Endangered and Threatened Wildlife and Plants; Threatened Species Status for West Coast Distinct Population Segment of Fisher, 60419-60443 [2014-23456]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 79, Number 194 (Tuesday, October 7, 2014)]
[Proposed Rules]
[Pages 60419-60443]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23456]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2014-0041; 4500030113]
RIN 1018-BA05


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for West Coast Distinct Population Segment of Fisher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the West Coast Distinct Population Segment of fisher (Pekania 
pennanti), a mustelid species from California, Oregon, and Washington, 
as a threatened species under the Endangered Species Act (Act). If we 
finalize this rule as proposed, it would extend the Act's protections 
to this species. The effect of this regulation will be to add this 
species to the List of Endangered and Threatened Wildlife.

DATES: Written Comments: We will accept comments received or postmarked 
on or before January 5, 2015. Comments submitted electronically using 
the Federal eRulemaking Portal (see ADDRESSES, below) must be received 
by 11:59 p.m. Eastern Time on the closing date. We must receive 
requests for additional public hearings, in writing, at the address 
shown in FOR FURTHER INFORMATION CONTACT by November 21, 2014.
    Public Informational Meetings and Public Hearing: We will hold one 
public hearing and seven public informational meetings. The public 
hearing will be held on:
    (1) November 17, 2014, from 6:00 p.m. to 8:00 p.m. in Redding, 
California.
    The seven public informational meetings will be held on:
    (2) November 13, 2014, from 5:00 p.m. to 7:00 p.m. in Yreka, 
California.
    (3) November 17, 2014, from 4:30 p.m. to 6:30 p.m. in Medford, 
Oregon.
    (4) November 20, 2014, from 6:00 p.m. to 8:00 p.m. in Arcata, 
California.
    (5) November 20, 2014, from 3:00 p.m. to 5:00 p.m. and another from 
6:00 p.m. to 8:00 p.m. in Lacey, Washington.
    (6) December 3, 2014, from 1:00 p.m. to 3:00 p.m. in Visalia, 
California.
    (7) December 4, 2014, from 4:00 p.m. to 6:00 p.m. in Turlock, 
California.

ADDRESSES: Comment Submission: You may submit comments by one of the 
following methods:
    (1) Federal eRulemaking Portal: https://www.regulations.gov. In the 
Search box, enter the Docket Number for this proposed rule, which is 
FWS-R8-ES-2014-0041. You may submit a comment by clicking on ``Comment 
Now!'' Please ensure that you have

[[Page 60420]]

found the correct rulemaking before submitting your comment.
    (2) U.S. mail or hand delivery: Public Comments Processing, Attn: 
Docket No. FWS-R8-ES-2014-0041; U.S. Fish & Wildlife Headquarters, MS: 
BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    Public Informational Meetings and Public Hearing: We will hold one 
public hearing and seven public informational meetings at the locations 
listed below:
    (1) Redding, California: Red Lion, 1830 Hilltop Dr., Redding, CA 
96002.
    (2) Yreka, California: Best Western Miner's Inn, 122 E. Miner St., 
Yreka, CA 96097.
    (3) Medford, Oregon: Rogue Regency Inn, 2300 Biddle Rd., Medford, 
OR 97504.
    (4) Arcata, California: Arcata Public Library, 500 7th St., Arcata, 
CA 95521.
    (5) Lacey, Washington: Lacey Community Center, Banquet A, 6729 
Pacific Ave. SE., Lacey, WA 98503.
    (6) Visalia, California: Visalia Convention Center, 303 E. Acequia 
Ave., Visalia, CA 93291.
    (7) Turlock, California: California State University, Stanislaus 
Campus, Faculty Development Center, Room 118, 1 University Circle, 
Turlock, CA 95382.
    People needing reasonable accommodation in order to attend and 
participate in any of the public informational meetings or the public 
hearing should contact Erin Williams, Field Supervisor, Yreka Fish and 
Wildlife Office, as soon as possible (see FOR FURTHER INFORMATION 
CONTACT).

FOR FURTHER INFORMATION CONTACT: Erin Williams, Field Supervisor, U.S. 
Fish and Wildlife Service, Yreka Fish and Wildlife Office, 1829 South 
Oregon Street, Yreka, CA 96097, by telephone 530-842-5763 or by 
facsimile 530-842-4517. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.) (Act), if a species is 
determined to be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. Under section 3(16) of the Act, we may consider 
for listing any species, including subspecies, of fish, wildlife, or 
plants, or any distinct population segment (DPS) of vertebrate fish or 
wildlife that interbreeds when mature. Critical habitat shall be 
designated, to the maximum extent prudent and determinable, for any 
species determined to be an endangered or threatened species under the 
Act. Listing a species as an endangered or threatened species and 
designations and revisions of critical habitat can only be completed by 
issuing a rule.
    This rule will propose the listing of the West Coast DPS of fisher 
(Pekania pennanti) as a threatened species. At this time, we have found 
the designation of critical habitat to be ``not determinable'' for the 
West Coast DPS of fisher. The West Coast DPS of fisher is a candidate 
species for which we have on file sufficient information on biological 
vulnerability and threats to support preparation of a listing proposal, 
but for which development of a listing regulation has been precluded by 
other higher priority listing activities. This rule reassesses all 
available information regarding status of and threats to the West Coast 
DPS of fisher. In addition, this rule requests consideration and 
comments on potential alternative DPSs.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) Other natural or manmade factors affecting its 
continued existence. We have determined that the main threats to the 
West Coast DPS of fisher are habitat loss from wildfire and vegetation 
management; toxicants (including anti-coagulant rodenticides); and the 
cumulative and synergistic effects of these and other stressors acting 
on small populations.
    We will seek peer review. We will seek comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We will invite these peer 
reviewers to comment on our listing proposal. Because we will consider 
all comments and information received during the comment period, our 
final determination may differ from this proposal.
    A team of biologists within the Service prepared a draft Species 
Report for the West Coast DPS of fisher (Service 2014, entire). This 
draft Species Report represents a compilation of the best scientific 
and commercial data available through December 2013 concerning the 
status of the species, including the past, present, and future 
stressors to this species. The draft Species Report will be peer-
reviewed along with this proposed rule during the comment period. The 
draft Species Report and other materials relating to this proposal can 
be found on the Yreka Fish and Wildlife Office Web site at: 
www.fws.gov/cno/es/fisher/. The draft Species Report can also be found 
on https://www.regulations.gov in this docket for this proposal as a 
supporting document. Any new information that has become available 
since December 2013 or received during the public comment period will 
be incorporated, as appropriate, into the final species report. In 
addition, if substantial new information since December 2013 is 
considered, we may open an additional comment period before the final 
rule.

Information Requested

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule.
    Because in this proposed rule we are seeking peer review and public 
comment of some particularly complex issues with regard to the status 
of the species and identification of potential distinct population 
segments, we are providing additional background information in 
association with several of our questions to aid in understanding the 
context for the questions posed. Moreover, again due to the complexity 
of the issues under review, we are requesting information as outlined 
below to ensure that our final determination is based on the best 
scientific and commercial information available. We particularly seek 
comments and information concerning:
    (1) The West Coast DPS of fisher's historical and current biology, 
range, status, distribution, and population size and trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends;

[[Page 60421]]

    (e) Past and ongoing conservation measures for the species, its 
habitat, or both; and
    (f) Data regarding the current status and trend for the extant 
native populations in the proposed DPS.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors, including:
    (a) Information regarding the magnitude and overall immediacy of 
threats; and
    (b) Information and data concerning whether the factors that may 
affect the continued existence of the species are evenly distributed 
across the historical range of the species in Washington, Oregon, and 
California.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats, and biological, commercial trade, 
or other relevant data indicating actions or factors that may benefit 
fishers (such as fuels treatments that reduce the risk of fires).
    (4) Scientific or commercial information on the expansion of 
populations, especially with respect to verified evidence of 
reproduction, including the verified locations of any individuals or 
populations of this species not already documented in the draft Species 
Report (Service 2014, entire).
    (5) Information that may assist the Service in designating habitat 
as ``critical habitat'' under section 4 of the Act (16 U.S.C. 1533), 
including information as to whether the designation of critical habitat 
is prudent and determinable.
    (6) Scientific or commercial information concerning the listable 
entity defined in this proposed rule, or concerning possible 
alternative DPS options as outlined below in the Other DPS Alternatives 
section; scientific or commercial information concerning whether a 
separate DPS would be appropriate that encompasses the areas where the 
West Coast DPS of fisher are considered to be likely extirpated, 
although on occasion individual fishers may be detected (Washington and 
most of Oregon); and whether it is appropriate to include areas within 
a DPS where native fishers are considered to be likely extirpated 
(Washington and most of Oregon). The Service is also interested in 
comments regarding other potential DPS configurations not outlined in 
the Other DPS Alternatives section.
    (7) Under section 4(d) of the Act, the Service has discretion to 
issue regulations that we find necessary and advisable to provide for 
the conservation of threatened species. We seek data that support 
various management actions and regulations that could be utilized to 
develop a potential section 4(d) rule necessary and advisable to 
provide for the conservation of fisher, should it be listed as a 
threatened species.
    (8) Any additional genetic information that is important to 
consider for conservation management of fishers in the proposed DPS or 
other potential DPS configurations. In particular, we seek public 
comment on scientific information and perspective regarding potential 
restoration of connectivity between certain populations of fishers that 
was not available at the time of the 2004 Finding (described below 
under Previous Federal Actions). We direct the public to the recent 
publications of Tucker (2013), Tucker et al. (2012), Knaus et al. 
(2011), and the earlier publications of Warheit (2004), Wisely et al. 
(2004), and Drew et al. (2003), and we particularly seek comment 
regarding:
    (a) Whether and how this information that has become available 
since the 2004 Finding may result in a different conclusion from that 
reached in 2004 regarding the DPS determination and the impact of 
population isolation on the fisher's overall conservation status.
    (b) Whether genetics in the Northern California-Southwestern Oregon 
(NCSO) population should be managed separately from genetics in the 
Southern Sierra Nevada (SSN) population, including scientific basis, 
and how these data may be used to evaluate alternative DPS 
configurations.
    (c) Whether genetics of fishers in Oregon and Washington should be 
managed separately from genetics in NCSO, including scientific basis, 
and how these data may be used to evaluate alternative DPS 
configurations.
    (d) Whether various reintroduced populations should be managed 
based on genetic considerations, including scientific basis.
    (9) Scientific data indicating whether the Klamath River, the Rogue 
River, and Interstate 5 may act as filters or barriers to fisher 
movement between the native NCSO population and the reintroduced 
Southern Oregon Cascades (SOC) population, and how these data may be 
used to evaluate alternative DPS configurations.
    (10) Information regarding the scope and severity of the potential 
threat of anti-coagulant rodenticides throughout the proposed DPS as 
well as data on potential sublethal effects from disease and toxicants 
and scientific or commercial information regarding whether there is a 
difference in the scope and severity of rodenticides among NCSO, SSN, 
the reintroduced populations, and the rest of the historical range.
    (11) Scientific or commercial information regarding the scope and 
severity of the potential threat of other causes of direct mortality 
(such as vehicle collisions and disease) throughout the proposed DPS 
and scientific or commercial information regarding differences in the 
scope and severity of these causes of direct mortality among NCSO, SSN, 
the reintroduced populations, and the rest of the historical range.
    (12) Scientific or commercial information regarding the scope and 
severity of the potential threat of wildfire throughout the proposed 
DPS; in particular, we are interested in public comment on whether and 
how new research that has become available since the 2004 Finding may 
affect our evaluation of habitat loss from fire as a potential threat 
to fishers; and information on the potential tradeoff in terms of risk 
to fishers from habitat loss as a consequence of wildfire and the 
potential degradation or removal of habitat by removing structural 
forest components utilized by fishers in the course of fuel treatments. 
We ask for comment on this issue in the context of information 
indicating that climate change is expected to further exacerbate the 
loss of habitat in certain areas of the DPS, particularly in the SSN 
and NCSO populations, as noted in the draft Species Report. We direct 
the public to recent studies indicating that certain populations of 
fishers may experience relatively high vulnerability to habitat loss 
from wildfires, in turn leading some to recommend evaluating, 
prioritizing, and implementing fuels treatment to reduce the amount and 
severity of habitat loss (see Scheller et al. 2011, Mallek et al. 2013, 
Thompson et al. 2011, Underwood et al. 2010, Truex and Zielinski 2013, 
Zielinski 2013a, Zielinski et al. 2013b). In addition, some of these 
researchers have suggested that carefully applied treatments to reduce 
fire risk may be consistent with maintaining fisher habitat. In the 
context of this new information, we are seeking:
    (a) Scientific or commercial information to aid in evaluating the 
tradeoff between loss of fisher habitat value that may occur when 
forests are treated to reduce severity of future fires and the loss of 
fisher habitat that occurs

