Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Remove the Mexican Spotted Owl From the List of Endangered and Threatened Wildlife

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 90-Day Finding on

a Petition To Remove the Mexican Spotted Owl From the List of

Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service) announces a 90-

day finding for a petition to remove the Mexican spotted owl (Strix

occidentalis lucida) from the List of Endangered and Threatened

Wildlife. The Service has determined that the petition did not present

substantial scientific or commercial information indicating that

delisting the Mexican spotted owl may be warranted.

DATES: The finding announced in this notice was made on March 25, 1994.

ADDRESSES: Information, comments, or questions concerning the

petitioned action may be submitted to the Listing Coordinator,

Southwest Region, U.S. Fish and Wildlife Service, P.O. Box 1306,

Albuquerque, New Mexico 87103; or the Field Supervisor, Suite D, 3530

Pan American Highway NE, Albuquerque, New Mexico 87107. The petition,

finding, supporting data, and comments will be available for public

inspection, by appointment, during normal business hours at the latter

address.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Listing Coordinator, at

the above Regional Office address (505/766-3972).

SUPPLEMENTARY INFORMATION:

Background

On December 22, 1989, the Service received a petition (listing

petition) to list the Mexican spotted owl (Strix occidentalis lucida)

(MSO) under the Endangered Species Act of 1973, as amended (16 U.S.C.

1531 et seq.) (Act). The Service published a proposed rule to list the

subspecies as threatened on November 4, 1991 (56 FR 56344) (proposed

rule). The MSO was listed as a threatened species effective April 15,

1993 (58 FR 14248) (final rule). The primary reasons cited for

conferring threatened status on the subspecies included the present or

threatened destruction, modification, or curtailment of its habitat or

range and the inadequacy of existing regulatory mechanisms. Secondary

factors included the potential for catastrophic wildfire and potential

competition and/or predation by other raptors, including the great

horned owl (Bubo virginianus) and red-tailed hawk (Buteo jamaicensis).

On August 16, 1993, the Service received a petition (delisting

petition) from the Coalition of Arizona/New Mexico Counties for Stable

Economic Growth (delisting petitioners) to remove the MSO from the List

of Endangered and Threatened Wildlife (delist). Section 4(b)(3)(A) of

the Act requires that the Service make a finding on whether a petition

to list, delist, or reclassify a species presents substantial

scientific or commercial information indicating that the petitioned

action may be warranted. To the maximum extent practicable, this

finding is to be made within 90 days of receipt of the petition, and

the finding is to be published promptly in the Federal Register.

This finding is based on various documents, including the final

rule, the delisting petition, and published and unpublished reports.

All of these documents are on file in the Service's Southwest Regional

Office and/or the New Mexico Ecological Services Field Office (see

ADDRESSES section).

The delisting petitioners presented 21 issues that they believed

supported delisting the MSO; those issues, as presented in the

petition, are addressed below. (The issues were numbered 1-20 in the

delisting petition, but two issues received number 9. Those issues are

addressed as 9a and 9b below.)

Issue 1: The listing of the MSO has created ``de facto'' critical

habitat throughout much of a five-state region.

Response: ``Critical habitat'' consists of areas legally described

and designated through a formal rulemaking process. The Service has not

yet designated critical habitat for the MSO. The Service's listing and

recovery actions, including section 7 consultation, have in no way

implied the existence of MSO critical habitat.

Issue 2: The Service believes that MSOs are exclusively associated

with old-growth.

Response: The Service has acknowledged that the owl uses a variety

of habitat types, including old growth, but also second growth that

provides complex habitat characteristics such as multiple canopy

layers, moderate to high canopy closure, large trees, and abundant dead

and downed woody material.

Issue 3: No information in the administrative record for the

listing of the MSO supports the theory that logging, increased

predation, or lack of adequate regulation threatens the owl. In fact,

the overly restrictive nature of MSO management precludes management of

forests to reduce fuel loads and maintain healthy ecosystems.

