All three scenarios presented as representative of
plausible future scenarios create conditions where the coastal marten
would not have enough resiliency, redundancy, or representation to
sustain populations over time. While determining the probability of
each scenario was not possible with the available data, the entire risk
profile that was provided by looking across the range of the three
plausible scenarios showed that the species will likely continue to
lose resiliency, redundancy, and representation throughout the range in
all scenarios.
In short, our analysis of the species' current and future
conditions, including

[[Page 50579]]

the impact of the factors described in section 4(a)(1) of the Act, as
well as the conservation efforts discussed below, show that the
between-population and within-population factors used to determine the
resiliency, representation, and redundancy for the species will
continue to decline over the next 15-60 years. Consequently, the
species is likely to become in danger of extinction throughout its
range within the foreseeable future. We chose 15 years as a temporal
extant for assessing the impact of stressors to marten populations in
the near term because it is roughly the length of three marten
generations and is a recommended timeframe established by the
International Union for Conservation of Nature. We chose the two longer
periods of 30 and 60 years as multiples of generation length (6 and 12
marten generations, respectively) and to provide a longer temporal
extant to assess the threat of wildfire and climate change based on
availability of wildfire data and climate models.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Because we have determined that the
coastal marten is likely to become an endangered species within the
foreseeable future throughout its range, we find it unnecessary to
proceed to an evaluation of potentially significant portions of the
range. Where the best available information allows the Services to
determine a status for the species rangewide, that determination should
be given conclusive weight because a rangewide determination of status
more accurately reflects the species' degree of imperilment and better
promotes the purposes of the statute. Under this reading, we should
first consider whether listing is appropriate based on a rangewide
analysis and proceed to conduct a ``significant portion of its range''
analysis if, and only if, a species does not qualify for listing as
either endangered or threatened according to the ``all'' language. We
note that the court in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not
address this issue, and our conclusion is therefore consistent with the
opinion in that case.
Therefore, on the basis of the best available scientific and
commercial information and in accordance with sections 3(6) and 4(a)(1)
of the Act, we propose adding the coastal marten as a threatened
species to the List of Endangered and Threatened Wildlife at 50 CFR
17.11(h).

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
downlisting or delisting, and methods for monitoring recovery progress.
Recovery plans also establish a framework for agencies to coordinate
their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (composed of species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Arcata Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of California and Oregon
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the coastal marten.
Information on our grant programs that are available to aid species
recovery can be found at: http://www.fws.gov/grants.
Although the coastal marten is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is 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 the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to

[[Page 50580]]

jeopardize the continued existence of the species or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into consultation with the Service.
Several Federal agency actions that occur within the species'
habitat may require conference or consultation or both as described in
the preceding paragraph. These actions include management and any other
landscape-altering activities on lands administered by the Service and
the Department of the Interior's Bureau of Indian Affairs, Bureau of
Land Management, and National Park Service and the Department of
Agriculture's U.S. Forest Service; issuance of section 404 Clean Water
Act permits by the U.S. Army Corps of Engineers; and construction and
maintenance of roads or highways by the Department of Transportation's
Federal Highway Administration or the California Department of
Transportation (Cal Trans).

Provisions of Section 4(d) of the Act

Under section 4(d) of the Act, the Secretary of the Interior has
the discretion to issue such regulations as he deems necessary and
advisable to provide for the conservation of threatened species. The
Secretary also has the discretion to prohibit by regulation with
respect to any threatened species of fish or wildlife any act
prohibited under section 9(a)(1) of the Act. The prohibitions of
section 9(a)(1) of the Act make it illegal for any person subject to
the jurisdiction of the United States to take (which includes harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or
to attempt any of these) endangered species of fish or wildlife within
the United States or on the high seas. In addition, it is unlawful to
import; export; deliver, receive, carry, transport, or ship in
interstate or foreign commerce in the course of commercial activity; or
sell or offer for sale in interstate or foreign commerce any endangered
fish or wildlife species. It is also illegal to possess, sell, deliver,
carry, transport, or ship any such wildlife or fish that has been taken
illegally. To the extent the section 9(a)(1) prohibitions apply only to
endangered species, this proposed rule would apply those same
prohibitions to the coastal marten with some exceptions, in accordance
with section 4(d) of the Act.
The courts have recognized the extent of the Secretary's discretion
to develop prohibitions, as well as exclusions from those prohibitions,
that are appropriate for the conservation of a species. For example,
the Secretary may decide not to prohibit take, or to put in place only
limited take prohibitions. See Alsea Valley Alliance v. Lautenbacher,
2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental
Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis
5432 (W.D. Wash. 2002). In addition, as affirmed in State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988), the protective regulation for
a species need not address all the threats to the species. As noted by
Congress when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to him with regard to the permitted activities for those
species.'' He may, for example, ``permit taking, but not importation of
such species,'' or he may choose to forbid both taking and importation
but allow the transportation of such species, as long as the measures
will ``serve to conserve, protect, or restore the species concerned in
accordance with the purposes of the Act'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).

