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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53223 For these reasons, then, we believe that designation of critical habitat would have few additional benefits beyond those that will result from continued consultation under the jeopardy standard. (1) Benefits of Exclusion The benefits of excluding tribal lands of the Mescalero Apache Tribe, San Carlos Apache Tribe, and the Navajo Nation from designated critical habitat are more significant. They include: (1) The advancement of our Federal Indian Trust obligations and our deference to tribes to develop and implement tribal conservation and natural resource management plans for their lands and resources, which includes the owl; (2) the maintenance of effective working relationships to promote the conservation of the owl and its habitat; (3) the allowance for continued meaningful collaboration and cooperation in RU working groups; (4) the provision of conservation benefits to forest and canyon ecosystems and the owl and its habitat that might not otherwise occur; and (5) the reduction or elimination of administrative an d/or project modification costs as analyzed in the economic analysis. Through the years since the owl was listed as threatened, we have met with Tribes to discuss how each might be affected by the designation of critical habitat. As such, we established effective working relationships with the Mescalero Apache Tribe, San Carlos Apache Tribe, and the Navajo Nation. As part of our relationship, we provided technical assistance to each of these Tribes to develop measures to conserve the owl and its habitat on their lands. These measures are contained within the tribal management/conservation plans that we have in our supporting record for this decision (see discussion above). These proactive actions were conducted in accordance with Secretarial Order 3206, "American Indian Tribal Rights, Federal - Tribal Trust Responsibilities, and the Endangered Species Act" (June 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 these Tribes should be the governmental entities to manage and promote the conservation of the owl on their lands. During our meetings with each of these Tribes, we recognized and endorsed their fundamental right to provide for tribal resource management activities, including those relating to forest and canyon ecosystems. The designation of critical habitat would be expected to adversely impact our working relationship with the Mescalero Apache, San Carlos Apache, and Navajo Nation. In fact, during our discussions with each of the Tribes, we were informed that critical habitat would be viewed as an intrusion on their sovereign abilities to manage natural resources in accordance with their own policies, customs, and laws. To this end, we found that each Tribe would prefer to work with us on a Government -to- Government basis. For these reasons, we believe that our working relationships with the Mescalero Apache, San Carlos Apache, and Navajo Nation would be better maintained if these tribes are excluded from the designation of critical for the owl. We view this as a substantial benefit. We indicated in the proposed rule (July 21, 2000; 65 FR 45336) that the Mescalero Apache, San Carlos Apache, and Navajo Nation were working on owl management plans. Similarly, in the reopening of the comment period on this rule (November 18, 2003; 68 FR 65020), we asked for information and comments concerning our preliminary conclusions regarding the exclusion of Tribal lands under section 4(b)(2) of the Act. During the comment period, we received input from these three Tribes, and the Southern Ute Tribe, White Mountain Apache Tribe, Hualapai Tribe, BIA's Southwestern Regional Office, BIA's Western Regional Office, and Jicarilla Apache Tribe. All of these commenters expressed the view that designating critical habitat for the owl on the Mescalero Apache, San Carlos Apache, and Navajo Nation lands would adversely affect the Service's working relationship with all Tribes. Many noted the beneficial cooperative working relationships between the Service and Tribes have assisted in the conservation and recovery of listed species and other natural resources. For example, the Service's relationship with Mescalero Apache resulted in the successful prosecution of an owl take case under section 9 of the Act, related to an arsonist in 2002 (Service 2002). They indicated that critical habitat designation on the Mescalero Apache, San Carlos Apache, and Navajo Nation would amount to additional Federal regulation of sovereign Nations' lands, and would be viewed as an unwarranted and unwanted intrusion into Tribal natural resource programs. We conclude that our working relationships with these Tribes on a government -to- government basis have been extremely beneficial in implementing natural resource programs of mutual interest, and that these productive relationships would be compromised by critical habitat designation of these Tribal lands. In addition to management/ conservation actions described above for the conservation of the owl, we anticipate future management/ conservation plans to include conservation efforts for other listed species and their habitat (e.g., southwestern willow flycatcher). We believe that many Tribes and Pueblos are willing to work cooperatively with us to benefit other listed species, but only if they view the relationship as mutually beneficial. Consequently, the development of future voluntarily management actions for other listed species will likely be contingent upon whether these Tribal lands are designated as critical habitat for the owl. Thus, a benefit of excluding these lands would be future conservation efforts that would benefit other listed species. The economic analysis found that the BIA has conducted 13 informal and 5 formal consultations for the owl on Tribal lands since 1993 and estimates that same number for the next 10 years. The economic analysis also estimated 3 informal consultations would occur with the NPS for Navajo National Monument and none would occur with Canyon de Chelly. Potentially affected activities include administrative efforts, timber harvest, fire management, grazing, coal mining and recreation. Total estimated administrative and project modification costs of these consultations ranged from $110,000 to $1.1 million (BIA) and $12,000 to $248,000 (NPS). These consultations would occur regardless of whether critical habitat is designated, because the species occupies these lands and section 7 consultations under the jeopardy standards will still be required for activities affecting the owl. The economic analysis estimated that total administrative and project modification costs over the next ten years for the BIA ranged from $113,000 to $1,111,000. The costs attributed to critical range from slightly higher to substantially higher. The BIA indicated that critical habitat designation could place "a significant financial burden" upon Tribes. For example, they found that the Mescalero Apache Tribe could be burdened with more governmental constraints and a lack of funds to comply with section 7. As discussed above, we already evaluate the potential impacts of any proposed projects on protected or restricted areas; however, any additional costs that may be