Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx, 66008-66061 [06-9090]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 217 (Thursday, November 9, 2006)]
[Rules and Regulations]
[Pages 66008-66061]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9090]



[[Page 66007]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Contiguous United States Distinct Population Segment of 
the Canada Lynx; Final Rule

Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Contiguous United States Distinct Population 
Segment of the Canada Lynx

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the contiguous United States distinct 
population segment of the Canada lynx (Lynx canadensis) (lynx) pursuant 
to the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 1,841 square miles (mi2) (4,768 square 
kilometers (km\2\)) fall within the boundaries of the critical habitat 
designation, in three units in the States of Minnesota, Montana, and 
Washington.

DATES: This rule becomes effective on December 11, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours, at 
the Montana Ecological Services Office, 585 Shepard Way, Helena, 
Montana 59601 (telephone 406/449-5225). The final rule, environmental 
assessment, and economic analysis are available via the Internet at 
https://mountain-prairie.fws.gov/species/mammals/lynx/
criticalhabitat.htm.

FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana 
Fish and Wildlife Office, at the above address, (telephone 406/449-
5225); Gordon Russell, Field Supervisor, Maine Field Office (207/827-
5938); Tony Sullins, Field Supervisor, Twin Cities Field Office 
(Minnesota) (612/725-3548); or Susan Martin, Field Supervisor, Upper 
Columbia Fish and Wildlife Office (Washington) (509/891-6839).

SUPPLEMENTARY INFORMATION: 

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) designation provides additional 
protection to habitat only where there is a Federal action, known as a 
``nexus'', that triggers consultation under section 7 of the Act; (2) 
the protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat. However, 
designation of critical habitat does not require specific actions to 
restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
listed species through conservation mechanisms such as listing, section 
7 consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service. 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to completion to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation

[[Page 66009]]

in which those who fear adverse impacts from critical habitat 
designations challenge those designations. The cycle of litigation 
appears endless, and is very expensive, thus diverting resources from 
conservation actions that may provide relatively more benefit to 
imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)). 
These costs directly reduce the funds available for direct and tangible 
conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information, 
refer to the proposed critical habitat rule published in the Federal 
Register on November 9, 2005 (70 FR 68294); the notice reopening the 
public comment period and clarifying the proposed critical habitat 
designation, published on February 16, 2006 (71 FR 8258); the notice 
reopening the comment period that published on September 11, 2006 (71 
FR 53,355); the final listing rule published on March 24, 2000 (65 FR 
16052); and the clarification of findings published on July 3, 2003 (68 
FR 40076).

Previous Federal Actions

    For more information on previous Federal actions concerning the 
lynx, refer to the final listing rule published in the Federal Register 
on March 24, 2000 (65 FR 16052), and the clarification of findings 
published in the Federal Register on July 3, 2003 (68 FR 40076). As a 
result of litigation from Defenders of Wildlife, et al., the U.S. 
District Court for the District of Columbia instructed us to propose 
critical habitat by November 1, 2005, and to issue a final rule for 
critical habitat by November 1, 2006. The proposed rule to designate 
critical habitat for the lynx was published in the Federal Register on 
November 9, 2005 (70 FR 68294). A notice reopening the public comment 
period and clarifying the proposed critical habitat designation was 
published on February 16, 2006 (71 FR 8258). A Notice of Availability 
of the draft economic analysis and draft environmental assessment was 
published on September 11, 2006 (71 FR 53355). This final rule has been 
completed in compliance with the Court order.
    On September 29, 2006, U.S. District Court for the District of 
Columbia remanded one element of the 2000 listing decision for lynx. 
The Court requires the Service to explain how ``[c]ollectively the 
Northeast, Great Lakes, and Southern Rockies do not constitute a 
significant portion of the [Lynx] DPS.'' The Court reasoned that ``an 
explanation of an important finding in that prior decision, especially 
when the explanation (or even the modification or rejection of that 
explanation) may be relevant to the new rationale it is offering for 
that decision.'' The Court hoped that the Service can accomplish its 
task within 90 days, but did not identify a deadline for the remanded 
decision in its Order. The Service anticipates it will address this 
issue before the end of this year or early next year, and will make its 
explanation available in the Federal Register.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the lynx published on November 9, 
2005 (70 FR 68294). A notice reopening the public comment period and 
clarifying the proposed critical habitat designation was published on 
February 16, 2006 (71 FR 8258). We also contacted appropriate Federal, 
State, and local agencies; tribes; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule. 
The comment period was open from November 9, 2005, to February 7, 2006. 
It was reopened on February 16 for an additional 74 days until April 
30, 2006. On September 11, 2006 (71 FR 53355), the comment period was 
reopened to receive comment on the draft economic analysis and draft 
environmental assessment. Comments and new information received that 
were relevant to the final designation are addressed in the following 
summary and incorporated into the final rule as appropriate.
    During the comment period for the proposed rule that was open 
between November 9, 2005, and April 30, 2006, we received a total of 
8,028 comment letters. For the comment period open from September 11, 
2006 to October 11, 2006 we received 1,118 comments. A majority of the 
comments received were form letters. Comments were received from 
Federal, State, tribal and local governments, non-government 
organizations, private businesses, and individuals.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from eleven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from seven of 
the peer reviewers. The peer reviewers had differing assessments of our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the lynx and addressed them in the following summary.