[[Page 60422]]

when untreated stands are consumed by wildfire; and
    (b) Scientific or commercial information regarding potential 
differences in the scope and severity of wildfire among NCSO, SSN, and 
the rest of the historical range.
    (13) Scientific or commercial information regarding the scope and 
severity of the potential stressor of climate change throughout the 
proposed DPS and scientific or commercial information regarding 
differences in the scope and severity of climate change among NCSO, 
SSN, and the rest of the historical range. We are also seeking 
scientific or commercial information regarding how the potential direct 
effects of climate change may manifest in fishers throughout the 
proposed DPS.
    (14) Scientific or commercial information on the scope and severity 
of vegetation management on Federal land within the range of the 
fisher, but outside the range of the northern spotted owl in California 
(we used the northern spotted owl data as a surrogate for fisher data 
because we do not have fisher-specific information), and scientific or 
commercial information on the type, scope, and severity of vegetation 
management (timber harvest, restoration thinning, fuels reduction, 
etc.; see draft Species Report for details) on non-Federal land in 
Oregon and Washington. The most useful information would be quantified 
in terms of acres harvested rather than board-foot volume.
    (15) Scientific evaluation of the use of northern spotted owl 
habitat data as a surrogate for fisher habitat data, and its use as the 
best available data to determine the scope and severity of vegetation 
management effects on Federal lands. The Service elected to use 
northern spotted owl habitat data as a surrogate for habitat data that 
are lacking for fishers because there is a vast amount of information 
on northern spotted owl habitat that has been collected, analyzed, and 
monitored over the past several decades throughout all but the Sierra 
Nevada portion of the proposed DPS for fisher. Northern spotted owls 
use habitat types and structural components similar to what fishers 
use, but fishers also use some habitat types that are not suitable or 
are poor-quality habitat for northern spotted owls. Therefore, we are 
seeking comment on:
    (a) The strengths and weaknesses of using northern spotted owl 
habitat data as a surrogate for fisher data, and whether or not and why 
it is an appropriate surrogate; and
    (b) Whether or not and why there is another appropriate surrogate 
or approach.
    (16) Information on the effects of livestock grazing on habitat for 
fisher prey within the proposed DPS.
    (17) Information to assist in evaluating whether or not the 
existing amount and distribution of habitat may be limiting for fishers 
within the proposed DPS. We ask for public comment on this issue in the 
context of information indicating that there are areas of high- and 
intermediate-quality fisher habitat distributed throughout most of the 
DPS. At the same time, however, for the most part, existing fisher 
populations do not appear to have expanded into nearby unoccupied 
habitat. We are seeking scientific data that will help to elucidate our 
understanding of the following:
    (a) Whether or not the existing amounts and distribution of habitat 
are limiting for fishers within the DPS; and
    (b) Whether and how the current type and amount of habitat loss 
(for example, as a consequence of wildfire, climate change, or various 
types of vegetation management) may or may not be a threat to the 
persistence of fishers within all or portions of the DPS.
    (18) Information to assist in evaluating the magnitude and overall 
immediacy of threats to fisher populations within the proposed DPS, or 
any of the potential alternative DPSs, in light of new information that 
has become available regarding occupancy or abundance of fishers in 
specific study areas since the 2004 Finding (Zielinski 2013a; Hamm et 
al. 2012; Hiller 2011; Matthews et al. 2011, Hamm et al. 2012).
    (19) Comments on the methodology for developing stressor scope and 
severity, adequacy in revealing assumptions and uncertainties, 
appropriateness of data extrapolations, and applicability and 
interpretation of quantitative stressor values in the draft Species 
Report.
    (20) Information to assist in quantifying habitat recruitment 
through ingrowth of intermediate- and high-quality fisher habitat.
    Please include sufficient information with your submission (such as 
scientific journal articles, other publications, or unpublished data 
sets) to allow us to verify any scientific or commercial information 
you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information may not meet the standard of information 
required section 4(b)(1)(A) of the Act, which directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hard copy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hard copy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Yreka Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we have sought the 
expert opinions of a minimum of five appropriate and independent 
specialists regarding this proposed rule. The purpose of peer review is 
to ensure that our listing determination and critical habitat 
designation are based on scientifically sound data, assumptions, and 
analyses. The peer reviewers will have expertise in such things as 
fisher biology, ecology, and genetics and are concurrently reviewing 
the draft Species Report; their review of the proposed rule and draft 
Species Report will inform our final determination. We invite comment 
from

[[Page 60423]]

the peer reviewers during this public comment period.

Previous Federal Actions

    On June 5, 1990, we received a petition from Sierra Biodiversity 
Project to list the Pacific fisher (Martes pennanti pacifica) as 
endangered in California, Oregon, and Washington. We published a notice 
in the Federal Register (56 FR 1159) on January 11, 1991, stating that, 
while the petition provided evidence that the Pacific fisher 
represented a potential listable entity (``a distinct population that 
interbreeds''--a definition that predates the 1996 policy (61 FR 4722) 
regarding the recognition of distinct vertebrate populations), it did 
not present substantial information indicating that the requested 
action may be warranted.
    On December 29, 1994, we received a petition from the Biodiversity 
Legal Foundation to list two fisher (Martes pennanti) populations in 
the western United States (the Coastal Range population in Washington, 
Oregon, and California; and the Rocky Mountain population in Idaho, 
Montana, and Wyoming) as threatened. On March 1, 1996, the Service 
published a notice in the Federal Register (61 FR 8016) finding that 
the petition did not present substantial information indicating that 
the two fisher populations at issue constitute distinct vertebrate 
population segments listable under the Act.
    On December 5, 2000, we received from the Center for Biological 
Diversity and other groups a petition dated November 28, 2000, to list 
a DPS of the fisher that includes portions of California, Oregon, and 
Washington as an endangered species pursuant to the Act, and to 
concurrently designate critical habitat for this distinct population 
segment. A court order was issued on April 4, 2003, by the U.S. 
District Court, Northern District of California, that required us to 
submit for publication in the Federal Register a 90-day finding on the 
November 2000 petition (Center for Biological Diversity, et al. v. 
Norton, et al., No. C 01-2950 SC). On July 10, 2003, we published a 90-
day petition finding (68 FR 41169) that the petition provided 
substantial information that listing may be warranted and initiated a 
12-month status review. Through a stipulated order, the court set a 
deadline of April 3, 2004, for the Service to make a 12-month finding 
under 16 U.S.C. 1533(b)(3)(B). On April 8, 2004, we published a 12-
month status review (69 FR 18769) finding (2004 Finding) that the West 
Coast DPS of fisher was warranted for listing, but was precluded by 
higher priority actions; through the 2004 Finding, the West Coast DPS 
of fisher was added to our candidate species list. Candidates are those 
fish, wildlife, and plants for which we have on file sufficient 
information on biological vulnerability and threats to support 
preparation of a listing proposal, but for which development of a 
listing regulation is precluded by other higher priority listing 
activities. The West Coast DPS of fisher was included in all of our 
subsequent annual Candidate Notice of Reviews (CNORs) (78 FR 70103, 
November 22, 2013; 77 FR 69993, November 21, 2012; 76 FR 66370, October 
26, 2011; 75 FR 69222, November 10, 2010; 74 FR 57804, November 9, 
2009; 73 FR 75176, December 10, 2008; 72 FR 69034, December 6, 2007; 71 
FR 53756, September 12, 2006; 70 FR 24870, May 11, 2005). The West 
Coast DPS of fisher has a listing priority number of 6, which reflects 
a species with threats that are high in magnitude and not imminent.
    On June 10, 2007, Sierra Forest Products, Inc., challenged the 
Service's April 8, 2004, Finding of warranted but precluded for the 
West Coast DPS of the fisher by asserting that the Service violated the 
Act and the Administrative Procedure Act by failing to specify whether 
the West Coast DPS of the fisher is a DPS of a species or a DPS of a 
subspecies (Sierra Forest Products, Inc, v. Kempthorne et al., No. 
2:1007-cv-00060-JAM GGH). On June 6, 2008, the Eastern District Court 
in California determined the record contained scientific support for 
the Service's determination that the West Coast DPS of the fisher is a 
DPS of a species and that the Service's determination in this regard 
was not arbitrary, capricious, an abuse of discretion, or otherwise not 
in accordance with law. On appeal, the Ninth Circuit affirmed the 
District Court finding by memorandum opinion issued January 6, 2010 
(Sierra Forest Products, Inc., v. Kempthorne, et al. (No. 08-16721)).
    On April 8, 2010, the Center for Biological Diversity challenged 
the Service's alleged lack of expeditious progress on pending listing 
proposals, and in particular regarding the west coast DPS of fisher, 
for species for which the Service had found listing to be warranted but 
precluded (Center for Biological Diversity v. Salazar (No. 3:10-cv-
01501-JCS)(N.D. California)). This challenge was resolved by stipulated 
dismissal and approved by the court on October 5, 2011, based on the 
Service's agreement in the context of a larger multidistrict litigation 
to submit a proposed rule or a not-warranted finding regarding the West 
Coast DPS of fisher to the Federal Register by the end of Fiscal Year 
(September 30) 2014 (In re Endangered Species Act Section 4 Deadline 
Litig., Misc. Action No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C.)).
    We published a notice of initiation of status review and 
solicitation of new information for the West Coast DPS of fisher in the 
Federal Register on March 19, 2013 (78 FR 16828).

Background

Distinct Population Segment Analysis

    Based on the November 28, 2000, petition, we considered whether the 
potential distinct vertebrate population segment (DPS) of fisher as 
described by the petitioners meets the definition of a DPS as described 
in the Service's Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments under the Endangered Species Act (DPS 
Policy) (61 FR 4722; February 7, 1996).
    Under section 3(16) of the Act, we may consider for listing any 
species, including subspecies, of fish, wildlife, or plants, or any DPS 
of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 
1532(16)). Such entities are considered eligible for listing under the 
Act (and, therefore, are referred to as listable entities), should we 
determine that they meet the definition of an endangered or threatened 
species.
    Under the Service's DPS Policy, three elements are considered in 
the decision concerning the establishment and classification of a 
possible DPS. These elements include:
    (1) The discreteness of a population in relation to the remainder 
of the species to which it belongs;
    (2) The significance of the population segment to the species to 
which it belongs; and
    (3) The population segment's conservation status in relation to the 
Act's standards for listing, delisting, or reclassification (i.e., is 
the population segment endangered or threatened).
    In evaluating the distribution of fisher in the species' West Coast 
range, we examined information in published range maps, published works 
that included historical occurrences, unpublished studies related to 
fisher distribution, and other submitted data. Fisher distribution in 
the species' West Coast range is discussed in detail in the 
``Distribution'' section of the draft Species Report (Service 2014, pp. 
23-46). We made a DPS determination in our initial 2004 Finding (April 
8, 2004; 69 FR 18769); below we summarize discreteness and significance 
for fisher in the species' West Coast range.
Discreteness
    Under the DPS policy, a population segment of a vertebrate taxon 
may be

