Endangered and Threatened Wildlife and Plants; Proposal To List the Contiguous United States Distinct Population Segment of the Canada Lynx as a Threatened Species; and the Captive Population of Canada Lynx Within the Coterminous United States (lower 48 States) as Threatened Due to Similarity of Appearance, With a Special Rule

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF03

Endangered and Threatened Wildlife and Plants; Proposal To List

the Contiguous United States Distinct Population Segment of the Canada

Lynx as a Threatened Species; and the Captive Population of Canada Lynx

Within the Coterminous United States (lower 48 States) as Threatened

Due to Similarity of Appearance, With a Special Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list

the contiguous United States population segment of the Canada lynx

(Lynx canadensis) as threatened, pursuant to the Endangered Species Act

of 1973, as amended (Act). This population segment includes the States

of Washington, Oregon, Idaho, Montana, Utah, Wyoming, Colorado,

Minnesota, Wisconsin, Michigan, Maine, New Hampshire, Vermont, New

York, Pennsylvania, and Massachusetts. The contiguous United States

population segment of the Canada lynx is threatened by human alteration

of forests, low numbers as a result of past overexploitation, expansion

of the range of competitors (bobcats (Felis rufus) and coyotes (Canis

latrans)), and elevated levels of human access into lynx habitat. This

rule also lists the captive population of Canada lynx within the

coterminous United States (lower 48 States) as threatened due to

similarity of appearance with a special rule.

DATES: Comments from all interested parties must be received by

September 30, 1998. Public hearing locations and dates are set forth in

SUPPLEMENTARY INFORMATION section.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Field Supervisor U.S. Fish and Wildlife Service, Montana

Field Office, 100 N. Park Ave., Suite 320, Helena, Montana 59601.

Comments and materials received will be available for public

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

address.

FOR FURTHER INFORMATION CONTACT: Kemper McMaster, Field Supervisor,

Montana Field Office (see ADDRESSES section) (telephone 406/449-5225;

facsimile 406/449-5339).

SUPPLEMENTARY INFORMATION: Public hearings on this proposal will be

held in the following locations:

Western States

Colorado

Wednesday, July 22, 1998 from 7 p.m. until 9 p.m. at the Ramada

Inn, 124 W. 6th St., Glenwood Springs, Colorado. This public hearing

will be preceded by an informational open house from 6 p.m. to 7 p.m.

Tuesday, July 28, 1998, from 7 p.m. until 9 p.m. at the Sheraton

Denver West, 360 Union Boulevard, Lakewood, Colorado. This public

hearing will be preceded by an informational open house from 6 p.m. to

7 p.m.

Idaho

Thursday, September 10, 1998, from 2 p.m. until 4 p.m. and from 6

p.m. until 8 p.m. at the Coeur d'Alene Inn and Conference Center, 414

West Appleway Avenue, Coeur d'Alene, Idaho.

Montana

Tuesday, July 21, 1998, from 2 p.m. until 4 p.m. and from 6 p.m.

until 8 p.m. at the Colonial Inn Best Western, 2301 Colonial Drive,

Helena, Montana.

Wednesday, July 22, 1998, from 2 p.m. until 4 p.m. and from 6 p.m.

until 8 p.m. at Cavanaugh's at Kalispell Center, 20 N. Main, Kalispell,

Montana.

Oregon

Tuesday September 15, 1998, from 2 p.m. until 4 p.m. and from 6

p.m. until 8 p.m. at Eastern Oregon University, Hoke University Center,

1410 L Avenue, Rooms 201-203, LaGrande Oregon.

Washington

Tuesday, September 8, 1998, from 2 p.m. until 4 p.m. and from 6

p.m. until 8 p.m. at the Cedars Inn, 1 Appleway, Okanogan, Washington.

Wyoming

Wednesday, August 12, 1998, from 2 p.m until 4 p.m and from 6 p.m

until 8 p.m. at the Cody Auditorium, Cody Club Room, 1234 Beck Avenue,

Cody, Wyoming.

Eastern States

Maine

Tuesday, September 15, 1998 from 7 p.m. until 9 p.m. at the Old

Town High School, 240 Stillwater Ave, Old Town, Maine.

Great Lakes States

Wisconsin

Tuesday, September 15, 1998 from 7 p.m. to 9 p.m. at the Northern

Great Lakes Center on County Road G near Hwy 2, west of Ashland,

Wisconsin. This public hearing will be preceded by an informational

open house from 6 p.m. to 7 p.m.

Background

The Canada lynx is a medium-sized cat with long legs, large, well-

furred paws, long tufts on the ears, and a short, black-tipped tail

(McCord and Cardoza 1982). Adult males average 10 kilograms (kg) (22

pounds (lb)) in weight and 85 centimeters (cm) (33.5 inches (in)) in

length (head to tail), and females average 8.5 kg (19 lb) and 82 cm (32

in) (Quinn and Parker 1987). The lynx's long legs and large feet make

it highly adapted to hunting in deep snow.

The bobcat (F. rufus) is a North American relative of the Canada

lynx. Compared to the lynx, the bobcat has smaller paws, shorter ear

tufts, a more spotted pelage, and only the top of the tip of the tail

is black. The paws of the lynx have twice the surface area of those of

the bobcat (Quinn and Parker 1987). The lynx also differs in its body

proportions in comparison to the bobcat. Lynx have longer legs, with

hind legs that are longer than the front legs, giving the lynx a

``stooped'' appearance (Quinn and Parker 1987). Bobcats are largely

restricted to habitats where deep snows do not accumulate (Koehler and

Hornocker 1991). Hybridization between lynx and bobcat is unknown

(Quinn and Parker 1987).

Classification of the Canada lynx (also called the North American

lynx) has been subject to revision. The Service, in accordance with

Wilson and Reeder (1993), recognizes the Canada lynx as L. canadensis.

The Service previously used the name L. lynx canadensis for the Canada

lynx (Jones et al. 1992; S. Williams, Texas Tech University, pers.

comm. 1994). Other scientific names still in use include Felis lynx or

F. lynx canadensis (Jones et al. 1986; Tumlison 1987).

The historical and present North American range of the Canada lynx

north of the contiguous United States includes Alaska and that part of

Canada that extends from the Yukon and Northwest Territories south to

the United States border, and east to New Brunswick and Nova Scotia. In

the contiguous United States, the lynx historically occurred in the

Cascade Range of Washington and Oregon; the Rocky Mountains from

Montana, Idaho, and Oregon south to Utah and Colorado; the western

Great Lakes region; and the northeastern United States region from

Maine, south to New York and Pennsylvania, and east to Massachusetts

(McCord and Cardoza 1982; Quinn and Parker 1987).

[[Page 36995]]

In the contiguous United States, Canada lynx inhabit a mosaic

between boreal forests and subalpine coniferous forest or northern

hardwoods, whereas Canada lynx habitat in Canada and Alaska is the

boreal forest ecosystem (Barbour et al. 1980; McCord and Cardoza 1982;

Koehler and Aubry 1994; M. Hunter, University of Maine, pers. comm.

1994, Colorado Division of Wildlife 1997).

Canada lynx are specialized predators that are highly dependent on

the snowshoe hare (Lepus americanus) for food. Snowshoe hare prefer

diverse, early successional forests with stands of conifers and shrubby

understories that provide for feeding and cover to escape from

predators and protection during extreme weather (Wolfe et al. 1982,

Monthey 1986, Koehler and Aubry 1994). Lynx usually concentrate their

foraging activities in areas where hare activity is high (Koehler et

al. 1979; Parker 1981; Ward and Krebs 1985; Hash 1990; Weaver 1993;

Koehler and Aubry 1994; D. Winger, U.S. Forest Service, pers. comm.

1994).

Canada lynx utilize late successional forests with large woody

debris, such as downed logs and windfalls, to provide denning sites

with security and thermal cover for kittens (McCord and Cardoza 1982,

Koehler 1990, Koehler and Brittell 1990). In Washington, lynx used

lodgepole pine (Pinus contorta), spruce (Picea spp.), and subalpine fir

(Abies lasiocarpa) forests older than 200 years for denning (Koehler

and Brittell 1990). Based on information from the western United

States, Koehler and Brittell (1990) concluded sites selected for

denning also must provide for minimal disturbance by humans and

proximity to foraging habitat (early successional forests), with

denning stands at least 1 hectare (ha) (2.471 acres (ac)) in size.

Lynx require adequate travel cover (frequently intermediate

successional forest stages) to provide connectivity within a forest

landscape for security, movement within home ranges, and access between

den sites and foraging areas (Brittell et al. 1989, Koehler and Aubry

1994). Such areas also may provide foraging opportunities.

The size and shape of Canada lynx home ranges appear related to the

availability of prey and the density of lynx (Koehler and Aubry 1994).

Documented home ranges vary from 12 to 243 square kilometers (sq km)

(5-94 square miles (sq mi)) and larger (Saunders 1963; Brand et al.

1976; Mech 1980; Parker et al. 1983; Koehler and Aubry 1994).

The association between lynx and snowshoe hare is considered a

classic predator-prey relationship (Saunders 1963; van Zyll de Jong

1966; Quinn and Parker 1987). In much of its North American range,

Canada lynx populations fluctuate with the approximate 10-year hare

cycle of abundance (Elton and Nicholson 1942); as hare populations

increase, lynx populations increase. Generally, it is believed that

when hare populations are at their cyclic high, they deplete their food

resources and hare populations decline. This causes lynx populations to

decline as a result of reduced reproductive success caused by an

inadequate alternate food source (Nellis et al. 1972; Brand et al.

