# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southern Selkirk Mountains Population of Woodland Caribou

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-28512

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 28, 2012
- **Citation:** 77 FR 71042

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2011-0096: 4500030114]
RIN 1018-AX38
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southern Selkirk Mountains Population of Woodland Caribou

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, designate critical habitat for the southern Selkirk Mountains population of woodland caribou (
Rangifer tarandus caribou
) under the Endangered Species Act. In total, approximately 30,010 acres (12,145 hectares) is being designated as critical habitat. The critical habitat is located in Boundary County, Idaho, and Pend Oreille County, Washington. We are finalizing this action in compliance with our obligation under the Act and in compliance with a court-approved settlement agreement. The effect of this regulation is to conserve the habitat essential to the southern Selkirk Mountains population of woodland caribou.

DATES:

This rule becomes effective on December 28, 2012.

ADDRESSES:

This final rule and the associated final economic analysis are available on the Internet at
http://www.regulations.gov.
Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243; facsimile 208-378-5262.

The coordinates or plot points or both from which the map for this critical habitat designation was generated are included in the administrative record and are available at
http://www.fws.gov/idaho/SpeciesNews.htm,
at
http://www.regulations.gov
at Docket No. FWS-R1-ES-2011-0096, and at the Idaho Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT
). Any additional tools or supporting information developed for this critical habitat designation is available at the Fish and Wildlife Service Web site and Field Office set out above, and may also be on
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Brian Kelly, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office (see
ADDRESSES
). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.
This is a final rule to designate critical habitat for the southern Selkirk Mountains population of woodland caribou (
Rangifer tarandus caribou
), currently listed as an endangered species under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
et seq.
) (Act). Under the Act, any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed through rulemaking. The critical habitat area we are designating in this rule constitutes our current best assessment of the areas that meet the definition of critical habitat for the southern Selkirk Mountains population of woodland caribou. Here we are designating approximately 30,010 acres (ac) (12,145 hectares (ha)) in one unit within Boundary County, Idaho, and Pend Oreille County, Washington, as critical habitat for the southern Selkirk Mountains population of woodland caribou. This designation represents a reduction of approximately 345,552 ac (139,840 ha) from the critical habitat originally proposed for designation (76 FR 74018, November 30, 2011); and reflects a 1,000 foot (ft) (about 300 meter (m)) change in elevation from 4,000 ft (1,220 m) in the proposed rule, to an elevation at or above 5,000 ft (1,520 m) in the final critical habitat designation. Literature and information we have reviewed, and peer review comments received, confirm that although caribou may use elevations below 5,000 ft (1,520 m), habitats at this elevation and above are essential to their conservation. This revision is more fully explained in the “
Criteria Used to Define Critical Habitat”
section. The primary factors that were considered and influenced this change from the proposed rule included: (1) A revised determination of the geographical area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing, based on comments we received, including peer reviewers, which caused us to reevaluate surveys conducted by Scott and Servheen (1984, 1985); (2) census monitoring documenting low numbers of individual caribou observed in the United States during those annual surveys; (3) caribou observations within the United States for several years have consistently been limited to areas close to the United States-Canada border; (4) information and literature reporting the overall decline of the subspecies mountain caribou (
Rangifer tarandus caribou
) across its range, and in particular the decline of woodland caribou populations in the southern extent of their range, including the southern Selkirk Mountains population of woodland caribou; (5) information on areas currently conserved and managed for the conservation of woodland caribou in the Selkirk Mountains in British Columbia, Canada, including the status of the Canadian recovery actions for mountain caribou; and (6) the applicability as well as the status of the recovery objectives identified in the 1994 Selkirk Mountains Woodland Caribou Recovery Plan (USFWS 1994).

All of the area being designated as critical habitat is federally owned lands under management of the U.S. Forest Service (USFS). The areas being designated were occupied at the time of listing under the Act (49 FR 7390: February 29, 1984), and are essential to the conservation of the southern Selkirk Mountains population of woodland caribou.

We have prepared an economic analysis of the designation of critical habitat.
In order to consider economic impacts, we have prepared an analysis of the economic impacts of the critical habitat designation and related factors. We announced the availability of the draft economic analysis (DEA) in the
Federal Register
on May 31, 2012 (77 FR 32075), allowing the public to provide comments on our analysis. We have incorporated the comments and have completed the final economic analysis (FEA) concurrently with this final determination.

Peer review and public comment.
We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from four knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, and whether or not we had used the best available information. These peer reviewers provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final critical habitat designation. We also considered all comments and

information received from the public during the comment periods.

Background

It is our intent to discuss in this final rule only those topics directly relevant to the development and designation of critical habitat for the southern Selkirk Mountains population of woodland caribou under the Act (16 U.S.C. 1531
et seq.
). For more information on the biology and ecology of the southern Selkirk Mountains population of woodland caribou, refer to the final listing rule published in the
Federal Register
on February 29, 1984 (49 FR 7390), and the 1985 final recovery plan (USFWS 1985), which was revised in 1994 (USFWS 1994), and is available from the Idaho Fish and Wildlife Office (see
ADDRESSES
section). For information on southern Selkirk Mountains population of woodland caribou proposed critical habitat, refer to the proposed rule published in the
Federal Register
on November 30, 2011 (76 FR 74018). Information on the associated DEA for the proposed rule to designate revised critical habitat was published in the
Federal Register
on May 31, 2012 (77 FR 32075).

Nomenclature

In 1984, we published a final rule listing the transboundary population of woodland caribou (
Rangifer tarandus caribou
) found in Idaho, Washington, and southern British Columbia, “ * * * sometimes known as the southern Selkirk Mountain herd” (49 FR 7390; February 29, 1984). At that time woodland caribou, including the transboundary population, were a recognized subspecies of caribou (
R. tarandus
). Within the woodland caribou subspecies, caribou populations are often further divided into three different “ecotypes”: Boreal, northern, and mountain, based on differences in habitat use, feeding behavior, and migration patterns (Hatter 2000, p. 631; Mountain Caribou Science Team 2005, p. 1).

The southern Selkirk Mountains population of woodland caribou is included within the mountain caribou ecotype (mountain caribou) that currently occupies southeastern British Columbia (B.C.), northern Idaho, and northeastern Washington near the international border to northeast of Prince George (Wittmer
et al.
2005, p. 408). The mountain caribou ecotype is distinguished from other woodland caribou ecotypes by behavioral and ecological characteristics, rather than genetic characteristics that conclude all woodland caribou ecotypes are genetically similar (Mountain Caribou Science Team 2005, p. 1). The mountain caribou ecotype is closely associated with high-elevation, late-successional, coniferous forests where their primary winter food, arboreal lichens, occurs.

The term “mountain caribou” is a common designation used throughout the scientific literature to describe the mountain/arboreal-lichen feeding ecotype of woodland caribou populations found in the mountainous regions of southeastern British Columbia, including the transboundary southern Selkirk Mountains population of woodland caribou (Mountain Caribou Science Team 2005, p. 1). In this final rule, use of the term mountain caribou refers to descriptions of the subspecies woodland caribou in general, and we use the term southern Selkirk Mountains population of woodland caribou when referencing the listed transboundary population.

Previous Federal Actions

In 1980, the Service received petitions to list the South Selkirk Mountains population of woodland caribou as endangered under the Endangered Species Act from the Idaho Department of Fish and Game (IDFG) and Dean Carrier, a U.S. Forest Service (USFS) staff biologist and former chairman of the International Mountain Caribou Technical Committee (IMCTC). At that time, the population was believed to consist of 13 to 20 animals (48 FR 1722). Following a review of the petition and other data readily available, the southern Selkirk Mountains woodland caribou population in northeastern Washington, northern Idaho, and southeastern B.C. was listed as endangered under the Act's emergency procedures on January 14, 1983 (48 FR 1722). A second emergency rule was published on October 25, 1983 (48 FR 49245), and a final rule listing the southern Selkirk Mountains woodland caribou population as endangered was published on February 29, 1984 (49 FR 7390). The designation of critical habitat was determined to be not prudent at that time, since increased poaching could result from the publication of maps showing areas used by the species. A Management Plan/Recovery Plan for Selkirk Caribou was approved by the Service in 1985 (USFWS 1985), and revised in 1994 (USFWS 1994).

Notices of 90-day findings on two petitions to delist the southern Selkirk Mountains population of woodland caribou were published in the
Federal Register
on November 29, 1993 (58 FR 62623), and November 1, 2000 (65 FR 65287). Both petitions were submitted by Mr. Peter B. Wilson, representing the Greater Bonners Ferry Chamber of Commerce, in Bonners Ferry, Idaho. Our response to both petitions stated that the petitions did not present substantial scientific or commercial information indicating that delisting of the woodland caribou may be warranted.

On August 17, 2005, a complaint was filed in Federal district court challenging two biological opinions issued by the Service, and USFS management actions within southern Selkirk Mountains caribou habitat and the recovery area. The plaintiffs included Defenders of Wildlife, Conservation Northwest, the Lands Council, Selkirk Conservation Alliance, Idaho Conservation League, and Center for Biological Diversity. The lawsuit challenged, in part, no jeopardy biological opinions on the USFS Land and Resource Management Plans for the Idaho Panhandle (IPNF) and Colville (CNF) National Forests, and the USFS' failure to comply with the incidental take statements in the biological opinions.

In December 2005, the Court granted a preliminary injunction prohibiting snowmobile trail grooming within the caribou recovery area on the IPNF during the winter of 2005-2006. In November 2006, the Court granted a modified injunction restricting snowmobiling and snowmobile trail grooming on portions of the IPNF within the southern Selkirk Mountains caribou recovery area. On February 14, 2007, the Court ordered a modification of the current injunction to add a protected caribou travel corridor connecting habitat in the United States portion of the southern Selkirk Mountains with habitat in British Columbia. This injunction is currently in effect, pending the completion of section 7 consultation on the IPNF's proposed winter travel plan.

On April 11, 2006, a notice of initiation of 5-year reviews for 70 species in Idaho, Oregon, Washington, and Hawaii, and Guam was published in the
Federal Register
(69 FR 18345), including the southern Selkirk Mountains population of woodland caribou. The Southern Selkirk Mountains Caribou Population 5-Year Review was completed December 5, 2008 (USFWS, 2008a).

On December 6, 2002, the Defenders of Wildlife, Lands Council, Selkirk Conservation Alliance, and Center for Biological Diversity (plaintiffs) petitioned the Service to designate critical habitat for the endangered southern Selkirk Mountains population of woodland caribou. On February 10, 2003, we acknowledged receipt of the plaintiff's petition, and stated we were unable to address the petition at that

time due to budgetary constraints. On January 15, 2009, a complaint for declaratory and injunctive relief (
Defenders of Wildlife et al.,
v.
Salazar,
CV-09-15-EFS) was filed in Federal District Court, alleging that the Service's failure to make a decision more than 6 years after the petition was submitted violated the Administrative Procedure Act (5 U.S.C. 551-559, 701-706). In a stipulated settlement agreement, we agreed to make a critical habitat prudency determination, and if determined to be prudent, to submit a proposed critical habitat rule to the
Federal Register
on or before November 20, 2011, which was accomplished. We also agreed to deliver a final critical habitat rule to the
Federal Register
by November 20, 2012.