[[Page 60424]]

considered discrete if it satisfies either one of the following 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    Under the Service's DPS policy, a population segment of a 
vertebrate taxon may be considered discrete if it is either markedly 
separate or delimited by international governmental boundaries. All 
West Coast populations of fishers are markedly separated from fisher 
populations to the east by geographical barriers, unsuitable habitat, 
and urban development. The native fisher populations on the West Coast 
are separated from native populations to the north by approximately 900 
km (560 mi), and it is extremely unlikely that transient individuals 
could disperse far enough to provide a functional population connection 
between the native NCSO population and Canadian populations. In 
addition, the Olympic National Park (ONP) reintroduced population is 
also physically isolated from known fisher populations in British 
Columbia by 400 km (250 mi) and by urban development in the greater 
Seattle/Vancouver area. In summary, fisher populations on the West 
Coast in Washington, Oregon, and California are geographically isolated 
from all other populations of the species. Therefore, the marked 
separation condition for discreteness is met by geographical filters/
barriers, urban development, and distances that are beyond the known 
dispersal distance of fishers.
    Regarding the international governmental boundaries condition for 
discreteness, we conclude that this condition can also be met due to 
differences in exploitation, management of habitat, conservation 
status, and regulatory mechanisms between the United States and Canada 
that collectively play a role in delimiting the northern boundary of 
the analysis area along the international border with Canada. These 
differences include the United States' land management under the 
National Forest Management Act of 1976, as amended (16 U.S.C. 1600), 
and the Federal Land and Policy Management Act (43 U.S.C. 1712), which 
provide for protection of wildlife habitat; many of the associated 
management plans address fisher as a sensitive species (Service 2014, 
pp. 117-124). Alternatively, Canada has no overarching forest practice 
laws governing management of its national lands similar to those in the 
United States. In addition, the fisher can be legally harvested by 
licensed trappers under regional regulations in Canada, whereas 
trapping the species has been prohibited for decades in Washington, 
Oregon, and California (Service 2014, pp. 106-108). Overall, both the 
marked separation and international governmental boundary conditions 
are met, and they each individually satisfy the discreteness element of 
the DPS policy for the fisher in the species' West Coast range.
Significance
    If a population segment is considered discrete under one or more of 
the conditions described in the Service's DPS policy, its biological 
and ecological significance will be considered in light of 
Congressional guidance that the authority to list DPSs be used 
``sparingly'' (see Senate Report 151, 96th Congress, 1st Session). In 
making this determination, we consider available scientific evidence of 
the DPS's importance to the taxon to which it belongs. Since precise 
circumstances are likely to vary considerably from case to case, the 
DPS policy does not describe all the classes of information that might 
be used in determining the biological and ecological importance of a 
discrete population. However, the DPS policy describes four possible 
classes of information that provide evidence of a population segment's 
biological and ecological importance to the taxon to which it belongs. 
As specified in the DPS policy (61 FR 4722, February 7, 1996), this 
consideration of the population segment's significance may include, but 
is not limited to, the following:
    (1) Persistence of the DPS in an ecological setting unusual or 
unique to the taxon;
    (2) Evidence that loss of the DPS would result in a significant gap 
in the range of a taxon;
    (3) Evidence that the DPS represents the only surviving natural 
occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historical range; or
    (4) Evidence that the DPS differs markedly from other populations 
of the species in its genetic characteristics.
    To be considered significant, a population segment needs to satisfy 
only one of these conditions, or other classes of information that 
might bear on the biological and ecological importance of a discrete 
population segment, as described in the DPS policy (61 FR 4722, 
February 7, 1996). Three of these criteria are met for the fisher in 
the species' West Coast range. We found that loss of the species from 
its West Coast range in the United States would represent a significant 
loss of the species from a unique ecological setting because fishers in 
the West Coast inhabit landscapes dominated by different forest types, 
climate, and predator-prey relationships compared to fishers in the 
rest of the range of the taxon. We also found that loss of the West 
Coast populations of fisher would result in a significant gap in the 
range because it would significantly impact representation of the 
species by shifting the southern boundary of the taxon more than 1,600 
km (994 mi) to the north and would create a significant gap in the 
range of the taxon because of its situation at the southern periphery 
of the species' range. Finally, we found that populations of fisher in 
the species' West Coast range (NCSO and SSN) differ markedly from other 
populations of the species in their genetic characteristics because 
these native fisher populations on the West Coast are genetically 
distinct from fishers in the remainder of North America (for example, 
Canada, Rocky Mountains, and Great Lakes) and from each other. As a 
result, loss of the fisher in the species' West Coast range would 
result in the reduction in the species' genetic diversity. Overall, the 
unusual or unique ecological setting, significant gap in the range of 
the taxon, and marked genetic differences conditions are met, and they 
each individually satisfy the significance element of the DPS policy 
for fisher in the species' West Coast range.

Summary of DPS Analysis Regarding Fisher in Its West Coast Range

    Given that both the discreteness and the significance elements of 
the DPS policy are met for fisher in the species' West Coast range, we 
find that the West Coast DPS of fisher is a valid DPS. Therefore, the 
West Coast DPS of fisher is a listable entity under the Act, and we now 
assess this DPS's conservation status in relation to the Act's 
standards for listing, delisting, or reclassification (i.e., whether 
this DPS meets the definition of an endangered or threatened species 
under the Act).

Draft Species Report

    We found the West Coast DPS of fisher to be warranted for listing 
in 2004 and each subsequent year in the CNOR. Also, we completed a 
draft Species Report incorporating new information that has become 
available since the 2004

[[Page 60425]]

Finding, including new genetic and survey information. The analysis 
area in the draft Species Report covers the range of the 2004 Finding.
BILLING CODE 4310-55-P

[[Page 60426]]

[GRAPHIC] [TIFF OMITTED] TP07OC14.000

    A thorough review of the taxonomy, life history, and ecology of the 
West Coast Distinct Population Segment (DPS) of fisher is presented in 
the draft Species Report (Service 2014; https://www.fws.gov/cno/es/fisher/; https://

[[Page 60427]]

www.regulations.gov). The fisher is a medium-sized light-brown to dark 
blackish-brown mammal, with the face, neck, and shoulders sometimes 
being slightly gray; the chest and underside often has irregular white 
patches. The fisher is classified in the order Carnivora, family 
Mustelidae, a family that also includes weasels, mink, martens, and 
otters (Service 2014, pp. 8-9). The occurrence of fishers at regional 
scales is consistently associated with low- to mid-elevation 
environments of coniferous and mixed conifer and hardwood forests with 
characteristics of late-successional forests (large-diameter trees, 
coarse downed wood, and singular features of large snags, tree 
cavities, or deformed trees). Historically, fishers were well-
distributed throughout the analysis area in the habitats described 
above. In Washington and Oregon, outside of the existing known 
populations, fishers are considered likely extirpated (although on 
occasion individual fishers may be detected). In California, recent 
survey efforts have not detected fishers in the northern Sierra Nevada, 
outside of the reintroduced population. Key fisher habitat includes 
forests with diverse successional stages containing a high proportion 
of mid- and late-successional characteristics. Throughout their range, 
fishers are obligate users of tree or snag cavities for denning, and 
they select resting sites with characteristics of late-successional 
forests. Late-successional forest characteristics are maintained and 
recruited in the forest through ecological process such as fire, 
insect-related tree mortality, disease, and decay (Service 2014, pp. 
13-18).
    Fishers are found only in North America, and the West Coast DPS 
encompasses the area where fishers historically occurred throughout 
western Washington, western Oregon, and California to the Sierra Nevada 
(Service 2014, p. 26). Currently, the West Coast DPS of fisher occurs 
in two original native populations (Northern California-Southwestern 
Oregon Population (NCSO) and the Southern Sierra Nevada Population 
(SSN)) and three reintroduced populations (Northern Sierra Nevada 
Reintroduced Population (NSN) in California, Southern Oregon Cascades 
(SOC) Reintroduced Population in Oregon, and the Olympic Peninsula 
Reintroduced Population (ONP) in Washington) (Service 2014, p. 34). 
There have been several approaches used to estimate the NCSO population 
size in the literature. Based on these various approaches, the NCSO 
population estimates range from a total population size of 258 to 
4,018. For the SSN, population estimates reveal approximately 300 
fishers (Service 2014, pp. 37-42). Regarding the reintroduced 
populations, the SOC has persisted for more than 30 years, despite an 
apparently small geographic extent, but does not exhibit evidence of 
broad-scale population expansion. Both the ONP and the NSN have been 
reintroduced within the past 10 years, and it is too early to determine 
if the populations will persist. Current indications are encouraging, 
but it will take time to determine population trend and stability of 
these two new reintroductions (Service 2014, pp. 43-46).

Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence, as described below. We completed a 
comprehensive assessment of the biological status of the West Coast DPS 
of fisher, and we prepared a report of the assessment (draft Species 
Report), which provides a thorough account of the species' biology and 
stressors. In this section, we summarize the information presented in 
that assessment (draft Species Report), which can be accessed at Docket 
FWS-R8-ES-2014-0041 on https://www.regulations.gov and at https://www.fws.gov/cno/es/fisher/. Section 4 of the Act (16 U.S.C. 1533) and 
implementing regulations (50 CFR 424) set forth procedures for adding 
species to, removing species from, and reclassifying species on the 
Federal Lists of Endangered and Threatened Wildlife and Plants. Under 
section 4(a)(1) of the Act, a species may be determined to be an 
endangered or threatened species based on any of the following five 
factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    A species is an endangered species for purposes of the Act if it is 
in danger of extinction throughout all or a significant portion of its 
range, and is a threatened species if it is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.
    In making this finding, information pertaining to the West Coast 
DPS of fisher in relation to the five factors provided in section 
4(a)(1) of the Act is summarized below, based on the analysis of 
stressors affecting fisher contained in the draft Species Report. In 
considering what stressors might constitute threats, we must look 
beyond the mere exposure of the species to the stressor to determine 
whether the species responds to the stressor in a way that causes 
actual negative impacts to the species. If there is exposure to a 
stressor, but no response, or only a positive response, that stressor 
is not a threat. If there is exposure and the species responds 
negatively, the stressor may be a threat and we then attempt to 
determine the scope, severity, and impact of the potential threat. If 
the threat is having a significant impact on the species, it may drive 
or contribute to the risk of extinction of the species such that the 
species warrants listing as an endangered or threatened species as 
those terms are defined by the Act. This determination does not 
necessarily require empirical proof of a threat. The combination of 
exposure and some corroborating evidence of how the species is likely 
impacted could suffice. The mere identification of stressors that could 
impact a species negatively is not sufficient to compel a finding that 
listing is appropriate; we require evidence that these stressors are 
operative threats that act on the species to the point that the species 
meets the definition of an endangered or threatened species under the 
Act.
    The draft Species Report represents a comprehensive review of the 
West Coast DPS of fisher and provides a thorough account of the 
species' biology and stressors. In the draft Species Report, we 
reviewed and evaluated past, current, and potential future stressors 
that may be affecting fishers in the analysis area. For each stressor, 
we used the best information available to us to estimate the timing, 
scope, and severity of the potential stressor, noting where stressors 
may differ regionally (among sub-regions) (Service 2014, pp. 46-51). 
The sub-regions analyzed in the draft Species Report include: Coastal 
Washington, Western Washington Cascades, and Eastern Washington 
Cascades (in Washington); Coastal Oregon, Western Oregon Cascades, and 
Eastern Oregon Cascades (in Oregon); Northern California-Southwestern 
Oregon (in Oregon and California); and Sierra Nevada (in California) 
(Service 2014, p. 47). For the estimations in these sub-regions, we 
defined stressors as the activities or processes that have caused,

[[Page 60428]]

are causing, or may cause in the future the destruction, degradation, 
or impairment of West Coast fisher populations or their habitat.
    The timing is the time period that we can be reasonably certain the 
stressor is acting on fisher populations or their habitats. The scope 
is the proportion of the fisher analysis area sub-region that can 
reasonably be expected to be affected by a stressor within the 
appropriate time period of the stressor, given continuation of current 
circumstances and trends. The severity is the level of damage to fisher 
populations or their habitat (within the scope) that can reasonably be 
expected from the stressor within the appropriate period for the given 
stressor assuming continuation of current circumstances and trends. 
Note that, for the stressors related to habitat, the severity is the 
percent of habitat within the scope that is likely to be lost over 40 
years, whereas for the stressors related to direct mortality, the 
severity is the percent of animals within the scope that are estimated 
to die annually. Therefore, a direct comparison cannot be made between 
the stressors related to habitat and those related to direct mortality 
of fishers. Please refer to the draft Species Report for the time 
period over which we analyzed each stressor. The timing (immediacy) of 
each stressor was assessed independently based upon the nature of the 
stressor and time period that we can be reasonably certain the stressor 
is acting on fisher populations or their habitats. In general, we 
considered that the trajectories of the stressors acting on fisher 
populations within the analysis area could be reasonably anticipated 
over the next 40 years (Service 2014, pp. 46-49).
    The values and explanations for the scope and severity for each 
potential stressor in the draft Species Report reflect our current best 
estimate, but we acknowledge that other estimates are also possible. 
Depending on the level of data available for each stressor, we made 
relative estimates of the impacts of the various stressors discussed 
above between sub-regions. In some cases we had empirical data that 
supported our estimates (e.g., mortality estimates for some sub-
regions), and in others we extrapolated because we did not have data 
available for that area or we extrapolated from other areas. Therefore, 
our estimates have the greatest degree of certainty for estimates of 
mortality derived from studies in areas with extant populations of 
fishers. Estimates derived from extrapolations of data from one sub-
region to another or applied to areas not currently occupied by fishers 
have greater uncertainty (for habitat stressors) or are not applicable 
(for stressors related to direct mortality). We utilized these 
estimates to help us assess the gross level of impact of the various 
stressors, rather than as a precise quantification, and we recognize 
that we may further refine these estimates upon review of additional 
information prior to our final listing determination. Please refer to 
the narrative sections for each stressor in the draft Species Report 
for important caveats in interpreting scope and severity estimates.