Peer Reviewer Comments

    1. Comment: Some peer reviewers believed that our criteria 
(especially regarding evidence of occupancy and reproduction) for 
defining lynx critical habitat were too narrow and/or arbitrary, and 
resulted in us not including areas they consider important to lynx 
conservation, particularly the Kettle Range, the Greater Yellowstone 
Area, the Southern Rockies/Colorado, and a slightly more extensive area 
in Minnesota. Additionally, we received general comments recommending 
we designate critical habitat according to the lynx recovery outline, 
which included the areas of concern noted above by peer reviewers in 
addition to areas considered secondary or peripheral to recovery. 
General comments also were concerned with our criteria, asserting we 
should not restrict our designation solely to areas with confirmed 
evidence of the presence of reproducing lynx populations because lynx 
surveys have not been adequate to detect all reproducing lynx 
populations.
    Our response: Critical habitat contributes to the overall 
conservation of listed species, but does not by itself achieve 
conservation. It is not the intent of the Act to designate critical 
habitat for every population or occurrence of lynx. In the ``Criteria 
Used To Identify Critical Habitat'' section of the proposed and final 
critical habitat rules, we describe the parameters used for delineating 
areas that contain the physical and biological features essential to 
the conservation of lynx, as required by the definition of critical

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habitat when considering occupied areas. We determined that occupied 
areas containing the features essential to the conservation of lynx 
support the majority of recent lynx records and evidence of breeding 
lynx populations since 1995, and have direct connectivity with lynx 
populations in Canada. We relied on records since 1995 to ensure that 
the proposed critical habitat designation was based on the data that 
most closely represented the current status of lynx in the contiguous 
United States and the geographic area occupied by the species. Although 
the average life span of a wild lynx is not known, we assumed that a 
lynx born in 1995 could have been alive in 2000 or 2003, the dates of 
publication of the final listing rule and the clarification of 
findings. Furthermore, lynx-related research in the contiguous United 
States substantially increased after the 1998 proposal to list, 
providing additional information on which to base this proposed 
critical habitat designation. We recognize that adequate surveys to 
confirm the presence of breeding lynx populations have not occurred 
everywhere throughout the species' range; however, no information was 
provided to us to suggest where there might be undetected breeding 
populations that we should more closely evaluate for designation as 
critical habitat other than the areas we already considered. We found 
the additional areas suggested by commenters were not essential to the 
conservation of the lynx.
    The areas we considered in our methodology for defining critical 
habitat for the lynx did not mirror the exact areas identified in the 
recovery outline, but it did reflect the biological concepts considered 
important in the recovery plan. We used the best science available in 
determining those areas that contained the features essential for the 
conservation of lynx. As explained on pages 68302 to 68303 of the 
critical habitat proposal (November 9, 2005; 70 FR 68294), the areas we 
determined to be essential for the conservation of lynx do not include 
all the areas identified in the recovery outline. This is because the 
criteria we used for determining areas essential to the conservation of 
lynx for the critical habitat designation based on the critical habitat 
requirements of the Act which are were more selective than those used 
for delineating the recovery areas in the lynx recovery outline.
    The recovery outline more broadly encompassed older records of lynx 
and did not focus solely on areas directly connected with populations 
in Canada, although in the recovery outline it was recognized that 
maintaining connectivity with Canadian lynx populations was important. 
Furthermore, the areas in the recovery outline were mapped conceptually 
and, therefore, include substantial areas which do not contain PCEs for 
Lynx, which are unoccupied, and therefore not essential to the 
conservation of Lynx. We refined our mapping for the purposes of 
designating critical habitat in order to meet the statutory 
requirements associated with a rulemaking designating critical habitat. 
As a result, areas determined to be essential to the conservation of 
lynx for the purposes of critical habitat did not include the entire 
areas delineated in the recovery outline.
    Specifically, following our methodology, the Kettle Range (WA) and 
Greater Yellowstone core areas and the Southern Rockies provisional 
core area were determined not to be essential to the conservation of 
lynx for the purposes of critical habitat as described in detail in the 
Criteria Used To Identify Critical Habitat section of the proposed rule 
(November 9, 2005; 70 FR 68294). To summarize: There is no evidence 
that a lynx population has occupied the Kettle Range since 1995. In the 
Greater Yellowstone Ecosystem, lynx habitat appears to be of lower 
quality as indicated by the low numbers of lynx records, and it is not 
directly connected to lynx populations in Canada. In the Southern 
Rockies it is still uncertain whether a self-sustaining lynx population 
will become established as a result of Colorado's reintroduction 
effort, but we recognize this reintroduction has been an important 
step, although not essential, toward the recovery of lynx, and thus it 
is included in the recovery plan, but not the critical habitat 
designation. Finally, the Southern Rockies are not directly connected 
to lynx populations in Canada.
    A substantial portion of the lynx habitat in the Kettle range, the 
Greater Yellowstone Area, and the Southern Rockies areas is on Federal 
lands, particularly U.S. Forest Service (USFS) lands, which conveys 
considerable management attention for lynx; as a result, these areas do 
not meet the critical habitat definition. Under a formal conservation 
agreement with the Service, the USFS committed to largely avoiding 
adverse effects to lynx and using the Lynx Conservation Assessment and 
Strategy (LCAS) to guide section 7 effects determinations for lynx 
pending amendments to Land and Resource Management Plans (LRMPs) that 
provide guidance for the conservation of lynx (USFS and Service 2006, 
entire). The LCAS is based on the best available science for lynx (see 
section 3(5)(A) discussion below). As a result, lynx habitat in these 
three areas is not in need of special management or protection.
    2. Comment: Some peer reviewers disagreed with or didn't understand 
our rationale for removing USFS and Bureau of Land Management (BLM) 
lands from the designation because these lands support a majority of 
lynx habitat or lynx occurrence records in their respective geographic 
regions. One peer reviewer supported removing such lands. Additionally, 
we received numerous general comments either opposing or supporting the 
removal of USFS and BLM lands, concerned that not all the LRMPs are 
complete or will change over time. Others are concerned that recent 
changes to the 2005 National Forest System Land and Resource Management 
Planning rules weaken the protective measures in LRMPs.
    Our response: U.S. Forest Service lands have been removed from the 
designation because either their LRMP has already been revised to 
incorporate lynx conservation measures, as is the situation with the 
Superior National Forest (NF), or the other National Forests that are 
operating under a Conservation Agreement with the Service in which the 
USFS agreed to use the LCAS to guide section 7 effects determinations 
for lynx (see Application of Section 3(5)(A) discussion, below). The 
LCAS is the basis for implementing this Conservation Agreement and the 
Superior NF plan revision. As explained starting on page 68307 of the 
proposed rule, the LCAS is based on the best available science for 
lynx. Bureau of Land Management lands, including the Garnet Resource 
Area and the Spokane District, were removed from the proposed 
designation because they had already incorporated the provisions of the 
LCAS into their Resource Management Plans (see Application of Section 
3(5)(A) of the Endangered Species Act discussion, below).
    Regarding concerns that the 2005 National Forest System Land and 
Resource Management Planning rules weaken protective measures in the 
LRMPs, to date, none of the plan amendments for lynx have been 
completed under the USFS 2005 Planning Rules, and so any conclusions 
regarding the effect of the rules is speculative. However, we note that 
future revisions to Forest Service Management Plans will consider the 
LCAs and include plan direction to provide for the needs of the lynx, 
pursuant to the MOU between the FWS and USFS.