Response: There have been extensive surveys of capable habitat

(i.e., habitat thought to be formerly suitable but, due to natural or

anthropogenic causes, no longer considered suitable) adjacent to

habitat identified as suitable. When owls are located at nest or roost

sites, it is almost always in suitable habitat. There are records of

owls foraging in recently harvested areas when these areas occur near

suitable habitat. There have also been instances where owls have

disappeared from areas following timber harvest (Larry Henson, Region 3

Forest Service, in litt. 1993). The Service believes that there is

adequate evidence that even-age management produces conditions that

will not support owls over the long term.

The Service has not maintained that owls cannot survive in forests

that have experienced timber harvest. Much of the forest land in New

Mexico and Arizona was extensively railroad-logged in the first decades

of the twentieth century. Some of these areas, particularly in Lincoln

National Forest, now support owls. Many railroad-logged areas in the

Gila, Cibola, Santa Fe, Coconino, and Kaibab national forests, however,

still do not support MSOs. It appears that in areas where productivity

is high, suitable conditions can be restored in less than 100 years,

even when the treatments were severe. Other areas, which have been

selectively logged, have probably been continuously occupied by owls.

The Service accepts that some harvest in second growth may hasten the

return of suitable habitat conditions. The Service does not know the

extent to which currently occupied habitat can be altered without

adverse effects on the owl. The practice of even-age management called

for in Region 3 Forest Management Plans has resulted in owls

disappearing from previously occupied territories without subsequent

return. The Forest Service is currently revising its Forest Management

Plans; however, the revised guidelines have not yet been formally

adopted.

Service concern that forest fragmentation will increase predation

by red-tailed hawks and great horned owls is based on the knowledge

that these species prefer more open habitats. As the owl's habitat

opens up under harvest, more great horned owls and red-tailed hawks are

expected to occur closer to MSOs. The closer proximity may result in a

higher rate of predation.

The Service disagrees that management for the MSO will lead to

increased fire risk and unhealthy forests. The Service has recognized

the need for active management in order to reduce fuel loading in some

areas where past fire suppression has created unnaturally dense stands

and high fuel loads.

Issue 4: The Service failed to appropriately solicit public and

local government participation, which would have provided information

to preclude listing, and failed to notify private individuals or

organizations known to be affected by the proposed listing, counties in

which the owl occurs, and the Republic of Mexico, of the proposal to

list the subspecies. The delisting petitioners further claim that the

public hearings to solicit public comment were inadequate.

Response: The Service went well beyond all statutory requirements

in soliciting and considering public comments prior to publication of

the final rule. The Service opened a second comment period in addition

to the initial 120-day comment period, although only a single 60-day

comment period was required. The Service held 6 public hearings (3 in

New Mexico, 2 in Arizona, and 1 in Utah) throughout the range of the

owl, which were attended by approximately 883 people. Of those, 142

people provided oral or written comments. Although no hearings were

held in Colorado or Texas, hearings nearby in Alamogordo and Santa Fe,

New Mexico; Cedar City, Utah; and Flagstaff, Arizona, were attended by

individuals from neighboring states. People in Colorado and Texas also

had ample opportunity to provide written testimony, which is considered

equally with oral testimony. Furthermore, it is doubtful that

substantive information from those two states that was not considered

in the listing decision exists.

Newspaper notices inviting public comment were published for each

comment period as follows--20 notices in Arizona, 5 in New Mexico, 3 in

Utah, and 2 in Colorado. In addition, more than 400 letters were sent

to interested individuals, county governments, and relevant government

agencies (including the Mexican Government, via the U.S. Embassy)

following publication of the proposed rule. Comments were received from

1,707 agencies, public officials, private organizations, companies, and

individuals. The Service believes that the opportunities for public

input were adequate.

Issue 5: No formal communication was made to the Mexican

Government; little or no information is available on the MSO in Mexico;

and no scientifically conclusive statement can be made about its

occurrence in that country. This is contrary to the requirement that

the best scientific and commercial information be used in the listing

process (section 4(b)(1)(A) of the Act and 50 CFR 424.14(b)).