A proposed rule (76 FR 74018) to designate approximately 375,562 ac (151,985 ha) as critical habitat in Boundary and Bonner Counties in Idaho, and Pend Oreille County in Washington was submitted to the
Federal Register
on November 20, 2011, and published on November 30, 2011.

On May 9, 2012, we received a petition dated May 9, 2012, from Bonner County, Idaho, and the Idaho State Snowmobile Association, which calls into question whether the southern Selkirk Mountains population of woodland caribou is a listable entity under the Act. We are developing a response to that petition.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the southern Selkirk Mountains population of woodland caribou during three comment periods. The first comment period, associated with the publication of the proposed rule (76 FR 74018), opened on November 30, 2011, and closed on January 30, 2012. We contacted Federal, State, Tribal, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule. In response to a request we received during the first public comment period from Idaho's Governor C.L. “Butch” Otter, the Kootenai Tribe of Idaho, and Boundary County, Idaho, to allow the public more time to submit comments and to hold an informational session and public hearing, we opened a second comment period on March 21, 2012 (77 FR 16512), for an additional 60 days. The Service-hosted informational session and public hearing were held in Bonner's Ferry, Idaho, on April 28, 2012. A third public comment period, associated with the publication of the DEA of the proposed designation and an amended required determinations section, opened on May 31, 2012, and closed on July 2, 2012 (77 FR 32075). The Service hosted an additional informational session and public hearing during this comment period on June 16, 2012, in Coolin, Idaho.

In acknowledgement of our responsibility to work directly with tribes, and to make information available regarding the proposed critical habitat designation, the Service met with the Kootenai Tribe of Idaho on January 9, 2012, in Bonners Ferry, Idaho, and participated on conference calls with the Kootenai Tribe of Idaho on May 24, 2012. The Service also discussed the proposal with the Kalispel Tribe of Indians on several occasions, including February 23, March 12, and April 26, 2012.

The Service also responded to several requests for public information and coordination meetings, including: (1) the Kootenai Valley Resource Initiative (KVRI) on January 9, 2012, in Bonners Ferry, Idaho; (2) the Bonner County Commissioners on January 24, February 28, March 26, and June 4, 2012, in Bonner County, Idaho; and (3) the Boundary County Commissioners on April 19, 2012, in Boundary County, Idaho.

During the first 60-day comment period, we received 172 comment letters addressing the proposed critical habitat designation. During the second 60-day comment period, we received an additional 118 comments from individuals or organizations, with an additional 37 written or oral comments provided at the April 28, 2012, public hearing in Bonner's Ferry, Idaho. During the third and final comment period, we received 10 comments on the proposal and the DEA, and testimony from 11 individuals at the public hearing.

During the public comments periods, comments were received from Federal, State, and local agencies, peer reviewers with scientific expertise, the Kootenai Tribe of Idaho, the Kalispel Tribe of Indians, the Canadian Government, private citizens, nongovernmental organizations, private companies, business owners, elected officials, recreational user groups, commercial and trade organizations, and others. Approximately 60 unique individual comments received were generally supportive of the proposed rule, while approximately 70 unique individual comments were in opposition to the proposed rule. Through campaigns sponsored by nongovernmental organizations, we received an additional 64,258 comments in support of the proposed designation consisting entirely of template letters.

The Service received many comments outside the scope of this rulemaking, including issues such as: (a) Threats to the species such as recreation, fires, and road building, management and control of predators and or prey species, previous actions taken by the Service to introduce or protect other listed species such as gray wolves (
Canis lupus
), grizzly bears (
Ursus arctos horribilis
), Canada lynx (
Lynx canadensis
), and others (see further discussion below); (b) strengths or weaknesses of the Endangered Species Act, and whether the Act should be changed or eliminated; (c) the taxonomic description of the southern Selkirk Mountains population of woodland caribou, its current listing status as an endangered species, and whether the population is extinct; (d) a recent petition received by the Service to delist the species; (e) addressing Highway 3 in Canada as a migration barrier; (f) hunting practices or regulations; and (g) that the proposed rule to designate critical habitat is in response to an “agenda” put forth by “environmental groups.”

We received numerous comments specific to the threat of predation on the southern Selkirk Mountains population of woodland caribou, with many stating that gray wolves and other species such as grizzly bear, black bear (
Ursus americanus
), Canada lynx, and others are preying on caribou and should be managed. The Service acknowledges that predation is one of several important factors affecting this population of woodland caribou. In fact, predation is discussed frequently in the proposed rule, including under
Physical or Biological Features
(PBFs), where we described the need for: (1) Caribou to disperse in low numbers at high elevation; (2) large contiguous areas to avoid predators; and (3) female caribou to be able to access high-elevation alpine areas for calving, which are likely to be predator free. Predation is also addressed in the 1994 Recovery Plan (USFWS 1994) as a factor potentially affecting the status of the caribou population. Although addressing the threat of predation is outside of the scope of this rule, the Service agrees that successful caribou conservation and recovery efforts will need to address predation on the southern Selkirk Mountains population of woodland caribou, which will require effective coordination with other Federal and State agencies, the Coleville and Idaho Panhandle National Forests, tribes, and Canada.

Similarly, we received numerous comments regarding the effectiveness of past augmentation efforts to supplement the southern Selkirk Mountains population of woodland caribou, which were conducted by the Service, Canada, and State wildlife agencies. Efforts to augment the existing woodland caribou population with 103 animals from source herds in British Columbia between 1987 and 1990, and 1996 and 1998, have not resulted in a long-term improvement in caribou distribution throughout the southern Selkirk Mountains. A large number of the transplanted caribou died within the first year of augmentation, and there has been no long term increase in the population (USFWS 2008a). The number of woodland caribou detected in the United States has continued to dwindle, and annual census surveys continue to find the bulk of the remaining population occupying habitats in British Columbia. The most recent census information demonstrates a decline from 46 caribou in 2009 to 27 animals in 2012, although the cause of this decline has not been described (Degroot and Wakkinen 2012, p.2). The 2011 survey documented zero caribou in the United States, and the 2012 survey documented 4 caribou on Little Snowy Top Mountain, Idaho. No other tracks were observed in the United States (DeGroot and Wakkinen 2012, p. 5).

Although important and integral to the population's recovery, addressing threats such as predation, as well as efforts to stabilize or increase the southern Selkirk Mountains population of woodland caribou, are outside of the scope of this rulemaking. These issues will be addressed, as appropriate, within the scope of recovery actions for this species. For the purposes of this rulemaking, we are fully considering and responding to comments related to the proposed critical habitat designation and DEA. Although other comments are acknowledged and appreciated, we have not specifically responded to those that are outside of the scope of the proposed rule.

All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received were grouped into 20 general issues specifically relating to the proposed critical habitat designation for the southern Selkirk Mountains population of woodland caribou, and are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from four knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from all four peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the southern Selkirk Mountains population of woodland caribou. The peer reviewers had differing assessments of our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review Comments

(1)
Comment:
One peer reviewer commented that the proposed rule was very thorough and accurate, but the reviewer did not submit any additional comments. The three peer reviewers who did provide substantive comments stated that the entire area we proposed for designation as critical habitat was not likely occupied by the species at the time of listing, and stated that the February 29, 1984, final rule listing the species (49 FR 7390) did not define “occupancy”, but rather identified a “total approximate area of normal utilization” within the conterminous United States (U.S.). These peer reviewers primarily point to aerial surveys and telemetry studies of radio-collared caribou at the time of listing (Scott and Servheen 1984) as the basis for their comment on occupancy. This study documented caribou primarily utilizing habitat in British Columbia, (B.C.), Canada, and those areas in the United States immediately adjacent to the international boundary with Canada. This was a comment also made by the State of Idaho, the Kootenai Tribe of Idaho, and numerous other public commenters.

Our Response:
In developing our proposed critical habitat rule, we reviewed the final listing rule (49 FR 7390) to identify the specific areas within the geographical area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing. These areas also contained the physical or biological features essential to the conservation of these caribou, which may require special management considerations or protections, and therefore met the definition of critical habitat under section 3(5)(A) of the Act. Neither the January 14, 1983, emergency listing (48 FR 1722), nor the February 29, 1984, final listing rule (49 FR 7390), defined “occupancy”, but these rules did refer to the “approximate area of utilization” (48 FR 1723), and “area of normal utilization” (49 FR 7390). We therefore equated “occupancy at the time of listing” with the “approximate area of utilization” and “area of normal utilization” in the proposed rule. However, comments submitted by the peer reviewers caused us to reexamine the basis of our analysis pertaining to the geographical area occupied by the species in 1983.

Scott and Servheen (1984, p. 16; 1985, p. 27), state the following in the background section of their job progress reports on caribou ecology: “As the number of U.S. sightings declined since the early 1970's, concern has mounted that caribou may be abandoning the U.S. portion of their range.” Scott and Servheen (1984, 1985, entire), conducted studies of radio-collared caribou to determine population numbers and composition, and helicopter surveys over significant areas of the Selkirk Mountains within the historic range of woodland caribou in an effort to: (1) Estimate the population size and sex/age composition; (2) determine mortality rates and causes; (3) determine reproductive rates and calving areas; (4) determine seasonal use areas; (5) identify seasonal and year-long habitat utilization patterns; (6) estimate seasonal caribou food habitat preferences; and (7) attempt to achieve a total count of the population. The helicopter surveys covered extensive areas of potential woodland caribou habitat within the Selkirk Mountains in Idaho and Washington (Scott and Servheen 1984, pp. 74-75). During their study, Scott and Servheen (1984, pp. 16-28) documented extensive use by caribou of habitat in Canada, with two bulls utilizing habitat near Little Snowy Top and Upper Hughes Ridge in Idaho and Sullivan Creek in Washington (p. 19). They did not document any caribou further south within Washington or Idaho during the course of the helicopter surveys. We are relying on Scott and Servheen survey results to determine occupancy at the time of listing, since the surveys were conducted during the timeframe in which the population was listed. Consequently, we have determined that the area generally depicted in Scott and Servheen (1984, p. 27), adjusted for

elevation and habitat based on the seasonal habitat suitability model developed by Kinley and Apps (2007, entire) for the southern Selkirk Mountains ecosystem, represents the best available scientific information regarding the geographical area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing. Based on the best available information, we are designating 30,010 ac (12,145 ha) of critical habitat for the southern Selkirk Mountains population of woodland caribou in the United States. These areas were known to be occupied at the time of listing in 1983 and 1984, they are essential to the conservation of the species, they require special management, and they therefore meet the definition of critical habitat under section 3(5)(A)(i) of the Act.

(2)
Comment:
One peer reviewer commented that the characterization of six seasonal habitats (early winter, late winter, spring, calving, summer, and fall) for the southern Selkirk Mountains population of woodland caribou in the proposed rule was inaccurate, as it is based on older scientific information, and suggested more recent scientific information describing caribou seasonal habitats based on distinct shifts in caribou elevation use is a more proper characterization of caribou seasonal habitats.