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    3. Comment: Some peer reviewers were concerned about using the LCAS 
as a basis for removing lands, such as USFS, from the designation 
because it is not yet known from a scientific standpoint if the 
measures in the LCAS will be adequate to conserve lynx. Another peer 
reviewer agreed that the LCAS was based on the best available science, 
but was concerned whether it would be kept up-to-date as new 
information becomes available. Some peer reviewers believed the 
management scope of the LCAS is limited and, therefore, is unlikely to 
provide the level of conservation that would be achieved under a 
critical habitat designation. Additionally, we received general 
comments with similar concerns about the LCAS or suggesting the LCAS 
isn't being implemented appropriately.
    Our response: As explained starting on page 68307 of the proposed 
rule, the LCAS is based on the best available science for lynx. The 
LCAS describes how and when updates will occur and that such updates 
will be based on the best current lynx science. In fact, revision of 
the LCAS is currently underway. Commenters did not provide specific 
examples of how the LCAS has not been properly implemented, and we have 
no information indicating this is the case. As described in the 
Application of Section 3(5)(A) of the Endangered Species Act 
discussion, below, USFS and Service are parties to a conservation 
agreement that requires the FS to use the LCAS to guide section 7 
effects determinations for lynx; all projects in lynx habitat on USFS 
lands undergo section 7 review and we have no indication the USFS is 
not adhering to the guidance in the LCAs.
    4. Comment: One peer reviewer questioned our determination that 
non-Federal lands require special management because lynx currently use 
a variety of non-Federal lands that support good lynx habitat as a 
result of past forest management practices. Prey densities in 15 to 20 
years will be determined by current forest management.
    Our response: We agree and for this reason, in addition to other 
reasons, we have excluded all non-Federal lands from the designation 
(see Exclusions Under Section 4(b)(2) of the Act discussion, below).

General Comments

    1. Comment: Many commented that our discussion of the value of 
designating critical habitat, and the procedural and resource 
difficulties involved, was inappropriate and should be addressed in a 
different forum, not in a critical habitat rule.
    Our response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, other 
conservation mechanisms provide greater incentives and conservation 
benefits than does the designation of critical habitat. These other 
mechanisms include the section 4 recovery planning process, section 6 
funding to the States, section 7 consultations, the section 9 
protective prohibitions of unauthorized take, the section 10 incidental 
take permit process, and cooperative programs with private and public 
landholders and Tribal nations.
    2. Comment: Many commenters agreed with our discussions in 
``Designation of Critical Habitat Provides Little Additional Protection 
to Species,'' ``Role of Critical Habitat in Actual Practice of 
Administering and Implementing the Act,'' and ``Procedural and Resource 
Difficulties in Designating Critical Habitat'' and, as a result, 
questioned why we would designate critical habitat for the lynx. 
Additional comments suggested that critical habitat should not be 
designated because lynx are doing fine without it.
    Our response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for listed species. The lynx was listed as a 
threatened species under the Act on March 24, 2000 (65 FR 16052). Under 
section 4(b)(2), the Act requires that a critical habitat designation 
be made on the basis of the best scientific data available and after 
taking into consideration the economic impact and any other relevant 
impact of specifying any particular area as critical habitat. 
Furthermore, the Service is under an order from the U.S. District Court 
for the District of Columbia to issue a final rule for critical habitat 
by November 1, 2006.
    In developing this final rule, we considered whether some areas 
should be designated as critical habitat given the issue the commenters 
identified about the status of lynx without critical habitat. We took a 
closer look at the necessity of designating critical habitat on lands 
managed by non-Federal landowners to determine whether current 
management was sufficient to conserve lynx. As a result of our 
additional analysis, we have excluded additional lands from this final 
rule based on the sufficiency of current management and other reasons 
(see Exclusions Under Section 4(b)(2) of the Act discussion, below).
    3. Comment: Numerous commenters asserted that the designation of 
critical habitat results in an increased regulatory burden, increased 
landowner costs, and restricted land uses and property rights. 
Specifically, many private landowners, particularly private timber 
companies, State, and county entities, commented that this designation 
would cause them harm economically and delay projects through the 
regulatory process.
    Our response: We have excluded all non-Federal lands from the final 
designation for the reasons described below in the ``Exclusions Under 
Section 4(b)(2) of the Act'' discussion, which resolves these concerns. 
The designation of critical habitat does not itself result in the 
regulation of non-Federal actions on private lands. However, as 
discussed in the sections ``Designation of Critical Habitat Provides 
Little Additional Protection to Species,'' ``Role of Critical Habitat 
in Actual Practice of Administering and Implementing the Act,'' and 
``Procedural and Resource Difficulties in Designating Critical 
Habitat,'' and other sections of this and other critical habitat 
designations, we believe that, in most cases, other conservation 
mechanisms provide greater incentives and conservation benefits than 
does the designation of critical habitat. These other mechanisms 
include the section 4 recovery planning process, section 6 funding to 
the States, the section 9 protective prohibitions of unauthorized take, 
the section 10 incidental take permit process, and cooperative programs 
with private and public landholders and Tribal nations. We note that on 
non-Federal lands there often are no Federal actions necessitating 
evaluation under section 7 of the Act. The economic issues raised have 
been addressed in the economic analysis and have been considered during 
the designation process.
    4. Comment: Some commenters suggested that the designation will 
result in an increased regulatory burden because State or local 
governments (such as county land use planning boards) could promulgate 
local rules to conserve designated lynx critical habitat.
    Our response: We recognize that State and local governments can 
promulgate regulations or local rules that may be linked to a critical 
habitat designation. This issue will not be a concern because we have 
excluded all lands from the final designation except National Parks