Analysis Under Section 4(a)(1) of the Act

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any of the 
factors outlined in section 4(a)(1) of the Act that may affect its 
continued existence. In this section, information regarding the status 
and threats to this species in relation to the five factors is 
summarized below.
    All potential stressors currently acting upon the West Coast DPS of 
fisher or likely to affect the species in the future are evaluated and 
addressed in the draft Species Report; below we consider those 
stressors in light of the statutory factors identified above. The 
reader is directed to the draft Species Report for a more detailed 
discussion of the stressors summarized in this document (https://www.fws.gov/cno/es/fisher/).
    The draft Species Report evaluated the biological status of the 
species and each of the potential stressors affecting its continued 
existence (Service 2014, entire). It was based upon the best available 
scientific and commercial data and the expert opinion of the draft 
Species Report team members. Based on the analyses and discussion 
contained therein, in this document we evaluated potential habitat 
stressors including wildfire, emergency fire suppression actions, and 
post-fire management actions; climate change; current vegetation 
management; and human development (Factor A). We also evaluated 
potential stressors related to direct mortality of fishers including 
trapping and incidental capture, research activities, disease or 
predation, collision with vehicles, and exposure to toxicants (Factors 
B, C, and E). Finally, we evaluated the inadequacy of existing 
regulatory mechanisms (Factor D) and other natural or manmade factors 
affecting its continued existence including direct climate effects and 
small population size (Factor E).
Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Species' Habitat or Range
Wildfire and Fire Suppression
    Our evaluation of the effects of wildfire on fisher habitat 
included those activities associated with fire suppression that may 
result in removal of fisher habitat (for example, backburning, fuel 
breaks, and snag removal). For the wildfire and fire suppression 
stressor, we found that the naturally occurring fire regimes vary 
widely across the analysis area, and, therefore, the effects of 
wildfire are also likely to vary geographically. In general, high-
severity fire has the potential to permanently remove suitable fisher 
habitat, and is very likely to remove habitat for a period of many 
decades while the forest regrows. Moderate-severity fire may also 
remove habitat, but likely in smaller patches and for a shorter length 
of time. Low-severity fire may reduce some elements of fisher habitat 
temporarily, but in general is unlikely to remove habitat.
    Fishers' behavioral and population responses to fires are unknown 
within the West Coast range, but it seems likely based on fishers 
outside of the West Coast range and other related species that large 
fires, particularly those of higher severity and larger scale, could 
cause shifts in home ranges and movement patterns, lower the fitness of 
fishers remaining in the burned area (due to increased predation, for 
example), or create barriers to dispersal. Fire suppression actions and 
post-fire management have the potential to exacerbate the effects of 
wildfire on fisher habitat. Overall, we found that the scope and 
severity for this stressor were the highest for the Sierra Nevada and 
northern California-southwestern Oregon areas; these are the two areas 
where the two remaining original native populations of fishers are 
found. Because there is evidence of increasing fire severity in yellow 
pine-mixed-conifer forests, which include the majority of fisher 
habitat in the Sierra Nevada, the estimate of the severity of stressors 
related to wildfire is likely to be an underestimate. Also, because 
fisher habitat in the Sierra Nevada occurs in a narrow band running 
north to south, fires burning at high severity within fisher habitat 
have the potential to severely disrupt north-south connectivity of 
habitat within the Sierra Nevada which, if lost, could prevent 
population expansion. In addition, forests burned at high severity in 
this region may be replaced by chaparral or grassland, which may 
represent a

[[Page 60429]]

permanent loss of fisher habitat. The fire regime in northern 
California and southwestern Oregon is historically extremely variable, 
as is the forest composition within this region. In forests with a 
large hardwood or redwood component, post-fire stump-sprouting may 
speed the recovery of fisher habitat. However, fisher habitat is highly 
fragmented in many parts of northern California and southwestern 
Oregon, and even temporary losses of habitat may impede dispersal and 
increase fragmentation of the resident fisher population. Throughout 
most of Oregon and Washington, the scope and severity for this stressor 
were lower than the Sierra Nevada and northern California-southwestern 
Oregon areas; however, high-severity fires that remove fisher habitat 
have the potential to further disrupt habitat connectivity and 
availability (Service 2014, pp. 57-71).
    We consider wildfire and fire suppression to be a threat to fisher 
habitat now and in the future because the frequency and size of 
wildfires is increasing; we expect this trend to continue into the 
future; and based on fishers outside of the West Coast range and other 
related species, we predict that large fires (particularly those of 
higher severity and larger scale) will cause shifts in home ranges and 
movement patterns, lower the fitness of fishers remaining in the burned 
area, and create barriers to dispersal. We consider fire and fire 
suppression to be particularly problematic in the SSN because of the 
narrow band of habitat that comprises SSN and the small population 
size. The degree to which fire-related effects impact NCSO is lower 
than SSN because the NCSO does not exist in a narrow band of habitat 
but rather covers a larger area. However, fire and fire suppression 
will likely have a negative effect on NCSO because fire will decrease 
connectivity in the highly fragmented habitat of NCSO. It is difficult 
to fully determine the impact at NCSO because the locations and 
severities of future fires relative to important habitat components are 
not known at this time. In Washington and areas of Oregon outside of 
NCSO, the effect of fire in scope and severity is lower than the other 
areas, and much of this area is considered to be unoccupied. Fire in 
these areas is likely to have a negative impact on existing fisher 
populations only if they occur within or in proximity to occupied 
areas; however, as with NCSO, it is difficult to fully determine the 
potential impact because the locations and severities of future fires 
relative to important habitat components are not known at this time.

Climate Change

    Climate change is ongoing, and its effects on fisher habitat are 
already occurring in some areas and are likely to increase and become 
more readily perceptible in the future. Overall, fisher habitat is 
likely to be affected by climate change, but the severity will vary, 
potentially greatly, among different regions, with effects to fishers 
ranging from negative, neutral, or potentially beneficial. Climate 
change is likely to affect fisher habitat by altering the structure and 
tree species composition of fisher habitat, and also through the 
changes to habitat of prey communities and ultimately on prey 
availability. These effects may cause mortality, decrease reproductive 
rates, alter behavioral patterns, or lead to range shifts. However, 
studies of climate change present a range of effects including some 
that indicate conditions could remain suitable for fisher. Climate 
throughout the analysis area is projected to become warmer over the 
next century, and in particular, summers will be hotter and drier, with 
more frequent heat waves. In the northern portion of the analysis area, 
winters will likely become wetter, but even these areas will likely 
experience increased water deficits during the growing season. Modeling 
projections are done at a large scale, and effects to species can be 
complex, unpredictable, and highly influenced by local-level biotic and 
abiotic factors. Although many climate models generally agree about the 
changes in temperature and precipitation, the consequent effects on 
vegetation are more uncertain. Therefore, it is not clear how changes 
in forest type, species composition, or growth rate will affect the 
availability of fisher habitat and its ability to support fisher 
populations (Service 2014, pp. 71-84). Consequently, at this time, 
climate change is not viewed as a threat to fisher habitat now or in 
the future, although we will continue to seek additional information 
concerning how climate change may affect fisher habitat.

Vegetation Management

    Vegetation management techniques of the past (primarily timber 
harvest) have been implicated as one of the two primary causes for 
fisher declines across the United States. Many fisher researchers have 
suggested that the magnitude and intensity of past timber harvest is 
one of the main reasons fishers have not recovered in Washington, 
Oregon, and portions of California, as compared to the northeastern 
United States (Service 2014, pp. 54-56). Current vegetation management 
techniques have, and can, substantially modify the overstory canopy, 
the numbers and distribution of structural elements, and the ecological 
processes that create them. There are also areas where habitat may not 
be the limiting factor for current or potential fisher populations and 
where habitat is being managed intentionally or incidentally in ways 
that benefit fisher. For example, the Northwest Forest Plan (NWFP), 
which was adopted by the U.S. Forest Service and the Bureau of Land 
Management (BLM) in 1994 to guide the management of more than 24 
million ac (9.7 million ha) of Federal lands in Washington, Oregon, and 
northwestern California within the range of the northern spotted owl, 
provides the basis for conservation of the spotted owl and other late-
successional and old-growth forest associated species, such as fisher, 
on Federal lands. The NWFP incorporates seven land allocations 
(Congressionally Reserved Areas, Late Successional Reserves, Adaptive 
Management Areas, Managed Late Successional Areas, Administratively 
Withdrawn Areas, Riparian Reserves, and Matrix). Much of the NWFP area 
currently provides fisher habitat, which is expected to increase over 
time. The Matrix, which represents only 16 percent of the Federal land 
within the NWFP area, is the Federal land outside the other six NWFP 
land allocations and is the area in which most timber harvest and other 
silvicultural activities will be conducted. Late Successional Reserves 
(LSRs), which cover 30 percent of the NWFP area, are expected, in 
combination with the other allocations and standards and guidelines, to 
maintain a functional, interactive, late-successional and old-growth 
forest ecosystem and are designed to serve as habitat for late-
successional and old-growth related species including fishers. 
Scheduled timber harvest is prohibited from LSRs.
    In order to evaluate the current vegetation management stressor on 
Federal land, we used data on harvest of northern spotted owl habitat 
as a surrogate for the amount of habitat removed or downgraded, which 
occurs mostly on Matrix lands, by current vegetation management 
activities. Because of the similarity between fisher and northern 
spotted owl habitat requirements, we determined this to be one of the 
best sources of data to evaluate the potential effects of vegetation 
management on loss of fisher habitat on Federal lands throughout the 
analysis area. We used timber harvest

[[Page 60430]]

acreage data, approved Timber Harvest Plans, and consultations to 
evaluate the stressor of current vegetation management on fisher 
habitat.
    Our estimates revealed that the total scope of vegetation 
management (Federal and non-Federal combined) is the highest in the 
Oregon and Washington Coast Ranges, likely due to the prevalence of 
non-Federal land ownership in these sub-regions, where timber harvest 
rates are substantially higher than on Federal lands (where harvest 
rates have substantially declined over the past two decades); the 
lowest values for total scope (Federal and non-Federal combined) were 
in the Western Oregon Cascades and Sierra Nevada. Overall, we note that 
the scope for non-Federal areas is higher than the scope for Federal 
areas in all sub-regions. We estimated severity values separately for 
the Federal and non-Federal portions of the sub-regions. Because we 
derived the scope of vegetation management by identifying the removal 
or downgrading of habitat, we ascribed high severity values (60 to 80 
percent) for most regions and ownerships within the scope. Data 
limitations in most sub-regions prevented us from quantifying what 
proportion of the treatments in the data sets we used may be outside 
the scope of habitat loss or downgrade (for example, may include 
vegetation management activities that may still function as fisher 
habitat post-treatment), so the severity scores represent our best 
estimate and are a relatively broad range to incorporate this 
uncertainty. However, additional data for Federal lands in Washington 
allowed us to ascribe lower severity values for this ownership in these 
sub-regions. Landscapes with reduced canopy cover may affect fisher by 
providing decreased protection from predation, raising the energy costs 
of traveling between foraging sites, and providing unfavorable 
microclimate and decreased abundance or vulnerability of preferred prey 
species (Service 2014, pp. 84-92).
    In analyzing stressors related to habitat loss, we only assessed 
stressors resulting in habitat loss. We did not account for ingrowth of 
fisher habitat over our 40-year analysis timeframe and, therefore, 
provide no values for net habitat loss, although we do acknowledge 
ingrowth is occurring, primarily on Federal lands (Service 2014, pp. 
84-92).
    We found that vegetation management is a threat because activities 
that remove or substantially degrade fisher habitat through the removal 
of large structures and overstory canopy are projected to take place 
within the analysis area over the next 40 years. For the Sierra Nevada, 
over half of the sub-region is within Federal ownership with less than 
1 percent of fisher habitat expected to be treated by vegetation 
management that downgrades or removes habitat. Within the Sierra 
Nevada, 15 percent of fisher habitat is expected to be affected by non-
Federal vegetation management that downgrades or removes habitat. For 
the northwest California-southwest Oregon sub-region, just under half 
of the sub-region is within Federal ownership with 1 percent of fisher 
habitat expected to be treated by vegetation management that downgrades 
or removes habitat. Within the northwest California-southwest Oregon 
sub-region, 22 percent of fisher habitat is expected to be affected by 
non-Federal vegetation management that downgrades or removes habitat. 
In Washington and areas of Oregon outside of NCSO, vegetation 
management on Federal lands that downgrades or removes habitat in most 
sub-regions is less than 2 percent of fisher habitat, although the 
Western Oregon Cascades and Eastern Oregon Cascades range from 5 to 10 
percent of fisher habitat. In Washington and areas of Oregon outside of 
NCSO, 14 to 37 percent of fisher habitat is expected to be affected by 
non-Federal vegetation management that downgrades or removes habitat.
    The type of vegetation management and where it occurs is important 
to understanding the impacts to fishers. Vegetation management that 
removes important habitat elements (such as den sites and canopy cover) 
has a greater effect on fishers than activities that maintain these 
elements. Vegetation management in or near occupied habitat 
(particularly where habitat is fragmented or connectivity is limited) 
would have a greater effect on fishers than actions outside of occupied 
habitat. The SSN is particularly sensitive to the location and type of 
vegetation management because of the narrow band of habitat that 
comprises SSN and the small population size. Vegetation management will 
likely have a negative effect on NCSO because vegetation management 
will decrease connectivity in the highly fragmented habitat of NCSO. In 
Washington and areas of Oregon where the reintroductions have occurred, 
the effect of vegetation management is less of a concern because 
habitat occurs in large contiguous blocks. Outside of these areas, much 
of the fisher habitat in Washington and Oregon is considered to be 
unoccupied. Although vegetation management outside of occupied areas is 
less likely to have a negative impact on the viability of existing 
fisher populations, the maintenance of fisher habitat in these areas is 
important for future expansion. Maintenance of fisher habitat 
throughout the analysis area is additionally influenced by the 
differences in regulatory mechanisms among the different ownerships 
(see factor D below).