Proposed 4(d) Rule for the Coastal Marten

Under this proposed section 4(d) rule, except as noted below, all
prohibitions and provisions of section 9(a)(1) would apply to the
coastal marten. The following management activities would not be
subject to the general prohibitions of section 9(a)(1):
(1) Forestry management activities for the purposes of reducing the
risk or severity of wildfire, such as fuels reduction projects, fire
breaks, and wildfire firefighting activities.
(2) Forestry management activities included in a State-approved
plan or agreement for lands covered by a Natural Communities
Conservation Plan, Habitat Management Agreement, or Safe Harbor
Agreement that addresses coastal marten as a covered species and is
approved by the California Department of Fish and Wildlife under the
authority of the California Endangered Species Act.
(3) Forestry management activities consistent with the conservation
needs of the coastal marten. These include activities consistent with
formal approved conservation plans or strategies, such as Federal or
State plans and documents that include coastal marten conservation
prescriptions or compliance, and for which the Service has determined
that meeting such plans or strategies, or portions thereof, would be
consistent with this proposed rule.
Although these management activities may result in some minimal
level of harm or temporary disturbance to the coastal marten, overall,
these activities benefit the subspecies by contributing to conservation
and recovery. With adherence to the limitations described in the
preceding paragraphs, these activities will have a net beneficial
effect on the species by encouraging active forest management that
creates and maintains the complex tree and shrub conditions needed to
support the persistence of marten populations, which is essential to
the species' long-term viability and conservation.
These provisions are necessary because, absent the protections of
the Act, the species is likely to become in danger of extinction in the
foreseeable future. Applying the prohibitions of the Act will minimize
threats that could cause further declines in the status of the species.
Additionally, these provisions are advisable because the species needs
active conservation to maintain or improve the quality of its habitat,
and to sustain and expand the species' population and occupied range.
By exempting some of the forestry management activities from the
prohibitions, these provisions can encourage cooperation by landowners
and other affected parties in implementing conservation measures that
will maintain or enhance habitat and expand the population of the
species and its occupied range. These provisions will allow for use of
the land while at the same time ensuring the maintenance or enhancement
of suitable habitat and minimizing impacts to the species.
For activities funded, permitted, or carried out by a Federal
agency that are not covered by the provisions and that may result in
take, the Federal agency with jurisdiction would need to ensure, in
consultation with the Service, that the activities are not likely to
jeopardize the continued existence of the species. Private citizens who
would like to have coverage for take resulting from activities not
covered by these provisions may wish to seek an incidental take permit
from the Service before proceeding with the activity (if there is no
Federal nexus).
Based on the explanations above, the prohibitions under section
9(a)(1) would apply to the coastal marten throughout its range, with
specific exemptions tailored to the conservation of the species.
Nothing in this proposed 4(d) rule would change in any way the recovery
planning provisions of section 4(f) and consultation requirements under
section 7 of the Act or the ability of the Service to enter into
partnerships

[[Page 50581]]

for the management and protection of the coastal marten.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Arcata
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