Our Response:
We agree and have changed the seasonal definitions in the final rule to reflect the five seasonal definitions identified by Kinley and Apps (2007), which are: Early winter (October 17 to January 18), late winter (January 19 to April 19), spring (April 20 to July 7), calving (June 1 to July 7), and summer (July 8 to October 16).

(3)
Comment:
Two peer reviewers commented that the proposed rule inaccurately identifies early winter as the season during which caribou typically make the longest within-season (intra-seasonal) landscape movements. One peer reviewer noted that the stated range from several to 30 mi (48 km) of movement during the winter season in the proposed rule was inaccurate as well. Both reviewers referenced research conducted by Wakkinen and Slone (2010), which analyzed seasonal movement patterns of radio-collared caribou from 1988 to 2006, and found that caribou typically make the longest movements during spring and summer seasons. One peer reviewer noted that Wakkinen and Slone's (2010) analysis did not detect any difference in the median distance of movement by caribou between seasons (interseasonal).

Our Response:
The identification of winter seasonal movement distances stated in the proposed rule was obtained from a USFS report (USFS 2004, p. 22), which used a compilation of historic and more recent anecdotal observations of caribou movements and radio-collared caribou to provide a range for caribou movements. Wakkinen and Slone's (2010) analysis, which is based on over 4,000 radio telemetry points obtained from 66 individual caribou over an 18-year period from 1988 to 2006, provided median values for intra- and interseasonal movements. As Wakkinen and Slone's (2010) report is more recent and is scientifically robust, we have incorporated their findings into the language of this final rule.

(4)
Comment:
One peer reviewer commented that the proposed rule's characterization of early and late winter habitats as being the most important habitats to caribou and the most limiting type of habitats on the landscape, is not supported by the science, as there is a high degree of overlap between the seasonal habitats. Given the high degree of overlap and importance of all seasonal habitats on the southern Selkirk Mountains population of woodland caribou recovery, it would be difficult to prioritize early and late winter habitats as having overriding importance to caribou or as being more limited on the landscape than are other seasonal habitats.

Our Response:
We acknowledge that, from a purely geographical standpoint, Kinley and Apps (2007) habitat modeling demonstrated a high degree of overlap between caribou seasonal habitats, and that all seasonal habitats are important to caribou. From a physiological and nutritional standpoint, early and late winter seasonal habitat foraging opportunities can be restricted by snow conditions depending on the variability of snowpack in any given year, and therefore are generally less available than summer and spring habitats and foraging opportunities. During summer and spring seasons, the physical ability of caribou to move is much less restricted, and there is a wider assortment and more availability of foraging plants available to caribou. During early and late winter, snow conditions and depths restrict caribou movement and foraging opportunities. In late winter, caribou must subsist almost entirely upon arboreal lichens, which are typically provided by mature subalpine fir stands with appropriate moisture conditions. Additionally, winter conditions (cold temperatures, deep snow) impose high energetic costs to caribou. Thus, from a physiological and nutritional standpoint, early and late winter habitats are very important to caribou and may be more limited to caribou. However, notwithstanding the above discussion, we understand the importance of high-quality spring and summer forage habitat at contributing to the ability of female caribou to calve and support their calves or to enter the breeding season in good physiological condition to survive the harsh winter conditions.

(5)
Comment:
One peer reviewer commented that language in the proposed rule implying that the ecotone between the subalpine fir/Engelmann spruce and cedar/hemlock zone occurs at around 4,000 ft (1,220 m) in elevation is inaccurate, and that the ecotone actually occurs approximately between the elevational band of 4,900 and 5,000 ft (1,490 and 1,520 m) (
i.e.,
a 100-foot elevational band ecotone).

Our Response:
We agree, and we have provided the following clarification to that portion of the Primary Constituent Elements (PCE) in this final designation. According to Art Zack (USFS, pers. comm. 2012): “In the Selkirk ecosystem, the average boundary between cedar/hemlock Vegetation Response Units (VRU) groups and subalpine fir VRU groups (or habitat type groups) is approximately 5,100 ft (1,550 m) elevation. However, this break will vary from place to place based on aspect, topography, landform, cold air drainage patterns, and local weather patterns. Based on a sample of 100 points on the break between these 2 groups, the standard deviation of this variation in the elevation break between these 2 categories was approximately 300 ft (90 m) in elevation. In very limited circumstances, lower elevation drainage bottoms that are below a high ridge and that have restricted cold air drainage out of the valley bottom, may have subalpine fir habitat types over 1,000 ft (30 m) lower in elevation than the normal boundary. However, these are very restricted geographically, and are typically linear features confined to the very lower valley bottom. Where two different VRU's or habitat type groups meet, it is often not a distinct hard line between the two types, but rather an ecotone where the two types gradually intergrade. On average, the estimated ecotone width between the subalpine fir habitat types and the lower elevation habitat type may be 200 ft (61 m) in elevation. However that ecotone width varies depending upon local environmental characteristics.”

(6)
Comment:
One peer reviewer noted that our definition of calving habitat in the proposed rule as comprising high-elevation, old-growth

forest ridgetops was too narrow and should also include high elevation alpine and non-forested areas in close proximity to forested mature and old-growth ridge tops as well as high elevation basins. The peer reviewer pointed to research demonstrating that caribou in the Selkirk Mountains use alpine scree sites as well as exposed cliff faces (Warren 1990; Allen 1998), and noted that the broader definition of calving habitat is supported by the analysis conducted by Kinley and Apps (2007), who demonstrated that pregnant females showed a preference for alpine at all scales and that, at the finest scale, caribou did not avoid non-forested conditions.

Our Response:
We agree, and we have provided clarification to that portion of the PCE to identify that calving habitat includes more areas such as high-elevation basins in this final critical habitat designation.

(7)
Comment:
Two peer reviewers commented that the proposed rule's characterization of caribou movements during the spring and summer was inaccurate. Language in the proposed rule stated that during the spring and summer caribou move to lower elevations to forage on grasses, flowering plants, horsetails, willow and dwarf birch leaves and tips, sedges, and lichens in subalpine meadows (Paquet 1997, pp. 13, 16). The peer reviewers noted that Paquet (1997) also stated, “in summer, mountain caribou move back to mid- and upper elevation spruce/alpine fir forests.”

Our Response:
We agree, and we have provided language clarifying the discussion of summer and spring caribou movements in this final critical habitat designation.

(8)
Comment:
One peer reviewer commented that caribou spring habitat findings reported in Kinley and Apps (2007) conflicts with the spring habitat discussion in the proposed rule, which is based on the 1994 Recovery Plan (USFWS 1994), and Scott and Servheen's (1985) and Servheen and Lyon's (1989) research. The proposed rule stated that in spring caribou move to areas with green vegetation, and that these areas may overlap with early and late winter ranges at mid to lower elevations. The peer reviewer stated that Kinley and App's (2007) finding that caribou select for open-canopied stands of older subalpine fir/spruce habitats with high solar insolation at all scales with use of alpine and nonforested areas at broad scales only, conflicts with Scott and Servheen's (1985) research as it is referenced in the proposed rule.

Our Response:
We do not interpret Kinley and App's (2007) findings as being in disagreement with our statement in the proposed rule that caribou will seek out areas with green vegetation in spring. We stated previously that there is a high degree of overlap between seasonal habitats, and caribou will seek out green vegetation in the spring regardless of whether it occurs in sivilculturally treated (
i.e.,
partial cut, clear-cut, seed/sapling) stands, natural openings within the forest canopy, or open-canopied stands.

(9)
Comment:
One peer reviewer stated the proposed rule incorrectly cited Stevenson
et al.
(2001) and Kinley and Apps (2007), as referring to western hemlock/western red cedar forests providing summer range for the southern Selkirk Mountains population of woodland caribou. Another peer reviewer commented that the proposed rule's description of summer habitat should also identify the importance and use of permanent lakes, bogs, and fens by caribou for feeding and bedding sites in the summer and fall months, as documented through research conducted by Freddy 1974; Johnson
et al.
1977 and 1980; Warren 1990; and Allen 1998. One peer reviewer commented that the proposed rule's use of fall habitat to characterize seasonal habitat for caribou is inconsistent with the seasonal habitat definitions in Kinley and Apps (2007), which is considered to provide the best available scientific information on habitat and seasons of use by the southern Selkirk Mountains woodland caribou.

Our Response:
We have corrected and clarified this statement in this final critical habitat designation to reflect that subalpine fir and spruce forests provide summer range for the southern Selkirk Mountains population of woodland caribou. We have removed the reference to hemlock/western red cedar forests as providing summer habitat. The final designation reflects that subalpine fir and spruce fir forests provide summer range for this species. Relative to the description of summer and fall habitat, we have expanded this description in this final designation. Regarding reference to fall habitats, as noted previously in our response to Comment 2, we have revised the seasonal habitat definitions in this final designation to be consistent with Kinley and Apps (2007).

(10)
Comment:
Two peer reviewers acknowledge that the proposed rule correctly identifies travel corridors as important habitat features supporting connectivity of seasonal caribou habitats. Both reviewers, however, suggested the travel corridor discussion in the proposed rule could be refined through more comprehensive consideration and interpretation of the available scientific information. One reviewer noted that Freddy (1974) identified specific routes in British Columbia that the southern Selkirk Mountains population of woodland caribou used repeatedly, which were natural passes along ridges, stream bottoms, forested areas, and areas connecting feeding and resting areas. The reviewer also noted that Freddy (1974) identified caribou movement from Kootenay Pass, British Columbia southward to Snowy Top Mountain, and from Monk Creek and Nun Creek, British Columbia to Continental Mountain via the Upper Priest River/American Falls drainage. Both reviewers noted that Wakkinen and Slone (2010) modeled travel corridors between areas of high- quality caribou habitat utilizing habitat quality maps developed by Kinley and Apps (2007).

Our Response:
The southern Selkirk Mountains population of woodland caribou is a transboundary species that travels between British Columbia and the United States. We acknowledge the importance of maintaining habitat connectivity between British Columbia and the United States, and although we do not designate critical habitat in foreign countries, we have included a travel corridor modeled by Wakkinen and Slone (2010) that facilitates caribou movement between patches of high-quality habitat in the Unites States including Little Snowy Top Mountain in Idaho, and the Salmo Priest Wilderness in Washington, and connects with the Stagleap Provincial Park in British Columbia.

(11)
Comment:
One peer reviewer provided several scientific citations (Freddy 1974; Scott and Servheen 1985; Rominger and Oldemeyer 1989; Warren
et al.
1996; and Allen 1998), and suggested the available science on the southern Selkirk Mountains population of woodland caribou indicates the appropriate elevation cutoff to identify critical early-winter habitat for this population is 4,500 ft (1,372 m).