Development

    The draft Species Report revealed that human population density 
within the analysis area varies considerably, but all areas appear to 
be increasing. Human population growth within the analysis area will 
increase needs for housing, services, transportation, and other 
infrastructure, placing ever-greater demands on land, water, and other 
natural resources. Specifically, human infrastructure growth includes 
recreational opportunities such as ski area developments, vacation 
cabins, trails, and campgrounds. Besides permanently removing potential 
fisher habitat, human developments in rural areas are changing land use 
from forest to other land cover types, which can fragment previously 
continuous habitat or hamper fisher movements. Overall, human 
developments associated with population growth will have an increasing 
impact on fisher habitat into the future, but the severity varies 
depending on the type and location of development. The scope of the 
human development stressor is relatively low throughout the analysis 
area, but the higher severity values were in the Sierra Nevada, Coastal 
Washington, and Western Washington Cascades. Within much of the 
analysis area, human development is generally considered to be of 
relatively low concern for fishers and occurs at relatively small 
spatial scales in forested landscapes (Service 2014, pp. 92-96). 
Consequently, we do not consider development to be a threat to fish 
habitat now or in the future.
Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
Trapping
    Unregulated historical trapping appears to have been the primary 
initial cause of fisher population losses in the Pacific States. The 
effects of current trapping, which are limited to incidental capture 
and an unknown amount of poaching, are significantly reduced compared 
to the previous effects of widespread unregulated legal trapping of 
fishers. Overall, we found that the severity of the potential stressor 
of trapping and incidental capture is extremely low throughout the 
analysis

[[Page 60431]]

area (Service 2014, pp. 106-108), and therefore, do not consider 
trapping to be a threat to the fisher now or in the future.

Research

    Although scientific research is necessary to understand the various 
aspects of a species' life-history needs and population status, some 
research techniques have potential risks to the individual animal 
including injury and mortality. Current research and monitoring efforts 
vary greatly by sub-region within the analysis area. The draft Species 
Report revealed extremely low to nonexistent scope and severity for the 
research activity stressor throughout the analysis area (Service 2014, 
pp. 109-112). We conclude that research is not a threat to the 
continued existence of fisher, now or in the future.
Factor C. Disease or Predation
    Several viral and bacterial diseases are known to affect mustelids, 
including fishers, but it is unclear how these diseases affect wild 
populations of fishers. Potential predators of fishers include mountain 
lions, bobcats, coyotes, and large raptors. Disease and predation are 
stressors related to direct mortality of fishers, and, as described 
above, they cannot be directly compared with the stressors related to 
habitat (for habitat stressors, the severity is the percent of habitat 
within the scope that is likely to be lost over 40 years, whereas for 
the stressors related to direct mortality, the severity is the percent 
of animals within the scope that are estimated to die annually). The 
potential stressors of disease and predation occur throughout the 
analysis area. The draft Species Report reveals that, where data exist 
to evaluate severity for the group of direct mortality stressors, the 
severity of predation throughout the analysis area is higher than that 
of disease (Service 2014, pp. 112-116). Disease and predation are 
naturally occurring sources of mortality (although the associated 
mortality rates may be increased by human-caused factors such as 
climate change or vegetation management; see Synergistic effects 
section below), and although they are the most prevalent sources of 
direct mortality among individual fishers within the study areas for 
which we have information, it is unknown how disease and predation 
rates influence fisher population trends in general (Service 2014, pp. 
112-116 and 167-169). We do not consider disease or predation to be 
threats to the fisher, now or in the future.
Factor D. The Inadequacy of Existing Regulatory Mechanisms
    In the draft Species Report, we evaluated the potential for an 
inadequacy of existing regulatory mechanisms, and we found that there 
are many existing regulatory mechanisms that provide a benefit to 
fishers and their habitat. For example, trapping regulations have 
substantially reduced fisher mortality throughout the analysis area. 
There are places in the analysis area where forest management practices 
are explicitly applied to benefit fishers or other species with many 
similar habitat requirements, such as the northern spotted owl. In 
addition, some habitat conservation plans (HCPs) are in place and are 
intended to provide a benefit to fishers and their habitat. Also, 
fisher is a candidate species under the California Endangered Species 
Act, and take under that law is prohibited, at least until the 
California Fish and Wildlife Commission makes a final determination on 
the listing status of fishers.
    Take of fishers in Oregon is also prohibited through its 
designation as a protected nongame species, although the definition of 
take under Oregon law is different from the definition of take under 
the Act. The fisher is State-listed as endangered in Washington, where 
poaching is prohibited and environmental analyses need to occur for 
projects that may affect fishers. State and Federal regulatory 
mechanisms have abated the large-scale loss of fishers to trapping and 
loss of fisher habitat, especially on Federal land (Service 2014, pp. 
117-141). Rodenticides are regulated under Federal and State laws. 
However, it is not clear how well those regulations prevent fishers 
from exposure to legal uses of these rodenticides. Fishers are also 
exposed to rodenticides used illegally (as discussed below).

Federal Regulatory Mechanisms

Forest Service and BLM
    There are a number of Federal agency regulations that pertain to 
management of fisher (and other species and habitat). Most Federal 
activities must comply with the National Environmental Policy Act of 
1969, as amended (NEPA) (42 U.S.C. 4321 et seq.). NEPA requires Federal 
agencies to formally document, consider, and publicly disclose the 
environmental impacts of major Federal actions and management decisions 
significantly affecting the human environment. NEPA does not regulate 
or protect fishers, but requires full evaluation and disclosure of the 
effects of Federal actions on the environment. Other Federal 
regulations affecting fishers are the Multiple-Use Sustained-Yield Act 
of 1960, as amended (16 U.S.C. 528 et seq.) and the National Forest 
Management Act of 1976, as amended (NFMA) (90 Stat. 2949 et seq.; 16 
U.S.C. 1601 et seq.).
    NFMA specifies that the Forest Service must have a land and 
resource management plan to guide and set standards for all natural 
resource management activities on each National Forest or National 
Grassland. In addition, the fisher has been identified as a sensitive 
species by the Forest Service throughout the analysis area. BLM 
management is directed by the Federal Land Policy and Management Act of 
1976, as amended 43 U.S.C. 1704 et seq.). This legislation provides 
direction for resource planning and establishes that BLM lands shall be 
managed under the principles of multiple use and sustained yield. This 
law directs development and implementation of resource management 
plans, which guide management of BLM lands at the local level. Fishers 
are also designated as a sensitive species throughout the analysis area 
on BLM lands.
    In addition, the Northwest Forest Plan (NWFP) was adopted by the 
Forest Service and BLM in 1994 to guide the management of more than 24 
million ac (9.7 million ha) of Federal lands in portions of western 
Washington and Oregon and northwestern California within the range of 
the northern spotted owl. The NWFP Record of Decision amends the 
management plans of National Forests and BLM Districts and is intended 
to provide the basis for conservation of the spotted owl and other 
late-successional and old-growth forest associated species on Federal 
lands. The NWFP is important for fishers because it created a network 
of late-successional and old-growth forests (late-successional 
reserves, or LSRs) that currently provide fisher habitat, and the 
amounts of habitat are expected to increase over time. Also, the 
National Forest and BLM units with anadromous fish watersheds provide 
riparian habitat conservation area buffers on either side of a stream, 
depending on the stream type and size. With limited exceptions, timber 
harvesting is generally not permitted in riparian habitat conservation 
areas, and the additional protection guidelines provided by National 
Forests and BLM may provide refugia and connectivity among more 
substantive blocks of fisher habitat.
Rodenticide Regulatory Mechanisms
    The threats posed to fishers from the use of rodenticides are 
described below,

[[Page 60432]]

under Factor E. In the draft Species Report, we analyzed whether 
existing regulatory mechanisms are able to address the threats to 
fishers posed from both legal and illegal use of rodenticides. As 
described in the draft Species Report, the use of rodenticides is 
regulated by several federal and state mechanisms (e.g., Federal 
Insecticide, Fungicide, and Rodenticide Act of 1947, as amended, 
(FIFRA) 7 U.S.C. 136 et seq.; California Final Regulation Designating 
Brodifacoum, Bromadiolone, Difenacoum, and Difethialone (Second 
Generation Anticoagulant Rodenticide Products) as Restricted Materials, 
California Department of Pesticide Regulation, 2014). The primary 
regulatory issue for fishers with respect to rodenticides is the 
availability of large quantities of rodenticides that can be purchased 
under the guise of legal uses, but are then used illegally in marijuana 
grows within fisher habitat. However, amounts of rodenticides 
commercially available for legal use are above those that could be 
expected to kill or harm individual fishers. Both EPA, through its 2008 
Risk Mitigation Decision for Ten Rodenticides (EPA 2008, entire) which 
issued new legal requirements for the labelling, packaging and sale of 
second generation anticoagulants, and California's Department of 
Pesticide Regulation, through a new rule effective in July 2014, which 
restricts access to second generation anticoagulants, are attempting to 
reduce the risk posed by second generation anticoagulants. However, at 
present, it is not clear that these mechanisms have yet been effective 
in addressing the threat of rodenticide and its effects on fishers.
National Park Service
    Statutory direction for the 1.6 million ha (4 million ac) of 
National Park Service lands in the analysis area is provided by 
provisions of the National Park Service Organic Act of 1916, as amended 
(16 U.S.C. 1 et seq.) and the National Park Service General Authorities 
Act of 1970 (16 U.S.C. 1a-1). Land management plans for the National 
Parks within the West Coast analysis area do not contain specific 
measures to protect fishers, but areas not developed specifically for 
recreation and camping are managed toward natural processes and species 
composition and are expected to maintain fisher habitat. In addition, 
hunting and trapping are generally prohibited in National Parks (16 
U.S.C. 127).
Tribal Lands
    Several tribes in the analysis area recognize fishers as a 
culturally significant species, but only a few tribes have fisher-
specific guidelines in their forest management plans. Some tribes, 
while not managing their lands for fishers explicitly, manage for 
forest conditions conducive to fisher (for example, marbled murrelet 
habitat, old-forest structure restoration). Trapping is typically 
allowed on most reservations and tribal lands, and is frequently 
restricted to tribal members. Whereas a few tribal governments trap 
under existing State trapping laws, most have enacted trapping laws 
under their respective tribal codes. However, trapping is not known to 
be a common occurrence on any of the tribal lands.