Section 4(a)(3) of the Act, as amended, and implementing
regulations in 50 CFR 424.12, require that, to the maximum extent
prudent and determinable, we designate critical habitat at the time the
species is determined to be an endangered or threatened species.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the provisions of
section 4 of this Act, on which are found those physical or biological
features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of
section 4 of this Act, upon a determination by the Secretary of the
Interior that such areas are essential for the conservation of the
species.
Our regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when any of the following situations
exist: (1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species. The regulations also
provide that, in determining whether a designation of critical habitat
would not be beneficial to the species, the factors that the Service
may consider include but are not limited to: Whether the present or
threatened destruction, modification, or curtailment of a species'
habitat or range is not a threat to the species, or whether any areas
meet the definition of ``critical habitat'' (50 CFR 424.12(a)(1)(ii)).
We do not know of any imminent threat of take attributed to
collection or vandalism for the coastal marten. The available
information does not indicate that identification and mapping of
critical habitat is likely to initiate any threat of collection or
vandalism. Therefore, in the absence of finding that the designation of
critical habitat would increase threats to the species, if there are
benefits to the species from a critical habitat designation, a finding
that designation is prudent is appropriate.
The potential benefits of designation may include: (1) Triggering
consultation under section 7 of the Act, in new areas for actions in
which there may be a Federal nexus where it would not otherwise occur
because, for example, it is unoccupied; (2) focusing conservation
activities on the most essential features and areas; (3) providing
educational benefits to State or county governments or private
entities; and (4) preventing people from causing inadvertent harm to
the protected species. Because designation of critical habitat would
not likely increase the degree of threat to the coastal marten and may
provide some measure of benefit, designation of critical habitat may be
prudent for the coastal marten.
Our regulations (50 CFR 424.12(a)(2)) further state that critical
habitat is not determinable when one or both of the following
situations exists: (1) Information sufficient to perform required
analysis of the impacts of the designation is lacking; or (2) the
biological needs of the species are not sufficiently well known to
permit identification of an area as critical habitat. A careful
assessment of the economic impacts that may occur due to a critical
habitat designation is still ongoing, and we are in the process of
working with the States and other partners in acquiring the complex
information needed to perform that assessment. The information
sufficient to perform a required analysis of the impacts of the
designation is lacking, and, therefore, we find designation of critical
habitat for the coastal marten to be not determinable at this time.

Required Determinations

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as an endangered or
threatened species under the Endangered Species Act. We published a
notice outlining our reasons for this determination in the Federal
Register on October 25, 1983 (48 FR 49244).

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's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. In development of the SSA, we sent
letters noting our intent to conduct a status review and requested
information from all tribal entities within the historical range of the
coastal DPS of the Pacific marten, as well as providing a draft SSA
Report to the Yurok Tribe for review. As we move forward in this
listing process, we will continue to consult on a government-to-
government basis with tribes as necessary.

Authors

The primary authors of this proposed rule are the staff members of
the Service's Species Assessment Team, with assistance from the Arcata

[[Page 50582]]

Ecological Services Field Office and the Portland Ecological Services
Field Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.

0
2. Amend Sec. 17.11(h) by adding an entry for ``Marten, Pacific
(coastal DPS)'' to the List of Endangered and Threatened Wildlife in
alphabetical order under MAMMALS to read as set forth below:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Mammals
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Marten, Pacific (coastal DPS) Martes caurina.. Wherever found.. T............ [Federal Register citation
when published as a final
rule], 50 CFR 17.40(s).\4d\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
0
3. Amend Sec. 17.40 by adding paragraph (s) to read as set forth
below:

Sec. 17.40 Special rules--mammals.

* * * * *
(s) Coastal marten (Martes caurina).--(1) Prohibitions. Except as
noted in paragraph (a)(2) of this section, all prohibitions and
provisions of section 9(a)(1) of the Act apply to the coastal marten.
(2) Exceptions from prohibitions. Incidental take of the coastal
marten will not be considered a violation of the Act if the take
results from any of the following activities:
(i) Forestry management activities for the purposes of reducing the
risk or severity of wildfire, such as fuels reduction projects, fire
breaks, and wildfire firefighting activities.
(ii) Forestry management activities included in a State-approved
plan or agreement for lands covered by a Natural Communities
Conservation Plan, Habitat Management Agreement, or Safe Harbor
Agreement that addresses coastal marten as a covered species and is
approved by the California Department of Fish and Wildlife under the
authority of the California Endangered Species Act.
(iii) Forestry management activities consistent with the
conservation needs of the coastal marten. These include activities
consistent with formal approved conservation plans or strategies, such
as Federal or State plans and documents that include coastal marten
conservation prescriptions or compliance, and for which the Service has
determined that meeting such plans or strategies, or portions thereof,
would be consistent with this rule.
* * * * *