Our Response:
We agree that these citations provide additional scientific information in conjunction with other scientific literature, as well as peer review and substantive public comments, to determine the appropriate critical habitat elevation boundaries. However, there is a lot of uncertainty in making a designation of an “absolute” elevational point with which to designate critical habitat for a species such as the southern Selkirk Mountains population of caribou. Literature and information we reviewed, (such as Scott and Servheen 1984, 1985; MCTAC 2002; McKinley and Apps 2007; Wakkinen

and Slone 2010), and additional peer reviewer comments, indicate that although caribou have been known to use elevations below 5,000 ft (1,520 m), only habitats at 5,000 ft (1,520 m) in elevation and above are essential to caribou. The final critical habitat designation includes areas at 5,000 ft (1,520 m) and higher in elevation, based on the best available scientific information (see “
Criteria Used To Identify Critical Habitat”
).

(12)
Comment:
One peer reviewer suggested the proposed rule lacked a complete discussion on potential sources of disturbance to the southern Selkirk Mountains population of woodland caribou. The reviewer suggested that other forms of human-caused disturbance during nonwinter months, in addition to snowmobiling impacts during winter, may be an important consideration in the conservation of caribou. Specifically, the reviewer stated “* * * high elevation basins that include meadows and riparian areas are preferred habitat by woodland caribou. Such areas are often snow-free earlier in the season, provide good visibility, and include an abundance of arboreal lichen, grasses, and forbs. This makes them ideal habitat for caribou in general, and especially cows with calves. These areas also provide some of the most popular recreation destinations for backpacking, hiking and camping from July through October, with significantly increasing human use observed over the last two decades due to publicity from local advertisement and guide books.” The reviewer also noted that the Service's 2001 Amended Biological Opinion for the continued implementation of the Idaho Panhandle National Forests (IPNF) Land and Resource Management Plan (LRMP) stated that increasing pressure during both winter and summer was decreasing habitat effectiveness for caribou (USFWS 2001, p. 17). The reviewer noted that several scientific documents support this presumption: Allen (1998) and Warren (1990) made field observations of transplanted caribou; Dumont (1993) concluded that interactions between caribou and hikers on preferred summer range likely increased caribou susceptibility to predation by pushing caribou into areas of reduced visibility; and Wittmer (2005), Compton
et al.
(1995), and Wakkinen and Johnson (2000) noted caribou are most susceptible to mortality from predation during the summer months.

Our Response:
We appreciate the additional information provided to us by the peer reviewer. Although the intent of the proposed rule, as well as the final rule, is not to describe the threats to the southern Selkirk Mountains population of woodland caribou in a comprehensive manner, we have expanded our discussion to include other recreational forms of potential displacement and disturbance of caribou in the
Physical or Biological Feature
discussion within “Habitats That Are Protected From Disturbance or Are Representative of the Historical, Geographical, and Ecological Distributions of a Species” portion of this final critical habitat designation.

(13)
Comment:
One peer reviewer questioned the proposed rule's statement that the ongoing loss and fragmentation of contiguous old-growth forests and forest habitat on National Forest System (NFS) lands within the caribou recovery zone is a result of a combination of timber harvest, road development, and wildfires. The reviewer stated that, due to a variety of policy and management decisions (
e.g.,
grizzly bear management guidelines, woodland caribou management guidelines), timber harvest on NFS lands within the caribou recovery zone is virtually nonexistent, and many roads have been decommissioned. Therefore, fragmentation and loss of caribou habitat within the caribou recovery zone on NFS lands due to timber harvesting and road construction has been greatly reduced over historical conditions. The reviewer also commented that the proposed rule failed to adequately consider the role that natural wildfire plays within this ecosystem as an agent of change and resetting natural succession on the landscape, because language in the proposed rule advocates the development of management actions to minimize the potential for wildfire, and the implementation of rapid response measures when wildfire occurs. The reviewer noted that wildfire is a natural disturbance agent within this ecosystem, which facilitates the development and maintenance of habitat for other listed species (
e.g.,
grizzly bear and white bark pine (
Pinus albicaulis
)), and that historical and recent fire suppression management actions and policies have adversely affected these species. Additionally, the reviewer commented that landscape analyses of changes in vegetation over time demonstrate an increase and/or maintenance in the amount and distribution of large-size classes of subalpine fir and moist, mixed-conifer (cedar, hemlock, grand fir, and larch forest), indicating a pattern ecosystem recovery from the large 1880 to 1890 and 1910 to 1946 wildfires that impacted caribou habitat.

Our Response:
We acknowledge that implementation of southern Selkirk Mountains population of woodland caribou management standards and guidelines, grizzly bear access management standards and guidelines, as well as other management decisions, such as the 2008 Modified Idaho Roadless Rule and 2007 Northern Rockies Lynx Amendment, have reduced loss and fragmentation of old-growth forests on NFS lands within the area that was proposed for designation as critical habitat, over historical conditions. Implementation of these management decisions have and will continue to benefit caribou and caribou habitat. However, these management decisions do not prevent road construction or timber harvest (including old-growth forests) within the areas being designated as critical habitat under all circumstances. Thus, continued loss and fragmentation of caribou habitat (including old-growth forests) in an ecosystem that has been significantly altered from historical forest conditions continues to be a primary long-term threat to caribou. We agree that many acres of spruce/fir and cedar/hemlock forests that were set back to an early successional stage by large, historical, stand-replacement fires are in various stages of developing tree species and stand structure characteristics that are representative of late-successional spruce/fir and cedar hemlock forests through natural successional processes. Nonetheless, we acknowledge that natural wildfire plays an important role in maintaining a mosaic of forest successional stages that provides habitat for a variety of species endemic to this ecosystem, and that fire suppression can alter vegetative mosaics and species composition. Therefore, in this critical habitat designation we have incorporated language addressing the importance of developing and implementing a wildland fire use plan to allow for the nonsuppression of naturally ignited fires when appropriate, and the implementation of a prescribed fire program.

Comments From States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the State of Idaho regarding the proposal to designate critical habitat for the southern Selkirk Mountains population of woodland caribou are addressed below.

(14)
Comment:
The State of Idaho questioned the appropriateness of

designating critical habitat based on a lower elevation of 4,000 ft (1,219 m), stating that caribou seldom use areas as low as this elevation. The State of Idaho referred to studies that report mean elevation use for caribou in the south Selkirk Mountains to be approximately 5,500 ft (1,675 m).

Our Response:
We received numerous comments in addition to the State of Idaho regarding the science we used and synthesized to develop the proposed designation. We utilized all substantive input from these commenters in refining the designation (including the appropriate elevation boundary) of critical habitat for the southern Selkirk Mountains population of woodland caribou in this final rule. The elevations that were identified in the proposed rule have been revised in this final rule (see Primary Constituent Elements for the Southern Selkirk Mountains Population of Woodland Caribou, below). Literature and information we have since reviewed, such as Scott and Servheen 1984, 1985; MCTAC 2002; McKinley and Apps 2007; and Wakkinen and Slone 2010, as well as additional peer review comments, indicate that although caribou have been known to use elevations below 5,000 ft (1,520 m), only habitats at 5,000 ft (1,520 m) in elevation and above are essential to caribou. The final designation includes areas at 5,000 ft (1,520 m) and higher in elevation, based on the best available scientific information.

(15)
Comment:
The State of Idaho noted that forest practices such as partial cutting at higher elevations is common on Idaho managed lands, in reference to a statement in the proposed rule (76 FR 74025) that in the last decade, timber harvest has moved into high-elevation mature and old-growth habitat types due to more roads and more powerful machinery capable of traversing difficult terrains (Stevenson
et al.
2001, p. 10). The State commented that during the two previous decades, Idaho Department of Lands foresters have not noted trends toward more powerful machinery capable of traversing difficult terrain, and that State timber sale contracts generally impose size limits on equipment, thereby eliminating the most powerful tractors and skidders from operating on State timber sales. The State commented that a trend toward more mechanized felling and harvesting equipment is evident; however, ground capabilities have remained largely unchanged.

Our Response:
There are no State of Idaho lands being designated as critical habitat. We also acknowledge that, depending on the scale and timing of implementation, and equipment limitations, certain timber harvest treatments (partial cuts, thinning, etc.), may result in benign or perhaps beneficial effects to caribou habitat. However, as implemented historically, timber harvest practices (
e.g.,
large clear cuts) were not compatible with maintaining caribou habitat. To the extent these same types of timber harvests would be implemented today, such treatments would similarly be incompatible with the habitat requirements of caribou.

(16)
Comment:
The State and many other commenters have pointed out that recent annual surveys for the southern Selkirk Mountains population of woodland caribou have sighted zero to four caribou south of the United States-Canada border.

Our Response:
See our response to Comment 1, which discusses the issue of occupancy at the time of listing. As noted previously, the southern Selkirk Mountains population of woodland caribou is a transboundary population, which moves between B.C., Canada and the United States. Although most of this population is known to inhabit Canada, individual caribou freely move between Canada and the United States. We are designating approximately 30,010 ac (12,145 ha) in one unit containing Boundary County, Idaho, and Pend Oreille County, Washington, as critical habitat for the southern Selkirk Mountains population of woodland caribou. This designation represents a reduction of approximately 345,552 ac (139,840 ha) from the critical habitat originally proposed for designation (76 FR 74018, November 30, 2011); and reflects a 1,000-ft (about 300-m) change in elevation from 4,000 ft (1,220 m) in the proposed rule, to an elevation at or above 5,000 ft (1,520 m) in the final critical habitat designation. Factors that were considered and influenced this change from the proposed rule included: (1) A revised determination of the geographical area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing based on peer review comments, Scott and Servheen (1984, 1985), as well as census monitoring documenting low numbers of individual caribou observed in the United States during those annual surveys, and (2) information and literature reporting the overall decline of the subspecies mountain caribou (
Rangifer tarandus caribou
) across its range, and in particular the decline of woodland caribou populations in the southern extent of their range, including the southern Selkirk Mountains population of woodland caribou.

(17)
Comment:
The State of Idaho indicated that the Service failed to take into account the best available science, and instead took a broad-brushed approach that if implemented as written, would carry significant economic consequences and ultimately hinder recovery efforts for the southern Selkirk Mountains population of woodland caribou in the region. The Kootenai Tribe of Idaho expressed a similar concern. The Idaho Department of Fish and Game (IDFG) did not support the proposed critical habitat designation being based on recovery zone boundaries, stating that much of the recovery zone would not be suitable caribou habitat for a century or more due to large stand-replacing fires in the 1960s, and to some extent, timber harvest. The Idaho Department of Lands (IDL) recommended that the approach and the area proposed for critical habitat be reevaluated and reduced significantly using data relevant to Idaho and with input from IDL and other State agencies.

Our Response:
We have reviewed and evaluated all comments and information provided to the Service, including the State of Idaho's comments on the proposed rule and DEA. We have used that information to inform the final designation of critical habitat for the southern Selkirk Mountains population of woodland caribou. Although not all of the information received through public comment is specifically identified or reflected in our response to comments in this final rule, it is part of the administrative record for this rulemaking, and has been given appropriate weight in the final designation. In accordance with section 4(b)(2) of the Act, we used the best scientific data available to inform this critical habitat designation. We also complied with the criteria, established procedures, and guidance based on the Policy on Information Standards under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines.