Response: The Service invited the Mexican Government to comment on

the owl's status during the status review, in a letter transmitted by

the U.S. Embassy in Laredo, Texas. The Mexican Government responded by

letter expressing concern for the species in Mexico. The Service

solicited comments on the proposed rule from the Mexican Government via

the U.S. Embassy. The Mexican Government was similarly notified of

publication of the final rule. The Service agrees that little

information is available on the status of the owl in Mexico.

Nevertheless, the Service believes that the best scientific and

commercial information available was used in making a determination to

list the MSO. Communications between the Service and Mexican officials

have continued during the recovery planning process, and a Mexican

representative has been appointed to the MSO Recovery Team.

Issue 6: Only speculation was advanced in the proposed and final

rules concerning owl populations in low- and middle-elevation riparian

habitat. Organized owl surveys have not been conducted in riparian

habitats; if they were conducted, many additional owls would be found.

Response: The Service had to rely on historical accounts to find

records of MSOs in low- and middle-elevation riparian habitats. As

stated in the final rule, MSOs have been found in desert riparian

systems in the past, but such habitats have been much reduced. Historic

records also exist of owls breeding in desert riparian habitat. The

Service speculates that these low-elevation riparian systems also may

have served as dispersal corridors, although there are no hard data to

support this. The Service also believes that there has been sufficient

research in such systems in recent years to demonstrate that MSOs are

no more than rarely found in desert riparian systems today. Where

montane riparian habitats extend down canyons, they still provide

important habitat for MSOs at lower elevations.

Issue 7: There was no accounting for drought conditions during the

period when owl surveys were conducted, and the drought caused a

depression of apparent owl numbers because owls may not breed during

drought conditions. The petitioners believed that this would limit

responses during surveys.

Response: The years 1991 and 1992 were wet years. Monitoring and

demographic studies on Coconino and Gila national forests showed high

reproductive output, as did monitoring on Lincoln National Forest

during those years. During 1990, 18 monitored sites in New Mexico had

very low reproduction. Reproduction during 1989, which was not a wet

year, was similar to 1991-1992. The Service is not aware of any data

that show conclusively that where territorial owls are present during

the breeding season, they are less likely to be discovered during

calling surveys when they are not breeding. The Service is aware of no

data that would indicate that owls do not call during years when they

do not breed.

Issue 8: The Service miscalculated owl populations.

Response: The Service used all available data on known owl

occurrences in conjunction with information on the distribution of owl

habitat acreage, surveyed habitat, and unsurveyed habitat to estimate

the number of owls in the Southwest. The estimate included known owls,

plus expected owls based on extrapolation of known owl densities over

unsurveyed suitable habitat. The Service believes that the estimate

provided in the final rule was reasonable, given the available data.

Additional acres have been surveyed since the status review which

produced the number published in the final rule. By the end of 1992,

more than 1,500,000 acres of habitat had been surveyed in New Mexico

and Arizona national forests. This is nearly half the habitat in New

Mexico and Arizona. The following factors were considered in developing

estimates of owl populations in Region 3 forests:

1. The number of acres of suitable habitat in each national forest.

2. The acres of suitable habitat surveyed in each forest.

3. The number of management territories (a Forest Service term for

MSO areas that fall under special management guidelines) designated in

each forest.

4. Formal monitoring data on occupancy rates in each forest.

The procedure used in making the following estimates is the same

one used in the status review, except that the analysis was done for

each forest rather than dividing the range into north and south.

Because more recent monitoring data have not yet been analyzed, the

estimate is based on the occupancy rates through 1990, published in the

status review. (Analysis of monitoring data from 1991 through 1993 is

currently underway and will be used in the recovery planning process.)

The calculations are presented in Table 1 by forest. In Table 1, the

management territory number (MT#) equals the minimum number of

management territories (Min) in the forest. The maximum number (Max)

would be the number expected in all of the suitable habitat in the

forest, if owls continue to be found at the present rate. The expected

number (Exp) is an average of the minimum and the maximum. The expected

number is based on the assumption (supported by Ward et al. 1991) that

the rate of discovery will decline as surveys continue. Because there

were differences in pair occupancy rates for northern New Mexico and

southern New Mexico, based on formal monitoring, separate estimates

were made for northern New Mexico and Arizona (40 percent pair

occupancy), and southern Arizona and New Mexico (68 percent pair

occupancy). The estimated number of pairs of owls (# Pairs) is given in

Table 1 for each forest. The total number of single owls expected in

Forest Service Region 3 is 495.91 and the total number of owls expected

is 1,954.47.