James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-21794 Filed 10-5-18; 8:45 am]
BILLING CODE 4333-15-P

Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules 50575

Public Hearing to include coastal Oregon populations of subspecies (based on current genetic
Section 4(b)(5) of the Act provides for martens. In a letter to the petitioners information) and indicated our intent to
one or more public hearings on this dated October 22, 2010, we responded conduct an evaluation of a potential
proposal, if requested. Requests must be that we reviewed the information DPS of martens in coastal Oregon and
received within 45 days after the date of presented in the petition and coastal northern California relative to
determined that issuing an emergency the full species classification level. On
publication of this proposed rule in the
regulation temporarily listing the April 7, 2015, we published a DPS
Federal Register. Such requests must be
species under section 4(b)(7) of the Act analysis (80 FR 18742) concluding that
sent to the address shown in FOR
was not warranted. Pacific martens in coastal Oregon and
FURTHER INFORMATION CONTACT. We will
On January 12, 2012, we published in northern coastal California were both
schedule public hearings on this the Federal Register a 90-day finding discrete and significant and constituted
proposal, if any are requested, and (77 FR 1900) that the petition presented a listable entity referred to collectively
announce the dates, times, and places of substantial information indicating that as the ‘‘coastal DPS of the Pacific
those hearings, as well as how to obtain listing may be warranted, and, marten.’’ This document and the
reasonable accommodations, in the subsequently, we initiated a status associated SSA reflect our analysis of
Federal Register and local newspapers review. For purposes of the 90-day that DPS. Preliminary results of genetic
at least 15 days before the hearing. finding, the common name Humboldt evaluation of the Pacific marten indicate
Species Status Assessment marten referred to the then-classified that coastal Oregon and northern coastal
American marten (M. americana) California marten populations likely
A species status assessment (SSA) populations in coastal northern represent a single subspecies (Slauson et
team prepared an SSA report for the California and coastal Oregon. al. 2009a, pp. 1338–1339; Schwartz et
coastal marten. The SSA team was On June 23, 2014, we published a al. 2016, unpublished report) but the
composed of Service biologists, who scoping notice in the Federal Register taxonomic change has not yet been
worked throughout the process with (79 FR 35509) that summarized the published. In this case, our listable
other species experts. The SSA report uncertainty regarding the taxonomic entity may be a subspecies, but the
represents a compilation of the best classification of the subspecies (based analysis maintains its validity.
scientific and commercial data available on current genetics information) and The coastal marten is a medium-sized
concerning the status of the species, indicated our intent to conduct an carnivore that historically occurred
including the impacts of past, present, evaluation (for the 12-month finding) of throughout the coastal forests of
and future factors (both negative and a potential DPS of martens in coastal northwestern California and Oregon.
beneficial) affecting the species. The northern California and coastal Oregon Martens have a long and narrow body
SSA report underwent independent relative to the full species classification type typical of the mustelid family (e.g.,
peer review by scientists with expertise level. On April 7, 2015, we published a weasels, minks, otters, and fishers):
in carnivore biology, habitat not-warranted 12-month finding on the Overall brown fur with distinctive
management, and stressors (factors September 2010 petition (80 FR 18742). coloration on the throat and upper chest
negatively affecting the species) to the On December 12, 2015, the Center for that varies from orange to yellow to
species. The SSA report and other Biological Diversity and EPIC filed a cream, large and distinctly triangular
materials relating to this proposal can be complaint for declaratory and injunctive ears, and a bushy tail that is
found on the Arcata Ecological Services relief, alleging that our determination on proportionally equivalent to about 75
Field Office website at https:// the coastal marten violated the Act. By percent of the head and body length.
www.fws.gov/arcata/ and at http:// Order Re: Summary Judgment issued on They are polygamous, with females
www.regulations.gov under Docket No. March 28, 2017, the District Court for solely responsible for raising young.
FWS–R8–ES–2018–0076, and at the the Northern District of California Females do not mate until 15 months of
Arcata Ecological Services Field Office remanded for reconsideration the age and, due to delayed implantation,
(see FOR FURTHER INFORMATION CONTACT). Service’s 12-month finding. On May 3, will not produce their first litters until
Previous Federal Action 2017, the court issued a stipulated order they are at least 24 months old.
that the Service was to submit a 12- Juveniles disperse from their natal home
On September 28, 2010, we received month finding to the Federal Register range at around 6 months of age.
a petition from the Center for Biological by October 1, 2018. This document Martens exhibit intrasexual
Diversity (CBD) and the Environmental serves as our 12-month finding on the territoriality, and dominant males
Protection Information Center (EPIC), September 2010 petition. maintain home ranges that encompass
requesting that we consider for listing one or more female’s home ranges.
the (then-classified) subspecies Background In the wild, most martens live less
Humboldt marten (Martes americana A thorough review of the taxonomy, than 5 years. In light of delayed
humboldtensis), or the (now-recognized) life history, and ecology of the coastal implantation, a small proportion of
subspecies Humboldt marten (M. marten is presented in the SSA report female martens, perhaps 10 percent at
caurina humboldtensis), or the (Service 2018; available at https:// best, are reproducing for more than 3
Humboldt marten DPS of the Pacific www.fws.gov/arcata/ and at http:// years, contributing to a slow
marten (M. caurina). The petitioners www.regulations.gov under Docket No. reproductive output.
further stipulated that, based on recent FWS–R8–ES–2018–0076). Coastal martens have a generalist diet
genetic analyses indicating that Our SSA report synthesizes the that changes seasonally with prey
amozie on DSK3GDR082PROD with PROPOSALS1