1976).

Snowshoe hare provide the prey quality necessary to support high

density lynx populations (Brand and Keith 1979). Lynx also prey

opportunistically on other small mammals and birds, particularly when

hare populations decline (Nellis et al. 1972; Brand et al. 1976; McCord

and Cardoza 1982). Apparently, a shift to alternate food sources may

not compensate for the decrease in hares consumed (Koehler and Aubry

1994). The lower quality diet causes sudden decreases in the

productivity of adult females, and decreased survival of young, which

causes recruitment to the breeding population to essentially cease

(Nellis et al. 1972; Brand and Keith 1979).

Based primarily on studies in the western mountains of the

contiguous United States, it appears lynx and snowshoe hare in more

southern latitudes may not exhibit strong population cycles (Dolbeer

and Clark 1975; Wolff 1980; Buehler and Keith 1982; Brittell et al.

1989; Koehler 1990; Koehler and Aubry 1994). Wolff (1982 in Koehler and

Aubry 1994) hypothesized that the presence of additional predators and

competitors of hares at lower latitudes accounts for this pattern. The

relative stability of hare populations in southern latitudes also may

be a result of patchy, suboptimal habitat (Buehler and Keith 1982,

Koehler 1990, Koehler and Aubry 1994).

Periodic increases in lynx numbers in the contiguous United States

may be accentuated by dispersal of transient animals from Canadian

populations. Canada lynx are capable of dispersing extremely long

distances (Mech 1977; Brainerd 1985; Washington Department of Wildlife

1993); for example, a male was documented traveling 616 km (370 mi)

(Brainerd 1985). Canada lynx may disperse long distances from their

normal range to search for food when snowshoe hare populations decline

(Ward and Krebs 1985; C. Pils, in litt. 1994; Koehler and Aubry 1994).

Canada lynx also may disperse when local lynx densities are high (U.S.

Fish and Wildlife Service 1977; Thiel 1987; J. Conley, Idaho Department

of Fish and Game, in litt. 1994).

Because lynx occurrence throughout much of the contiguous United

States is on the southern periphery of the species' range, there is

speculation that presence of lynx in the contiguous United States is

solely a consequence of dispersal from Canada. This has led to

speculation that most of the United States may never have supported

self-sustaining, resident 1 populations over time (T.

Bremicker, Minnesota Department of Natural Resources, in litt. 1994; S.

Fritts, U.S. Fish and Wildlife Service, in litt. 1994).

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\1\ Note: With respect to the lynx and the analysis presented in

this document, the terms ``resident'' and ``resident population''

mean a group or subgroup of lynx in an area (e.g., Minnesota) or

portion of a larger area (e.g., Great Lakes States) that is capable

of long-term persistence, based on self-sustaining reproduction of

young and successful recruitment of young into the breeding age

cohort, without immigration of lynx from Canada. It is acknowledged

that movements of lynx across the United States and Canada border

did occur and that this migration was beneficial to the lynx in the

contiguous United States.

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Based on the majority view of the respondents and the best

scientific and commercial data available, the Service has determined

that, historically, the Canada lynx was a resident species in 16 States

in the contiguous United States, occurring in dispersed populations at

relatively low densities (Rust 1946; Harger 1965; Nellis 1971;

Henderson 1978; Brocke 1982; Mccord and Cardoza 1982; Brainerd 1985;

Washington Department of Wildlife 1993; Koehler and Aubry 1994; Kurta

1995; T. Bailey, U.S. Fish and Wildlife Service, in litt. 1994; E.

Bangs, U.S. Fish and Wildlife Service, pers. comm. 1994; P. Beir,

Northern Arizona University, in litt. 1994; B. Berg, Minnesota

Department of Natural Resources, pers. comm. 1994; P. Brussard,

University of Nevada, in litt. 1994; G. Koehler, Independent

Researcher, in litt. 1994; W. Krohn, University of Maine, in litt.

1994; J. Weaver, Independent Researcher, in litt. 1994). Furthermore,

the historic and current presence of snowshoe hare populations, the

lynx's primary food, within the same ecosystems in the contiguous

United States (Adams 1959; Keener 1971; Dolbeer and Clark 1975; Buehler

and Keith 1982; Fuller and Heisey 1986; Monthey 1986; Koehler 1991)

supports the Service's conclusion.

The Service considers Canada lynx to have been historically

resident within Maine, New Hampshire, Vermont, New York, Pennsylvania,

Massachusetts, Michigan, Wisconsin, Minnesota,

[[Page 36996]]

Montana, Wyoming, Washington, Oregon, Idaho, Utah, and Colorado.

While evidence suggests historical lynx numbers in the contiguous

United States increased because of dispersal from lynx populations in

northern latitudes during the cyclic peaks (Henderson 1978, Mech 1980),

the Service does not conclude that dispersal from Canada was required

to maintain the contiguous United States lynx population as viable.

However, dispersal of Canada lynx into the contiguous United States may

now be necessary to replenish lynx numbers because of the current

status of lynx in the contiguous United States. In addition, the

Service concludes that suitable Canada lynx habitat currently exists

(and existed to a greater extent historically) in the contiguous United

States (Rust 1946; Harger 1965; Nellis 1971; Washington Department of

Wildlife 1993; Henderson 1978; B. Giddings, Montana Department of Fish,

Wildlife, and Parks, in litt. 1994; S. Parren, Vermont Department of

Fish and Wildlife, pers. comm. 1994; F. Hurley, in litt. 1994; and K.

Staley, White Mountain National Forest, pers. comm. 1994).

Distribution and Status

Within the contiguous United States, the lynx population is divided

regionally by ecological barriers consisting of unsuitable lynx

habitat. These regions are the Northeast, the Great Lakes, and the

Rocky Mountains/Cascades. To enhance the organization and clarity of

this proposal, the regions are discussed separately below.

Northeast Region--Historically, lynx habitat in the Northeast

United States existed in a mostly contiguous block of forest in the

ecotone between boreal and deciduous forest. This forest has been

described as sub-boreal forest (M. Hunter, University of Maine, pers.

comm. 1994). Principal tree species include red spruce (Picea rubens)

and balsam fir (Abies balsamea), interspersed with northern hardwoods

such as sugar maple (Acer saccharum), yellow birch (Betula

alleghaniensis), and American beech (Fagus grandifolia). Lynx once

occurred from northern Maine, across northern New Hampshire and

Vermont, to the Adirondacks in New York (McCord and Cardoza 1982) and

probably occurred southward along the higher elevations of the mountain

ranges in the region (Brocke 1982; K. Gustafson, New Hampshire

Department of Fish and Game, pers. comm. 1994). Unfortunately, in

records compiled prior to the 1970's, lynx were often not distinguished

from bobcats (J. Cardoza, Massachusetts Division of Fisheries and

Wildlife, pers. comm. 1994).

Snowshoe hare habitat in the region is characterized by spruce/fir

softwood forests typical of boreal forests; a mixture of mature and

successional softwood growth provides cover and browse for hares

(Monthey 1986). Forested habitat in the region has increased because of

land-use changes during the past century (Irland 1982, Litvaitis 1993).

In some areas, there may be a gradual upward trend in the coniferous

component as spruce and fir regenerate beneath the hardwood species

that had established after large-scale logging and burning at the turn

of the century (D. Degraff, U.S. Forest Service, pers. comm. 1994; F.

Hurley, Maine Department of Inland Fisheries and Wildlife, in litt.

1994; J. Lanier, New Hampshire Fish and Game, pers. comm. 1994).

Although localized habitat conditions have improved, reoccupation of

these areas may be impeded by barriers to lynx immigration, such as

paved roads with high-volume traffic, nonforested agricultural

habitats, or other intervening areas of unsuitable habitat.

Although Maine, New Hampshire, Vermont, and New York report areas

of suitable lynx habitat and/or prey base, low numbers of lynx are

present only in Maine and lynx may be extirpated throughout the

remainder of the Northeast Region (see discussion below). Much of the

potential lynx habitat in this region is held in private ownership

(Harper et al. 1990).

Maine--In Maine, historical accounts indicate that, although lynx

probably were never abundant, they were resident in the State and that

numbers of lynx fluctuated over the past 150 years (Maine Department of

Inland Fisheries and Wildlife, in litt. 1997). Information on

population size, trends, distribution, and factors influencing these

variables are sparse and mostly anecdotal (F. Hurley, in litt. 1994).

Lynx were bountied in Maine prior to the closure of hunting and

trapping seasons in 1967.

Suitable habitat and prey to support lynx are abundant in

northwestern Maine (F. Hurley, in litt. 1994). The Maine Department of

Inland Fisheries and Wildlife classifies the lynx as a species of

special concern (Matula 1997). The lynx is currently protected from

hunting and trapping.

Although no reliable population estimates exist, in 1994 it was

suggested that only 200 animals or less occur statewide (Maine

Department of Inland Fisheries and Wildlife 1994). A statewide track

survey, initiated during the 1994/1995 winter was conducted for 3

successive years. A total of 4,118, 1-km (0.62-mi) transects were

surveyed. Lynx were encountered on 54 of the transects in nine

townships, all during the first year of the survey (Maine Department of

Inland Fisheries and Wildlife, in litt. 1997). However, biologists have

encountered lynx tracks in northwestern Maine during the past three

winters while conducting unrelated fieldwork (Maine Department of

Inland Fisheries and Wildlife, in litt., 1998). The Service concludes a

resident lynx population exists in Maine.