Table 1.--Calculation of the Number of Management Territories and Pairs of MSOs in Forest Service Region 3

----------------------------------------------------------------------------------------------------------------

Suitable

National forest Suitable acres surveyed MT# -Min Max Exp # Pairs

----------------------------------------------------------------------------------------------------------------

Apache/Sitgreaves................... 258,000 194,000 89 118 104 70.50

Carson.............................. 250,000 148,000 3 5 4 1.61

Cibola.............................. 172,000 63,000 29 79 54 36.78

Coconino............................ 356,000 167,000 124 264 194 132.03

Coronado............................ 107,000 78,000 97 133 115 78.22

Gila................................ 619,000 225,000 147 404 276 187.48

Kaibab.............................. 63,000 60,000 4 4 4 1.64

Lincoln............................. 371,000 267,000 114 158 136 92.62

Prescott............................ 133,000 10,000 10 133 72 48.62

Santa Fe............................ 476,000 110,000 32 138 85 34.09

Tonto............................... 317,000 182,000 49 85 67 45.68

---------------------------------------------------------------------------

Total......................... 3,122,000 1,504,000 698 1,449 1,073 729.28

----------------------------------------------------------------------------------------------------------------

There are no data available to justify changing the estimates of

owl populations on non-Forest Service lands. The status review listed

67 territories in northern New Mexico, 55 territories in southern New

Mexico, and 249 territories in Arizona on non-Forest Service lands. If

one assumes that occupancy rates on non-Forest Service lands are

similar to those in national forests, an estimate of 624 birds on non-

Forest Service public and tribal lands in New Mexico and Arizona is

derived (56 FR 56344). In 1992 there were an additional 64 birds known

from Utah, 14 from Colorado, and 2 from Texas (58 FR 14248), for an

estimated total of 2,658 on public and tribal lands in the Southwest

U.S. Current estimates for the owl population on private lands in New

Mexico and Arizona add another 41 birds for a total of 2,699 MSOs in

the United States (see also Issue 15). It should be noted that this

does not indicate that owl numbers have increased since 1990, but

rather that more complete data provide a higher estimate.

Issue 9a: Population estimates have been based on MSOs located

during drought conditions, and locating methods were deficient.

Response: The Service is required to base listing actions on the

best scientific and commercial information available, and the data used

at the time of listing constituted the best available data. The revised

population estimate given in the response to Issue 8 is believed to be

reasonable. (See discussion under Issues 7 and 8.)

Issue 9b: Incorrect conclusions were drawn from Ganey and Balda

(1989). Only select comments taken out of context were relied upon.

This invalidates the positive listing petition finding.

Response: Ganey and Balda's (1989) paper was not the only

information used in the positive listing petition finding. The Service

recognized the limitations of statements made in the paper and believes

the information was correctly applied at all stages of the listing

process. Although the comments mentioned in the delisting petition were

not directly referenced in the Federal Register listing documents, the

paper was considered in its entirety and reasonable conclusions were

drawn.

Issue 10: The Service has used the suitable and capable habitat

designations to advance its argument for listing to the detriment of

Southwest forest ecosystems. Forest Service figures (Fletcher 1990) for

capable habitat are erroneous and were a poor basis on which to

identify habitat threats.

Response: The Service recognizes that identification of capable

habitat can be difficult. However, the Forest Service is the agency

best qualified to identify past management and its effects on habitat

on its lands. Various sites in the ponderosa pine (Pinus ponderosa)

type probably varied in quality as owl habitat prior to treatment,

which caused them to be labeled ``capable'' by the Forest Service. Many

of these sites were probably suitable owl habitat prior to treatment.

