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53206 Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations Our Response: We received a redacted version of the San Carlos Apache managment plan for the owl. The Tribal Council has approved the plan, and there is no expiration date for the plan. (113) Comment: It is not clear what law or regulation occasioned the Tribes to prepare and implement their owl management plans, or whether they are legally required to continue implementing these plans with or without critical habitat. Our Response: The plans were voluntarily prepared with technical assistance from the Service. It is our understanding that the Tribes will continue implementing the plans and revise them as appropriate. (114) Comment: The Categorical exclusion of Tribes from the designation is inconsistent with the requirements of section 4 of the Act. Our Response: We have carefully examined the merits of excluding Tribal lands from this designation on a case - by -case basis. Please see "Exclusions Under Section 4(b)(2)" section for our detailed analysis and rationale for exclusions of tribal lands from this designation. (115) Comment: The Southern Ute Indian Tribe believes that the establishment and maintenance of strong working relationships with all Tribes warrants the exclusion of all Tribal lands from the designation. The Hualapai Tribe indicated that it is inappropriate for the Service to designate critical habitat on Indian lands, where Tribes have the expertise, capacity, and regulations to protect endangered species on their lands. The BIA Southwest Region commented that the existing owl management plan for the Mescalero Apache has protected and effectively conserved the species on Tribal lands; including this area as critical habitat would undermine the Tribe's status as a sovereign nation, increase workloads for the Tribe and BIA, preclude commercial use of the forest, and contribute to the increase risk of catastrophic wildfire. The BIA also indicated that designating critical habitat on Tribal lands would adversely affect the Service's working relationship with all Tribal governments. Our Response: After conducting an analysis under section 4(b)(2) of the Act, we concluded that the benefits of excluding the San Carlos Apache, Mescalero Apache, and Navajo Nation lands from the final designation of critical habitat for the owl outweigh the benefits to the owl and its habitat from their inclusion. Accordingly, we have excluded all Tribal lands from this final designation of critical habitat for the owl. (116) Comment: The Navajo Nation Forest Management Plan and owl plan provide no documented benefit to the species because neither plan complies with the Recovery Plan. Our Response. Please see our discussion of the Navajo Nation Forest Management Plan in the "Exclusions Under Section 4(b)(2)" section below. (117) Comment: Contrary to statements in the draft environmental assessment, there are no known owl nest or roost sites, no known populations, and no known occupied areas of any sort on the Jicarilla Apache Nation's lands. Our Response: The data concerning owl occurrences on the lands of the Jicarilla Apache Nation that is currently within Service files and the supporting record for this indicate that there are only two known records for the owl on the Jicarilla Apache Nation's lands. Both records are from the 1980s. Since then, extensive surveys have been conducted, but did not locate any additional owls. These lands are not considered essential to the conservation of the owl. The description of alternatives in the environmental assessment was edited to correct this error. Issue 5: Other Relevant Issues (118) Comment: The designation of critical habitat would constitute a "government land grab." The owl is merely the vehicle by which environmental groups plan to stop harvest of `old growth" forests. Our Response: The designation of critical habitat has no effect on non - Federal actions taken on private or State lands, even if the land is within the mapped boundary of designated critical habitat, because these lands were specifically excluded from the designation. We believe that the designation of critical habitat for the owl does not impose any additional restrictions on land managers /owners within those areas designated as critical habitat, beyond those imposed due to the listing of the owl. All landowners are responsible to ensure that their actions do not result in the unauthorized take of a listed species, and all Federal agencies are responsible to ensure that the actions they fund, permit, or carry out do not result in jeopardizing the continued existence of a listed species, regardless of where the activity takes place. We also note that this designation is consistent with the Recovery Plan. While the Recovery Plan does not explicitly protect "old- growth" forests, it does recommend that large trees and other forest attributes that may be found in `old- growth" forests be retained to the extent practicable within certain forest types. Large trees are important ecosystem components, have been much reduced in the Southwest, and take many decades to replace once they are lost. As detailed below, the 11 National Forest Plans in the Southwestern Region of the FS were amended in 1996 to add specific standards and guidelines for the owl, grazing, and old- growth (Forest Plan Amendments) (FS 1995, 1996b). The FS has previously indicated that the Forest Plan Amendments are non - discretionary actions that must be implemented by each of the 11 National Forests in the Southwestern Region (Service 2004). We also note that site - specific decisions must be consistent with the applicable Forest Plan at the time they are issued, and fall under the authority of the National Forest Management Act of 1976 (36 CFR 219). (119) Comment: The owl by its very name is not exclusive to the United States. Typical of most Mexican fauna entering the United States, it appears rarer than it really is. Therefore, it is Mexico's duty to protect it. Our Response: The Mexican spotted owl was determined to be threatened throughout its range in the United States and Mexico, and we are obligated by statue (the Act) to provide regulatory protection for the species, if warranted, regardless of the protection measures afforded the species in Mexico. Furthermore, according to CFR 402.12(h) "Critical habitat shall not be designated within foreign countries or in other areas outside of the United States jurisdiction ", and shall only be designated for a listed species in the boundaries of the United States to the maximum extent prudent and determinable. (120) Comment: Why were the public hearings in Utah held in the southwestern part of the State when most of the critical habitat is in the southeastern portion? Our Response: The Act requires that at least one public hearing be held if requested. We held six public hearings throughout the four state region. We selected Cedar City, Utah, for a hearing location because of its proximity to four of the five proposed critical habitat units in the State. (121) Comment: The designation of critical habitat abrogates the Treaty of Guadalupe Hidalgo. You do not have constitutional authority to do so. Our Response: The Treaty of Guadalupe Hidalgo resulted in grants of land made by the Mexican government in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States.