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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53193
<br />designated was likely over inclusive
<br />because the short deadline did not allow
<br />the fine -scale mapping necessary to
<br />physically exclude all of the areas that
<br />do not contain suitable habitat. Did the
<br />Service refine its mapping of critical
<br />habitat during the past three years since
<br />the proposed rule was published and
<br />shouldn't the Service be soliciting
<br />comments based on maps that more
<br />accurately depict the area the Service
<br />will treat as critical habitat?
<br />Our Response: We refined our maps
<br />delineating the boundaries of critical
<br />habitat for the owl after considering
<br />public comments and information
<br />received from a variety of sources
<br />including the FS, BLM, and State
<br />agencies (See "Summary of Changes
<br />From the Proposed Rule" section).
<br />While we believe these maps to be
<br />much more refined, because of data
<br />limitations and time and resource
<br />constraints, we were not able to remove
<br />all specific areas that do not contain one
<br />or more of the primary constituent
<br />elements for the owl.
<br />(39) Comment: The Service should
<br />readopt the February 2001 final rule to
<br />designate critical habitat for the owl.
<br />Our Response: We have based this
<br />current final designation of critical
<br />habitat for the owl on our February 2001
<br />final rule. We have, however, refined
<br />the previous designation based on the
<br />best available scientific and commercial
<br />data, public comments, and current
<br />policy. Please see the "Summary of
<br />Changes From the Proposed Rule"
<br />section below.
<br />(40) Comment a See Pa. k;
<br />also exclude areas that area covere by 2
<br />habitat' conservation plans, safe harbor
<br />agreements, and other private lands .,
<br />'overed by similar voluntary.programs.
<br />Our Response. As discussed
<br />throughout this final rule, we have
<br />determined that there are no private_
<br />lands: that have been determined to be
<br />es entud to the c 0 o of the a' L
<br />an threfore included_.m this-';
<br />de sig e nation. The conservation programs
<br />that the commenter has raised are solely
<br />for private landowners. Since we have
<br />not included private lands in this
<br />deli ti on o>l
<br />the °' a clusigns" ands
<br />ire zz n �n
<br />basedon these7po servatro programs
<br />4 .
<br />are not diretly; c relevant.
<br />(41) Comment: When you post a
<br />document on the internet, you limit the
<br />public's ability to comment because
<br />many people do not have a computer.
<br />Our Response: In our proposed rule,
<br />and subsequent published notices and
<br />outreach materials concerning this
<br />rulemaking, we provided alternative
<br />procedures to obtain the documents,
<br />including mailing hard copies of
<br />documents when they are requested and
<br />obtaining hard copies from the New
<br />Mexico Fish and Wildlife Office. We
<br />believe that we have made all
<br />appropriate documents and information
<br />adequately available to the public for
<br />review and comment.
<br />(42) Comment: Failure to designate FS
<br />lands will miss an opportunity to
<br />educate the public on the owl.
<br />Our Response: In Sierra Club v. Fish
<br />and Wildlife Service, 245 F.3d 434 (5th
<br />Cir. 2001), the Fifth Circuit Court of
<br />Appeals stated that the identification of
<br />habitat essential to the conservation of
<br />the species can provide informational
<br />benefits to the public, State and local
<br />governments, scientific organizations,
<br />and Federal agencies. The court also
<br />noted that heightened public awareness
<br />of the plight of listed species and their
<br />habitats may facilitate conservation
<br />efforts. We agree with these findings.
<br />The proposed and final rules identify all
<br />areas that are essential to the
<br />conservation of the owl, regardless of
<br />whether all of these areas are included
<br />in the regulatory designation.
<br />Consequently, we believe that the
<br />informational benefits are provided.
<br />(43) Comment: The FS in Region 3 is
<br />currently failing to implement its
<br />guidelines to protect the owl, and thus
<br />reconsultation is required even without
<br />critical habitat. Critical habitat would
<br />provide for reconsultation in an efficient
<br />and consistent manner.