More recent Forest Service estimates of suitable habitat (3,122,000

acres) and capable habitat (1,040,000 acres) (Henson, in litt. 1993)

are similar to the figures provided to the status review team (Fletcher

1990). The figures for suitable habitat were derived by forest and

district biologists from stand data bases, aerial photography,

satellite data, and ground-truthing. Capable habitat was defined as

habitat that had been suitable in the past, but because of natural or

human-caused changes was no longer suitable.

There is some confusion regarding the importance of ponderosa pine

as an owl habitat type. Ponderosa pine appears to provide suitable

habitat where it occurs in multiple canopy layers with high canopy

closure and with abundant dead and downed woody material. These

conditions now exist in some forests, and may have been more abundant

prior to the extensive railroad-logging at the beginning of the

century. The ponderosa pine forest type also appears to provide

suitable habitat when it occurs on steep slopes adjacent to rock

outcrops and in association with various species of hardwoods. It is

often difficult to tell from the available data whether current second-

growth pine stands are capable of attaining suitability. The Service

believes that the Forest Service acreage figures for suitable and

capable habitat in Arizona and New Mexico represent the best scientific

data available.

Issue 11: The Service has not accurately described the nesting

habits of the owl. The owl is an opportunist in regard to nest-site

selection. As evidence for this, the petitioners note the owl's

frequent use of old nests built by other species, which they claim

shows adaptability and survival potential.

Response: A lack of suitable nest structures was not discussed as a

limiting factor to the MSO population in any listing document. As

stated in the final rule, nesting habitat nearly always has a

microclimate characterized as a cool, shady, humid site with

substantial overhead cover. Thus, it is the loss of these microclimatic

conditions, rather than nesting structures, that poses a risk to the

MSO. Furthermore, it is unclear why the petitioners believe that use of

other raptors' nests implies adaptability or survivability, because all

owl species use existing structures for nesting rather than building

their own.

Issue 12: The decision to list the owl poses a threat to Southwest

forest ecosystems. The petitioners state further that the forests are

currently in a condition that is considerably more dense than in ``pre-

European'' times, and that this increased density creates fire and

insect damage hazards and is detrimental to other species.

Response: The Service agrees that many areas are overstocked with

trees and may be at risk from fire, insects, and/or disease. That risk

was recognized in the final rule. The Service does not agree that

managing forests for a well-distributed population of owls will result

in adverse conditions for other species. The Service has encouraged

forest managers to adopt fire management plans and thinning of over-

stocked stands to reduce fire hazards and threats from insect pests.

Issue 13: Data and studies from other owl subspecies should not be

used to make listing determinations.

Response: The Service disagrees. The Service is required to use the

best scientific and commercial data to determine whether a species

should be listed. The Service relied on studies of the conspecific

northern (Strix occidentalis lucida) and California (S. o.

occidentalis) spotted owls to supplement available information on the

Mexican subspecies. The Service agrees that those data must be applied

cautiously and that ecological differences in the habitats of the three

subspecies must be taken into account.

Issue 14: The term ``suitable habitat'' is not found in the Act,

and the Service should only consider ``critical habitat'' in habitat

discussions. The petitioners assert that, if the species is truly

threatened, the final rule should have addressed critical habitat.

Response: The term ``suitable habitat'' is appropriate when

assessing the biological status of any species. In fact, any evaluation

of a species' status would be incomplete without such a discussion,

particularly where habitat loss is cited as a threat to the species.

``Critical habitat'' is a legal term in the Act, and refers to areas

officially designated through a rulemaking procedure. Therefore, the

term ``suitable'' is appropriately used in the ``Summary of Factors

Affecting the Species'' section of the final rule. In the ``Critical

Habitat'' section of the final rule, the Service stated that, although

much was known about the habitat requirements of the species, detailed

maps necessary for determining critical habitat were not available at

the time of listing, and therefore critical habitat was not

determinable at that time. The Service has since initiated an effort to

obtain the necessary additional information.

Issue 15: Private land estimates in the final rule are inaccurate.