In making this final designation of critical habitat for the southern Selkirk Mountains population of woodland caribou, we reviewed information from many different sources, including articles in peer-reviewed journals, scientific status surveys and studies, unpublished materials, and experts' opinions or personal knowledge, to inform the final critical habitat designation. We requested comments or information from other concerned governmental agencies, the scientific community, industry, and other

interested parties concerning the proposed rule. Also, in accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. All of the comments and information we received were fully considered in finalizing this critical habitat designation for the southern Selkirk Mountains population of woodland caribou. The Summary of Changes From Proposed Rule section identifies the revisions being made in this final designation, which include removing areas that were similar to the southern Selkirk Mountains woodland caribou recovery zone boundaries, after considering recommendations from the State of Idaho (including IDFG), the Kootenai Tribe of Idaho, and peer reviewers. All the supporting materials used for the final rule, including literature cited and comments from the public and peer reviewers, are available for public inspection at the Web site:
http://www.regulations.gov.

The State's comments with regard to economic impacts are addressed in the “Comments Related to the Economic Analysis” section below.

(18)
Comment:
The State of Idaho disagrees that the entire area proposed for critical habitat was occupied at the time of listing, when census data collected by the IDFG at the time of listing indicates that the southern Selkirk Mountains woodland caribou were utilizing habitat found in close proximity to the U.S. and Canadian border.

Our Response:
Our final designation of critical habitat for the southern Selkirk Mountains population of woodland caribou reflects our analysis of the best available scientific information, and peer review comments provided to us during public comment. See also our response to Comment 1 and the Summary of Changes from Proposed Rule section for a more robust discussion of occupancy at the time of listing and changes between the proposed and final critical habitat rules.

(19)
Comment:
The State of Idaho stated that critical habitat designation is not prudent at this time, because designation may lead to increased animosity towards the species and adequate protections are in place for the species and its habitat, including section 9 of the Act, which makes it unlawful for anyone to “take” southern Selkirk Mountains population of woodland caribou animals given its endangered status.

Our Response:
We recognize and appreciate the conservation efforts that have been implemented for the southern Selkirk Mountains population of woodland caribou, and look forward to continuing this important work with our partners. However, to the maximum extent prudent, the designation of critical habitat is required when a species is listed as endangered or threatened under section 4(a)(3)(A)(i) of the Act. Critical habitat designation is a regulatory action that defines specific areas that are essential to the conservation of the species in accordance with the statutory definition. We find the contiguous habitat proposed in this final rule provides the Primary Constituent Elements (PCEs) essential for the conservation of caribou (see Criteria Used to Identify Critical Habitat for more information), and therefore we conclude that designation is beneficial to this species. We have reviewed the best available information and have determined that the designation of critical habitat for the southern Selkirk Mountains population of woodland caribou would not be expected to increase the degree of threat by poaching, since increased education and awareness have made illegal poaching less of a threat than at the time of listing. Based on this information, we have determined that the designation of critical habitat is prudent. The fact that take prohibitions already exist under section 9 of the Act exist does not negate our requirement to designate critical habitat under section 4(a)(3) of the Act. Please refer to the Prudency Determination section in the proposed rule (76 FR 7401; November 30, 2011), for further information on our critical habitat prudency determination.

(20)
Comment:
The State of Idaho (IDFG) requested information on what additional, if any, management actions would be imposed in areas where critical habitat is designated, and how they would benefit the southern Selkirk Mountains population of woodland caribou.

Our Response:
We do not foresee or anticipate substantive changes in the existing management of the southern Selkirk Mountains population of woodland caribou or its habitat, because Federal agencies that manage land within the critical habitat area already take extensive measures to protect caribou in these areas. We anticipate that these actions are likely to continue, and will continue to be subject to section 7 consultation as appropriate, regardless of critical habitat designation. See our response to Comment 21 for an additional discussion on the relationship between critical habitat and land use.

(21)
Comment:
The State of Idaho Department of Parks and Recreation (IDPR) is concerned that critical habitat management restrictions will have an effect on recreational activities, particularly snowmobiling, and motorized vehicle restrictions on roads and trails. The State commented that the Selkirk Mountains provide the only open terrain for snowmobiling in north Idaho. The State provided statistics showing a continual decline in motorized recreation opportunities in the Idaho Panhandle National Forest (IPNF), primarily restrictions associated with the grizzly bear recovery zone. Numerous public comments were received identifying similar concerns as the State.

Our Response:
We have no information that would indicate that a possible outcome of a section 7 consultation with a Federal agency from designation of critical habitat would result in closures of public access, or result in restrictions to currently permissible activities such as recreation on Federal, State, county, or private lands. This is because designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Critical habitat designation also does not establish specific land management standards or prescriptions, although Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. The Service acknowledges that some seasonal limitations on motorized vehicle access to public lands have occurred to minimize disturbance to caribou, including a 1994 closure for a large area of the Selkirk Crest on the IPNF. This closure was put in place to protect caribou from impacts related to snowmobiling, in coordination with the IDFG. Additionally, we understand that a court-ordered injunction in 2006, which was modified in 2007, has restricted much of the area used by caribou within the Selkirk Crest from snowmobiling, until the IPNF develops a winter recreation strategy addressing the effects of snowmobiling upon the species. However, the critical habitat designation for the southern Selkirk Mountains population of woodland caribou has no bearing on either the 1994 closure or the 2006/2007 court-ordered injunction. The Service will work closely with the IPNF on the development of their winter recreation strategy, which will be subject to section 7 consultation with the Service.

Comments From Native American Tribes

(22)
Comment:
The Kalispel Tribe of Indians stated that the recovery of the southern Selkirk Mountains population of woodland caribou is of critical importance to the tribe. The tribe views this population as nearly extinct, and supports the development and execution of an ambitious plan in order to further recovery, including implementation of all tools available under the Act.

Our Response:
We appreciate the significant interest and active involvement of the Kalispel Tribe of Indians in the recovery of the southern Selkirk Mountains population of woodland caribou. The designation of critical habitat is one tool the Service uses to recover species, and we look forward to continued work with the tribe toward that objective.

(23)
Comment:
The Kalispel Tribe of Indians stated that through critical habitat designation or an update of the recovery plan, the following issues must be addressed: (1) A full habitat analysis of the 375,562-acre recovery area must be performed in order to develop an adequate management plan; (2) based on current and predicted use areas, an active predator control plan must be implemented; and (3) a winter use plan for the recovery area must be developed, adopted, and strictly enforced. The tribe also stated that while they understand the importance of both balancing predator-prey relationships and the desire for accessing remote areas for recreation, neither disturbance is acceptable until caribou populations rebound. They stated that once the above three conditions are met, the herd should be augmented with new animals from Canada to bolster the vitality of the existing herd.

Our Response:
We appreciate the tribe's comments on the proposed rule for the designation of critical habitat for the southern Selkirk Mountains population of woodland caribou. We have reevaluated the best available data and the information provided in the 1994 Recovery Plan for the Selkirk Mountain Woodland Caribou, in light of the results of population surveys that have been conducted since the time of listing under the Act. As a result, we are designating 30,011 ac (12,145 ha) at an elevation of 5,000 ft (1,520 m) and above, on Federal lands in Boundary County, Idaho, and Pend Oreille County, Washington, as critical habitat for the southern Selkirk Mountains population of woodland caribou in the United States. This area represents our best assessment of the area occupied by the species at the time of listing in 1983, and that provides the PBFs essential to the conservation of the species in the United States. This area, when combined with areas secured and protected for the conservation of the species in British Columbia, (see “Summary of Changes from Proposed Rule”) meets the recovery area requirements recommended in the 1994 recovery plan. The Service supports and agrees that effectively addressing the threats to the species, including predation and disturbance from recreational activities, will be essential to recover this species.

(24)
Comment:
In a letter to the Service on January 10, 2012, the Kootenai Tribe of Idaho stated that the proposed critical habitat area is in Kootenai Aboriginal Territory and holds special significance to the tribe. The Kootenai Tribe stated that they are pleased to be able to work with the Service on a government-to-government level in order to ensure protection and enhancement of the tribe's treaty resources, and look forward to consultation during and after the public comment period. The tribe urged the Service to consider community concerns about the proposed critical habitat designation and to extend the public comment period.

Our Response:
We appreciate knowing the proposed critical habitat area holds special significance to the Kootenai Tribe of Idaho. We coordinated with the Kootenai Tribe throughout the critical habitat designation process, and look forward to continuing this cooperative relationship beyond the confines of this rulemaking. As noted earlier, the Service extended the public comment on several occasions to ensure our determination was based on the best available information and had the benefit of input from stakeholders on all sides of the issue. We also held numerous public meetings and conducted two public hearings to increase communication and address concerns.

(25)
Comment:
In a letter to the Service on May 15, 2012, the Kootenai Tribe of Idaho stated that the proposed critical habitat rule “ignores the Federal government's commitments to consult meaningfully with the federally recognized tribes by attempting to limit such consultation to issues affecting Tribal lands.” The tribe stated that the Service failed to acknowledge its responsibilities to protect and enhance the Kootenai Tribe's Treaty-reserved rights to fish at usual and accustomed areas, and hunt and gather on open and unclaimed lands, and protect cultural resources and access to traditional cultural properties and spiritual sites.

Our Response:
The Service values its government-to-government relationship with the Kootenai Tribe of Idaho, and greatly appreciated the formal and informal exchange of information on the proposed critical habitat designation, on January 9, 2012, in Bonners Ferry, Idaho, and during a conference call on May 24, 2012, to clarify the concerns expressed in the tribe's letter. 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. This government-to-government relationship, as outlined in Secretarial Order 3206, dated June 5, 1997, establishes several important principles, including: (1) Working directly with tribes to promote healthy ecosystems; (2) recognizing that Indian lands are not subject to the same control as Federal public lands; (3) assisting tribes in developing and expanding tribal programs to promote healthy ecosystems; (4) supporting tribal measures that preclude the need for conservation restrictions; (5) being sensitive to Indian culture, religion, and spirituality; (6) exchanging information regarding tribal trust resources; and (7) striving to protect sensitive tribal information from disclosure.

(26)
Comment:
The Kootenai Tribe of Idaho questioned the prudency determination made by the Service because they believe the Service has not done the following: (1) Increased education and awareness regarding caribou among communities in north Idaho; (2) provided evidence that the threat of poaching may be reduced; or (3) addressed the second prudency criteria in order to demonstrate a benefit in designating critical habitat for the southern Selkirk Mountains population of woodland caribou. The Service also received questions regarding the prudency of the proposed critical habitat designation from the State of Idaho, private industry, and public commenters.