New Hampshire--Lynx were intermittently bountied in New Hampshire

until 1965. In response to the apparent declines in lynx abundance

reflected in bounty numbers, the bounty was repealed and thereafter the

lynx was provided full protection from legal harvest (Siegler 1971;

Silver 1974; Litvaitis et al. 1991). Despite legal protection, the lynx

population did not increase. Since 1980, the lynx has been listed as an

endangered species by the New Hampshire Fish and Game Department. Two

years of winter track surveys did not detect Canada lynx (Litvaitis et

al. 1991). The Service concludes the Canada lynx is very rare and

likely extirpated from New Hampshire.

Vermont--In Vermont, historically, lynx likely occurred at low

densities in the northern part of the State. Quantitative data on the

current abundance or distribution of lynx are unavailable. By the mid-

1900's, Vermont had not had a documented breeding population of lynx

for several decades (Osgood 1938 in Vermont Department of Fish and

Wildlife 1987). Since 1972 the lynx has been listed by the State as

endangered. One of the last verified occurrences of lynx in the State

occurred in 1968, with periodic reports since then. Suitable habitat

exists in the northeastern section and along mountain ridges in the

State, and snowshoe hares are present in high numbers (S. Parren,

Vermont Department of Fish and Wildlife, pers. comm. 1994; C. Groves,

Green Mountain National Forest, pers. comm. 1994). Canada lynx is

currently considered to be extirpated in Vermont (S. Parren, pers.

comm. 1998). The Service concludes the Canada lynx is very rare and

likely extirpated from Vermont.

New York State--Historically, lynx occurred in most northern

regions of New York, the Adirondack Mountains, and the Catskill

Mountains (K. Gustafson, pers. comm. 1994), but they are now considered

extirpated (G. Parsons, New York State Department of Environmental

Conservation, in litt. 1994). By the 1880's, the population was

[[Page 36997]]

apparently approaching extirpation (Miller 1899 in Brocke 1982).

Trapping and sighting records from the early 1900's to the present

indicate that lynx occurred only infrequently. The most recent verified

sighting was in 1980 (G. Parsons, in litt. 1994). An abundant prey base

exists (Brocke 1982), but the habitat has been highly fragmented.

Extensive road infrastructure and a lack of early successional

coniferous forest in much of the potential habitat likely precludes

natural lynx reestablishment in New York (G. Batchellor, New York State

Department of Environmental Conservation, pers. comm. 1994; G. Parsons,

in litt. 1994).

An effort to reintroduce Canada lynx into the Adirondack Mountains

occurred from 1988 to 1990 (Brocke et al. 1990, D. Major, U.S. Fish and

Wildlife Service, pers. comm. 1998), but success of the reintroduction

remains doubtful. As of 1993, some Canada lynx were believed still

present, but no reproduction had been documented (K. Gustafson, pers.

comm. 1994). A collared lynx from the reintroduction effort was

recently found near Ottawa, Ontario, Canada (M. Amaral, U.S. Fish and

Wildlife Service, pers. comm. 1997). No verified occurrences in New

York have been reported recently; however, both the State University of

New York at Syracuse and the New York Department of Environmental

Conservation maintain records of reported sightings. No further

monitoring is planned. In New York, lynx are legally classified as a

small game species with a closed season. The Service concludes the

Canada lynx is very rare and probably extirpated from New York.

Pennsylvania/Massachusetts--In Pennsylvania and Massachusetts,

located at the southernmost reaches of the historical range of the

species in the Northeast United States (Hall and Kelson 1959), resident

animals may have existed in the coniferous forests of higher elevations

of mountain ranges, but accurate historical information is unavailable.

Based on the lack of lynx habitat in these States, historically the

animal was probably uncommon (J. Belfonti, in litt. 1994). Many

individuals in these States may have dispersed from more northern

regions during cyclic irruptions of the lynx populations in Canada (J.

Belfonti, The Nature Conservancy, in litt. 1994). The last known record

of a naturally occurring Canada lynx in Pennsylvania was in 1923 (J.

Belfonti, in litt. 1994), and a possible record from 1930 exists for

Massachusetts (J. Cardoza, in litt. 1994). The Service concludes lynx

are extirpated from Pennsylvania and Massachusetts.

Great Lakes Region--Historically the lynx was found in the western

Great Lakes States of Michigan, Wisconsin, and Minnesota. The habitat

occupied by lynx in this region consists primarily of an ecotone

between boreal and mixed deciduous forest and is a mosaic of balsam

fir, eastern hemlock (Tsuga canadensis), eastern white pine (Pinus

strobus), jack pine (P. banksiana), quaking aspen (Populus

tremuloides), birch (Betula spp.), and maple (Acer spp.) (Barbour et

al. 1980). Much of the lynx habitat in this region is in public

ownership, primarily county, State, or national forests.

The lynx population in this region was regularly supplemented by

dispersing lynx from Canada (Harger 1965; M. DonCarlos, in litt. 1994;

C. Pils, in litt. 1994). Historically, Ontario and Manitoba had very

strong, cyclic lynx populations from which individuals dispersed to

search for food during periods when the hare populations crashed or

during cyclic highs of lynx populations. However, trapping harvests

during the period of extremely high pelt prices in the 1970's and

1980's substantially impacted Canadian lynx populations. As a result,

harvest was closed temporarily and since has been closely regulated (I.

McKay, Manitoba Natural Resources, in litt. 1994; M. Novak, Ontario

Ministry of Natural Resources, pers. comm. 1994). Because of low

numbers of lynx, Manitoba closed its season on lynx harvest from 1995

to 1997 (I. McKay, pers. comm. 1997). Although current habitat

conditions along the Canada/United States border for lynx are mostly

intact and suitable, dispersal into the Great Lakes States has been

severely limited because of the reduced lynx population in Canada (D.

Mech, pers comm. 1994; M. Novak, pers. comm. 1994).

Minnesota--In the past, Minnesota lynx populations fluctuated

markedly during 10-year cycles and were influenced by influxes from

Canada (Henderson 1978; Mech 1980; M. DonCarlos, Minnesota Department

of Natural Resources, in litt. 1994). The resident lynx population was

restricted to the northeastern area of the State; however, transients

have been found throughout Minnesota (Gunderson 1978; Mech 1980).

Until 1965, lynx were bountied in Minnesota. In 1976, the lynx was

classified as a game species and harvest seasons were established (M.

DonCarlos, in litt. 1994). Harvest and bounty records for the State are

available since 1930. Based on these records, highs in the lynx cycle

were approximated to have occurred in 1940, 1952, 1962, and 1973

(Henderson 1978). Henderson (1978) estimated that during a 47-year

period (1930-1976), the Minnesota lynx harvest was substantial, ranging

from at least 50 to more than 200 per year during 29 seasons.

From the mid-1970's to the late 1980's, pelt prices were extremely

high in Canada and the United States. Also, from 1979 to 1980, hare

numbers were at their cyclic peak (M. DonCarlos, in litt. 1994).

Despite these two factors, lynx harvest remained very low and the

expected lynx peak for the early 1980's did not occur (B. Berg, pers.

comm. 1994; M. DonCarlos, in litt. 1994). As a result, the harvest

season was closed and remains closed today. Although lynx are currently

considered rare (D. Mech, pers. comm. 1994), available habitat in

northern Minnesota is capable of maintaining resident lynx populations

(M. DonCarlos, in litt. 1994). Based on recent anecdotal information,

the Service concludes that a resident population possibly exists in

Minnesota (P. Burke, U.S. Fish and Wildlife Service, pers. comm. 1998).

Wisconsin--A resident lynx population likely has not existed in

Wisconsin since 1900 (Thiel 1987). The presence of lynx in Wisconsin

has been associated with the cyclic lynx population fluctuations in

Canada (Thiel 1987). A bounty on lynx existed until 1957. Between 1948

and 1956, 19 lynx were harvested in the State; annual harvest ranged

from zero (1954) to four (1952) (Wisconsin Department of Natural

Resources 1993). Lynx were placed on the protected species list in 1957

and were classified as State endangered in 1972 (C. Pils, in litt.

1994). Between 1976 and 1984, 63 lynx observations were reported, with

most reports from the northwestern area adjacent to Minnesota; seven

lynx were reported from 1991-1993, two of which were mortalities

(Wydeven 1992; Wydeven 1993; Wydeven in prep.; C. Pils, in litt. 1994).

There were no sightings of lynx in 1994 or 1995 and one possible set of

tracks was sighted in 1996 (U.S. Fish and Wildlife Service, in litt.

1997). Snowshoe hares occur across northern Wisconsin (Buehler and

Keith 1982). Potential lynx habitat in northern Wisconsin has remained

in an early- to mid-successional mixed coniferous forest condition

since the early 1900's, with some limited older growth present but

primarily confined to forested wetlands (D. Zastrow, Wisconsin

Department of Natural Resources, pers. comm. 1998). The lynx has been

reclassified as a State protected species with a closed season (A.

