40076
Federal Register
/Vol. 68, No. 128/Thursday, July 3, 2003/Rules and Regulations
DEPARTMENT OF THE INTERIORFish and Wildlife Service50 CFR Part 17
RIN 1018–AF03
Endangered and Threatened Wildlifeand Plants; Notice of RemandedDetermination of Status for theContiguous United States DistinctPopulation Segment of the CanadaLynx
AGENCY
:
Fish and Wildlife Service,Interior.
ACTION
:
Clarification of findings.
SUMMARY
:
The Fish and Wildlife Service(Service), in response to the December26, 2002, memorandum opinion andorder of the United States District Courtfor the District of Columbia, in the caseof
Defenders of Wildlife
v.
Norton
(CivilAction No. 00–2996 (GK)) and pursuantto the Endangered Species Act of 1973,as amended (ESA or Act), provides aclarification to the findings we made insupport of the final rule that listedCanada lynx (
Lynx canadensis
) (lynx) asthreatened. The lynx is currently listedas threatened in the contiguous UnitedStates as a Distinct Population Segment(DPS) that includes the States of Colorado, Idaho, Maine, Michigan,Minnesota, Montana, New Hampshire,New York, Oregon, Utah, Vermont,Washington, Wisconsin, and Wyoming.As a result of our reanalysis of the basisfor that final rule, which was directed by the Court, we find that the lynx is notendangered throughout a significantportion of its range. This finding doesnot affect the status of the lynx ascurrently set forth in 50 CFR 17.11; thelynx continues to be listed as threatenedin the States listed above. This findingalso does not affect the special rulepursuant to section 4(d) of the Act forthe Canada lynx set forth in 50 CFR17.40(k).
ADDRESSES
:
The complete file for thisrule is available for inspection, byappointment, during normal businesshours at the Montana Field Office, U.S.Fish and Wildlife Service, 100 N. ParkAvenue, Suite 320, Helena, Montana59601.
FOR FURTHER INFORMATION CONTACT
:
Mark Wilson, Field Supervisor,Montana Field Office (see
ADDRESSES
),telephone 406–449–5225; facsimile406–449–5339.
SUPPLEMENTARY INFORMATION
:
Background
The Service listed the Canada lynx,hereafter referred to as lynx, asthreatened on March 24, 2000 (65 FR16052). After listing the lynx asthreatened, plaintiffs in the case of
Defenders of Wildlife
v.
Norton
(CivilAction No. 00–2996 (GK)) initiatedaction in Federal District Court,challenging the listing of the lynx asthreatened and alleging violations of theAct and the Administrative ProcedureAct (5 U.S.C. 551
et seq.
). Plaintiffsargued that the Service acted arbitrarilyand capriciously when it (1) did nottreat the four lynx regions as separateDPSs, (2) determined that the lack of guidance for conservation of lynx inNational Forest Land and ResourceManagement Plans and Bureau of LandManagement (BLM) Resource AreaManagement Plans is the single factorthreatening the contiguous UnitedStates DPS of lynx, (3) did not designatecritical habitat for the lynx, and (4)determined that ‘‘[c]ollectively, theNortheast, Great Lakes and SouthernRockies do not constitute a significantportion of the range of the DPS.’’On December 26, 2002, the Courtissued its memorandum opinion andorder, deciding that the Service’sdetermination that ‘‘[c]ollectively, theNortheast, Great Lakes and SouthernRockies do not constitute a significantportion of the range of the DPS’’ must be set aside and remanded to theService for further consideration of thelynx’s status under the ESA consistentwith the Court’s memorandum opinion.The Court explained that the Service’sdetermination about the four regionswas counterintuitive and contrary to theplain meaning of the ESA phrase‘‘significant portion of its range.’’ TheCourt did not address the issuesconcerning the threats and the DPSs.The Court also ordered the Service to‘‘undertake prompt rulemaking’’ inorder to designate critical habitat forlynx, and ordered injunctive relief directed at section 7 consultation.The Court ordered the determinationconcerning a ‘‘significant portion of itsrange’’ be remanded to the Service andcompleted within 180 days of the dateof the order consistent with the Court’smemorandum opinion. With thisdocument, the Service is providing itsconsideration of this issue. Thisdocument does not address criticalhabitat for the lynx, since our listing budget is currently insufficient to beginwork on a rule for critical habitat. TheService will seek public comment in thefuture when it proposes critical habitat.This document also does not addressthe special rule for Canada lynxestablished in the March 24, 2000, finallisting rule. That rule, which is found in50 CFR 17.40(k), remains in effect.As noted above, plaintiffs contendthat our determination that‘‘[c]ollectively, the Northeast, GreatLakes, and Southern Rockies do notconstitute a significant portion of therange of the DPS,’’ was critical to ourdecision not to list the lynx asendangered. Plaintiffs maintain that, if those three regions are consideredcollectively to be a significant portion of the DPS, ‘‘then the Lynx’s highlyimperilled status in those three areaswould necessitate listing of the entireDPS as endangered.’’ Pls. Mot. forSumm. J. at 30 (emphasis in original).However, the Service would need tofind that the lynx is endangered in theseareas and that they were significant inorder to list the entire DPS. Therefore,we first reviewed all of the threats to thelynx in these areas to determinewhether it is in danger of extinction ineach area. We identified two areas orparts of areas in which the lynx might be in danger of extinction. We thendetermined whether either of thoseareas (or parts of areas) constitutes asignificant portion of the range of thelynx.The remainder of this sectiondescribes some important concepts usedthroughout the following analysis. Latersections include backgroundinformation on the natural history andrange of the lynx, responses to publiccomments, an analysis of the quantityand quality of habitat throughout therange of the DPS, an analysis of thethreats facing the species in the areasaddressed by the remand, a finding asto the areas in which the lynx currentlyare in danger of extirpation, and afinding that those areas do notconstitute a significant portion of therange of the lynx.As a preliminary matter, we note thatthe Court suggested, but did not decide,that ‘‘significant’’ is appropriatelydefined in this context as ‘‘a noticeablyor measurably large amount,’’ citing adictionary definition. However, thereare other definitions of significance thatpertain to importance. Moreover, we believe this is more consistent with theintent of the Act in the context of theprovision at issue. Otherwise, a severethreat to a small area within the rangeof a species would always require thespecies to be listed as endangered, nomatter how inconsequential that areamight be given the biology of thespecies. For example, building a largedam may make the area covered by theresulting artificial lake unsuitable for anaquatic species currently resident in theriver to be dammed. The area covered by the lake would be a ‘‘measurablylarge’’ area, and therefore a measurablylarge portion of the range of the species.
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