Our Response:
See also our response to the State of Idaho in Comments 1 and 19. There is no requirement under the Act to demonstrate an increase in public education and awareness with respect to a prudency determination. However, we welcome all opportunities to further

public education and awareness, since engaging local communities in a collaborative way is critical to recovering imperiled species. The 5-year status review for the southern Selkirk Mountains population of woodland caribou states that, historically, over-hunting contributed to the decline of some caribou populations. However, there is no legal hunting season on the southern Selkirk Mountains population of woodland caribou in British Columbia or the United States, although poaching by “mistaken identity” shootings may occur. Based on the best available information, we do not expect poaching to significantly affect the southern Selkirk Mountains population of woodland caribou (USFWS 2008a, p 23).

(27)
Comment:
The Kootenai Tribe of Idaho commented that the recovery planning effort must be restarted and include all appropriate Tribal representatives, including Kootenai Tribe of Idaho representatives. In so doing, the sovereign governments responsible for caribou recovery can better understand the limiting factors impeding woodland caribou recovery and develop approaches for addressing those limiting factors in a holistic and ecosystem-based manner. They stated that the recovery effort must be transparent, and that communities affected, Kootenai and non-Kootenai, are entitled to know why the government is taking these actions, how such actions lead to achievable goals, and what it means for their livelihoods and ways of life. Numerous commenters stated that efforts to recover caribou have not been successful and questioned the need to continue recovery efforts. Others recommended that the Service consider revising the recovery plan, including the need to create additional populations to achieve recovery of the species.

Our Response:
Although the status of the southern Selkirk Mountains population of woodland caribou recovery plan is beyond the scope of this rule, section 4(f)(4) of the Act states that the Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan, and shall consider all information presented during the public comment period. Any successful recovery planning effort will require input and participation by appropriate Federal, State, Tribal, local, and private stakeholders, to identify measures needed to conserve any species listed under the Act.

(28)
Comment:
The Kootenai Tribe of Idaho recommended that: (1) The analysis of the IPNF suitable habitat should focus on critical caribou habitat essential to the conservation of the species; (2) reducing constraints on forest management and over-the-snow recreation should be factors considered; and (3) reduced constraints on forest management would assist not only in increasing community support for caribou recovery, but also allow for forest management to improve caribou habitat in areas not currently occupied by caribou, but which may support caribou populations in the future.

Our Response:
We appreciate the Kootenai Tribe of Idaho's concerns and desire to achieve conservation and recovery of the southern Selkirk Mountains population of woodland caribou. With regard to recommendation (1), the proposed critical habitat rule was focused on caribou habitat essential to the conservation of the species, as required under section 3(5)(A) of the Act. With regard to recommendation (2), the designation of critical habitat does not establish specific land management standards or prescriptions, and does not automatically close areas to public access or currently permissible activities, such as recreation, or restrict all uses of land. However, as a result of critical habitat designation, Federal agencies are required under section 7(a)(2) of the Act to consult with the Service on Federal actions that may affect critical habitat. Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. During the consultation process, if we conclude that a proposed action is likely to result in the destruction or adverse modification of critical habitat, we are required to provide the Federal agency with a biological opinion describing reasonable and prudent alternatives to the action that would avoid the destruction or adverse modification of critical habitat. Such alternatives must be economically, as well as technologically, feasible (50 CFR 402.02).

However, regardless of critical habitat designation, Federal agencies already consult with the Service under section 7 of the Act because the southern Selkirk Mountains population of woodland caribou is a listed species under the Act. Federal agencies, such as the USFS, will continue to consult with us regardless of the designation of critical habitat, in order to ensure that their actions do not jeopardize the continued existence of caribou. In addition, Federal agencies that manage land within the proposed critical habitat already have ongoing management activities that consider the caribou, and various conservation efforts are in place to benefit the caribou. These plans have existed and will exist in the future with or without the designation of critical habitat, and the Service does not anticipate any additional “constraints” on management activities within National Forest lands. The Service acknowledges that some seasonal limitations on motorized vehicle access to public lands have occurred to minimize disturbance to caribou, including a 1994 closure for a large area of the Selkirk Crest in the IPNF. However, in the Service's analysis of the proposal, we stated that we do not foresee or anticipate that areas not currently closed due to the listing of caribou will be closed with the designation of critical habitat. This is because Federal agencies that manage land within the proposed critical habitat area already take extensive measures to protect the caribou within, and these actions have and will continue to be carried out and consulted on regardless of critical habitat designation. With regard to concern (3), the Service will work with Federal agencies through the section 7 consultation process, as well as other Federal, State, tribal, and private partners through the recovery planning process, to incorporate the best available science when developing appropriate management and recovery actions for caribou.

Comments From Environment Canada

(29)
Comment:
Environment Canada's Canadian Wildlife Service provided comments in support of the proposed critical habitat designation and advised us that they recently initiated the preparation of a draft recovery strategy for Woodland Caribou, Southern Mountain population. The draft recovery strategy covers many populations, including the transboundary southern Selkirk Mountains population of woodland caribou. The Canadian Wildlife Service stated that they recognize the detailed implementation planning and actions initiated by government agencies including the Service and that this information, along with additional information, will be considered in preparation of the Canadian recovery strategy. The Canadian Wildlife Service welcomes any contribution to the recovery strategy that the Service wishes to make.

Our Response:
We appreciate the support provided by the Canadian Wildlife Service during this critical habitat designation process and during past caribou transplant and augmentation efforts. We also acknowledge the recent and ongoing

conservation actions undertaken by Canada, such as protecting Crown Lands from timber harvest within the Selkirk Mountains. We look forward to participating in the development of the draft recovery strategy as it pertains to the southern Selkirk Mountains population of woodland caribou.

Public Comments

(30)
Comment:
Several commenters requested that the Service hold public meetings within the communities affected by the proposed critical habitat designation and notify the media of these meetings. One commenter suggested that a public hearing be held in Bonners Ferry, ID. One organization suggested the Service should have held public meetings in additional locations close to the Selkirk Mountains, such as Sandpoint, ID, and Spokane, WA. One commenter requested that we engage with the Kootenai Tribe of Idaho and any other tribal/indigenous groups in the area affected by the proposed critical habitat designation.

Our Response:
During the rulemaking process, the Service conducted numerous outreach efforts to be responsive to public requests for additional information, including the following:

• January 9, 2012: We met with the Kootenai Tribe of Idaho.

• May 24, 2012: We held a follow-up conference call with members of the tribe to discuss the proposed critical habitat rule.

• January 9, 2012: We presented information on the proposed critical habitat designation at a meeting of the Kootenai Valley Resource Initiative (KVRI) in Bonners Ferry, Boundary County, Idaho.

• January 24, 2012; February 28, 2012; March 26, 2012; June 24, 2012: We participated in public information and coordination meetings in Bonner County, Idaho, at the request of Bonner County Commissioners.

• April 19, 2012: We participated in a public information and coordination meeting in Boundary County, Idaho, at the request of Boundary County Commissioners.

• April 28, 2012: We held an informational session (an open house format for personal dialogue and question-and-answer period about the proposed rule) and a public hearing on April 28, 2012, in Bonners Ferry, Idaho, at the request of the Governor of Idaho and the Commissioners of Boundary County, Idaho. The public informational session and public hearing were announced in a press release and in the notice of availability published in the
Federal Register
on March 21, 2012 (77 FR 16512).

• June 16, 2012: We held an informational session and a public hearing in Coolin, Idaho, which was announced in a press release and in the notice of availability published in the
Federal Register
on May 31, 2012 (77 FR 32075).

The Service also notified the public about opportunities for input on the proposed rule through press releases and legal announcements in local newspapers. Information specific to informational sessions and public hearings in Boundary and Bonner Counties was published in the
Federal Register
and the following newspapers within 10 days of the meetings and public hearings: Newport Miner (WA); Spokesman Review (WA); Coeur d'Alene Press (ID); Idaho Statesman (ID); Lewiston Morning Tribune (ID); Bonner County Daily Bee (ID); Bonners Ferry Herald (ID); and Priest River Times (ID). Comment periods, instructions for comment submission, and proposed rule information occurred through press release notifications that reached Idaho and Washington media, citizens, elected officials, tribes, nongovernmental organizations, special interest groups, industry and business, academic institutions, Federal/State/local agencies and other interested parties. All formal public comment was recorded by a court reporter and is incorporated into the public record.

(31)
Comment:
Over the course of the rulemaking process and the three public comment periods, one commenter wrote to request that the public comment period be extended for an additional 6 months. One commenter requested an extension of the public comment period in order to allow time for the Service to educate the community on the proposed critical habitat rule and to allow Federal and State agencies and tribes time to review the proposed critical habitat rule.

Our Response:
We requested written comments from the public on the proposed designation of critical habitat for the southern Selkirk Mountains population of woodland caribou during three comment periods, which were open for a total of 150 days. The first 60-day comment period, associated with the publication of the proposed critical habitat rule (76 FR 74018), opened on November 30, 2011, and closed on January 30, 2012. We reopened the comment period for 60 days on March 12, 2012 (77 FR 16512). During the second comment period, we held a public hearing in Bonners Ferry, Idaho, on April 28, 2012.

We also requested comments on the proposed critical habitat designation and associated DEA during a third comment period that opened May 31, 2012, and closed on July 2, 2012 (77 FR 32075). During this comment period, we also held a public hearing on June 16, 2012, in Coolin, Idaho. We believe we have provided adequate time for the public to comment on the proposed rule and associated DEA, to ensure our final determination is based on the best available information.

(32)
Comment:
Several commenters suggested that the public, State governments, and local communities be consulted early in the rulemaking process, as they are key stakeholders in the process. One commenter noted that it is important for proposed critical habitat rules to have public support in order to build trust between the Federal Government and the public. Another commenter expressed concern that the Service had not coordinated with, nor shared the proposed critical habitat rule with, the State of Idaho and Department of Fish and Game prior to publication in the
Federal Register
.

Our Response:
The Service is committed to meaningful coordination with all of our partners when it comes to our activities. We also take seriously our responsibility to coordinate with other local, State, and tribal governments and the general public. In regard to this commitment, the Service follows specific policies and procedures to inform the public and all governmental entities when we are considering actions such as listing endangered or threatened species, designating critical habitat, or developing recovery plans. These procedures frequently include opportunities for open meetings or hearings beyond the general notices and letters we send out. While developing the proposed rule, the Service reached out to several Federal and State agency experts and scientists to obtain the most current and best available information for inclusion in the proposed rule. Where agencies were able to respond to these efforts in a timely manner, the information was evaluated, and relevant information was included in the proposed rule.

(33)
Comment:
Commenters stated that the southern Selkirk Mountains population of woodland caribou represents a very small percentage of the overall North American caribou population, that caribou are at home on open tundra in Canada, Alaska, and Greenland (not in Idaho), and questioned the need for the proposed critical habitat in Idaho. Commenters also stated that tens of thousands of

caribou roam Canada and Alaska, which represent the caribou's preferred habitat. One commenter requested clarification regarding the difference between the southern Selkirk Mountains population of woodland caribou and the caribou of the Brooks Range in Alaska.