Wydeven, Wisconsin Department of Natural

[[Page 36998]]

Resources, pers. comm. 1998). Despite extensive review of historic and

current information regarding the lynx in Wisconsin, neither Jackson

(1961) nor Thiel (1987) were able to cite any evidence of breeding

subsequent to the decline of the species in the 1800's. There has been

a continued decline in confirmed sightings in recent years and the

Service concludes that, based on available information, a resident

population of lynx no longer exists in Wisconsin, although individual

animals likely are present.

Michigan--In Michigan, historical reports indicate that the Canada

lynx was resident and widespread throughout the upper and lower

peninsula in the 19th century (Harger 1965). Lynx moved into the upper

peninsula from Wisconsin or crossed the St. Mary's River from Ontario

(Baker 1983). The limited ability for lynx dispersal from the upper to

the lower peninsula, in addition to positive records of lynx in 23

lower peninsula counties, indicated that in the lower peninsula, Canada

lynx were self-sustaining in the past (Harger 1965; Baker 1983). Canada

lynx were believed extirpated from Michigan's lower peninsula in 1928,

and by 1938 they were considered rare or extinct throughout the State

(Harger 1965). The lynx persisted on Isle Royale in Lake Superior into

the late 1970's (Peterson 1977 in Baker 1983). Based on the numbers and

distribution of lynx reported from 1940 to 1965, particularly during

1962, Harger (1965) believed that lynx were repopulating Michigan as a

result of improved habitat conditions in the upper peninsula.

The lynx was first listed as State endangered in 1974, but was not

included on the list during revisions in 1976 and 1980. It was returned

to the list as threatened in 1983 and its status upgraded to endangered

in 1987, where it remains. As such, it is protected from harvest but

conservation actions are limited because little is known about the

species requirements (T. Weise, in litt. 1994).

Throughout the 1980's and 1990's, reports of lynx in the upper

peninsula of Michigan have been rare; no lynx have been reported in the

lower peninsula during this time period (T. Weise, Michigan Department

of Natural Resources, in litt. 1994). The lynx's current distribution

in Michigan is unknown but is likely limited to the upper peninsula. No

surveys have been conducted to determine lynx numbers or range (T.

Weise, in litt. 1994). The last breeding record was in 1976 (T. Weise,

in litt. 1994). Suitable lynx habitat is currently available in

Michigan's upper peninsula (T. Weise, in litt. 1994). Since the mid-

1960's the trend of lynx numbers has been unknown. However, the Service

concludes that low numbers of lynx may still occur in Michigan's upper

peninsula with no increasing trend apparent.

Rocky Mountain/Cascades Region--Lynx currently are thought to be

present in the western mountains of the contiguous United States in the

Cascades Range of Washington, the Thompson-Okanogan Highlands of

northern Washington, the Blue Mountains of Oregon, and the Rocky

Mountains in Idaho, Montana, Wyoming, Utah, and Colorado.

Lynx habitat in Montana occurs primarily in the high elevation

mountains. Principal tree species include lodgepole pine (Pinus

contorta), Douglas fir (Pseudotsuga menziesii), and subalpine fir

(Abies lasiocarpa) (Koehler et al. 1979, Hash 1990). In Washington,

lynx live in boreal-type forests that occur in north central Washington

along the east slope of the Cascade Mountain range and the Thompson-

Okanogan Highlands. In Oregon, lynx habitat exists in the Blue

Mountains in northeastern Oregon and the Cascades. Preferred lynx

habitat in Idaho consists of dense coniferous, high elevation forest

broken by small shrubby openings and coniferous swamps (Leptich 1990).

Unsuitable habitat in Wyoming's Red Desert isolates the lynx population

in Colorado and extreme southeastern Wyoming from that of the Rocky

Mountains to the northwest (Thompson and Halfpenny 1989; Koehler and

Aubry 1994). Colorado's montane and subalpine forest ecosystems are

naturally highly fragmented (Findley and Anderson 1956 in Koehler and

Aubry 1994, Thompson 1994). Utah is considered the southern margin of

the Canada lynx range.

Washington--In Washington, resident Canada lynx were historically

found in highest concentrations in the northeast and north central

regions, along the east slope of the Cascade Mountains (Washington

Department of Wildlife 1993). Nellis (1971) regarded lynx occurrence in

Washington as rare to common. Records of lynx exist from the Mount

Rainier National Park area in the central Cascades, south in the

Cascades nearly to the Oregon border on Mount Adams, and in the Blue

Mountains in the southeastern part of the State (Taylor and Shaw 1927

in Koehler and Aubry 1994, Dalquest 1948, Washington Department of

Natural Resources 1996a). Washington has designated six ``Lynx

Management Zones'' across north central Washington (Washington

Department of Natural Resources 1996a). Currently, lynx occupy five of

these zones: Okanogan, Kettle Range, the Wedge, Little Pend Oreille,

and Salmo Priest. Additionally, lynx occupy the northern and southern

Cascades of Washington (Washington Department of Natural Resources

1996a; C. Lee, U.S. Fish and Wildlife Service, pers. comm. 1998). Much

of these areas are in Federal, Tribal, and State ownership.

A total harvest of 215 lynx was reported for the hunting and

trapping seasons from 1960-61 to 1990-91, with peak harvests in 1969-70

(31 lynx) and 1976-77 (39 lynx) (Washington Department of Wildlife

1993). Following the 1976-77 season, lynx harvests decreased markedly,

resulting in increasingly restrictive harvest regulations. Based on

trapper interviews and track sighting, lynx densities in northeastern

Washington appear to have been depressed during at least the past 20

years (Washington Department of Wildlife 1993). In response to markedly

decreased harvests, regulations were tightened in 1977-78; lynx hunting

and trapping seasons were closed in 1991 (Washington Department of

Wildlife 1993).

The current lynx population in the State of Washington has been

estimated at 96 to 191 individuals (Washington Department of Wildlife

1993). Brittell et al. (1989) estimated 225 lynx in Washington State.

However, population estimates may be high because it was assumed that

habitat suitability and lynx densities were similar across the range,

which is not the case (Washington Department of Wildlife 1993). Since

1993, the lynx has been listed as a State threatened species

(Washington Department of Wildlife 1993). The Service concludes that a

resident lynx population exists in the State of Washington.

Oregon--Resident Canada lynx populations were historically low in

Oregon (Koehler and Aubry 1994). Historic records exist from nine

counties in Oregon (Bailey 1936, Nellis 1971). Recent observations of

lynx have been reported from the Cascades and the Blue Mountains in

northeastern Oregon (Csuti et al. 1997; E. Gaines, Oregon Natural

Heritage Program, in litt. 1994; R. Anderson, Wallowa-Whitman National

Forest, in litt. 1998). The Canada lynx is currently classified as a

furbearer with a closed trapping and hunting season (E. Gaines, Oregon

Natural Heritage Program, pers. comm. 1997). The Service concludes that

a self-sustaining resident population does not exist in Oregon, but

individual animals are present.

[[Page 36999]]

Idaho--According to Rust (1946), lynx were distributed throughout

northern Idaho in the early 1940's, occurring in 8 of the 10 northern

and north-central counties. In 1990, Hash reported stable or declining

small lynx populations in Idaho. Harvest records were unreliable prior

to the late 1980's because no distinction was made between lynx and

large bobcats. In 1982, Idaho Department of Fish and Game initiated a

mandatory pelt tagging program and the number of reported lynx harvests

dropped to zero. Twelve lynx were reported harvested between 1978 and

1991 (M. Tera-Berns, Idaho Department of Fish and Game, pers. comm.

1997). No current population estimates are available (P. Harrington,

U.S. Forest Service, pers. comm. 1994; J. Hayden, Idaho Department of

Fish and Game, pers. comm. 1994). Recent confirmed lynx reports are

scarce (J. Conley, Idaho Department of Fish and Game, in litt. 1994).

Prior to 1977, the species was considered a predator, subject to

unrestricted harvest with no closed season and no bag limit. In 1990,

in response to concern over the status of lynx in Idaho, the Idaho

Department of Fish and Game instituted a statewide harvest quota of

three lynx per year. Idaho closed the Canada lynx trapping/hunting

season in the 1997/1998 season because the quota had not been filled in

several years, although lynx remain classified as a furbearer. In 1995,

a multiple agency Conservation Strategy was initiated to assess the

conservation of the lynx and other forest carnivores (Idaho Department

of Fish and Game et al. 1995; Roloff 1995). The Service concludes that

a self-sustaining resident population does not exist in Idaho, but

individual animals are present.

Montana--In Montana, Canada lynx were reported to be common (Nellis

1971) and were found throughout the western part of the State (B.

Giddings, Montana Department of Fish, Wildlife, and Parks, in litt.

1994). After 1985, lynx populations in Montana were believed to be at

or near their lowest levels in the past several decades (Hash 1990).

Brainerd (1985) documented evidence of Canada lynx reproduction;

however, more recent evidence of recruitment into the population has

not been documented.

Until 1977, lynx in Montana were classified as nongame and were

provided no regulatory protection (D. Childress, Montana Department of

Fish, Wildlife, and Parks, in litt. 1990). Assessment of historic

population levels or trends is difficult because lynx often were not

distinguished from bobcats in harvest records prior to 1977. Between

1959 and 1967, estimates of statewide harvest ranged from a low of 36

in the 1961-62 season to a high of 376 during the 1963-64 season

(Hoffman et al. 1969). However, these figures likely overestimate lynx

abundance because they probably include bobcats. Since 1985, harvest

records exist from 24 counties in the northwest, southwest, and west-

central part of the State (B. Giddings, in litt. 1994). Hoffman et al.