Private lands are much more extensive than the Service claimed in the

final rule. As evidence, the petitioners cite the Colfax Soil and

Conservation District Long Range Plan (1981) as stating that privately

owned commercial timber covers 656,818 acres in the district.

Response: The Service figure of 5,000 acres, cited on page 38 of

the status review, was based on known occupied habitat in Arizona and

New Mexico. The delisting petitioners are correct in stating that the

Service underestimated the extent of habitat on private land.

The Service has calculated acres of suitable habitat on private

land from Collins (1989), who provides acreage figures for non-Forest

Service land in Arizona, and Van Hooser et al. (1993) who provide

figures for ``private timberland'' in New Mexico. In New Mexico,

2,000,000 acres attributed to private ownership includes Native

American tribal lands. In New Mexico, tribal timberlands cover 641,278

acres (Steve Haglund, Bureau of Indian Affairs (BIA) New Mexico Area

Office, and James Carter, BIA Navajo Area Office, pers. comms. 1993).

No owls have been confirmed in Carson National Forest in Taos County or

Colfax County, despite extensive surveys. The acreage in Colfax County

should therefore not be included as occupied habitat, even though

suitable habitat may be present. This leaves 701,904 acres of private

timberland in the remainder of New Mexico.

More than 60 percent of New Mexico timberland (421,142 acres) is in

the ponderosa pine type. Eleven percent of that (46,326 acres) is

stocked at a rate greater than 5,000 board feet per acre (BFA), which

is less than the stocking that is usually found in suitable owl

habitat. Because there are no figures relating the acreage of suitable

habitat on private land, the Service uses this stocking level as

indicative of the acreage of suitable habitat in New Mexico. Spruce

(Picea sp.), white fir (Abies concolor), Douglas-fir (Pseudotsuga

menziesii), and aspen (Populus tremuloides) together occupy 16 percent

of timberlands in New Mexico, and approximately two-thirds are stocked

at greater than 5,000 BFA. This produces a figure of 67,383 acres in

these forest types. Thus, in New Mexico there may be as much as 113,709

acres of privately owned suitable timberland supporting spotted owls.

This figure probably overestimates suitable owl habitat because it

assumes that forests in private ownership have the same likelihood of

suitability as forests in public or Native American ownership. This is

unlikely, however, because private lands generally occur at lower

elevations; thus they are drier and less productive. In addition,

suitable owl habitat is likely to have a stocking level greater than

5,000 BFA.

Arizona has 1,317,076 acres of non-reserved timberland in non-

Forest Service ownership. In Arizona, Native American tribal lands

occupy 1,260,162 acres (Conner et al. 1990). This leaves 56,914 acres

of timberland in private ownership in Arizona. Approximately 84 percent

(47,808 acres) is in ponderosa pine, and 14 percent (7,968 acres) is in

Douglas-fir (Collins 1989). References for Arizona (Collins 1989,

Conner et al. 1990) do not break down acreage by stocking level as was

done in New Mexico. Rather, they provide productivity classes of

greater or less than 50 cubic feet per acre per year. This figure may

overestimate acreage in suitable habitat even more than stocking level,

because it is based on site potential productivity values, rather than

actual productivity. Thus, a stand that has been heavily harvested

would be included even though low stocking might yield far lower growth

(Garrett Blackwell, New Mexico State Forestry, pers. comm. 1993).

Because this is the best figure available to estimate owl suitability,

the Service is using it to identify potential suitable acreage on

private lands in Arizona. Sixteen percent of non-Forest Service

ponderosa pine timberland is capable of producing more than 50 cubic

feet per acre (7,649 acres). The Service assumes that the proportion of

mixed conifer that is suitable will be similar to that in New Mexico

(67 percent), which yields an additional 5,259 acres of potential

habitat on Arizona private lands. This yields a total of 12,908 acres

of potential suitable owl habitat on private land in Arizona. Thus, a

more accurate figure of between 125,000 and 130,000 acres of habitat

probably exist on private lands in the two states.