State Regulatory Mechanisms

Washington
    The fisher is listed as endangered in Washington (Washington 
Administrative Code 232-12-014, Statutory Authority: RCW 77.12.020 WSR 
98-23-013 (Order 98-232), Sec.  232-12-014, filed 11/6/98, effective 
12/7/98). This designation imposes stringent fines for poaching and 
establishes a process for environmental analysis of projects that may 
affect the fisher. The primary regulatory mechanism on non-Federal 
forest lands in western Washington is the Washington State Forest 
Practices Rules, title 222 of the Washington Administrative Code. These 
rules apply to all commercial timber growing, harvesting, or processing 
activities on non-Federal lands, and they give direction on how to 
implement the Forest Practices Act (Revised Code of Washington (RCW) 
76.09) and Stewardship of Non-Industrial Forests and Woodlands (RCW 
76.13). The rules are administered by the Washington Department of 
Natural Resources. The Washington State Forest Practices Rules do not 
specifically address fishers and their habitat requirements; however, 
some habitat components important to fishers, like snags, downed wood, 
and canopy cover, are likely to be retained in riparian management 
zones as a result of the rules. Land conversion from forested to non-
forested uses is interrelated to private timber harvest, but is 
primarily regulated by individual city and county ordinances that are 
influenced by Washington's Growth Management Act (RCW 36.70a). In some 
cases, these ordinances result in maintaining forested areas within the 
range of the fisher.
Oregon
    In Oregon, the fisher is a protected nongame species (Oregon 
Administrative Rules (OAR) 635-044-0130). In addition, the Oregon 
Department of Fish and Wildlife does not allow trapping of fishers in 
Oregon. Although fishers can be injured and/or killed by traps set for 
other species, known fisher captures are infrequent. State parks in 
Oregon are managed by the Oregon Parks and Recreation Department, and 
many State parks in Oregon may provide forested habitats suitable for 
fisher. The Oregon Forest Practice Administrative Rules (OAR chapter 
629, division 600) and Forest Practices Act (Oregon Revised Statutes 
(ORS) 527.610 to 527.770, 527.990(1) and 527.992) (Oregon Department of 
Forestry 2010a, entire) apply to all non-Federal and non-Tribal lands 
in Oregon, regulating activities that are part of the commercial 
growing and harvesting of trees, including timber harvesting, road 
construction and maintenance, slash treatment, reforestation, and 
pesticide and fertilizer use. The OAR provides additional guidelines 
intended for conserving soils, water, fish and wildlife habitat, and 
specific wildlife species while engaging in tree growing and harvesting 
activities, and these rules may retain some structural features (i.e., 
snags, green trees, downed wood) that contribute to fisher habitat. 
There are approximately 821,000 ac (332,300 ha) of State forestlands 
within the analysis area that are managed by the Oregon Department of 
Forestry, and management of these State forest lands are guided by 
forest management plans. Managing for the structural habitats as 
described in these plans should increase habitat for fishers on State 
forests.
California
    Fishers are a Candidate Species in California, and take, under the 
California Endangered Species Act (CESA) definition, is prohibited 
during the candidacy period. The California Department of Fish and 
Wildlife (CDFW) is evaluating the status of the species for possible 
listing as a threatened or endangered species under the CESA. Thus, 
protection measures for fishers are in effect in California at this 
time, but the duration of that protection is uncertain. In addition, it 
is illegal to intentionally trap fishers in California. The California 
Environmental Quality Act (CEQA) can provide protections for a species 
that, although not listed as threatened or endangered, meets one of 
several criteria for rarity (CEQA 15380). Fishers meet these criteria, 
and under CEQA a lead agency can require that

[[Page 60433]]

adverse impacts be avoided, minimized, or mitigated for projects 
subject to CEQA review that may impact fisher habitat. All non-Federal 
forests in California are governed by the State's Forest Practice Rules 
(FPR) under the Z'Berg Nejedly Forest Practice Act of 1973, a set of 
regulations and policies designed to maintain the economic viability of 
the State's forest products industry while preventing environmental 
degradation. FPRs do not contain rules specific to fishers, but they 
may provide some protection for fishers.
Factor E. Other Natural or Manmade Factors Affecting the Continued 
Existence of the Species
Vehicle Collisions
    Regarding the potential stressor of collision with vehicles, roads 
are sources of vehicle-collision mortality of fishers and disrupt 
habitat continuity, particularly in high-use, high-speed areas. 
Collision with vehicles is a stressor related to direct mortality of 
fishers. In the draft Species Report, we found that collision with 
vehicles has the potential to be a stressor to extant fisher 
populations. Collision with vehicles is not a naturally occurring 
source of mortality, and where we had data to evaluate this stressor, 
the severity of this stressor is likely lower than that of the 
naturally occurring stressors of disease and predation, but higher than 
the current mortality from human-caused trapping (Service 2014, pp. 
144-146). Overall, the scope of the vehicle collision stressor is high 
within all occupied areas. The severity of this stressor ranges from 1 
to 4 percent of the population that dies annually from this stressor. 
At this time, we conclude that vehicle collisions are not a threat to 
fisher, although, over time, the impact of this stressor on fishers 
will likely accumulate and act synergistically with other stressors to 
impact fishers where they occur.

Climate Change

    The draft Species Report describes the potential stressor of direct 
climate effects to fishers as ongoing and likely to become more 
pronounced in the future as warming increases. In addition to the 
climate change effects to fisher habitat discussed above, some 
researchers have suggested climate change may cause direct effects to 
fishers potentially including increased mortality, decreased 
reproductive rates, or alterations in behavioral patterns, in addition 
to range shifts. Fishers may be especially sensitive, physiologically, 
to warming summer temperatures. These observations suggest that fishers 
likely will either alter their use of microhabitats or shift their 
range northward and upslope, in order to avoid thermal stress 
associated with increased summer temperatures. However, we do not have 
sufficient data to reliably predict the effect on fisher populations at 
this time (Service 2014, pp. 146-148).

Exposure to Toxicants

    The draft Species Report describes the potential stressor of 
exposure to toxicants. Recent research documenting mortalities from 
anticoagulant rodenticides (ARs) in California fisher populations has 
raised concerns regarding both individual and population-level impacts 
of toxicants within the fisher's range in the Pacific States. Exposure 
to ARs, resulting in death in some cases, has been documented in 
fishers. ARs impair the animal's ability to produce several key blood 
clotting factors, and anticoagulant exposure is manifested by such 
conditions as bleeding nose and gums, extensive bruises, anemia, 
fatigue, and difficulty breathing. Anticoagulants also damage the small 
blood vessels, resulting in spontaneous and widespread hemorrhaging. In 
addition, sublethal exposure to ARs likely results in sickness, which 
may increase the probability of mortality from other sources, and 
multiple studies have demonstrated that sublethal exposure to ARs or 
organophosphates may impair an animal's ability to recover from 
physical injury. A sublethal dose of AR can produce significant 
clotting abnormalities and hemorrhaging.
    Within the Pacific States, AR exposure in fishers appears to be 
widespread, and has been documented in all extant fisher populations in 
California. Fishers from the reintroduced ONP population also exhibit 
AR exposure. Because most of the fishers that were tested were captured 
and relocated from British Columbia, it is unknown whether these 
animals were exposed before or after their translocation to the Olympic 
Peninsula. A comparison of the areas where ARs are reported as being 
applied under labeled uses in California in relation to areas that are 
supportive of fisher habitats demonstrates legal applications of ARs 
are not likely the source for the ARs that have been observed in 
fishers by researchers. Although all sources of AR exposure in fishers 
have not been conclusively determined, large quantities of ARs have 
been found at illegal marijuana cultivation sites within occupied 
fisher habitat on public, private, and tribal lands in California. The 
proximity of a large number of marijuana cultivation sites to fisher 
populations in California and southwestern Oregon and the lack of other 
probable sources of ARs within occupied fisher habitat have led 
researchers to implicate marijuana cultivation sites as the source of 
AR exposure in fishers. In addition, ARs have been detected in a 
majority of fisher carcasses tested in Washington and California, and 
ARs have been determined as the direct cause of death for some fisher 
mortalities in California. However, it is not known if AR exposure in 
fisher carcasses represents the proportion of live fishers exposed, 
especially considering the potential sublethal effects of ARs that may 
predispose them to mortality.
    We found that the scope of the toxicant stressor was best reflected 
by a range of values and varied by sub-region, due to differences in 
format of available data or the lack thereof. Where we had data 
available to evaluate, the severity of the toxicant stressor was 
comparable to disease throughout the analysis area, although we note 
that disease is a naturally occurring stressor and toxicants are a 
human-caused stressor. We based our severity estimates on mortality 
rates alone, but we acknowledge that these values likely underrepresent 
the population-level effects when considering research conclusions 
regarding sublethal levels of rodenticides and other toxicants in a 
wide variety of animal species (Service 2014, pp. 149-166).
    We view toxicants as a newly identified threat because of reported 
mortalities of fishers from toxicants and a variety of potential 
sublethal effects. Most fisher carcasses tested in SSN, NCSO, and ONP 
have ARs in their tissues, but we do not know the exposure rate of live 
fishers. In addition, the minimum amount of AR required for sublethal 
or lethal poisoning of fishers is currently unknown; however, we do 
have evidence or fisher mortality and sublethal effects as a result of 
ARs. Overall, ARs are likely a threat to fisher populations, although 
we do not have information about the population-level effects at this 
point in time.

Small Population Size

    A principle of conservation biology is that small, isolated 
populations are subject to an increased risk of extinction from 
stochastic (random) environmental, genetic, or demographic events. 
Fishers appear to have several characteristics related to small 
population size that increase the species' vulnerability to extinction 
from stochastic events and other threats on the landscape. Extremely 
small

[[Page 60434]]

populations of low-density carnivores, like fishers, are more 
susceptible to small increases in mortality factors due to their 
relatively low fecundity and low natural population densities. Fishers 
may also be prone to instability in population sizes in response to 
fluctuations in prey availability. Low reproductive rates retard the 
recovery of populations from declines, further increasing their 
vulnerability. These factors together imply that fishers are highly 
prone to localized extirpation, their colonizing ability is somewhat 
limited, and their populations are slow to recover from deleterious 
impacts. A scarcity of verifiable sightings in the Western and Eastern 
Cascades in Washington and Oregon, coastal Oregon, and the north and 
central sections of the Sierra Nevada indicates that populations of 
fishers in southwestern Oregon and California are isolated from fishers 
elsewhere in North America. Fishers in the analysis area are currently 
restricted to two extant native populations and three reintroduced 
populations, most of which are known to be small in size. In general, 
researchers have identified the greatest long-term risk to fishers as 
the isolation of small populations and the higher risk of extinction 
due to stochastic events (Service 2014, pp. 147-149). We conclude that 
small population size constitutes a threat to fisher, now and in the 
future.

Measures To Reduce the Stressors Related to Habitat or Range

    As described in detail in the draft Species Report (Service 2014, 
pp. 100-105), the fisher is a covered species under the Act in six HCPs 
within Washington and California (five in Washington and one in 
California). The species is currently known to occur on lands 
encompassed by three California HCPs (two that do not cover fisher and 
one that does) and two Washington HCPs (one that does not cover fisher, 
and one that does). Should fisher become listed and for purposes of 
section 10(a)(1)(B), these HCPs include permitted incidental take, and 
in covering fisher, they are deemed to minimize and mitigate take and 
not appreciably reduce the likelihood of the survival and recovery of 
the fisher. Nearly all of the HCPs in California that cover areas of 
fisher habitat occur in the northwestern portion of the State and are 
focused on northern spotted owls. Most of the fisher habitat on private 
lands in California is not currently covered under any HCPs. Several 
HCPs that do not include fishers as a covered species do provide 
ancillary benefits because they focus on providing habitat for species 
such as northern spotted owls and anadromous salmonids that provide 
some of the habitat conditions beneficial for fisher. These HCPs 
require maintenance of relatively intact mature forested habitats along 
streams, where fishers may also be present. By preserving or developing 
components of habitat structure, these HCPs may benefit fishers above 
and beyond what would otherwise be required by forest practice 
regulations in individual States. However, the size and amounts of 
structural components retained (for example, downed wood, snags, live 
trees) are less than what are typically found in fisher habitat. Other 
HCPs have resulted in the retention of large blocks of habitat that may 
provide refugia for fishers in areas that may otherwise not be 
conducive to fisher conservation. The fisher is not a covered species 
under any HCPs in Oregon (Service 2014, pp. 100-102).
    Regarding other conservation measures, a Candidate Conservation 
Agreement with Assurances is in place for the fisher in the Sierra 
Nevada for management of fisher denning and resting habitat (Service 
2014, p. 102). In addition, a draft Interagency Conservation Strategy 
was created, but not finalized and, therefore, is not being implemented 
throughout the analysis area. Components of this strategy are, however, 
being used by Region 5 of the U.S. Forest Service, as well as the 
Service, to further fisher conservation (Service 2014, pp. 102-103). A 
State of Washington Fisher Recovery Plan was completed in 2006 that 
outlines strategies that seek to restore self-sustaining fisher 
populations to the three recovery areas identified in Washington: the 
Olympic Mountains, the South Cascade Mountains, and the North Cascade 
Mountains (Service 2014, pp. 102-103). The ONP reintroduction occurred 
within the Olympic Mountains recovery area under this Recovery Plan, 
and, at this point in time, a second reintroduction is in the planning 
stages for the North and South Cascade Mountains in Washington.
    Finally, on December 4, 2012, the Service designated revised 
critical habitat for the northern spotted owl (77 FR 71876) in 
California, Oregon, and Washington, and all of this critical habitat is 
within the range of the West Coast DPS of fisher. The physical or 
biological features essential to the conservation of the northern 
spotted owl likely provide ancillary benefit to fishers and fisher 
habitat that occur within designated northern spotted owl critical 
habitat. Critical habitat receives protection under section 7 of the 
Act, requiring that Federal agencies consult with the Service to ensure 
that their actions will not likely result in the destruction or adverse 
modification of critical habitat. In practice in this area, Federal 
agencies implement a form of section 7 consultation, ``Streamlined 
Consultation,'' where working together the Service and other Federal 
agencies can develop projects that minimize effects to critical habitat 
and thereby help to meet the Federal agencies' responsibilities to 
conserve species and their critical habitat. Thus, implementation of 
projects within northern spotted owl designated critical habitat often 
focuses on retaining many of the forest types and structural elements 
important to fishers and that constitute fisher habitat (for example, 
canopy closure, large trees, and vegetation diversity) (Service 2014, 
pp. 103-105).
Synergistic Effects
    We took into consideration all of the stressors operating within 
the five disjunct populations of fishers (four small populations and 
one with population size estimates ranging from 258 to 4,018); these 
populations are reduced in size due to historical trapping and past 
loss of late-successional habitat and, therefore, are more vulnerable 
to extinction from random events and increases in mortality. We 
evaluated the potential for cumulative and synergistic (combination of) 
effects of multiple stressors in the draft Species Report, although we 
were unable to quantify the scope and severity of synergistic effects 
and the variation of these effects between sub-regions. However, just 
as stressors are not occurring in equal scope and severity across the 
analysis area, it is reasonable to conclude that cumulative and 
synergistic effects from these stressors are occurring more in some 
sub-regions than others. Some examples of the synergistic effects of 
multiple stressors on fisher include:
     Alterations to habitat, which may increase fishers' 
vulnerability to predation (Factors A and C);
     Sublethal exposure to anticoagulant rodenticides may 
increase the death rates from predation, vehicle collisions, disease, 
or intraspecific conflict (Factors C and E);
     Stressors associated with climate change, such as 
increased risk of fire and forest disease, and environmental impacts of 
human development that will likely interact to cause large-scale 
ecotype conversion including shifts away from fisher habitat types, 
which could impact the viability of populations and reduce the 
likelihood