populations of marten from coastal biology and status of the DPS of the availability. Overall, their diet is
Oregon (considered members of M. a. Pacific marten (Martes caurina) in dominated by mammals, but birds,
caurina) are more closely related to M. coastal Oregon and northern coastal insects, and fruits are seasonally
a. humboldtensis than to M. a. caurina California, commonly referred to as the important. They need to eat 15–25
in the Cascades of Oregon (citing coastal marten. On June 23, 2014, we percent of their body mass daily to meet
Dawson 2008, Slauson et al. 2009a), the published a notice in the Federal their metabolic requirements.
range of the subspecies or DPS of the Register (79 FR 35509) that summarized Martens tend to select older forest
Humboldt marten should be expanded the taxonomic classification of the stands (e.g., late-successional, old-

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Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules 50581

for the management and protection of the designation of critical habitat would better help us revise the rule, your
the coastal marten. increase threats to the species, if there comments should be as specific as
Questions regarding whether specific are benefits to the species from a critical possible. For example, you should tell
activities would constitute a violation of habitat designation, a finding that us the numbers of the sections or
section 9 of the Act should be directed designation is prudent is appropriate. paragraphs that are unclearly written,
to the Arcata Ecological Services Field The potential benefits of designation which sections or sentences are too
Office (see FOR FURTHER INFORMATION may include: (1) Triggering consultation long, the sections where you feel lists or
CONTACT). under section 7 of the Act, in new areas tables would be useful, etc.
Critical Habitat for actions in which there may be a National Environmental Policy Act (42
Federal nexus where it would not U.S.C. 4321 et seq.)
Section 4(a)(3) of the Act, as otherwise occur because, for example, it
amended, and implementing regulations is unoccupied; (2) focusing conservation We have determined that
in 50 CFR 424.12, require that, to the activities on the most essential features environmental assessments and
maximum extent prudent and and areas; (3) providing educational environmental impact statements, as
determinable, we designate critical benefits to State or county governments defined under the authority of the
habitat at the time the species is or private entities; and (4) preventing National Environmental Policy Act
determined to be an endangered or people from causing inadvertent harm (NEPA; 42 U.S.C. 4321 et seq.), need not
threatened species. Critical habitat is to the protected species. Because be prepared in connection with listing
defined in section 3 of the Act as: designation of critical habitat would not a species as an endangered or
(1) The specific areas within the likely increase the degree of threat to the threatened species under the
geographical area occupied by the coastal marten and may provide some Endangered Species Act. We published
species, at the time it is listed in measure of benefit, designation of a notice outlining our reasons for this
accordance with the provisions of critical habitat may be prudent for the determination in the Federal Register
section 4 of this Act, on which are coastal marten. on October 25, 1983 (48 FR 49244).
found those physical or biological Our regulations (50 CFR 424.12(a)(2)) Government-to-Government
features further state that critical habitat is not
(a) Essential to the conservation of the Relationship With Tribes
determinable when one or both of the
species, and In accordance with the President’s
following situations exists: (1)
(b) Which may require special memorandum of April 29, 1994
Information sufficient to perform
management considerations or (Government-to-Government Relations
required analysis of the impacts of the
protection; and with Native American Tribal
(2) Specific areas outside the designation is lacking; or (2) the
Governments; 59 FR 22951), Executive
geographical area occupied by the biological needs of the species are not
Order 13175 (Consultation and
species at the time it is listed in sufficiently well known to permit
Coordination With Indian Tribal
accordance with the provisions of identification of an area as critical
Governments), and the Department of
section 4 of this Act, upon a habitat. A careful assessment of the
