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53222 Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations (3) The Mexican Spotted Owl Management Plan for the Mescalero Apache Reservation (Mescalero MSO Management Plan). The Mescalero MSO Management Plan and accompanying Biological Assessment was adopted and approved by the Mescalero Apache Tribal Council in August 2000 (Mescalero Apache 2000). The Mescalero MSO Management Plan provides for maintenance and/or improvement of essential habitat features and manages for the long -term conservation of the species on their lands. Specific guidelines are provided concerning forest management, livestock grazing, and recreation that are designed to maintain current owl populations while allowing levels of resource outputs that meet Tribal desires and provide for a healthy ecosystem. In addition, a number of Tribal forest management practices and methods provide protection to the owl and promote forest biodiversity. These include, but are not limited to, retention of the hardwood component in all areas that are harvested; retention of all snags that are not hazardous to human life; protection of habitat on steep slopes; emphasis on uneven -aged silvicultural techniques; and provisions for special management areas such as riparian and reserve /wilderness areas. The following are used to protect and manage the owl on the Mescalero Tribal lands: (1) Surveys to determine occupancy; (2) Federal agency section 7 consultations for proposed projects; (3) establishment of 400 -ac (162 -ha) PACs around owl sites; (4) three levels of habitat management: Protected areas, unoccupied project areas (which we consider restricted areas), and other forest and woodland types; (5) the establishment of 100 -ac (40.5 -ha) core areas around nest trees or roost groves where no trees are harvested; (6) no trees are harvested within a 250 -ac (101 - ha) area within PACs during the breeding season (March 1 through August 31); and (7) additional management guidelines are also incorporated, for example, addressing steep slopes, road building, and unevenaged silvicultural methods. We formally consulted with the BIA on the implementation of the Mescalero MSO Management Plan and concluded the project would not jeopardize the continued existence of the owl (Service 2001). The Mescalero MSO Management Plan is designed to manage the owl on the Mescalero Nation generally following the tenets recommended in the Recovery Plan. We reviewed the document in early 2001 and again for this final rule and find that it provides a conservation benefit to the owl. In addition, our economic analysis found that the Mescalero Apache Tribe expects that the designation could affect its timber industry, potentially impacting $5 million in sawmill revenues and 160 jobs. The BIA indicated and we also found in our discussions with the Mescalero Apache Tribe, which occurred during the development of the economic analysis, that the designation of critical habitat could be expected to adversely impact our working relationship with the Mescalero Apache Tribe. The BIA and Mescalero Apache Tribe also indicated and we agree that Federal regulation through critical habitat designation would be viewed as an unwarranted and unwanted intrusion into tribal natural resource programs. Our working relationship with the Mescalero Apache Tribe has been extremely beneficial in implementing natural resource programs of mutual interest. Similar to Navajo Nation and San Carlos Apache, the Mescalero Apache also participate on a RU working group, the Basin and Range East. This relationship allows ideas, information, and concerns to be incorporated into management actions for the recovery of the owl. Participation in this working team also facilitates dialogue between other land management agencies, the Service, and the Mescalero Nation. This relationship provides a benefit to all parties involved in the conservation of the owl. The Benefits of Exclusion Outweigh the Benefits of Inclusion We provide the following analysis related to these tribal lands; as required by 16 U.S.C. § 1533(b)(2) [hereafter ("4(b)(2)"]: (1) Benefits of Inclusion Few additional benefits would be derived from including Tribal lands of the Mescalero Apache, San Carlos Apache, and the Navajo Nation in a critical habitat designation of the owl beyond what will be achieved through the implementation of their management plans. The principal benefit of any designated critical habitat is that activities in and affecting such habitat require consultation under section 7 of the Act. Such consultation would ensure that adequate protection is provided to avoid destruction or adverse modification of critical habitat. However, we conclude that few regulatory benefits to the owl would be gained from a designation of critical habitat on San Carlos Apache and Navajo Tribal lands because the existing section 7 jeopardy analyses review projects for their consistency with the Recovery Plan and adverse modification analyses use the same approach. These Tribes have already agreed under the terms of the owl management plan to evaluate the potential impacts of any proposed projects on protected and restricted areas within these Tribal lands following the criteria in the Recovery Plan for the owl and would use the same definitions of owl habitat (i.e., protected or restricted habitat) for adverse modification analyses. Accordingly, we find the consultation process for a designation of critical habitat is unlikely to result in additional protections for the owl on San Carlos Apache and Navajo Tribal lands. As discussed above, we formally consulted with the BIA on the implementation of the Mescalero MSO Management Plan and concluded in a programmatic biological opinion that the project would not jeopardize the continued existence of the owl (Service 2001). Thus, the Mescalero Tribe is not required to consult under the jeopardy standard on individual projects that fall within the guidelines of the Tribes MSO Management Plan, as they are covered under our programmatic biological opinion. As discussed above, our programmatic consultation evaluated potential impacts to protected and restricted habitat based on the guidelines in the Recovery Plan for the owl. Thus, we believe that a designation of critical habitat in this case is unlikely to result in additional protections for the owl on Mescalero Tribal lands, even if consultation on critical habitat were to occur in the future. Another possible benefit is that the designation of critical habitat can help to educate the public regarding potential conservation value of an area, and may focus efforts by clearly delineating areas of high conservation value for the owl. Any information about the owl and its habitat that reaches a wide audience, including other parties engaged in conservation activities, would be considered valuable. These Tribes are currently working with the Service to address habitat and conservation needs for the owl. Additionally, we anticipate that these Tribes will continue to actively participate in RU working groups, providing for the timely exchange of management information. The educational benefits important for the long -term survival and conservation of the owl are being realized. Educational benefits will continue on these lands if they are excluded from the designation, because the management/conservation plans already recognize the importance of those habitat areas to the owl.