[[Page 66012]]

(see ``Exclusions Under Section 4(b)(2) of the Act'' discussion below).
    5. Comment: Some commenters stated that our comment periods for the 
proposed rule, NEPA document, and economic analysis were inadequate to 
allow the public to understand and comment meaningfully on the proposed 
rule.
    Our response: The proposed critical habitat rule for the lynx was 
available to the public for review and comment for 90 days (November 9, 
2005, to February 7, 2006.) It was reopened on February 16 for an 
additional 74 days until April 30, 2006. The amount of time available 
for the public to comment on the proposed rule was substantially more 
than for most critical habitat proposals, and was the maximum time 
practical given the one-year period we had to finalize the rule. The 
comment period for the economic analysis and NEPA document was open for 
30 days, from September 11 to October 11, 2006. We believe the length 
of the comment period was adequate.
    6. Comment: Some commenters stated that the Service did not 
adequately notify landowners about the proposal or where proposed 
critical habitat was located.
    Our response: Because of the large scope of the proposed 
designation it was not possible to contact each landowner. However, we 
issued a widely-disseminated news release regarding our proposal, and 
published legal notices in major newspapers in areas involved in the 
proposal. We published Federal Register notices, including the critical 
habitat proposal, reopening of the comment period, and the notice of 
availability of draft documents. We sent hundreds of letters, cards, 
and e-mails to State and Federal agencies, tribal governments, local 
governments, private individuals, private companies, non-government 
organizations, and elected officials announcing the proposal, document 
availability, and public meetings and hearings. We also issued press 
releases concurrent with Federal Register notice announcements. A Web 
page of lynx critical habitat materials and information has been 
maintained at https://mountain-prairie.fws.gov/species/mammals/lynx/
criticalhabitat.htm. Public hearings, open houses, and meetings on the 
published proposal were held on the following dates and locations: 
December 7, 2005, Duluth, MN; December 14, 2005, Orono, ME; January 4, 
2006, Helena, MT; January 5, 2006, Great Falls, MT; January 10, 2006, 
Kalispell, MT; January 18, 2006, Twisp, WA. In the proposed rule we 
provided contact information for four Service Field Offices for anyone 
seeking assistance with the proposed critical habitat. Therefore, we 
believe that we made a conscientious effort to reach all interested 
parties and provide avenues for them to obtain information concerning 
our proposal and supporting documents.
    We recognize the scale of the maps published in the Federal 
Register made it difficult to accurately identify whether particular 
parcels of land were included within the proposed designation. However, 
the descriptions that begin on page 68313 of the proposed rule 
(November 9, 2005; 70 FR 68294) were provided to assist the public in 
understanding exactly which lands were proposed as critical habitat.
    7. Comment: Many commenters expressed concern that commercial and 
recreational activities such as logging, mining, snowmobiling, off-road 
vehicles, and downhill skiing, would be prohibited or severely 
restricted by a designation of critical habitat.
    Our response: This issue is no longer a concern because we have 
excluded all lands from the final designation except National Parks 
(see ``Exclusions Under Section 4(b)(2) of the Act'' discussion below). 
All other lands were removed or excluded from the final designation 
because of existing conservation commitments or because the benefits of 
excluding these areas exceeded the benefits of including the areas (see 
Application of Section 3(5)(A) of the Endangered Species Act and 
Exclusions Under Section 4(b)(2) of the Act discussions, below).
    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 such a species or result in the 
destruction or adverse modification of critical habitat. If a Federal 
agency action, such as an action by the National Park Service (NPS), 
may affect a listed species or its critical habitat, the responsible 
Federal agency (action agency) must enter into consultation with us. 
Through this consultation, the action agency ensures that their actions 
do not destroy or adversely modify critical habitat. Section 7 of the 
Act does not apply to activities on private or other non-Federal lands 
where there is not a Federal action that triggers consultation, and 
critical habitat designation would not provide any additional 
protections under the Act for private or non-Federal activities. 
Critical habitat would not prohibit private or commercial activities 
from occurring unless they were occurring on the designated National 
Park System lands and we determined through a consultation that they 
would destroy or adversely modify critical habitat. We think this 
outcome would be highly unlikely given that the mission of the NPS 
largely prevents private or commercial activities that would result in 
major impacts to habitat. All parties--Federal, State, private, and 
tribal--are unable to take (e.g., harm, harass, pursue) listed species 
under section 9 without the appropriate permit.
    8. Comment: Some comments recommended excluding areas where 
landowners participate in the Sustainable Forestry Initiative (SFI) 
program.
    Our response: The SFI program is a condition for membership in the 
American Forest and Paper Association. The SFI program is a 
comprehensive system of principles, objectives and performance measures 
developed by foresters, conservationists and scientists, that combines 
the perpetual growing and harvesting of trees with the protection of 
wildlife, plants, soil and water quality (American Forest and Paper 
Association 2006). The SFI program appears well-intentioned, and can 
provide benefits to wildlife, and promotes wildlife conservation. The 
SFI program contains a number of principles and objectives that 
generally pertain to overall forest health. The objective that is most 
pertinent to lynx conservation is ``[t]o manage the quality and 
distribution of wildlife habitats and contribute to the conservation of 
biological diversity by developing and implementing stand- and 
landscape-level measures that promote habitat diversity and the 
conservation of forest plants and animals, including aquatic fauna.'' 
Therefore, participation in the SFI program is partially a basis for 
our decision to exclude non-Federal lands managed for commercial 
forestry from the designation (see Exclusions Under Section 4(b)(2) of 
the Act discussions, below).
    9. Comment: Some commenters asserted the designation of critical 
habitat constitutes an uncompensated taking of private property and is 
therefore illegal.
    Our response: This issue is no longer a concern because we have 
excluded all lands from the final designation except National Parks 
(see Exclusions Under Section 4(b)(2) of the Act discussion below). 
Additionally, the mere promulgation of a regulation, like the enactment 
of a statute, does not take private property unless the regulation on 
its face denies the property owners all economically beneficial or 
productive use of their land. Further, in accordance with Executive 
Order 12630 (``Government Actions and Interference