Assuming that the acreage is evenly divided between northern and

southern New Mexico and Arizona, approximately 63,000 acres occur in

the north and a similar acreage in the south. Owls in northern New

Mexico and Arizona are found at the rate of one for each 15,092 acres

surveyed. Thus approximately four owls would be expected on private

land in the northern portions of the two states. In the south, owls are

found at the rate of one for every 1,690 acres. This produces an

estimated 37 birds. The Service does not believe that the addition of

41 birds from private land is a sufficient increase to justify

delisting.

Issue 16: The total acreage of suitable habitat has been seriously

underestimated by the Service and other agencies.

Response: The Service has relied on suitable acreage figures

provided by tribes and land-management agencies. The Service continues

to believe that those agencies possess the best information available

on the status of land under their administration or ownership. The

Service critically examined Forest Service and other agency data during

preparation of the status review, proposed rule, and final rule, and

believes that these figures constitute the best available information.

(See Response to Issue 8.)

Issue 17: The evidence presented in the final rule is designed to

protect ``old-growth'' forests, not MSOs. This is outside the intent of

the Act, and the Service is ``administratively legislating'' both

expansion of the Act and the missions of several land-management

agencies.

Response: In the final rule, the Service noted that owls use old

growth where it is available within the species' range, but that they

are not limited to old-growth forests. The final rule also pointed out

that owls are frequently found in second-growth forests where those

forests possess the attributes of suitable habitat (e.g., multiple

canopy layers, moderate to high canopy closure). In addition, the final

rule noted that owls are found in a variety of habitat types, from

mixed conifer forests at high elevations to madrean oak and unforested

slick-rock canyons at lower elevations. Further, any discussion of

``old growth'' is related to how that habitat can support spotted owls.

The Service's consideration of old growth and other habitats was

essential in determining the status of the MSO.

Issue 18: The final rule to list the owl did not provide the data

necessary to support listing.

Response: The Service disagrees. The decision was based upon the

best scientific and commercial data available. The most important

factors behind the decision to list were the present and threatened

destruction of habitat, possible increases in predation resulting from

habitat fragmentation, and the inadequacy of existing regulatory

mechanisms.

Issue 19: The Service failed to recognize statistical biases in the

data regarding the owl, in that most surveys were motivated by timber

sales.

Response: The Service clearly addressed this bias in the status

review, the proposed rule, and the final rule.

Issue 20: The scientific and commercial information did not support

a positive listing petition finding, nor, after the status review, a

finding that listing was warranted.

Response: The Service disagrees. The listing petition pointed out

that forest plans called for additional conversion of owl habitat from

suitable to capable, which, added to ongoing conversion, would result

in the likely extinction of the subspecies. The protection offered by

Forest Service Region 3 Interim Directive Number 2 (ID No. 2) was not

considered to be adequate. The Service continues to believe, as do

Forest Service researchers in the Northwest (Thomas et al. 1990) and

California (Verner et al. 1992), that protection only of single

territories, as proposed in ID No. 2, would inevitably lead to the

extinction of habitat-dependent species. Based on continued and

projected destruction of habitat and inadequate regulation, the Service

determined that the MSO was likely to become an endangered species in

the foreseeable future throughout all or a significant portion of its

range.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act and its implementing regulations (50 CFR

part 424) set forth the procedures for adding species to or removing

species from the Federal Lists. A species may be determined to be an

endangered or threatened species due to one or more of the five factors

described in section 4(a)(1). These factors and their application to

the Mexican spotted owl, with reference to the delisting petition, are

as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The delisting petitioners asserted

that there is no threatened destruction, modification or curtailment of

the owl's habitat or range. However, the final rule pointed out that,

at the time of publication, Forest Management Plans still called for

implementation of even-age management and steep slope harvest in owl

habitat. Although harvest has slowed recently, individual projects have

been modified to protect owl habitat, and the Forest Service is

currently revising its Forest Management Plans, revised plans have not

yet been formally adopted. Owl habitat reduction remains a concern of

the Service.

B. Overutilization for commercial, recreational, scientific or

educational purposes. The delisting petitioners stated that there is no

threat from overutilization of the species for commercial,

recreational, or educational purposes. The Service agrees; this was the

position held by the Service in the final rule.