(1969) cited numerous records of lynx harvested in eastern Montana's

Great Plains region between 1959 and 1967, but these records are

suspect because of possible misidentification with bobcat.

Beginning in 1977, lynx were classified as a furbearer. A season

length and licensing regulations were set, but no quota was imposed.

Harvest records can reflect the status of lynx populations; however,

the lynx harvest and, consequently, the lynx population likely were

significantly influenced by extremely high pelt prices during the mid-

1970's to late 1980's.

Since 1977, Montana's highest lynx harvest occurred in both 1979

and 1984 when 62 lynx were taken in each season (B. Giddings, in litt.

1994). Although quotas dropped incrementally from 135 to 40 over an 8-

year period (1982-1989), lynx harvest never approached the quota

levels, ranging from 62 to 15 animals taken per season (B. Giddings, in

litt. 1994). After 1985, lynx harvests declined to record lows and lynx

populations in Montana were believed to be at or near their lowest

levels in the past several decades (Hash 1990). In response, a district

of the Montana Trappers Association requested that lynx harvest be

closed for one season (S. Conn, Montana Trappers Association, in litt.

1990). The State responded by decreasing the quota from 40 to 5 in 1990

(B. Giddings, in litt. 1994). During this period, the lowest annual

harvest occurred in 1990, with two lynx taken while the quota was five

(B. Giddings, in litt. 1994). From 1991 to the present, the quota has

been two, which was filled annually or exceeded by one (1991) or two

(1993) (B. Giddings, in litt. 1994).

The Montana Department of Fish, Wildlife, and Parks estimated the

lynx population as 1,750 to 2,400 in 1977, 700 to 950 in 1982, and

1,040 lynx in 1994 (B. Giddings, in litt. 1994). These estimates were

determined using a habitat area/density index. Habitat area estimates

did not account for habitat areas that would be unsuitable for lynx.

Harvest records, winter track surveys conducted since 1990-91, and

trapper logbooks, have led Montana Department of Fish, Wildlife, and

Parks to conclude that the State's lynx population has recovered and is

distributed across its historic range (B. Giddings, in litt. 1994).

However, others familiar with lynx in the Rocky Mountain region suggest

that these estimates are optimistic, and express serious concerns about

the status of lynx in Montana (E. Bangs, pers. comm. 1994; M.

Hornocker, Hornocker Wildlife Research Institute, Inc., in litt. 1994;

G. Koehler, in litt. 1994; L. Nordstrom, U.S. Fish and Wildlife

Service, in litt. 1994; M. Roy and S. Torbit, National Wildlife

Federation, in litt. 1994). The Service concludes a resident population

of lynx is present in Montana.

Wyoming--In Wyoming, Canada lynx are generally believed to have

been uncommon in the State because of the limited availability of large

areas of suitable habitat (Reeve et al. 1986; Clark and Stromberg 1987;

Wyoming Game and Fish Department 1992). Until 1957, lynx were bountied

in the State. Since 1973, the lynx has been listed as a protected

nongame species. Nearly all historical and recent records of lynx in

Wyoming are from the western mountain ranges, primarily within the

Greater Yellowstone Ecosystem (Reeve et al. 1986). However, documented

reports of lynx in Yellowstone National Park are rare (S. Consolo-

Murphy, Yellowstone National Park, pers. comm. 1994). Elsewhere in

Wyoming, lynx have been reported from the Uinta Mountains in the

extreme southwest and the Big Horn Mountains in the north-central part

of the State, although these are unconfirmed by field investigations

(Reeve et al. 1986).

Only 12 records of lynx exist for Wyoming from 1981 to 1994 (C.

Gillin, Wyoming Game and Fish Department, in litt. 1994). In late 1996

the Wyoming Game and Fish Department began a study to attempt to

document the current range of the lynx. Two lynx have been trapped and

collared in the Wyoming Range and continue to be tracked (B. Oakleaf,

Wyoming Game and Fish Department, pers. comm. 1998). In addition, one

lynx was confirmed in the Wind River Range in 1997 (B. Luce, Wyoming

Game and Fish, pers. comm. 1997).

If lynx exist in southeastern Wyoming, they are isolated from the

rest of the State by the Red Desert but are contiguous with Colorado

lynx populations (J. Fitzgerald, University of Northern Colorado, pers.

comm. 1994; J. Halfpenny, Independent Researcher, pers. comm. 1994; J.

Weaver, pers. comm. 1994). None of the reports of lynx in the Medicine

Bow and Laramie ranges in southeastern Wyoming have been confirmed to

date (Reeve et al. 1986). The Service concludes that,

[[Page 37000]]

although individual lynx are present, a resident population likely no

longer exists in Wyoming.

Utah--In Utah, Canada lynx are thought to be nearly extirpated,

although it is possible a few may exist in the high, inaccessible areas

of the Uinta Mountains (B. Blackwell, Utah Department of Natural

Resources, pers. comm. 1994). Sightings have been reported from most of

the mountain ranges in Utah. However, because of misidentification with

the bobcat, some of these records may not be valid (McKay 1991). Nearly

all the reliable lynx reports are from the Uinta Mountain Range along

the Wyoming border (McKay 1991). The lynx is listed as a State

sensitive species. The Service concludes that a self-sustaining

resident population does not exist in Utah, but individual animals may

be present.

Colorado--Colorado represents the extreme southern edge of the

range of the Canada lynx. Wyoming's Red Desert likely acts as a barrier

that reduces or precludes opportunities for immigration and emigration,

effectively isolating lynx in the southern Rocky Mountains in Colorado

and Wyoming (Halfpenny et al. 1982; Koehler and Aubry 1994; G. Koehler,

in litt. 1994; J. Weaver, in litt. 1994). It is likely Canada lynx

never have been abundant in Colorado (Colorado Division of Wildlife et

al. 1997), partially because its montane and subalpine forest

ecosystems are naturally highly fragmented (Thompson 1994).

The lynx has been listed as a State endangered species since 1976

(Colorado Division of Wildlife et al. 1997). From the late 1800's to

1993, only 65 reliable lynx records exist; the last verified lynx

specimens were taken in the early 1970's (J. Sheppard, Colorado

Division of Wildlife, in litt. 1994). Since the late 1970's, intensive

surveying efforts have revealed only minimal evidence of lynx presence

(Halfpenny and Miller 1981; Thompson and Halfpenny 1989; Anderson 1990;

Thompson and Halfpenny 1991; Andrews 1992; Carney 1993; Fitzgerald

1994; J. Sheppard, in litt. 1994; J. Halfpenny, pers. comm. 1994;

Colorado Division of Wildlife et al. 1997). Lynx in Colorado are

believed to be extremely rare and the long-term viability of the lynx

in Colorado is questionable (Colorado Division of Wildlife et al.

1997). The Service concludes that a self-sustaining resident population

does not exist in Colorado, but individual animals may be present.

Other Reports or Sightings--Lynx observations in Nevada, North

Dakota, South Dakota, Iowa, Nebraska, Indiana, Ohio, and Virginia

appear to be a result of transients dispersing during periods of high

lynx density elsewhere (Hall and Kelson 1959; Burt 1954 in Brocke 1982;

S. Johnson, Indiana Department of Natural Resources, in litt. 1994; P.

Jones, Ohio Department of Natural Resources, in litt. 1994; W. Jobman,

U.S. Fish and Wildlife Service, in litt. 1997; Smithsonian Institute,

in litt. 1998). During the early 1960's, lynx moved into the Great

Plains and the Midwest region of the United States during an apparent

cyclic high in surrounding lynx populations (Gunderson 1978; Mech 1980;

DeStefano 1987; South Dakota Natural Heritage Program, in litt. 1994).

Based on the lynx's ecological requirements, such records likely

represent dispersing, transient individuals, not resident populations.

Summary of Status--Based on information available to the Service at

this time, the Service concludes that lynx were resident in 16 States

in the contiguous United States. Currently, resident populations of

lynx likely exist in Maine, Montana, Washington, and possibly

Minnesota. States with recent records of individual lynx sightings, but

possibly no longer sustaining self-supporting populations, include

Wisconsin, Michigan, Oregon, Idaho, Wyoming, Utah, and Colorado. Lynx

may be extirpated from New Hampshire, Vermont, New York, Pennsylvania,

and Massachusetts.

Previous Federal Action

The Canada lynx was added to Appendix II of the Convention on

International Trade in Endangered Species of Wild Flora and Fauna in

1977. The Service classified the Canada lynx as a category 2 candidate

species in the December 30, 1982, Vertebrate Notice of Review (47 FR

58454). Category 2 species were those species for which information in

the Service's possession indicated that listing was possibly

appropriate, but for which substantive data on biological vulnerability

and threats were not available to support a proposed rule. Candidate

species are currently defined as those species for which the Service

has sufficient information on file detailing biological vulnerability

and threats to support issuance of a proposed rule, but issuance of the

proposed rule is precluded by other listing actions. On October 6,

1992, the Service published a notice of a 90-day petition finding

indicating that the August 22, 1991 petition did not present

substantial information to indicate that listing the North Cascades

population of the Canada lynx as endangered was warranted (57 FR

46007). A lawsuit was filed challenging the October 6, 1992, petition

finding. On July 9, 1993, the Service published a notice indicating

that it had revisited the North Cascades 90-day petition after

receiving new information and again found that there was not

substantial information to indicate that listing the population may be

warranted (58 FR 36924). The Service announced in the finding that a

status review would be conducted. In a settlement agreement dated

November 30, 1993, the Service agreed to conduct a status review

throughout the lower 48 States to determine if the species was

threatened or endangered, and to complete the review and publish the

finding by November 15, 1994. On February 2, 1994, the Service

published a notice (59 FR 4887) announcing continuation of the status

review that was initiated in 1982.