[[Page 66013]]

with Constitutionally Protected Private Property Rights''), we have 
analyzed the potential takings implications of designating critical 
habitat for the lynx in a takings implications assessment. The takings 
implications assessment concludes that this designation of critical 
habitat for the lynx does not pose significant takings implications
    10. Comment: Some commenters asserted that the proposed rule failed 
to adequately identify the physical or biological features (primary 
constituent element or PCE) essential to the conservation of the lynx. 
Some commenters stated the PCE needs to be more narrowly defined. Some 
commenters suggested that lynx use a wider variety of forest types than 
those described in the PCE or that lynx subsist on prey other than 
snowshoe hares. A few commenters claimed that snow is not essential to 
the lynx because there is no snow in summer.
    Our response: The features essential for the conservation of the 
species were determined based on the best scientific data available on 
lynx and snowshoe hare ecology. As more thoroughly described in the 
``Primary Constituent Element'' section of the proposed rule, starting 
on page 68299, we determined the PCE to be (1) Boreal forest landscapes 
supporting a mosaic of differing successional forest stages and 
containing: (a) presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees or shrubs 
tall enough to protrude above the snow; (b) winter snow conditions that 
are generally deep and fluffy for extended periods of time; and (c) 
sites for denning that have abundant, coarse woody debris, such as 
downed trees and root wads. We recognize the value of observable or 
measurable standards. Unfortunately, current science is not sufficient 
to tell us, for example, the minimum density of snowshoe hares 
necessary to support a reproducing lynx population, nor is there 
reliable scientific information regarding a specific density or size of 
coarse woody debris such that a lynx would select for a den site, nor 
the precise snow conditions (such as depth or other properties) that 
provide a lynx an advantage over other potential competitors such as 
coyote or bobcat. As a result, our description of the PCE is as 
specific as the current science will allow.
    The best scientific information has demonstrated that lynx are 
highly adapted to preying on snowshoe hares and that snowshoe hare 
density is the most important factor explaining the persistence of lynx 
populations (see 65 FR 16052, March 24, 2000; 68 FR 40076, July 3, 
2003; background section of 70 FR 68294, November 9, 2005; Steury and 
Murray 2004, p.136). As a result, we determined that habitats 
containing the features essential to the conservation of lynx are those 
that support snowshoe hares, despite the fact that lynx are known to 
prey opportunistically on other small mammals and birds. Lynx 
populations are found in habitats that support abundant snowshoe hares. 
Such habitats are generally described as boreal forest or cold 
temperate forests (Frelich and Reich 1995, p, 325; Agee 2000 pp. 43-
46). Because lynx are capable of traveling long distances, they have 
been documented in a variety of habitat types, but habitat types that 
are incapable of supporting abundant snowshoe hares are not considered 
essential to the conservation of lynx. The commenters are correct that 
most of the areas included in the lynx critical habitat designation do 
not have snow in summer. Lynx and snowshoe hares are highly evolved to 
survive deep and/or fluffy snow, which is why we specified winter snow 
conditions as a component of the PCE. The presence of deep, fluffy snow 
in the winter gives lynx the competitive advantage over similar-sized 
carnivores and is a reliable indicator of the most important habitat 
for lynx persistence in the contiguous United States. All of the areas 
we are designating as critical habitat have deep, fluffy snow in 
winter, and this feature is essential to lynx conservation.
    11. Comment: Some commenters stated that many of the lands included 
in the proposed designation do not contain the physical and biological 
features (PCE) identified as being essential to the conservation of the 
lynx. Additional comments asserted the boundaries we used (such as the 
4,000-foot (ft) (1,219-meter (m)) elevation contour or highways) were 
arbitrary or overly broad.
    Our response: The 4,000-ft (1,219-m) elevation contour is used to 
delineate the boundary within Glacier National Park west of the 
Continental Divide and the boundary within North Cascades National Park 
east of the Crest of the Cascade Mountains. As described on page 68299 
of the Methods section of the proposed rule (November 9, 2005; 70 FR 
68294), the features essential to the conservation of lynx, the 
majority of lynx records, the evidence of reproduction, and the boreal 
forest types are found above 4,000 ft in these areas.
    Based on recently received landscape-scale vegetation maps for the 
Northern Rockies and Cascades proposed critical habitat units, we 
removed public land survey sections that were primarily unforested from 
the designation. We reviewed aerial photos for particular parcels 
identified by commenters as not supporting the PCE (such as Minnesota 
Power and Cleveland Cliffs in Unit 2), and determined that these 
parcels do not support the PCE. On that basis we removed them from the 
designation. A 1-mi (1.6-km) buffer along the Lake Superior shoreline 
and a 10-mi (16-km) circular buffer around Duluth, MN, were removed 
based on aerial photography showing that existing development in Unit 2 
is concentrated in these areas (Industrial Economics, Incorporated 
2006, p. 4-12)., limiting the potential of any lynx habitat 
intermingling in these areas
    12. Comment: Some commenters recommended that we designate critical 
habitat in unoccupied habitat. Others suggested that critical habitat 
units should encompass all lynx occurrence records.
    Our response: As explained on page 68298 of the proposed rule 
(November 9, 2005; 70 FR 68294), the data that define the current and 
historical range of the lynx at the time of listing constitute the 
geographic area occupied by the species. At the time of listing, we did 
not consider any areas within the current or historical range to be 
unoccupied because the lynx is highly mobile and survey information was 
spotty and incomplete. We considered critical habitat in areas that 
have the highest likelihood of supporting reproducing populations of 
lynx based on: (1) The presence of the PCE; (2) the majority of recent 
lynx records; (3) recent evidence of breeding lynx populations; and (4) 
direct connectivity with lynx populations in Canada. Many historic 
records of lynx occur in areas that do not support extensive boreal 
forest and abundant snowshoe hares. No evidence suggests that these 
areas ever supported self-sustaining populations of lynx in the past 
100 years (e.g., Oregon) (Aubry 2006, p.2). Pursuant to section 3(5)(A) 
of the Act, critical habitat shall not include the entire geographical 
area that can be occupied by the species unless otherwise determined by 
the Secretary. We have concluded that not all occupied habitat is 
essential to the conservation of the lynx.
    13. Comment: Some commenters stated that private lands have few to 
no Federal actions requiring consultation under section 7 of the Act, 
suggesting little need or benefit of designating critical habitat on 
private lands.
    Our response: We agree. The fact that Federal actions requiring 
consultation under section 7 of the Act occur infrequently on private 
lands weighed into our decision to exclude all private