the Interior’s manual at 512 DM 2, we
determination by the Secretary of the economic impacts that may occur due to
readily acknowledge our responsibility
Interior that such areas are essential for a critical habitat designation is still
to communicate meaningfully with
the conservation of the species. ongoing, and we are in the process of
recognized Federal Tribes on a
Our regulations (50 CFR 424.12(a)(1)) working with the States and other
government-to-government basis. In
state that the designation of critical partners in acquiring the complex
accordance with Secretarial Order 3206
habitat is not prudent when any of the information needed to perform that
of June 5, 1997 (American Indian Tribal
following situations exist: (1) The assessment. The information sufficient
Rights, Federal-Tribal Trust
species is threatened by taking or other to perform a required analysis of the
Responsibilities, and the Endangered
human activity, and identification of impacts of the designation is lacking,
Species Act), we readily acknowledge
critical habitat can be expected to and, therefore, we find designation of
our responsibilities to work directly
increase the degree of threat to the critical habitat for the coastal marten to
with tribes in developing programs for
species, or (2) such designation of be not determinable at this time.
healthy ecosystems, to acknowledge that
critical habitat would not be beneficial Required Determinations tribal lands are not subject to the same
to the species. The regulations also controls as Federal public lands, to
provide that, in determining whether a Clarity of the Rule
remain sensitive to Indian culture, and
designation of critical habitat would not We are required by Executive Orders to make information available to tribes.
be beneficial to the species, the factors 12866 and 12988 and by the In development of the SSA, we sent
that the Service may consider include Presidential Memorandum of June 1, letters noting our intent to conduct a
but are not limited to: Whether the 1998, to write all rules in plain status review and requested information
present or threatened destruction, language. This means that each rule we from all tribal entities within the
modification, or curtailment of a publish must: historical range of the coastal DPS of the
species’ habitat or range is not a threat (1) Be logically organized; Pacific marten, as well as providing a
to the species, or whether any areas (2) Use the active voice to address draft SSA Report to the Yurok Tribe for
meet the definition of ‘‘critical habitat’’ readers directly; review. As we move forward in this
(50 CFR 424.12(a)(1)(ii)). (3) Use clear language rather than listing process, we will continue to
amozie on DSK3GDR082PROD with PROPOSALS1

We do not know of any imminent jargon; consult on a government-to-government
threat of take attributed to collection or (4) Be divided into short sections and basis with tribes as necessary.
vandalism for the coastal marten. The sentences; and
available information does not indicate (5) Use lists and tables wherever Authors
that identification and mapping of possible. The primary authors of this proposed
critical habitat is likely to initiate any If you feel that we have not met these rule are the staff members of the
threat of collection or vandalism. requirements, send us comments by one Service’s Species Assessment Team,
Therefore, in the absence of finding that of the methods listed in ADDRESSES. To with assistance from the Arcata

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Document Created: 2018-10-06 00:59:10
Document Modified: 2018-10-06 00:59:10

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		We will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal
Contact		Dan Everson, Field Supervisor, U.S. Fish and Wildlife Service, Arcata Ecological Services Field Office, 1655 Heindon Road, Arcata, California 95521, or by telephone 707-822- 7201. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
FR Citation		83 FR 50574
RIN Number		1018-BD19
CFR Associated		Endangered and Threatened Species; Exports; Imports; Reporting and Recordkeeping Requirements and Transportation

83 FR 50574 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Coastal Distinct Population Segment of the Pacific Marten

DEPARTMENT OF THE INTERIORFish and Wildlife Service

Federal Register Volume 83, Issue 195 (October 9, 2018)

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service