<br />Our Response: The FS in Region 3 has
<br />submitted a biological assessment to the
<br />Service on April 8, 2004, and requested
<br />remitiation of the programmatic
<br />consultation for the 1996 Regional Land
<br />and Resource Management Plan
<br />Amendment that incorporated Recovery
<br />Plan guidelines for managing habitat of
<br />the species.
<br />(44) Comment: Land management
<br />agencies have the necessary tools to
<br />manage habitat for the owl without
<br />designating critical habitat. Local
<br />support for the conservation of the
<br />species is required or you will not
<br />achieve recovery.
<br />Our Response: We agree that the
<br />support of the public is essential to
<br />achieve recovery of this species. In
<br />excluding some areas from the
<br />designation, we are recognizing and
<br />acknowledging that conservation can be
<br />achieved outside of a critical habitat
<br />designation (see "Exclusions Under
<br />Section 4(b)(2)" section).
<br />(45) Comment: The FS amended their
<br />National Forest Plans in Arizona and
<br />New Mexico in 1996 to conform to the
<br />Recovery Plan. These plans are still
<br />valid and in use, indicating that
<br />designation of critical habitat on FS
<br />lands in these states is not necessary.
<br />The National Forests in Arizona have
<br />amended their land and resource
<br />management plans to incorporate the
<br />Recovery Plan. Consistent with the
<br />Service's justification for not
<br />designating critical habitat on certain
<br />Tribal lands because habitat
<br />management plans are still valid and
<br />being implemented on these lands, the
<br />designation of critical habitat on FS
<br />lands may not be necessary because of
<br />existing land and resource management
<br />plans that are responsive to owl
<br />conservation.
<br />Our Response: In our 2001
<br />designation (66 FR 8530), we reached
<br />this conclusion and determined that FS
<br />lands in Arizona and New Mexico did
<br />not meet the definition of critical habitat
<br />because special management was
<br />already being provided through their
<br />land and resource management plans.
<br />Thus, we did not designate these lands,
<br />as well as the tribal lands of the
<br />Mescalero Apache and the Navajo
<br />Nation, as critical habitat because we
<br />felt that "additional" special
<br />management was not needed. However,
<br />on January 13, 2003, the United States
<br />District Court for the District of Arizona
<br />(Center forBiological Diversity v.
<br />Norton, Civ. No. 01 -409 TUC DCB)
<br />rejected our conclusion and ruled that
<br />our final rule designating critical habitat
<br />for the owl violated the Act, as well as
<br />the APA. The Court did not agree with
<br />our interpretation of the definition of
<br />critical habitat (i.e. that essential areas
<br />may not be included in critical habitat
<br />because special management is already
<br />being provided) and, in addition, the
<br />Court ruled that even if we follow the
<br />Service's interpretation, the
<br />management provided by the FS was
<br />inadequate to justify excluding these
<br />lands. On November 12, 2003, the
<br />United States District Court for the
<br />District of Arizona, (Center for
<br />Biological Diversity v. Norton, Civ. No.
<br />01-409 TUC DCB), ordered the Service
<br />to submit a new final rule for
<br />designation of critical habitat for the
<br />owl to the Federal Register by August
<br />20, 2004. We have prepared this
<br />designation pursuant to that Court
<br />order.
<br />(46) Comment: Private property and
<br />water rights will be taken as a result of
<br />the designation. The Service did not
<br />indicate or reveal that property rights
<br />were factored into any analyses.
<br />Our Response: The mere
<br />promulgation of a regulation, like the
<br />enactment of a statute, does not take
<br />private property unless the regulation
<br />on its face denies the property owners
<br />all economically beneficial or
<br />productive use of their land (Agins v. _
<br />City of Tiburon, 447 U.S. 255, 260 -263
<br />(1980); Hodel v. Virginia Surface Mining
<br />
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