[[Page 66014]]

lands from the designation, including lands managed for commercial 
forestry, small landowners, and lands not managed for commercial 
forestry because the benefit of excluding these areas exceeded the 
benefit of including them (see ``Exclusions Under Section 4(b)(2) of 
the Act'' discussion, below). Small land parcels and lands not managed 
for commercial forestry have a minor influence on the features 
essential to the conservation of lynx because they are small in size 
relative to the large landscape required to support lynx, particularly 
compared to the important role and large scale of National Forest lands 
and lands managed for commercial forestry.
    14. Comment: Some commenters were concerned that critical habitat 
designation will create a disincentive for lynx conservation on private 
lands because consultation under the Act is triggered when landowners 
participate in Federal programs such as conservation easements or 
receive Federal funding. Owners of private timber lands said they would 
be reluctant to accept Federal funding intended to encourage the 
conservation of private forest lands, such as the USFS Forest Legacy 
Program, because of the consultation requirement.
    Our response: We considered this factor in weighing whether the 
benefit of exclusion of lands from critical habitat designation 
exceeded the benefit of their inclusion in critical habitat (see 
``Exclusions Under Section 4(b)(2) of the Act'' discussion of section 
4(b)(2) exclusions below). As a result, we have excluded non-Federal 
lands from the final designation. We are obligated to note that Federal 
funding for conservation on private lands would still be subject to 
section 7 consultation in areas that are occupied by lynx. However, 
this requirement has existed since the lynx was listed and is unchanged 
by our designation of critical habitat.
    15. Comment: Some commenters believe that designation of critical 
habitat prior to completion of a lynx recovery plan or other lynx 
conservation guidance is premature.
    Our response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for listed species within a year of listing. The 
lynx was listed as a threatened species under the Act in 2000 (March 
24, 2000; 65 FR 16052). The designation is made on the basis of the 
best scientific data available and after taking into consideration the 
economic impact and any other relevant impact of specifying any 
particular area as critical habitat. Furthermore, the Service is under 
an order from the U.S. District Court for the District of Columbia to 
issue a final rule for critical habitat by November 1, 2006. Therefore, 
we must proceed with the designation although a recovery plan has not 
yet been drafted for the lynx.
    16. Comment: Some commenters pointed out that some of the 
occurrence data we used to support the proposed critical habitat 
designation were based on winter track surveys, particularly from 
Maine, although in the proposed rule we said we only used winter track 
survey data when confirmed by genetic (DNA) testing.
    Our response: We did not include any lands in Maine in the final 
designation; therefore, this issue is moot. The pooling of snow track 
survey results with other verified evidence of lynx occurrence was an 
oversight. However, because of the stringent protocols used in 
confirming tracks as lynx and the minimal number of species in the area 
with which lynx tracks could be misidentified in Maine (McCollough 
2006), we have high confidence in the accuracy of the Maine snow track 
data that was incorporated into the data used for the proposed 
designation.
    17. Comment: Some commenters suggested that better snow information 
should have been used to delineate critical habitat boundaries.
    Our response: As explained on page 68301 of the proposed rule 
(November 9, 2005; 70 FR 68294), snow conditions also determine the 
distribution of lynx. However, available scientific information does 
not allow us to identify whether a precise snow depth and/or other 
quality, such as surface hardness or sinking depth, defines lynx use or 
preference. Information on average snow depth is limited to areas with 
good coverage by weather stations that record snow depth data. We were 
able to use average snow depth maps based on weather station data to 
inform our consideration of lands in Maine and Minnesota. However, in 
mountainous areas such as the Northern Rockies and Cascades, few 
weather stations exist, and local topography strongly influences snow 
conditions. Therefore, snow depth maps were not used for the Northern 
Rockies or Cascades units, where we relied on lynx occurrence records, 
vegetation data, and elevation.
    18. Comment: Some commenters suggested the critical habitat units 
or the PCEs do not encompass all the areas or features essential to the 
conservation of lynx. Specifically mentioned were areas that would 
mitigate the effect of climate change on lynx habitat, provide habitat 
for dispersing lynx to colonize (such as portions of New Hampshire, New 
York, North Dakota, Wyoming, Utah, Washington, and Oregon), or lynx 
travel corridors both within the United States and between the United 
States and Canada.
    Our response: The PCE and the areas proposed as critical habitat 
represent the features essential to the conservation of lynx. The Act 
states at section 3(5)(A), that except in particular circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species. It is not the intent of the Act to designate 
critical habitat for every population and every documented historical 
location of a species. As described on page 68299 of the proposed rule 
(November 9, 2005; 70 FR 68294), the areas proposed as critical habitat 
serve a variety of functions, including providing habitat that may 
serve as travel corridors to facilitate dispersal and exploratory 
movements. At this time the biological or physical features of habitats 
lynx choose for travel or colonization is not well-understood. The 
extent that climate change might affect lynx habitat is not known, nor 
do we know if any areas within the contiguous United States would 
mitigate for habitat changes due to climate change. Therefore, we did 
not have sufficient data to accurately delineate areas in the 
contiguous United States that might provide travel, serve as sites for 
colonization or corridors, or mitigate for climate change.
    19. Comment: Many commenters assert that the presence of lynx 
demonstrates that present and past timber management practices (i.e., 
those that started around 20 years ago and continue today) have created 
the current habitat conditions that are good for lynx; therefore, 
critical habitat should not be designated on such lands.
    Our response: We agree and for this reason, in addition to others, 
we have excluded all non-federal lands managed for commercial forestry 
from the designation (see Exclusions Under Section 4(b)(2) of the Act 
discussion, below).
    20. Comment: Washington State Department of Natural Resources 
requested that their lands be removed from the designation because the 
agency has implemented a Lynx Habitat Management Plan since 1996 that 
has been effective in the conservation of lynx habitat and updated the 
Habitat Management Plan in 2006 to include modifications to avoid the 
incidental take of lynx.
    Our response: We determined that Washington State Department of 
Natural Resources lands should be removed

