2013-02-05_REVISION - M1985043 - Laserfiche WebLink

Home Browse Search

53224 Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations incurred as a result of a designation of critical habitat are avoided if we exclude the Tribe from the designation of critical habitat. We find this to be a significant financial benefit for these Tribes, the Service, and the BIA. The economic analysis found that designation of critical habitat and continued efforts to protect the owl may impact timber harvest, which could affect all three Tribes in the future. For example, the Mescalero Agency, BIA, indicated that additional section 7 consultation efforts and the potential delay of projects resulting from section 7 consultation of critical habtiat could affect timber harvest on Mescalero Apache lands. In particular, for the Mescalero and the San Carlos, both of which are actively managing their lands for commercial timber harvest and have interests in operating sawmills, any reduction in timber harvest could result in fewer jobs and revenues for the Tribes. The Mescalero Apache Tribe indicated that the designation could affect its timber industry, potentially impacting $5 million in sawmill revenues and 160 jobs. Commercial timber harvests on Navajo Nation lands were enjoined by the Arizona District Courtin Silver v. Thomas, CIV 94-337 - PHX—RGS (D.AZ 1994) until a new forest management plan is completed. This process is still ongoing, so that the Navajo are not currently able to undertake commercial timber operations. However, the Tribe has indicated its intention to continue these types of efforts once the current injunction is lifted. The exclusion of Tribal lands from this designation will avoid any potential future economic impacts related to the designation of critical habitat. In summary, the benefits of including the Mescalero Apache, San Carlos Apache, and Navajo Nation in the critical habitat designation are limited to a potential benefit gained through the requirement to consult under section 7 and consideration of the need to avoid adverse modification of critical habitat and potential educational benefits. However, as discussed in detail above, we believe these benefits are provided for through other mechanisms. The benefits of excluding these areas from being designated as critical habitat for the owl are more significant, and include encouraging the continued development and implementation of the tribal management /conservation measures such as monitoring, survey, and fire -risk reduction activities that are planned for the future or are currently being implemented. These programs will allow the Tribes to manage their natural resources to benefit forest and canyon ecosystems for the owl, without the perception of Federal Government intrusion. This philosophy is also consistent with our published policies on Native American natural resource management. The exclusion of these areas will likely also provide additional benefits to the owl and other listed species that would not otherwise be available due to the Service's ability to encourage and maintain cooperative working relationships with other Tribes and Pueblos. We find that the benefits of excluding these areas from critical habitat designation outweigh the benefits of including these areas. As noted above, the Service may exclude areas from the critical habitat designation only if it is determined, "based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned." Here, we have determined that exclusion of the Mescalero Apache, San Carlos Apache, and Navajo Nation from the critical habitat designation will not result in the extinction of the owl. First, activities on these areas that may affect the owl will still require consultation under section 7 of the Act. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species. Therefore, even without critical habitat designation on these lands, activities that occur on these lands cannot jeopardize the continued existence of the owl. Second, each of the Tribes have committed to protecting and managing according to their management/ conservation plans and natural resource management objectives. In short, the Tribes have committed to greater conservation measures on these areas than would be available through the designation of critical habitat. With these natural resource measures, we have concluded that this exclusion from critical habitat will not result in the extinction of the owl, chiefly because the management/conservation plans are generally based on the habitat - management tenets of the Recovery Plan. Accordingly, we have determined that the Mescalero Apache, San Carlos Apache, and Navajo Nation should be excluded under subsection 4(b)(2) of the Act because the benefits of excluding these lands from critical habitat for the owl outweigh the benefits of their inclusion and the exclusion of these lands from the designation will not result in the extinction of the species. Lands Owned by Navajo Nation and Managed by National Park Service (NPS) During our review of the Navajo Management Plan for the owl, we found that there is a unique land ownership of Navajo National Monument and Canyon de Chelly wherein the land is owned by the Navajo Nation, but under the management authority and administration of the NPS. We found that this unique situation was envisioned by the Navajo Management Plan: "* * * lands administered by the NPS are subject to the same laws as elsewhere on the Navajo Nation, and are then subject to this [Management] Plan." After our previous designation, we found that the designation on these lands created confusion. In fact, we were unable to accurately map the units within and outside of Navajo National Monument and Canyon de Chelly to depict the distinction of management authority. We also found in our reanalysis of the Navajo Management Plan that the Navajo Fish and Wildlife Department will assist NPS managers, as requested, with developing or maintaining consistent land -use policies that incorporate these owl management tenets. We consider these lands to be within the existing Navajo Management Plan and therefore excluded from the designation. Nevertheless, the NPS would still be required to consult under section 7 jeopardy provisions on any projects conducted within these areas that would affect the owl. Relationship to Section 4(a)(3) of the Act The Sikes Act Improvements Act of 1997 (Sikes Act) requires each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resources management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found there. Each INRMP includes an assessment of the ecological needs on the installation, including needs to provide for the conservation of listed species; a statement of goals and priorities; a detailed description of management actions to be implemented to provide for these ecological needs; and a monitoring and adaptive management plan. We consult with the military on the development and implementation of I14RMPs for installations with listed species and critical habitat.