On April 27, 1994, the Service received a petition to list the

coterminous United States population of ``North American'' lynx as

threatened or endangered. Additionally, the petitioners requested that

the southern Rocky Mountain population of the ``North American'' lynx

in Wyoming and Colorado be emergency listed. A notice was published on

August 26, 1994 (59 FR 44123), indicating that the petition presented

substantial information that listing may be warranted, but that there

was not substantial information to indicate that emergency listing may

be warranted for the Southern Rocky Mountain population.

On December 27, 1994, the Service published a notice (59 FR 66507)

of its 12-month finding as to the status of the Canada lynx in the 48

contiguous States, as directed by the settlement agreement and the

petition, that listing was not warranted because of the lack of

residency of lynx populations in the lower 48 States and the Service's

inability to substantiate that threats such as ``trapping, hunting,

poaching, and present habitat destruction'' actually ``threaten the

continued existence of the lynx in the wild.'' On January 30, 1996, the

Defenders of Wildlife and 14 other plaintiffs challenged the Service's

finding by filing a lawsuit.

On March 27, 1997, the U.S. District Court (District of Columbia)

issued an order setting aside the not warranted finding and remanded it

to the Service for further consideration. The Service was ordered to

publish a 12-month finding on the status of the lynx within 60 days. On

May 27, 1997, the Service published a 12-month petition finding (62 FR

28653) that the Canada lynx population in the contiguous United States

was warranted for listing under

[[Page 37001]]

the Act but precluded by higher priority listing actions. This

warranted but precluded finding automatically elevated the Canada lynx

to candidate species status. Candidate species are defined as those

species for which the Service has sufficient information on file

detailing biological vulnerability and threats to support issuance of a

proposed rule, but issuance of the proposed rule is precluded by other

listing actions.

On September 15, 1997, Defenders of Wildlife, et al. filed suit

against the Service in the U.S. District Court, District of Columbia,

arguing that the Service violated the Act in finding that listing the

Canada lynx population in the contiguous United States was warranted

but precluded. On December 22, 1997, the court denied the plaintiffs'

motion to enforce judgement against the Service's May 1997 warranted

but precluded finding for the Canada lynx population in the contiguous

United States. At the same time, the court set an expedited schedule

and hearing date (March 18, 1998) for the lawsuit filed in September

1997.

On February 12, 1998, the U.S. District Court approved a settlement

agreement between the Service and the Plaintiffs that called for the

Service to publish a proposed rule to list the Canada lynx in the

contiguous United States by June 30, 1998. This proposed rule for the

contiguous United States population of the Canada lynx fulfills the

requirement of the settlement agreement and serves as the final 12-

month warranted finding on the petitions to list the lynx.

Processing of this proposed rule conforms with the Service's

Listing Priority Guidance for Fiscal Years 1998 and 1999, published on

May 8, 1998 (63 FR 25502). The guidance clarifies the order in which

the Service will process rulemakings giving highest priority (Tier 1)

to processing emergency rules to add species to the Lists of Endangered

and Threatened Wildlife and Plants (Lists); second priority (Tier 2) to

processing final determinations on proposals to add species to the

Lists, processing new proposals to add species to the Lists, processing

administrative findings on petitions (to add species to the Lists,

delist species, or reclassify listed species), and processing a limited

number of proposed or final rules to delist or reclassify species; and

third priority (Tier 3) to processing proposed or final rules

designating critical habitat. Processing of this proposed rule is a

Tier 2 action. At this time, this region has no pending Tier 1 actions

and is progressing with work on Tier 2 actions. This proposed rule also

conforms to earlier Service guidance on assignment of priorities to

species under consideration for listing as endangered or threatened

published in the Federal Register on September 21, 1983 (48 FR 43098).

This guidance sets up a priority system from 1-12 based on immediacy

and magnitude of threat and on species' taxonomy. In the Service's May

1997 finding the lynx was elevated to candidate status and given a

listing priority of 3.

In accordance with the policy promulgated July 1, 1994 (59 FR

34270), the Service will solicit the opinions of independent Canada

lynx experts and/or conservation biologists regarding the proposed

rule. The purpose of such review is to ensure listing decisions are

based on scientifically sound data, assumptions, and analyses,

including input of appropriate experts and specialists. Peer reviewers

will be identified through requests to research institutions,

universities, and museums for individuals with recognized expertise

with the subject matter. The reviewers will be asked to comment during

the public comment period upon the specific assumptions and conclusions

regarding the proposed listing and special rule. These comments will be

considered in the preparation of the final rule as appropriate. In a

status review of the lynx in 1994, prior to the publication of the

Service's formal peer review policy, the Service solicited the comments

of 31 independent experts and/or conservation biologists regarding the

effects of cyclic Canada lynx movements from Canada to the contiguous

United States. Of the 16 responses received, 9 respondents believed

Canada lynx should be considered resident in portions of the contiguous

United States, 1 did not (regarding the Great Lakes region only), and 6

did not specifically respond to the questions.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) promulgated

to implement the listing provisions of the Act set forth the procedures

for adding species to 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 Canada lynx (Lynx canadensis) are discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range

Since the mid-to-late 1800's, several habitat-related factors

influenced, and continue to contribute to, declines in local or

regional Canada lynx populations. The most influential factor affecting

lynx habitat is human alteration of the distribution and abundance,

species composition, successional stages, and connectivity of forests,

and the resulting changes in the forests' capacity to sustain lynx

populations. Additionally, forest fragmentation isolates habitat into

relatively small patches, thereby reducing the viability of wildlife

that are dependent on larger areas of forest habitat (Litvaitis and

Harrison 1989).

In all regions of the lynx range in the contiguous United States,

timber harvest and its related activities are a predominant land use

affecting lynx habitat. Forestry practices can be beneficial or

detrimental for lynx depending on the method and timing by which they

are conducted. Timber harvest can be used to achieve the early

successional stages of forest preferred by snowshoe hares, although it

takes time (15 years or more depending on the type of forest) for

harvested areas to reach this stage (Monthey 1986, Quinn and Parker

1987, Koehler 1990, Koehler and Brittell 1990, Washington Department of

Wildlife 1993). For example, in the West, thinning (either single tree

or group selection), if implemented in a well-planned harvest

prescription, can hasten the development of late-successional forests

containing structures such as downed woody debris for thermal and

security cover and for denning; early thinning to maximize tree-growth

potential can be compatible with snowshoe hare and lynx habitat needs

provided that stands are thinned before snowshoe hares recolonize the

area (Koehler and Aubry 1994).

Intensive tree harvesting (e.g., large-scale clearcutting) can

eliminate the mosaic of habitats necessary for Canada lynx survival,

including late successional denning and early successional prey

habitat. Specifically, these activities can result in reduced cover,

unusable forest openings, and monotypic stands with a sparse understory

that are unfavorable for Canada lynx and/or their prey (Brittell et al.

1989; de Vos and Matel 1952; Harger 1965; Hatler 1988; Koehler 1990; K.

Gustafson, pers. comm. 1994; J. Lanier, pers. comm. 1994). Canada lynx

avoid openings such as clearcuts, unforested areas, and grasslands

(Koehler et al. 1979; Koehler and Brittell 1990, Murray et al. 1994)

and snowshoe hares are also unlikely to use such areas because of the

lack of cover (Koehler et al. 1979; H. Golden, Alaska Department

[[Page 37002]]

of Fish and Game, pers. comm. 1994; Koehler and Aubry 1994).

Great Lakes and Northeast Region

Softwoods that provided Canada lynx habitat were logged extensively

during the late 1800's and early 1900's (Jackson 1961; Barbour et al.

1980; Belcher 1980; Irland 1982). Over a relatively short period,

timber extraction during this era resulted in the replacement of late-

successional conifer forest with extensive tracts of very early

successional habitat and eliminated cover for lynx and hare (Jackson

1961, Keener 1971). Coniferous forests also were cleared for

agriculture during this period. In the Northeast Region, slash,

accumulated during logging operations, fueled wildfires that burned

vast acreages of softwood forest (Belcher 1980; J. Lanier, pers. comm.

1994). This sudden alteration of habitat likely resulted in sharp

declines in snowshoe hare numbers over large areas, subsequently

reducing Canada lynx numbers (Jackson 1961; Keener 1971; K. Gustafson,

pers. comm. 1994; J. Lanier, pers. comm. 1994).

During these early periods of timber extraction in the Northeast

and Great Lakes Regions, probable declines in Canada lynx numbers were

concurrent with substantial increases in human populations and

unregulated trapping in or near lynx habitat (K. Gustafson, pers. comm.

1994; J. Lanier, pers. comm. 1994). By the turn of the century in the

Northeast Region, historical records indicate that lynx populations

were declining or were nearly extirpated (Silver 1974; Vermont

Department of Fish and Game 1987; K. Gustafson, in litt. 1994; G.

Parsons, in litt. 1994).