[[Page 66015]]

from the critical habitat because Washington DNR's plan provides 
sufficient management so that special management or protection is not 
required and thus the identified lands do not meet the definition of 
critical habitat. First, the plan is complete: The original plan was 
completed in 1996, updates and modifications to the plan were completed 
in 2006. Second, the plan provides specific provisions for lynx 
foraging (snowshoe hare) habitat and denning habitat on a landscape 
scale based on the best available science on lynx and snowshoe hare 
ecology. Third, the plan has been implemented since 1996. The Service 
found that implementation of the 1996 plan will maintain the function 
of the landscape and its capability to support lynx reproduction and 
was not likely to result in mortality or injury to lynx through 
significant impairment of breeding, feeding or sheltering or other 
essential behaviors (Martin 2002). Finally, implementation and 
effectiveness monitoring reports are provided and are incorporated into 
the 2006 plan. This issue is discussed in more detail in Exclusions 
Under Section 4(b)(2) of the Act, below.
    21. Comment: Montana Department of Natural Resources and 
Conservation requested that Montana State Trust Lands be excluded from 
designation because of Montana Department of Natural Resources and 
Conservation's pending Habitat Conservation Plan that will specifically 
address lynx conservation.
    Our response: We determined that Montana State Trust Lands should 
be excluded from the designation of critical habitat because the 
benefits of excluding these lands covered by the pending HCP outweigh 
the benefits of including them in the designation (see Exclusions Under 
Section 4(b)(2) of the Act, below). The Lynx Conservation Strategy 
portion of the pending HCP has undergone public review pursuant to 
State law and provides for the PCE in that it will provide multistoried 
boreal forest stands, foraging habitat (i.e., snowshoe hare habitat), 
lynx denning habitat, and protection for known den sites.
    22. Comment: Tribes submitted comments requesting their lands be 
excluded from the designation. We received other comments opposing the 
exclusion of tribal lands from the designation.
    Our response: 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 
``Consultation and Coordination with Indian Tribal Governments;'' 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. Such designation is often viewed by 
tribes as an unwanted intrusion into tribal self governance, thus 
compromising the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the viability of threatened and endangered species populations 
depend.
    We contacted all tribes potentially affected by the proposed 
designation and met with some of them to discuss their ongoing or 
future management strategies for lynx. Several tribes subsequently 
submitted letters requesting exclusion based on their sovereign rights 
and concerns about the economic impact and affects on their ability to 
manage natural resources. As described on page 68310 of the proposed 
rule, we have determined that conservation of lynx can be achieved off 
tribal lands within the critical habitat units and/or with the 
cooperation of tribes. The tribal lands included in the proposed 
designation are found only in the Maine and Minnesota units and the 
size of the areas are relatively small (approximately 223 and 192 
km\2\, respectively [86 and 74 mi\2\]). Therefore, these tribal lands 
are excluded from final designation as critical habitat pursuant to 
section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the 
Act discussion, below).
    23. Comment: Some commenters are concerned the designation provides 
a mechanism for increased third party litigation.
    Our response: We have designated critical habitat for the lynx 
based upon the statutory obligations and definitions pursuant to 
sections 3 and 4 of the Act after taking into consideration the best 
available scientific and commercial information. Further, we have 
finalized our designation for lynx critical habitat following an 
evaluation of all conservation measures and partnerships, economics, 
and other relevant factors and subsequently weighing the benefits of 
inclusion against the benefits of exclusion pursuant to section 4(b)(2) 
of the Act. Thus, we believe that we have proposed and designated 
critical habitat according to the provisions of the Act and our 
implementing regulations. However, the final designation can be subject 
to litigation and those affected by the designation may also be 
vulnerable to third-party litigation if determined not to be in 
compliance with the provisions and protection of the regulation.
    24. Comment: Some commenters believe that the analysis for 
justifying removing USFS lands from the designation was inadequate.
    Our response: We have noted the comment and provide an expanded 
discussion in Application of Section 3(5)(A) of the Act, below. We have 
concluded that the conservation agreement, proposed plan amendments, 
and existing LRMPs that include lynx conservation provide sufficient 
special management for lynx.
    25. Comment: Some commenters believe that because USFS lands are 
being managed for lynx under the Conservation Agreement, the lands 
require special management and, therefore, should not be removed from 
the designation under section 3(5)(A). Additionally, commenters suggest 
that removal of USFS lands from the designation violates Center for 
Biological Diversity v. Norton (2003).
    Our response: Under the definition of critical habitat, an area 
must be both essential to a species' conservation and require ``special 
management considerations or protections.'' Our interpretation is that 
special management or protections are not required if adequate 
management or protections are already in place. Adequate special 
management or protection is provided by a plan or agreement that 
addresses the maintenance and improvement of the primary constituent 
element for the species and manages for the long-term conservation of 
the species (see Application of Section 3(5)(A) of the Act, below). In 
our final designation, we analyzed whether the lands containing the 
features essential to the conservation of lynx required special 
management above and beyond what was currently being implemented. 
Because the USFS's current lynx management conserves lynx, we did not 
include any USFS lands in the final designation.
    26. Comment: Removing Federal lands from the designation unfairly 
and disproportionately places the burden of lynx conservation on non-
federal landowners.
    Our response: We have excluded all non-federal lands from the final 
designation for the reasons described below in the Exclusions Under 
Section 4(b)(2) of the Act discussion, which resolves these concerns.