[[Page 60435]]

of reestablishing connectivity (Factors A and E);
     Increases in disease caused by climate change (Factors A, 
C, and E); and
     Human development, which is likely to cause increases in 
vehicle collisions, conflicts with domestic animals, and infections 
contracted from domestic animals (Factors A, C, and E).
    Depending on the scope and severity of each of the stressors and 
how they combine cumulatively and synergistically, these stressors can 
be of particular concern where populations are small and isolated. 
Cumulative and synergistic stressors will be increasingly important in 
the 21st century, particularly in areas not managed for retention and 
recruitment of fisher habitat attributes, areas sensitive to climate 
change, and areas where direct mortality of fishers reduces their 
ability to maintain or expand their populations (Service 2014, pp. 166-
169).
    We found that several combinations of cumulative and synergistic 
stressors rose to the level of a threat in most fisher populations, 
although there is uncertainty surrounding our estimates of the 
cumulative and synergistic effects of stressors. As noted above, we had 
varying levels of uncertainty about the severity and scope of those 
stressors. In the case of anthropogenic mortality stressors, we added 
each of these together to arrive at a cumulative estimate, and we 
qualitatively estimated the synergistic impacts.
    For the habitat-related stressors, we qualitatively assessed the 
cumulative and synergistic impacts. While there is uncertainty in these 
estimates, these estimates are based on the best available information 
at this point in time. For the habitat-related stressors, the 
cumulative and synergistic impacts are particularly problematic in the 
SSN because of the narrow band of habitat that comprises SSN and its 
small population size. In addition, for the habitat-related stressors, 
the degree to which cumulative and synergistic impacts affect NCSO is 
lower than SSN because the NCSO does not exist in a narrow band of 
habitat but rather covers a larger area. The cumulative and synergistic 
impacts related to the habitat stressors will have a negative effect on 
NCSO because the cumulative and synergistic impacts will decrease 
connectivity in the highly fragmented habitat of NCSO. In Washington 
and areas of Oregon outside of NCSO, the effect of cumulative and 
synergistic impacts related to habitat-related stressors is lower than 
the other areas, and much of this area is considered to be unoccupied. 
Where extant populations do occur in these areas (SOC and ONP), the 
cumulative and synergistic effects are likely relatively greater in SOC 
compared to ONP, due to the potentially greater effects of fire 
associated with climate change, although in both cases the cumulative 
and synergistic effects of stressors remain relatively low.
    For the mortality-related stressors, we quantitatively assessed the 
cumulative impacts where data were available to do so. For fisher 
populations in SSN and NCSO, where data were available, mortality 
related to research activities, collisions with vehicles, and 
anticoagulant rodenticide poisoning add, in aggregate, 3-17 percent 
annual mortality to naturally occurring mortality from disease and 
predation (collectively 6-32 percent mortality) and other natural 
sources such as starvation. These numbers are comparable to studies 
showing that 10-20 percent reductions within the reasonable range of 
mortality and reproductive rates would cause fisher populations to 
shift from growth to population stagnation (lack of expansion) or 
decline. Therefore, we have concern about cumulative effects related to 
mortality stressors in these fisher populations. Because we lack 
specific mortality estimates for reintroduced populations in Washington 
and Oregon outside of NCSO, we are uncertain whether mortality rates 
are transferable from the areas with quantitative data. In addition, 
because the remainder of the area in Washington and Oregon outside of 
NCSO is considered unoccupied by fishers, estimates of direct mortality 
do not apply in these areas.
    For synergistic effects among mortality stressors, and synergistic 
effects between mortality and habitat stressors, we qualitatively 
described, above and in the Species Report (Service 2014, Cumulative 
and Synergistic Effects section), some of the expected consequences of 
these combinations of stressors. While the data lack specificity 
supporting conclusions about impacts to fisher populations, or 
comparisons between fisher populations, studies indicate that these 
synergistic effects may lead to increases in mortality rates in the 
future, beyond those reflected in the scope and severity calculations 
drawn from current data.
    We found that the cumulative and synergistic effects of both 
mortality and habitat-related stressors pose a threat based on the 
information presented above. We recognize that there will likely be 
differences in how these cumulative and synergistic effects present 
themselves in the various sub-regions and populations. Considered 
collectively, cumulative and synergistic effects of habitat and 
mortality-related stressors are particularly problematic in the SSN and 
NCSO. In Washington and areas of Oregon outside of NCSO, these effects 
are lower than the other areas, and much of this area is considered to 
be unoccupied.
    The reader is directed to the draft Species Report for a more 
detailed discussion of our evaluation of the biology of and threats to 
the West Coast DPS of fisher and the influences that may affect its 
continued existence. Our conclusions are based upon the best scientific 
and commercial data available as reflected in our January 2014 draft 
Species Report and the expert conclusions of the draft Species Report 
team members.

Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) Other natural or manmade factors affecting its 
continued existence. Listing actions may be warranted based on any of 
the above threat factors, singly or in combination. We have carefully 
assessed the best scientific and commercial data available regarding 
the past, present, and future threats to the West Coast DPS of fisher.
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become endangered throughout all or a significant portion of its range 
within the foreseeable future.'' We find that the West Coast DPS of 
fisher meets the definition of a threatened species (likely to become 
endangered throughout all or a significant portion of its range within 
the foreseeable future) based on the scope and severity of threats 
currently impacting the species.
    At the time of the 2004 Finding, the West Coast DPS of fisher was 
described as having lost much of its historical habitat and range. 
Specifically, the 2004 Finding stated that the fisher is considered to 
be extirpated or reduced to scattered individuals in Washington,

[[Page 60436]]

extant fisher populations in Oregon are restricted to two genetically 
distinguishable populations in the southern portion of the State, and 
extant fisher populations in California consist of two remnant 
populations located in northwestern California and the southern Sierra 
Nevada Mountains (69 FR 18771). Regarding population size, the 2004 
Finding found that the relative reduction in the range of the fisher on 
the West Coast, the lack of detections or sightings over much of its 
historical distribution, and the high degree of genetic relatedness 
within some populations indicate the likelihood that extant fisher 
populations are small (69 FR 18772). In addition, threats to the West 
Coast DPS of fisher were described including habitat loss and 
fragmentation, incidental capture, removal of important habitat 
elements such as cover, mortality from vehicle collisions, decrease in 
the prey base, human disturbance, small population size and isolation, 
and inadequacy of existing regulatory mechanisms (69 FR 18791). A 
Listing Priority Number of 6 was given to the West Coast DPS of fisher 
in the 2004 Finding because the overall magnitude of threats was high 
and the overall immediacy of threats was not imminent. In addition, the 
threats were described as occurring across the range of the DPS, 
resulting in a negative impact on fisher distribution and abundance (69 
FR 18792). The 2004 Finding also stated that additional reintroduced 
populations of fishers will reduce the probability that a stochastic 
event would result in extirpation of the species, and we would evaluate 
a completed conservation strategy to determine whether it sufficiently 
removes threats to the fisher so that it no longer meets the definition 
of a threatened species under the Act (69 FR 18792). Since the 2004 
Finding, reintroductions have occurred in ONP and NSN, but a multi-
State conservation strategy has not been finalized and implemented.
    Currently, fishers in the West Coast DPS are known to exist in two 
extant native populations (one small population and one with population 
size estimates ranging from 258 to 4,018) and three small reintroduced 
populations (Service 2014, pp. 34-46). The two extant native 
populations are the SSN population and the NCSO population. The three 
reintroduced populations are the ONP reintroduced population, SOC 
reintroduced population, and NSN reintroduced population. The 
population estimate of the SSN population is approximately 300 
individuals, but there is no statistically detectable trend in 
occupancy. There are no discernible positive or negative total trends 
in the NCSO population, and studies have suggested both positive and 
negative population trends at various times and at localized study 
sites. The status and population estimate of the NCSO population as a 
whole is unclear. The SOC population has persisted since its 
establishment more than 30 years ago, but it does not appear to have 
expanded much beyond the area in which it was reintroduced. Fishers 
reintroduced into ONP and NSN have successfully bred and produced 
young, but it is still too early to determine the long-term persistence 
of these populations. Overall, the West Coast DPS of fisher exists in 
two separate native populations (one small population and one with 
population size estimates ranging from 258 to 4,018) that have 
persisted but do not appear to be expanding, and the West Coast DPS of 
fisher has been supplemented by one reintroduced population more than 
30 years ago and two recent reintroductions for which it is too early 
to conclude the degree to which they will persist and contribute to 
future fisher conservation.
    Based on our draft Species Report, we find the threat of trapping 
(Factor B) that was prevalent in the early 1900s is no longer a threat 
to the West Coast DPS of fisher, but the two extant populations are not 
expanding geographically even though this threat has been removed. The 
main threats to the West Coast DPS are habitat loss from wildfire and 
vegetation management (Factor A), as well as toxicants (Factor E), and 
the cumulative impact and synergistic effects of these and other 
stressors in small populations (Factor E). These threats, however, are 
not evenly distributed across the DPS. In addition, threats such as 
vegetation management are not evenly distributed in scope and severity 
across ownerships, for example, with increased harvest rates on non-
Federal lands. Furthermore, habitat loss on Federal lands, particularly 
in the NWFP area, has substantially decreased over the past two 
decades; this information was not recognized or available for our 2004 
Finding.
    Fisher populations are fragmented and greatly reduced from their 
historical range in the West Coast DPS area. Since the 2004 Finding, we 
have more information on many of the threats. For example, it appears 
that wildfire is increasing in extent (Factor A), more information on 
the potential effects of climate change on fishers (Factor A and E) has 
become available, and toxicant exposure has recently been identified as 
a threat (Factor E). In addition, data are now available that quantify 
overall mortality rates for direct causes of fisher mortality within 
study areas. Overall, fishers are still absent from much of their 
historical range (the two original extant populations have not 
expanded), threats at the time of the 2004 Finding are still in place, 
and some threats since the time of the 2004 Finding have increased or 
are new. And it is too early to determine if the reintroduced 
populations will persist.
    Based on our review of the best scientific and commercial data 
available, we have determined the West Coast DPS of fisher meets the 
definition of a threatened species under the Act. The main threats to 
the West Coast DPS of fisher are habitat loss from wildfire and 
vegetation management, as well as toxicants, and the cumulative impact 
and synergistic effects of these and other stressors in small 
populations. We find that the West Coast DPS of fisher is not currently 
in danger of extinction throughout all of its range because it exists 
in two separate native populations (one small and one with population 
size estimates ranging from 258 to 4,018) that have persisted, and it 
currently exists in three reintroduced populations that provide 
redundancy, representation, and resiliency for the extant populations. 
In addition, the threats acting on the West Coast DPS of fisher are not 
all imminent, and the threats are not evenly distributed across the 
DPS. However, we do find that the West Coast DPS of fisher is likely to 
become endangered throughout all of its range in the foreseeable future 
(estimated as 40 years for the West Coast DPS of fisher) based on 
multiple threats impacting the remaining two extant native original 
populations and the cumulative and synergistic effects of the threats 
on small populations in the West Coast DPS of fisher. In reaching this 
conclusion, we have considered available conservation measures and 
regulatory mechanisms that may ameliorate these threats, but even after 
taking those factors into account, we conclude that the species is 
likely to become endangered throughout all of its range in the 
foreseeable future. After studying an array of time periods used in 
modeling, we estimated 40 years as the foreseeable future for fisher. 
For example, climate models pertaining to fisher habitat, HCPs, and 
timber harvest models generally predict 50 to 100 years into the 
future, and forest planning documents often predict over shorter 
timeframes (10 to 20 years). As a result, we considered 40 years to be 
a reasonable estimate of the foreseeable

[[Page 60437]]

future for fisher because it falls within the spectrum of predictions 
into the future and is supported by habitat model and climate model 
predictability.
    Therefore, on the basis of the best available scientific and 
commercial information, we propose listing the West Coast DPS of fisher 
as a threatened species in accordance with sections 3(20) and 4(a)(1) 
of the Act.