Our Response:
All caribou in the world are a single species (
Rangifer tarandus
); however, there are seven subspecies of caribou. The subspecies found in Alaska, including within the Brooks Mountain range, is the barren-ground subspecies (
Rangifer tarandus granti
), which resides in open tundra and mountainous areas. The southern Selkirk Mountains population of woodland caribou belongs to the subspecies
Rangifer tarandus caribou.
For additional information on woodland caribou, please see the Background section of the 2008 5-Year Review, and for additional information on the southern Selkirk Mountains population of woodland caribou, please see the Background section of the proposed rule published November 30, 2011 (76 FR 74018). Both of these references are available on
http://www.regulations.gov,
or by request from the Idaho Fish and Wildlife Office (see
ADDRESSES
).

(34)
Comment:
Bonner County, Idaho, questioned the need for designating critical habitat for the southern Selkirk Mountains population of woodland caribou, which they believe is “a direct result of the 1984 listing rule which has been shown to be incorrect.” The County recommended that if the Service does move forward with a critical habitat rule, the designation should be reevaluated and reduced significantly, using data relevant to north Idaho, in consultation and coordination with the IDL, IDFG, and Bonner County Commissioners.

Our Response:
The meaning behind the County's reference to the 1984 listing rule being incorrect is not entirely clear; however, the designation of critical habitat is required when a species is listed as endangered or threatened under section 4(a)(3)(A)(i) of the Act, to the maximum extent it is prudent and determinable. See our response to comment 19 for additional information regarding our prudency determination. This final critical habitat designation fully considers all comments received, which includes scientific information from peer reviewers and the IDFG. Revisions from the proposed critical habitat designation are described in the Summary of Changes from Proposed Rule section.

(35)
Comment:
The Boundary County Commissioners commented that the proposed critical habitat did not contain the PBFs essential to the conservation of the southern Selkirk Mountains population of woodland caribou. The Commissioners also commented that the Service should focus its critical habitat designation on the area of Little Snowy Top Mountain, where all sightings of nontransplanted southern Selkirk Mountains woodland caribou have occurred.

Our Response:
The Service based our final designation of critical habitat for the southern Selkirk Mountains population of woodland caribou on the best available scientific information, including comments and information received from peer reviewers, Federal and State agencies, the Kootenai Tribe of Idaho, and public comments received during the three public comment periods. Based on this information, we are designating 30,010 ac (12,145 ha) of critical habitat for the southern Selkirk Mountains population of woodland caribou in the United States that was known to be occupied at the time of listing in 1983 and 1984. All of the areas designated in this final rule contain the PBFs and habitat characteristics essential to conserve the species, for the reasons explained in the “
Physical or Biological Features
” section below.

(36)
Comment:
Bonner County, Idaho stated that “the proposed listing also raises significant concerns about possible Federal nexus situations whereby the County will likely be prohibited from winter snowmobile trail grooming. At present, Bonner County must obtain permission from both the USFS and IDL. Federal nexus situations may also include future requirements to obtain permits for other as yet unknown nexus situations created by further Federal mandates.” The County also believes “the proposed listing would significantly impact Bonner County's ability to manage over 400 miles of groomed snowmobile trails used by visitors and residents alike.”

Our Response:
Although the County's comment appears to be focused on the “proposed listing,” we are assuming they were referring to the proposed critical habitat designation instead. However, there are no Bonner County lands being designated as critical habitat for the southern Selkirk Mountains population of woodland caribou in this final rule.

(37)
Comment:
We received extensive public comments suggesting that designation of critical habitat will result in either a complete closure of the designated area or extensive restrictions to human access within the designated area for recreational purposes (including, but not limited to, snowmobiling, hiking, picnicking, and camping). We received many comment letters both in support of and in opposition to the critical habitat designation based on the assumption that this designation will require land closures and access restrictions. Many supporters noted that there are many opportunities to recreate outside of southern Selkirk Mountains population of woodland caribou habitat, with particular emphasis on snowmobiles. Of the commenters in opposition, some expressed concern that restrictions and closures would have a significant impact on the economy. Other commenters expressed opposition to the proposal because they believe there are few, if any, caribou in the United States, and implementing closures or restrictions on uses is not justified. Finally, a few commenters stated that snowmobiles do not present a real threat to caribou, and therefore areas proposed for designation of critical habitat should not be closed, or have restrictions placed on access.

Our Response:
We have no information that would indicate this designation of critical habitat will result in the closure of areas to public access or result in restrictions to currently permissible activities such as recreation on Federal, State, county, or private lands, as is more fully discussed in our response to comment 21. There is also no information that would indicate the designation would result in significant economic impacts, as is discussed in the
Comments Related to Economics and the Draft Economic Analysis
section.

(38)
Comment:
Several commenters objected to the southern Selkirk Mountains population of woodland caribou herd being identified as approximately 36 animals in the proposed rule, stating that few animals have been documented in the United States in recent years. One commenter expressed confusion between the population number provided by the Service (36 animals), and population numbers provided in various media outlets (40 to 60 animals). Several commenters stated they spent considerable time in the areas proposed as critical habitat and have never seen a caribou. One commenter stated that since the Service did not present recent population numbers of the southern Selkirk Mountains population of woodland caribou in the United States in the proposed critical habitat rule, there is no scientific support for a designation of critical habitat.

Our Response:
The southern Selkirk Mountains population of woodland caribou is a transboundary population, which moves between British Columbia, Canada and the United States. Although most of this population is known to

inhabit Canada, individual caribou freely move between Canada and the United States. For example, in the last 3 years, the winter census results for southern Selkirk Mountains population of woodland caribou have gone from 43 total caribou with 2 individuals observed in the United States in 2010, to 36 total caribou with none observed in the United States in 2011. Twenty seven caribou were counted in the 2012 winter survey, with 4 of those individuals observed in the United States (Woodland Caribou Census Report 2012, p. 5).

(39)
Comment:
Some commenters opposed critical habitat designation for the southern Selkirk Mountains population of woodland caribou, as they believe the population is not viable. Other commenters suggested that the viability of this population is fragile and that, as a result, the entire proposed area should be designated as critical habitat.

Our Response:
The purpose of the Act, in part, is to provide a means to conserve listed species and the ecosystems upon which they depend. Once a species is listed under the Act, we are required to implement conservation actions toward its recovery. The designation of critical habitat is a statutory conservation requirement under the Act, unless designation would not be beneficial to the species. For the southern Selkirk Mountains population of woodland caribou, we have determined that the designation of critical habitat would be beneficial, as has been previously discussed. We have determined that much of the area proposed as critical habitat is not occupied or essential to the conservation of the southern Selkirk Mountains population of woodland caribou. This is more fully discussed in the Summary of Changes From Proposed Rule section.

(40)
Comment:
Several commenters opposed critical habitat designation for the southern Selkirk Mountains population of caribou, as the individuals of this herd in the United States are transplanted individuals, and not native U.S. caribou. Additional comments stated that the transplanted animals did not want to remain in the United States and migrated back to Canada. One commenter indicated the Service should not use telemetry data from transplanted caribou in determining the caribou recovery areas, as these animals did not represent true members of the southern Selkirk Mountains population of woodland caribou.

Our Response:
Under section 3(5)(A) of the Act, a critical habitat designation may include the geographical areas occupied by the species at the time of listing on which are found the physical and biological features essential to the conservation of the species and which may require special management considerations or protection, as well as areas outside the geographical area occupied by the species at the time of listing that are determined to be essential for the conservation of the species. This final critical habitat designation: (1) Is based on the best available scientific information (see our response to Comment 1); (2) is within the geographical area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing; (3) identifies those areas that are essential to the conservation of the species; and (4) will advance important conservation efforts with our partners toward recovering this species.

(41)
Comment:
One commenter recommended that the Service not exclude any areas from critical habitat in the final rule. One organization noted that it accepted the Service's decision not to include the Schweitzer Mountain Resort along the southern boundary on social grounds, given the difficulty of managing there.

Our Response:
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. The Service did not propose to exclude any areas in the proposed rule, and the Secretary is not exercising his discretion to exclude any areas from critical habitat in the final rule. The Schweitzer Mountain Resort was not proposed for designation as critical habitat (which is not the same as excluding from designation under section 4(b)(2) provisions of the Act), because it is a highly developed recreational destination and does not contain any of the identified PBFs essential to supporting the conservation of this species.

(42)
Comment:
One commenter urged the Service to exclude any areas from critical habitat below 4,000 ft (1,219 m) in elevation due to economic impacts. The commenter also stated, “an exclusion of this nature would provide clear guidance to Federal agencies when road access agreements are being considered below 4,000 ft (1,219 m) in elevation and when accessing private lands that do not contain critical habitat at higher elevations.”

Our Response:
No areas were excluded from critical habitat based on economic impacts; however, the final designation includes areas at 5,000 ft (1,520 m) and higher in elevation. The 5,000 ft (1,520 m) elevation will be the elevation baseline considered by the Federal agencies for purposes of section 7 consultation when evaluating road access agreements. Maps identifying the specific location of these areas are available on the Idaho Fish and Wildlife Service Web page,
http://www.fws.gov/idaho,
or from that office (see
ADDRESSES
).

(43)
Comment:
Many comments suggested that the Service should increase the proposed designated critical habitat to include: (1) The entire recovery area identified in the 1994 Recovery Plan (443,000 ac) (179,276 ha); (2) areas currently unoccupied, as they may become more important as the southern Selkirk Mountains population of woodland caribou recovers; (3) large areas required to maintain connectivity between essential habitats, especially in light of the impacts of climate change; or (4) areas of historical occupation, such as additional areas in Washington and Idaho, as well as in Montana. Some commenters indicated concern that the critical habitat area as proposed would not support a fully recovered population of southern Selkirk Mountains woodland caribou. One commenter urged the Service to consider including the Priority Areas 1, 2, and 3 as outlined in Kinley and Apps (2007) in the critical habitat designation.

Our Response:
See Section “
Criteria Used To Identify Critical Habitat
” below for a discussion of our rationale for constructing the critical habitat unit, including the biological needs of the species, seasonal habitat requirements, and the relationship of the essential PBFs and primary constituent elements to the conservation needs of the southern Selkirk Mountains population of woodland caribou. The Service used the best available scientific information on the southern Selkirk Mountains population of woodland caribou seasonal use of habitat and movement between habitats to quantify the areas we are designating as critical habitat, including the Priority 1, 2, and 3 areas identified in the Kinley and Apps (2007) model. If additional data become available in the future, the Secretary can revise the designation under the

authority of section 4(a)(3)(A)(ii) of the Act, as appropriate.

(44)
Comment:
Many comments suggested that the proposed critical habitat designation was too large, and that either specific areas should be removed from the final designation, or the Service should not designate any critical habitat for the southern Selkirk Mountains population of woodland caribou because: (1) Fires have eliminated old-growth forests in the historical range of the caribou in the United States, and no suitable habitat exists; (2) the proposed critical habitat areas do not contain the physical or biological features necessary for the survival of the southern Selkirk Mountains population of woodland caribou; or (3) recent studies indicate the majority of the range and movements of the southern Selkirk Mountains population of woodland caribou occurs at or above 5,500 ft (1,676 m).