The impacts of the logging conducted in the Northeast Region during

the late 1800's continue to affect Canada lynx habitat. In Maine,

softwood cover and dense sapling growth provided improved snowshoe hare

habitat after timber harvest and fires in late successional forests

(Monthey 1986). However, in the western sections of the Northeast

Region, extensive tracts of predominantly softwood forests that were

harvested and burned-over during the late 1800's and early 1900's were

subsequently replaced with regenerating hardwoods (D. Degraff, pers.

comm. 1994; J. Lanier, pers. comm. 1994). For a period of time, this

extensive area would have been in the early successional habitat used

by snowshoe hare. However, such extensive tracts did not provide the

mosaic of forest habitats required by lynx and, as succession

progressed, these tracts became unsuitable for both lynx and hare.

Hardwood forests do not typically supply adequate cover for snowshoe

hares (Monthey 1986). Additional declines in hare populations may have

occurred during the 1940's and 1950's as a result of large-scale forest

maturation (Litvaitis et al. 1991).

In Maine, large tracts of forest (some as large as 36-square mile

townships) were harvested in the 1960's to reduce the incidence of

spruce budworm. Harvesting of these large tracts create a simplified,

monotypic forest over large areas, not a mosaic of forest stands.

Passage of the State Forestry Practices Act has required clearcut size

to be substantially reduced.

At higher elevations and northern latitudes in the Northeast, red

spruce and balsam fir are important components of snowshoe hare

habitat. Declines in red spruce forests have been documented, and

drought, acid deposition, and other human-generated pollutants have

been suggested as principal causes (Scott et al. 1984).

Lynx populations have not increased in the Northeast Region despite

some apparent improvements in habitat. Forested habitat in the

Northeast has increased because of land-use changes during the past

century (Irland 1982; Litvaitis 1993). In some areas there may be a

gradual upward trend in the coniferous component as spruce and fir

regenerate beneath hardwood species (D. Degraff, pers. comm. 1994).

Several of the Northeast States support adequate, if not abundant,

snowshoe hare populations (C. Grove, Green Mountain National Forest,

pers. comm. 1994; F. Hurley, in litt. 1994; J. Lanier, pers. comm.

1994).

Isolation of suitable habitat and lack of immigration apparently

remain important factors in the continued absence of lynx populations

in the Northeast Region (Litvaitis et al. 1991; W. Krohn, University of

Maine, in litt. 1994; R. Lafond, Quebec Department of Recreation, Fish,

and Game, pers. comm. 1994). Historically, resident Canada lynx

populations in the Northeast were periodically supplemented with

transient or dispersing individuals from the north (Litvaitis et al.

1991; J. Lanier, pers. comm. 1994). However, over the past several

decades, Canada lynx numbers also declined in the southern portions of

its range in Canada in response to overexploitation and clearing of

forested habitat for agriculture, timber, and human settlement (Mills

1990; McAlpine and Heward 1993; Quebec Department of Recreation, Fish,

and Game, in litt. 1993). The fragmented landscape across southern

Quebec probably presents a substantial barrier to lynx attempting to

disperse southward across the St. Lawrence River (W. Krohn, in litt.

1994; R. Lafond, pers. comm. 1994; J. Lanier, pers. comm. 1994; J.

Litvaitis, University of New Hampshire, pers. comm. 1994). However,

lynx from a resident population in a Quebec reserve south of the St.

Lawrence should encounter little difficulty crossing into Maine (C.

McLaughlin, Maine Department of Inland Fisheries and Wildlife, in litt.

1998). Similarly, movement of lynx into Maine from occupied habitat in

New Brunswick should be possible.

Today, diminished numbers of Canada lynx in southern Canada and the

paucity of functional dispersal routes from Canadian lynx populations

have substantially restricted the opportunity for Canada lynx to

recolonize suitable habitat in New York, Vermont, and New Hampshire

(Litvaitis et al. 1991; W. Krohn, in litt. 1994; R. La Fond, pers.

comm. 1994; J. Lanier, pers. comm. 1994).

In 1990, the U.S. Forest Service published a report that examined

the northern forest lands in New York, Vermont, New Hampshire, and

Maine (Harper et al. 1990). The 26-million acre study area encompassed

most of the historic range of lynx in the region. Eighty-four percent

of northern forest lands in the region are currently privately owned

and 16 percent are in public ownership, of which only 300,000 acres are

federally owned. Commercial forestry continues to be the dominant land

use on 60 percent of the private lands in the northern forests. The

rapid pace of subdivision for recreation home sites has been identified

as a serious concern to maintaining the integrity of Northeast forests

(Harper et al. 1990).

Habitat fragmentation from forestry management programs,

agricultural conversions, and roadway construction may be limiting lynx

in the Great Lakes States. However, insufficient information currently

exists to assess the impact of these threats to lynx. Lynx habitat

quality appeared to be increasing in Michigan's upper peninsula as of

1965 (Harger 1965); however, as of 1998, lynx numbers have not

increased in response to predicted improved habitat (Kurta 1995).

Rocky Mountain/Cascades Region

The majority of Canada lynx habitat in the West occurs on public

lands. Research linking forest management on Federal lands in the West

to Canada lynx habitat requirements is minimal.

In the interior Columbia River basin of eastern Washington and

Oregon, Idaho, and western Montana, timber harvest patterns, along with

the

[[Page 37003]]

exclusion of fire have converted much of the late successional stage

forest to younger, mid-successional stage forests (U.S. Forest Service

and Bureau of Land Management 1996). There has been an increase in

fragmentation of forest lands and loss of connectivity within and

between blocks of habitat, which has isolated some wildlife habitats

and reduced the ability of some wildlife populations to move across the

landscape (U.S. Forest Service and Bureau of Land Management 1997).

In the Seeley-Swan Valley in northwestern Montana, the forest

landscape has become increasingly fragmented since 1930, consisting of

smaller, more numerous patches with more edge and less interior habitat

(Hart 1994). Fragmentation was caused by an extensive network of

highway and forest roads, timber harvest, and residential construction.

Timber harvest replaced fire as the dominant disturbance process (Hart

1994). Mature/overmature forests have declined in total area, while

seedling and sapling seral stages have become more extensive (Hart

1994). The amount of predicted lynx habitat in the Seeley-Swan Valley

has declined 36 percent since 1930 and became more fragmented over time

(Hart 1994).

Recolonization of suitable lynx habitat within the State of

Washington eventually may be precluded by the fragmentation of habitat

and potential isolation from the lynx population in Canada (Washington

Department of Wildlife 1993).

Fire has played an important role in forest ecology in western

mountain ranges of the United States. Forest fires naturally maintained

mosaics of early successional forest stands, unburnt bogs and swamps,

and late-successional conifer forest forming ideal snowshoe hare and

Canada lynx habitat (Todd 1985; Fischer and Bradley 1987; Quinn and

Parker 1987). During the early twentieth century, Federal and State

agencies in the contiguous United States enacted a policy of

suppressing forest fires. The lack of adequate hare habitat in southern

latitudes may be partially a result of fire suppression during the past

50 years (Koehler 1990). Suppression of forest fires in the West has

allowed forests to mature, thereby reducing habitat suitability for

snowshoe hares and Canada lynx (Brittell et al. 1989; Fox 1978; Koehler

1990; Washington Department of Wildlife 1993; T. Bailey, U.S. Fish and

Wildlife Service, in litt. 1994; H. Golden, pers. comm. 1994). Fire

suppression is most likely affecting lynx habitat in areas where

historical frequency of fires is shorter than the length of time fires

have been suppressed in the Region (P. Stickney, U.S. Forest Service,

pers. comm. 1994).

In all regions of the contiguous United States lynx range, clearing

of forests for urbanization, recreational developments such as ski

areas, and agriculture has fragmented, degraded, or reduced the

available suitable lynx habitat, reduced the prey base, and increased

human disturbance and the likelihood of accidental trapping, shooting,

or highway mortality (de Vos and Matel 1952; Harger 1965; Belcher 1980;

Thiel 1987; Todd 1985; Thompson 1987; Harper et al. 1990; Brocke et al.

1991; Thompson and Halfpenny 1991; Colorado Division of Wildlife et al.

1997) (see factor E).

B. Overutilization for Commercial, Recreational, Scientific, or

Education Purposes

The Service believes that the effects of an overharvest of Canada

lynx during the 1970's and 1980's persist today and continue to reduce

the potential for recovery of lynx populations in the contiguous United

States by precluding repopulation of areas of suitable habitat. Where

exploitation is intense and recruitment is low, trapping can

significantly depress lynx populations (Koehler and Aubry 1994). Fewer

Canada lynx of breeding age reduce the ability and degree to which lynx

populations recover after population lows (de Vos and Matel 1952; Brand

and Keith 1979; Todd 1985; Ward and Krebs 1985; Bailey et al. 1986;

Hatler 1988; Brittell et al. 1989). Elton and Nicholson (1942)

recognized that overharvest had the potential to diminish lynx

populations to levels where the natural cycles of lynx populations

could not occur.

Lynx behavior makes them susceptible to trapping. Canada lynx are

easy to catch in traps (Bailey et al. 1986; Hatler 1988; Mills 1990).