C. Disease or predation. The delisting petitioners stated that

there is no threat from disease or predation. The Service remains

concerned that opening the canopy in suitable owl habitat will increase

contact with red-tailed hawks and great horned owls, species which

occur in more open habitats. Increased contact may result in increased

predation.

D. The inadequacy of existing regulatory mechanisms. The delisting

petitioners asserted that existing regulatory mechanisms provide

adequate protection for owls. As discussed in Issue 20 above, the

Service believes that the Forest Service's ID No. 2 would not provide

adequate protection. The Service also notes that ID No. 2 has expired,

and although it is still being implemented, there is no formal

directive at this time to protect owl habitat in Forest Service Region

3, where the majority of the population occurs.

E. Other natural or manmade factors affecting its continued

existence. The delisting petitioners asserted that no other natural or

manmade factors threaten the owl. They further asserted that listing

may jeopardize the owl because it will prevent the Forest Service from

correctly managing forests to reduce threats from wildfire and insect

and disease damage. The threat to owl habitat from wildfire has not

changed since publication of the final rule. A change in Forest

Management Plans that would decrease the threat from timber harvest has

not yet been formalized. The Service disagrees with the delisting

petitioners that listing itself brings new threats because of reducing

the ability to manage for wildfire, insect, and disease threats. The

Service encourages the Forest Service to address those threats with a

variety of management options.

In conclusion, the Service used the best scientific and commercial

information available in all phases of the decision to list the Mexican

spotted owl as a threatened species. The Service further believes that

the factors for listing the species cited in the final rule have not

changed substantially. Therefore, the Service finds that the delisting

petitioners did not present substantial information indicating that

delisting the MSO may be warranted. Through the recovery planning

process, the Service is analyzing all available information in

formulating a recovery plan for the MSO. The plan will contain

objective, measurable criteria which, when met, could result in

delisting the MSO.

References Cited

Collins, D.C. 1989. Timberland and woodland resources outside

National Forests in Arizona, 1985. U.S.D.A. Forest Service Resource

Bull. INT-66.

Conner, R.C., A.W. Green, J.D. Born, and R.A. O'Brien. 1990. Forest

resources of Arizona. U.S.D.A. Forest Service Resource Bull. INT-69.

Fletcher, K.W. 1990. Habitats used, abundance and distribution of

the Mexican spotted owl, Strix occidentalis lucida, on National

Forest system lands. U.S.D.A. Forest Service, Southwestern Region,

Albuquerque, New Mexico. 55 pp.

Ganey, J.L., and R.P. Balda. 1989. Distribution and habitat use of

Mexican spotted owls in Arizona. Condor 91:355-361.

Thomas, J.W., E.D. Forsman, J.B. Lint, E.C. Meslow, B.R. Noon, and

J. Verner. 1990. A conservation strategy for the northern spotted

owl. Portland, Oregon. 458 pp.

Van Hooser, D.D., R.A. O'Brien, and D.C. Collins. 1993. New Mexico's

forest resources. U.S.D.A. Forest Service Resource Bull. INT-79.

Verner, J., K.S. McKelvey, B.R. Noon, R.J. Gutierrez, G.I. Gould,

Jr., and T.W. Beck. 1992. The California spotted owl: a technical

assessment of its current status. U.S.D.A. Forest Service Tech. Rpt.

PSW-GTR-133.

Ward, J.P., Jr., A.B. Franklin, and R.J. Gutierrez. 1991. Using

search time and regression to estimate abundance of territorial

spotted owls. Ecological Applications 1:207-214.

Author

The primary authors of this notice are Dr. Buck Cully of the New

Mexico Ecological Services Field Office, and Steve Spangle of the

Southwest Regional Office (see ADDRESSES section).

Authority

The authority for this action is the Endangered Species Act of

1973, as amended (16 U.S.C. 1531-1544).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Dated: March 25, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94-7834 Filed 3-31-94; 8:45 am]

BILLING CODE 4310-55-P