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53220 Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations project areas and the Penasco WUI project area outweighs any benefits that could be realized through them being designated as critical habitat for the owl. Consequently, we have not included these 157 project areas or the Penasco WUI project area within this critical habitat designation pursuant to section 4(b)(2) of the Act on the basis of human health and saftey concerns and for the purpose of future fuel reduction consultations. We also find that the exclusion of these lands will not lead to the extinction of the species, nor hinder its recovery because these projects have already been evaluated under the guidelines set by the Recovery Plan for the owl for both jeopardy to the species and adverse modification of critical habtiat. American Indian Tribal Rights, Federal -Tribal Trust Responsibilities, and the Endangered Species Act We describe here authorities and policies that the Service follows when consulting with Tribes on issues related to endangered and threatened species. We believe that we fullfilled our responsibilities to the Tribes as further discussed in our exclusion analysis below. In accordance with the Secretarial Order 3206, "American Indian Tribal Rights, Federal - Tribal Trust Responsibilities, and the Endangered Species Act" Uune 5, 1997); the President's memorandum of April 29, 1994, "Government -to- Government Relations with Native American Tribal Governments" (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on Tribal lands are better managed under Tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Based on this philosophy, we believe that, in many cases, designation of Tribal lands as critical habitat provides very little additional benefit to threatened and endangered species. Tribal governments protect and manage their resources in the manner that is most beneficial to them. Each of the three affected Tribes exercises legislative, administrative, and judicial control over activities within the boundaries of their respective lands. Additionally, they all have natural resource programs and staff, and have enacted Mexican spotted owl management plans. In addition, as trustee for land held in trust by the United States for Indian Tribes, the BIA provides technical aosistance to the Tribes on forest management planning and oversees a variety of programs on Tribal lands. Owl conservation activities have been ongoing on Tribal lands included in the proposed critical habitat designation and will continue with or without critical habitat designation. Tribal Conservation/Management Plans In this section, we first provide the specifics of the owl Management/ Conservation Plans that were developed by the San Carlos Apache Tribe, Navajo Nation, and Mescalero Apache Tribe ( Mescalero Apache 2000, San Carlos Apache 2003, Navajo Nation 2000). These plans were all admitted to the supporting record during the November 2003 open comment period for the proposed rule (68 FR 65020). After this introduction, we analyze the benefits of including the Tribes' lands within the critical habitat designation and the benefits of excluding these areas. (1) Mexican Spotted Owl Conservation Plan for the San Carlos Apache (SCA) Indian Reservation (Conservation Plan): The SCA staff developed a tribal owl conservation plan, and their Tribal Council has subsequently approved it. In November 2003, we received a redacted version of the SCA Conservation Plan (San Carlos Apache Tribe 2003). We reviewed the SCA Conservation Plan and agree with the Tribe and BIA, that the application of owl conservation management principles provided by the Recovery Plan should be beneficial for the owl and its habitat on SCA lands (San Carlos Apache Tribe 2003, BIA 2003). SCA conducts owl surveys to evaluate and design projects that minimize or avoid impacts to the owl and its habitat. The Tribe also conducts periodic surveys within PACs to determine occupancy. Owls are found across the northern third of the SCA Indian Reservation; however, most suitable nesting and foraging habitat is in remote, inaccessible areas. Although these areas have very little overlap with commercial forest operations, owl habitat has generally been deferred from timber harvests since the listing of the owl. Nevertheless, this continual monitoring of habitat and species occupancy provides current GIS and other information to manage the overall forest resources. The SCR's primary timber management practice is uneven -aged silviculture systems, using single -tree selection methods. The key factor considered in the SCA Conservation Plan is that there is very little overlap between forested lands currently considered practical for commercial harvesting operations and forested lands considered to be owl habitat. Thus, the majority of the high - potential breeding habitat (steep slopes, mixed - conifer) receives little or no timber management. The SCA Conservation Plan addresses identified threats to owl habitat by maintaining sufficient suitable habitat across the landscape and by using site - specific retention of complex forest structure following timber harvest in those few areas where owl habitat and timber management overlap. Nest/roost habitats, primarily in mixed - conifer and steep slope areas, are not managed for timber extraction and will remain as suitable nest/roost habitat. Foraging habitat will be managed almost entirely by uneven -aged timber harvest methods. Timber sales, thinning, and fuelwood projects are conducted within some owl habitat to extract resources, improve or maintain current habitat conditions, and increase forest health (e.g. controlling dwarf mistletoe and bark beetles). Like the Recovery Plan, the SCA Conservation Plan adopts site - specific management to address protected, restricted, and reserved habitat and limits disturbance within owl PACs. PACs are at least 600 ac (243 ha) in size and established around known nest/ roost sites. For example, prescribed fires and thinning are deferred from PACs during the breeding season (San Carlos Apache Tribe 2003). We find that the SCA Conservation Plan generally follows the Recovery Plan guidelines for owl habitat protection. Wildfire is considered to be the greatest threat to owl habitat on the SCA Reservation. Steep slopes and canyons occupied by the owl are especially at risk. The SCA Indian Reservation Wildland Fire Management Plan Programmatic Environmental Assessment (Fire Management Plan) identifies fire reintroduction to fire - adapted and fire - dependent ecosystems. Natural and prescribed fire and mechanical treatments are used to manage forest resources. The Fire Management Plan objectives include: (1) Limiting the risk of harm to threatened and endangered species or their habitat; (2) reducing fuel accumulation to acceptable levels; (3) maintaining an ecologically proper amount of leaf litter, duff, organic matter, and woody material in each biotic community; (4) thinning dense vegetation; and (5) using fire in fire- adapted and fire- dependent ecosystems. The Tribe indicated that projects will continue to go through NEPA, including the development of a biological assessment for any actions that may affect the owl. Suitable nesting and roosting habitat, as well as foraging habitat, on the reservation has been mapped and PACs have been