[[Page 66016]]

    27. Comment: Voluntary, non-regulatory, cooperative conservation 
strategies would provide more effective lynx conservation than the 
critical habitat designation.
    Our response: In general, we agree with this comment. We responded 
to this comment by weighing the benefits of exclusion against the 
benefit of inclusion pursuant to 4(b)(2) of the Act. The benefits of 
non-regulatory conservation on private, state, and county lands were 
factored into our decision not to include such lands in the final 
designation. See Exclusions Under Section 4(b)(2) of the Act discussion 
below for a complete discussion.
    28. Comment: Designation of critical habitat would be harmful to 
lynx conservation because the regulation will make current land use 
(e.g., logging) unprofitable, causing landowners to sell to developers 
and resulting in a loss of lynx habitat.
    Our response: Our decision to include only National Park Service 
lands in the final designation resolves these concerns. No logging 
occurs within NPS lands. It is relevant to note, however, that our 
economic analysis did not indicate logging would be made unprofitable 
by the designation of lynx critical habitat. The cost of the 
designation on timber lands was relatively small on a per-acre basis. 
Thus, the exclusion of these areas in the final designation was not due 
to economic impacts. Please refer to our draft and final economic 
analyses for further detail concerning our estimate of potential 
economic impacts resulting from the proposed and this final 
designation.
    29. Comment: Lands covered by Plum Creek Timber Company's Native 
Fish Habitat Conservation Plan should be excluded from the designation 
because the plan conserves riparian zones that function as snowshoe 
hare habitat, lynx denning habitat, and lynx travel corridors.
    Our response: Plum Creek lands are not included in the final 
designation in part because the company has demonstrated it is a 
willing partner in fish and wildlife conservation efforts, such as the 
Native Fish Habitat Conservation Plan, which provides some ancillary 
benefits to lynx, as described below in the Exclusions Under Section 
4(b)(2) of the Act discussion, which resolves this concern. We believe 
partnerships are essential for the conservation and recovery of lynx.
    30. Comment: Private lands in Montana covered by the Swan Valley 
Grizzly Bear Conservation Agreement should be excluded from the 
designation.
    Our response: Private lands in Montana are not included in the 
final designation for the reasons described below in the Exclusions 
Under Section 4(b)(2) of the Act discussion, which resolves this 
concern. We believe that preserving cooperative partnerships such as 
demonstrated with the Swan Valley Grizzly Bear Agreement, which 
provides some ancillary benefits to lynx, is essential for the 
conservation and recovery of lynx.
    31. Comment: Dense forests required by lynx and snowshoe hares 
increases the risk of wildfires.
    Our response: Wildfire is not thought to be a threat to lynx, and 
often results in beneficial effects when burned areas regenerate into 
good lynx foraging habitat. The designation of critical habitat will 
not prohibit protection of defensible space around homes or the 
wildland-urban interface. As described in the final rule listing the 
lynx, natural fire plays an important role in creating the mosaic of 
vegetation patterns, forest stand ages, and structure that provide good 
lynx and snowshoe hare habitat, particularly in the western Great Lakes 
region and in the western mountain ranges of the United States (Agee 
2000, pp. 47-56). The final designation includes only National Parks. 
The National Park Service manages wildfire risk in accordance with the 
National Fire Plan. We routinely coordinate with NPS on fire proje