Our Response:
We have used the best scientific data available to inform our final determination of critical habitat for the southern Selkirk Mountains population of woodland caribou, as is required under section 4(b)(2) of the Act. All areas designated as critical habitat contain one or more of the PCEs essential to the conservation of the species. See our response to comment 43 for additional information.

(45)
Comment:
Several commenters indicated that the United States comprises only the southernmost portion of the range of the southern Selkirk Mountains population of woodland caribou, and this habitat is unsuitable to support the caribou population. Therefore, they believe critical habitat should not be designated in the United States. One commenter stated that protecting species that have their full range within the United States should be the focus of the Service's efforts.

Our Response:
The critical habitat being designated in this final rule represents the geographical areas essential to the conservation of the southern Selkirk Mountains population of woodland caribou, within the area known to be occupied at the time of listing. The biological basis for this determination is more fully explained in the Critical Habitat section, below.

(46)
Comment:
One commenter indicated that the Service cannot rely on a map showing individual caribou observations, as a map showing observed locations is not relevant when individual animal tracking is not utilized (one animal can create many or most of the location marks over a period of many years). Another commenter stated that data points used to identify caribou locations should only be from the native southern Selkirk Mountains population of woodland caribou, not transplanted animals.

Our Response:
We used the best available information, including reports, peer-reviewed literature, and other data, to make our final determination on the area to be designated for critical habitat for the southern Selkirk Mountains population of woodland caribou. We have provided a thorough description of our analysis in the
Criteria Used to Identify Critical Habitat
section in the final rule. Telemetry data from transplanted animals was not used as a basis for establishing the geographical area occupied at the time of listing in the final rule. See our response to Comment 1 for additional information regarding occupancy data used to establish the geographic area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing.

(47)
Comment:
Several commenters noted that the draft land management plan for the IPNF proposes area designations, such as wilderness, primitive, and backcountry, which have allowable activities within these designations that are likely not compatible with caribou recovery and caribou critical habitat goals. For example, backcountry and primitive designations may allow motorized winter recreation. The potential increase in wilderness designation within the draft land management plans may have an impact on the potential losses of critical habitat due to wildfire. Suppression of wildfires within wilderness is generally a low priority nationally. Potential wilderness designations within caribou recovery and critical habitat should include measures for aggressive fire suppression to prevent losses of caribou habitat within wilderness.

Our Response:
The approval and implementation of land management plans on National Forest Service lands are Federal actions subject to section 7 consultation under the Act by the land management agency. The Service is not a land management agency in any of the areas being designated as critical habitat. The Act prohibits Federal agencies from carrying out actions that would destroy or adversely modify critical habitat. With regard to the above activities, it is the responsibility of the Federal land management agency to consider the effects of its actions on designated critical habitat. For purposes of critical habitat, section 7 consultation is only triggered when the Federal agency determines that its action may affect critical habitat. Actions that (1) may affect, but are not likely to adversely affect, or (2) result in wholly beneficial effects to critical habitat, are evaluated through informal consultation with the Service. It is the responsibility of Federal agencies to request formal section 7 consultation for actions that may affect, and are likely to adversely affect critical habitat. During the consultation process, if we conclude that a proposed action is likely to result in the destruction or adverse modification of critical habitat, we are required to provide the Federal agency with a biological opinion describing reasonable and prudent alternatives to the action that would avoid the destruction or adverse modification of critical habitat. Such alternatives must be economically, as well as technologically, feasible (50 CFR 402.02). See the Effects of Critical Habitat Designation section for additional information on section 7 requirements as they relate to this final designation of critical habitat for the southern Selkirk Mountains population of woodland caribou.

(48)
Comment:
Several commenters indicated that the designation of critical habitat would prevent certain land uses and land use management, specifically timber harvesting and wildfire suppression. One commenter expressed concern that curtailing timber management within the critical habitat area would result in greater fuel loads and increased risk of catastrophic fires, which in turn could threaten the southern Selkirk Mountains population of woodland caribou. The commenter stated that there are silvicultural practices that could benefit the caribou and its habitat over the long term.

Our Response:
Please refer to our response to comment 13 regarding fire and timber management. We acknowledge that natural wildfire plays an important role in maintaining a mosaic of forest successional stages that provides habitat for a variety of species endemic to this ecosystem, and that fire suppression can alter vegetative mosaics and species composition. Therefore, in this final rule we have incorporated language addressing the importance of developing and implementing a wildland fire use plan to allow for the appropriate non-suppression of naturally ignited fires, and the implementation of a prescribed fire program.

(49)
Comment:
At least one commenter alleged, “Federal land and resource agencies routinely act without prior consultation with the U.S. Border Patrol (USBP), and without regard to National Security implications.”

Our Response:
We disagree with the comment with respect to the Service. As we developed this final rule, we coordinated with the USBP through formal and informal notices, stakeholder calls, public meetings, presentations at Spokane Sector Border Management Task Force meetings, and interagency meetings. The purposes of this interaction were to share and clarify information regarding the proposed rule and to seek feedback on any concerns. Although we did not receive any written comments from the USBP in response to the proposed rule, we have fully considered all information provided by the agency during our various interactions in this final rule. See our response to comment 51 with regard to USBP activities for additional information.

(50)
Comment:
A few commenters were concerned that critical habitat designation for the southern Selkirk Mountains population of woodland caribou would affect USBP operations.

Our Response:
Throughout the critical habitat designation process, there was an erroneous public perception that designating critical habitat equated to a closure of the designated area. The Service does not manage any of the lands being designated as critical habitat. Further, the designation of critical habitat does not affect land ownership, or establish any closures, refuges, wilderness areas, reserves, preserves, or restrictions on use or access to the designated areas. The designation of critical habitat for the southern Selkirk Mountains population of woodland caribou would not restrict, regulate, or determine the ability of the USBP to operate in close proximity to the border. Within caribou habitat, the USBP operates, for the most part, on National Forest System lands and its existing roads and trails. The March 31, 2006, Memorandum of Understanding (MOU) between the Secretary of the Interior, Secretary of Homeland Security, and Secretary of Agriculture Regarding Cooperative National Security and Counterterrorism Efforts on Federal Lands Along the U.S. Borders commits the agencies to preventing illegal entry into the United States, protecting Federal lands and natural and cultural resources, and where possible, preventing adverse impacts associated with illegal entry by cross-border-violators (CBVs). The intent of the MOU is to provide consistent goals, principles, and guidance related to border security, such as law enforcement operations; tactical infrastructure installation; utilization of roads; minimization and/or prevention of significant impact on or impairment of natural and cultural resources; implementation of the Wilderness Act, Endangered Species Act, and other related environmental laws, regulation, and policies across land management agencies; and provide for coordination and sharing information on threat assessments and other risks, plans for infrastructure and technology improvements on Federal lands, and operational and law enforcement staffing changes. Through this 2006 MOU, and local groups such as the Spokane Sector Borderlands Management Task Force, the three departments are cooperating to understand, respect, and accomplish their respective missions. The MOU includes provisions for Customs and Border Protection (CBP) vehicle motor operations on existing public and administrative roads and/or trails and in areas previously designated by the land management agency for off-road vehicle use at any time, provided that such use is consistent with presently authorized public or administrative use. It also includes provisions for CBP requests for access to additional Federal lands (
e.g.,
areas not previously designated by the land management agency for off-road use) for such purposes as routine patrols, nonemergency operational access, and establishment of temporary camps or other operational activities. The MOU states: “Nothing in this MOU is intended to prevent CBP-BP agents from exercising existing exigent/emergency authorities to access lands, including authority to conduct motorized off-road pursuit of suspected CBVs at any time, including in areas designated or recommended as wilderness, or in wilderness study areas when, in their professional judgment based on articulated facts, there is a specific exigency/emergency involving human life, health, safety of persons within the area, or posing a threat to national security, and they conclude that such motorized off-road pursuit is reasonably expected to result in the apprehension of the suspected CBVs.” Accordingly, there is no verifiable information that would suggest the designation of critical habitat for the southern Selkirk Mountains population of woodland caribou would affect CBP operations.

(51)
Comment:
A commenter stated that the Service does not understand that a Federal nexus exists on virtually every timber harvest on all land ownerships, be they Federal, State, or private. They believe that there are many places where the Federal Government has rules and regulations affecting timber harvest on all forested lands, and that any timber sale could be stopped within the area designated as critical habitat.

Our Response:
In the 29 years since the southern Selkirk Mountains population of woodland caribou was emergency listed in 1983 (48 FR 1722), the States of Washington and Idaho have not been required to consult with the Service, as there has not been an activity with a Federal nexus (
e.g.,
a Federal permit such as a Corp of Engineers (COE) 404 permit, or the use of Federal funds). However, even if there was a Federal nexus, the timber harvest would not necessarily be prohibited. Federal action agencies must evaluate the potential effects of each action on its own merits, carrying out actions that would destroy or adversely modify critical habitat. A Federal action (
e.g.,
winter recreation, energy transmission, mining, or road construction) that is not likely to cause destruction or adverse modification of caribou habitat may not be materially affected by a critical habitat designation. If a Federal action would result in destruction or adverse modification of caribou habitat, the Service would suggest reasonable and prudent alternatives to avoid the destruction or adverse modification of critical habitat. As stated earlier, during the section 7 consultation process, if we conclude that a proposed action is likely to result in the destruction or adverse modification of critical habitat, we are required to provide the Federal agency with a biological opinion describing reasonable and prudent alternatives to the action that would avoid the destruction or adverse modification of critical habitat. Such alternatives must be economically, as well as technologically, feasible (50 CFR 402.02).

(52)
Comment:
A commenter stated the proposed rule fails to include a discussion of the types of “special management considerations or protections” potentially needed that differ from current and recent uses. Therefore, the threats to habitat cannot be adequately addressed in the context of section 7 consultation or other measures. This is a reason for a more inclusive extent of critical habitat than what is proposed.

Our Response:
The proposed rule identifies the types of Federal actions that may affect critical habitat, and should result in section 7 consultation (see
Application of the “Adverse Modification”
Standard), (76 FR 74030; November 30, 2011). For these types of actions, any management actions necessary for a particular Federal action would be case-specific and depend on

the outcome of the section 7 consultation process. Within the area designated as critical habitat for the southern Selkirk Mountains population of woodland caribou, the Service's 1994 Recovery Plan, and the CNF and IPNF LRMPs contain standards and guidelines pertaining to the management of the species and its habitat. See the Special
Management Considerations or Protections
section below for additional information.

(53)
Comment:
Several commenters fear that, given the critical habitat designation is in response to a court-ordered settlement agreement in a case initiated by environmental organizations, the true intent of these environmental organizations is to close more public lands to access, and the designation of critical habitat is one way of accomplishing this.

Our Response:
The Service has no control over the future actions of environmental groups, recreational organizations, development or timber interests, governmental organizations, or others, with regard to their future responses to the final critical habitat designation. As stated earlier, throughout the cri

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-28512. Public record. Not legal advice.