Significant Portion of the Range

    Because we have determined that the West Coast DPS of fisher is a 
threatened species throughout all of its range, no portion of its range 
can be ``significant'' for purposes of the definitions of endangered 
species and threatened species. See our final policy interpreting the 
phrase ``Significant Portion of its Range'' (SPR) (79 FR 37578) for 
more information.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review when a species may be ready for 
downlisting or delisting, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our Web site (https://www.fws.gov/endangered), or from our Yreka Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (for example, restoration of native vegetation), research, 
captive propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands. 
If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of California, Oregon, and 
Washington would be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the West Coast DPS 
of fisher. Information on our grant programs that are available to aid 
species recovery can be found at: https://www.fws.gov/grants.
    Although the West Coast DPS of fisher is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, 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 the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities as well as toxicant use on Federal lands administered by 
FWS, the U.S. Forest Service, BLM, and National Park Service; issuance 
of section 404 Clean Water Act permits by the Army Corps of Engineers; 
and construction and maintenance of roads or highways by the Federal 
Highway Administration.

Analysis Under Section 4(d) of the Act

    Under section 4(d) of the Act, the Service has discretion to issue 
regulations that we find necessary and advisable to provide for the 
conservation of threatened species. The Act and its implementing 
regulations set forth a series of general prohibitions and exceptions 
that apply to threatened wildlife. The prohibitions of section 9(a)(1) 
of the Act, as applied to threatened wildlife and codified at 50 CFR 
17.31, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) threatened wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any

[[Page 60438]]

listed species. It is also illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally. 
Certain exceptions apply to employees of the Service, the National 
Marine Fisheries Service, other Federal land management agencies, and 
State conservation agencies.
    The prohibitions have certain statutory exemptions, which are found 
in section 10 of the Act. We may issue permits to carry out otherwise 
prohibited activities involving threatened wildlife under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.32. With regard to threatened wildlife, a permit may be issued for 
the following purposes: for scientific purposes, to enhance the 
propagation or survival of the species, and for incidental take in 
connection with otherwise lawful activities.
    While we are not proposing a section 4(d) rule concurrent with the 
proposed listing rule, we are soliciting comments and information 
regarding the applicability of such a rule for the species. See the 
Information Requested section above for more information.

Other DPS Alternatives

    The November 28, 2000, petition we received to list a DPS of the 
fisher under the Act targeted the portion of the fisher's range that 
included portions of California, Oregon, and Washington. Because the 
petitioned action covered the three-State area, and to be responsive to 
the petition, we began our analysis with this area constituting the DPS 
boundary. We have found fisher in this area to be a valid DPS 
warranting listing as a threatened species under the Act (see 
Determination section above). However, the range of a species may 
theoretically be divided into any of several potential configurations 
that may all meet the discreteness and significance criteria of our DPS 
policy. In the case of the fisher, we have identified smaller areas 
within the larger DPS boundary that would also potentially constitute a 
valid DPS, and that may warrant listing under the Act. The historical 
fisher populations in most of Oregon and Washington are considered to 
be likely extirpated. Studies of neutral genetic variation revealed 
that fishers in the West Coast range show a gradient of genetic 
diversity, decreasing from north to south consistent with a history of 
colonization from the north, but we do not know the genetic identity of 
fishers now extirpated from Oregon. New information about genetics and 
the current distribution of extant fishers led us to consider two other 
DPS alternatives that more closely reflect the areas where native 
fishers are known to be currently extant.
    Through peer review and public comment we may determine that the 
proposed DPS as set forth in this document is the most appropriate for 
fisher conservation. Alternatively, we could determine that one of the 
alternative DPSs set forth below would be most appropriate for the 
conservation of the fisher. Therefore, any final listing determination 
may differ from this proposal.
    In conducting our status review of the West Coast DPS of fisher, we 
evaluated a number of alternative DPSs that may potentially also be 
valid DPSs (covering a smaller entity or entities). We are considering 
the appropriateness of two of these alternatives, and we are seeking 
public and peer review input on potential DPS alternatives. The first 
alternative (Alternative 1) consists of a single DPS encompassing the 
extant native populations (one DPS that includes NCSO (which includes 
the reintroduced native NSN) and SSN (see Figure 2). The second 
alternative (Alternative 2) consists of two separate narrowly drawn 
DPSs around each of the extant native populations (one DPS around NCSO 
(which includes the reintroduced native NSN) and one DPS around SSN) 
(see Figure 3). Both of these alternatives would not include the 
reintroduced nonnative SOC population, and an option for the boundary 
separating the native populations from the nonnative population may be 
at the Rogue River and Interstate 5 at the northeast corner of the NCSO 
population. In addition, both of these alternatives would not include 
the portion of Oregon north of NCSO and all of Washington because 
native fishers are considered to be likely extirpated. These 
alternatives would also not include the reintroduced population in 
Washington (ONP) or the reintroduced population in Oregon (SOC) because 
individuals in these areas do not share the unique genetic 
characteristics found in the California and southern Oregon NCSO (which 
includes the reintroduced native NSN) and SSN populations. Each of 
these two DPS alternatives is described below.

Alternative 1: Single DPS Encompassing the Extant Populations With 
Unique Genetic Characteristics in California and Southern Oregon

    Alternative 1 includes a single DPS covering the NCSO (which 
includes the reintroduced NSN) and SSN populations and the area in 
between these populations. The northern boundary for this DPS could be 
described as generally the Rogue River in Oregon (approximately 20 km 
from the northernmost recent verified fisher location in NCSO), 
Interstate 5 (which divides NCSO from SOC), the Klamath River, and the 
California border. The rest of the boundary would be based on the 
historical distribution of fishers as described in the 2004 Finding.
    Alternative 1 focuses on conservation of known native west coast 
fishers and excludes all reintroduced populations established with non-
California/Oregon fishers. In addition, this alternative excludes the 
area to the north of NCSO where native fisher populations are 
considered to be likely extirpated. This alternative does include both 
the SSN and the NCSO (which includes the reintroduced NSN) populations, 
which each have unique genetic characteristics, and it would allow 
management of both these native populations as a single DPS, allowing 
for recovery efforts throughout the fisher's historical range in 
California and southern Oregon.
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[[Page 60439]]

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Alternative 2: Two Narrowly Drawn DPSs Around the Extant Populations 
With Unique Genetic Characteristics in California and Southern Oregon

    Alternative 2 encompasses two separate DPSs: one NCSO (which 
includes the reintroduced NSN) DPS and another SSN DPS. The NCSO (which 
includes the reintroduced NSN) DPS could be described as the area 
generally south of the Rogue River in Oregon (approximately 20 km from 
the northernmost recent verified fisher location in NCSO), Interstate 5 
(which divides NCSO from SOC), the Klamath River, and the California 
border. The NCSO (which includes the reintroduced NSN) DPS southern 
boundary could be described as running along the Middle Fork Feather 
River (approximately 20 km south of NSN translocated animals) and 
California Highway 70. The SSN DPS northern boundary could be described 
as running along the

[[Page 60440]]

Tuolumne River (approximately 30 km north of recent verified fisher 
locations), which corresponds to a break in habitat continuity 
according to the habitat models described in the draft Species Report 
(Service 2014, pp. 18-22). The northeastern boundary of the SSN DPS 
could be described as running along Tioga Pass Road (State Highway 120) 
to its junction with forested areas west of Highway 395. The rest of 
the boundary is based on the historical distribution of fishers as 
described in the 2004 Finding.
    Alternative 2 focuses on conservation of extant native populations 
with unique genetic characteristics in California and southern Oregon 
and excludes all reintroduced populations established with non-
California/Oregon fishers. In addition, this alternative excludes the 
area to the north of NCSO where fisher populations (excluding SOC) are 
considered to be likely extirpated. This alternative does include both 
the SSN and the NCSO (which includes the reintroduced native NSN) 
populations, which each have unique genetic characteristics, and this 
alternative would allow for management of the populations as separate 
DPSs recognizing the unique genetic characteristics within each 
population. In addition, if the magnitude of certain threats were found 
to be different in the two DPSs, this alternative would allow different 
management for each DPS with regard to recovery.
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[[Page 60441]]

[GRAPHIC] [TIFF OMITTED] TP07OC14.002

    We seek peer review and public comment on the uncertainties 
associated with the specific topics outlined above in the Information 
Requested section and in this Other DPS Alternatives section. We 
envision that specific information from the peer reviewers and the 
public on the proposed DPS and the two alternatives will inform our 
final listing decision.
Critical Habitat
    Section 3(5)(A) of the Act defines critical habitat as ``(i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed

[[Page 60442]]

. . . on which are found those physical or biological features (I) 
Essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed . . . upon a determination by the Secretary that such 
areas are essential for the conservation of the species.'' Section 3(3) 
of the Act (16 U.S.C. 1532(3)) also defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean ``to use and the use of 
all methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.''
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) such designation of critical habitat would not be beneficial to 
the species.
    There is currently no imminent threat of take attributed to 
collection or vandalism under Factor B for this species, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. Therefore, in the absence of finding that the 
designation of critical habitat would increase threats to a species, if 
there are any benefits to a critical habitat designation, a finding 
that designation is prudent is warranted. Here, the potential benefits 
of designation include: (1) Triggering consultation under section 7 of 
the Act, in new areas for actions in which there may be a Federal nexus 
where it would not otherwise occur because, for example, it is 
unoccupied; (2) focusing conservation activities on the most essential 
features and areas; (3) providing educational benefits to State or 
county governments or private entities; and (4) preventing people from 
causing inadvertent harm to the species.
    Because we have determined that the designation of critical habitat 
will not likely increase the degree of threat to the species and may 
provide some measure of benefit, we determine that designation of 
critical habitat is prudent for the West Coast DPS of fisher.
    Our regulations (50 CFR 424.12(a)(2)) further state that critical 
habitat is not determinable when one or both of the following 
situations exists: (1) Information sufficient to perform required 
analysis of the impacts of the designation is lacking; or (2) the 
biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat.
    Delineation of critical habitat requires, within the geographical 
area occupied by the West Coast DPS of fisher, identification of the 
physical or biological features essential to the conservation of the 
species. Information regarding the West Coast DPS of fisher life 
functions and habitats associated with these functions has expanded 
greatly in recent years. At this point, the information sufficient to 
perform a required analysis of the impacts of the designation is 
lacking due to the considered DPS alternatives in this proposed rule 
and our request to seek public and peer review input on these 
alternatives. A careful assessment of the habitats that may qualify for 
designation as critical habitat will require a thorough assessment; we 
also need more time to analyze the comprehensive data to identify 
specific areas appropriate for critical habitat designation. 
Accordingly, we find designation of critical habitat to be ``not 
determinable'' at this time.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with 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 Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. Specifically, we reached out to Tribes 
regarding the March 19, 2013, Notice of Initiation of Status Review (78 
FR 16828), and in September 2013, we sent a formal request to Tribes 
for their review of the draft Species Report.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at https://www.regulations.gov and upon request from the 
Yreka Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Pacific Southwest Regional Office, the Yreka Fish and Wildlife 
Office, and the Pacific Regional Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and

[[Page 60443]]

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) by adding an entry for ``Fisher'' to the List 
of Endangered and Threatened Wildlife in alphabetical order under 
Mammals to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                   Vertebrate
------------------------------------------------------                        population where                                  Critical       Special
                                                          Historic range       endangered or         Status      When listed     habitat        rules
           Common name              Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Fisher..........................  Pekania pennanti...  Canada (Alberta,     West Coast DPS: CA,  T               ...........          NA.            NA
                                                        British Columbia,    OR, and WA.
                                                        Manitoba, New
                                                        Brunswick, Nova
                                                        Scotia, Northwest
                                                        Territories,
                                                        Ontario, Quebec,
                                                        Saskatchewan,
                                                        Yukon); U.S.A.
                                                        (CA, CT, DC, IA,
                                                        ID, IL, IN, KY,
                                                        MA, MD, ME, MI,
                                                        MN, MT, NC, ND,
                                                        NH, NJ, NV, NY,
                                                        OH, OR, PA, RI,
                                                        TN, UT, VA, VT,
                                                        WA,WI, WV, WY).
 
                                                                      * * * * * * *
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* * * * *

    Dated: September 9, 2014.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014-23456 Filed 10-6-14; 8:45 am]
BILLING CODE 4310-55-P