The potential number of traps a lynx encounters is increased when it

moves long distances to search for prey. Canada lynx are more

vulnerable to concentrated trapping efforts because lynx focus their

hunting in areas where snowshoe hare densities are high (Ward and Krebs

1985). On the Kenai Peninsula, Alaska, juvenile lynx were five times

more vulnerable to trapping than adults; several juvenile siblings can

easily be trapped from a small area (Bailey et al. 1986). Trapping

females that are accompanied by kittens often results in the death of

those kittens because they are unable to feed and protect themselves

(Bailey et al. 1986; Carbyn and Patriquin 1983; Parker et al. 1983). It

is possible for a trapper to remove a large proportion of a local lynx

population by trapping where lynx are concentrated (Carbyn and

Patriquin 1983; Ward and Krebs 1985; Bailey et al. 1986; J. Weaver,

pers. comm. 1994).

Human-induced mortality is the most important mortality factor for

Canada lynx populations (Ward and Krebs 1985). Trapping mortality has

been shown to be entirely additive (i.e., in addition to natural

mortality) rather than compensatory (taking the place of natural

mortality) (Brand and Keith 1979). In Minnesota, trapping was estimated

to account for 81 percent of known lynx mortality during cyclic lows

and 58 percent of mortality during cyclic highs (Henderson 1978). In

numerous studies, trapping or shooting was documented as the cause of a

substantial majority of Canada lynx mortalities (Mech 1980; Carbyn and

Patriquin 1983; Ward and Krebs 1985; Bailey et al. 1986).

Unregulated trapping and hunting of Canada lynx continued for

decades in the contiguous United States. Lynx were bountied in several

States until relatively recently. Canada lynx were likely overexploited

during periods of unregulated harvest in the Northeast and Great Lakes

regions (K. Gustafson, pers. comm. 1994; J. Lanier, pers. comm. 1994).

In the Rocky Mountains/Cascades Region, lynx population declines prior

to 1940 were attributed to high trapping pressure (Nellis 1971).

Historically, lynx trapping provided a significant economic return

in the fur trading industry. During periods of high pelt prices, the

potential for obtaining even a single lynx pelt made trapping efforts

worthwhile (Quinn and Parker 1987, Hatler 1988). This economic

incentive increases the threat of over exploitation of Canada lynx

populations.

The present low numbers of lynx in the contiguous United States and

southern Canada are the residual effects of substantial overtrapping

that occurred in the 1970's and 1980's, in response to unprecedented

high pelt prices (Bailey et al. 1986; B. Berg, pers. comm. 1994; D.

Mech, pers. comm. 1994; M. Novak, Ontario Ministry Natural Resources,

pers. comm. 1994; A. Todd, Alberta Department of Forestry, Lands, and

Wildlife, pers. comm. 1994). As a result of fur demands by the fashion

industry, pelt prices began increasing around 1975 (Hatler 1988, Hash

1990). In Montana, the 1974 average pelt price was $63, but by 1978 the

average price increased over 500 percent to $348 (B. Giddings, in litt.

1994). Lynx pelt prices peaked in the mid-1980's at nearly $500 and

remained above $200 per pelt for 12 years until 1989. Pelt prices were

comparable throughout the United States and

[[Page 37004]]

Canada (Todd 1985; Hatler 1988; I. McKay, Manitoba Natural Resources,

in litt. 1994; Quebec Department of Recreation, Fish, and Game, in

litt. 1994).

The number of Montana bobcat and lynx trapping licenses is an

example of a general index of trapper effort and also of the amount of

trapping pressure on lynx populations. Records indicate that the price

of pelts influenced the trapping effort. The average number of licensed

lynx and bobcat trappers from 1972-73 through 1974-75 was 1,600 (B.

Giddings, in litt. 1994). After the record high pelt prices in 1978-79,

a total of nearly 5,000 trappers were licensed for the next season.

Although information on licenses was not available after 1982, trapper

effort likely remained high as long as pelt prices were high and lynx

were being trapped. Records for other regions during this period

demonstrate the same trend (Brand and Keith 1979; Todd 1985; Bailey et

al. 1986; Hatler 1988; Washington Department of Wildlife 1993; M.

DonCarlos, in litt. 1994; I. McKay, in litt. 1994; Quebec Department of

Recreation, Fish, and Game, in litt. 1994).

This period of intense trapping pressure also occurred during a

period of naturally declining Canada lynx numbers in Canada. Periods of

population decline are critical times when trapping has a greater

additive impact on a population's ability to recover from periodic lows

(Brand and Keith 1979; Bailey et al. 1986). Alberta's lynx fur harvest

during the 1975-76 cyclic low was still nearly 2 to 3 times higher than

that during the preceding two cyclic lows (Todd 1985). In Quebec from

1976 to 1979, lynx harvest reached record highs for a period during a

cyclic low in hare and lynx populations (Quebec Department of

Recreation, Fish, and Game, in litt. 1993). These harvest levels are

linked to the highest pelt prices ever recorded there and to a

continuous and sustained increase in the number of trappers during the

preceding decade.

The additive trapping mortality of Canada lynx during the 1970's

and 1980's depleted the breeding stock of lynx populations in the

United States and southern Canada, which limited the ability for lynx

populations to subsequently recover and repopulate areas of suitable

habitat. Lynx populations may have become so severely depleted that

they cannot reach their former densities during the periods of abundant

prey and maximum reproductive success (Quinn and Parker 1987; Hatler

1988). The lynx population of the 1980's and 1990's has reflected the

over exploitation of the previous decade in the lack of cyclic lynx

highs in parts of the contiguous United States and the lack of typical

cyclic influxes of lynx from Canada, although data have indicated

normal hare populations (M. DonCarlos, in litt. 1994; M. DonCarlos,

pers. comm. 1994).

In response to substantially declining harvests during the 1970's

and 1980's (indicating that lynx populations were being over

exploited), Washington, Montana, Minnesota, Alberta, British Columbia,

Manitoba, Ontario, Quebec, and Alaska severely restricted or closed

their lynx harvest seasons (Bailey et al. 1986; Hatler 1988; Hash 1990;

Washington Department of Wildlife 1993; S. Conn, in litt. 1990; M.

DonCarlos, in litt. 1994; B. Giddings, in litt. 1994; R. McFetridge,

Alberta Environmental Protection, in litt. 1994; I. McKay, in litt.

1994; M. Novak, pers. comm. 1994). Because of continued concern for

lynx populations, none of the States have relaxed their restrictions,

and many Canadian provinces still maintain careful control of lynx

harvest (Alberta Environmental Protection 1993; Washington Department

of Wildlife 1993; M. DonCarlos, in litt. 1994; B. Giddings, in litt.

1994; R. McFetridge, in litt. 1994; I. McKay pers. comm. 1997).

As of 1993, the lynx population in portions of Quebec apparently

has not yet fully recovered despite adequate, increasing hare

populations (Quebec Department of Recreation, Fish, and Game, in litt.

1993). Because of concern over a potentially declining lynx population,

the British Columbia government closed the season on Canada lynx for a

3-year period in the mid-1990's (A. Fontana, British Columbia

Department of Wildlife, pers. comm. 1994). Manitoba closed its lynx

season Province-wide from 1995-1997 because of low lynx numbers (I.

McKay, pers. comm. 1997).

States where lynx currently or historically occur declare harvest

of lynx illegal, with the exception of Montana, where legal harvest is

set by a limited statewide quota of two. In all States where the lynx

was considered to be a resident species, lynx are included on the

State's lists of endangered, threatened, protected, or regulated game

species.

C. Disease or Predation

Disease and predation are not known to be factors threatening

Canada lynx. However, in areas with human population centers, or high

human densities in more rural areas, diseases of domestic animals may

pose potential threats to lynx (R. Brocke, State University of New

York, pers. comm. 1994).

D. Inadequacy of Existing Regulatory Mechanisms

There are no regulatory mechanisms that address the management or

conservation of functional Canada lynx habitat, although most states

provide the Canada lynx with protection from hunting and trapping.

Lynx are classified as endangered by 4 of the 16 States in the

contiguous United States where the Canada lynx was considered to be a

resident species, Vermont (1972), New Hampshire (1980), Michigan

(1987), and Colorado (1976). Lynx are classified as threatened by

Washington (1993). Utah has classified the lynx as a sensitive species.

The lynx is classified as a species of special concern in Maine (1997)

and in Wisconsin it is protected (1997). Two States officially classify

them as extirpated: Pennsylvania (J. Belfonti, in litt. 1994) and

Massachusetts (J. Cardoza, in litt. 1994). Five States classify lynx as

small game or furbearers with closed seasons: Idaho (1997), New York

(1967), Minnesota (1984), Wyoming (1973), and Oregon (1997).

A Canada lynx trapping season still occurs in Montana, but the

legal, State wide quota is restricted to two animals. In response to

declining harvests, Montana has substantially reduced the lynx quota

since 1977 (when the lynx was added to the Convention on International

Trade in Endangered Species (CITES) and Montana classified the species

as a furbearer). Since 1991, the quota has been two for the entire

State, which has been met or slightly exceeded annually (B. Giddings,

pers. comm. 1998).

Estimates of illegal harvest of Canada lynx are unavailable for

most areas. Illegal harvest has been a serious concern in localized

areas in the past (Washington Department of Wildlife 1993).

On February 4, 1977, the Canada lynx was included in Appendix II of

CITES. The CITES is an international treaty established to prevent

international trade that may be detrimental to the survival of plants

and animals. A CITES export permit must be issued by the exporting

country before an Appendix II species may be shipped. The CITES permits

may not be issued if the export will be detrimental to the survival of

the species or if the specimens were not legally acquired. However,

CITES does not itself regulate take or domestic trade.

Regulatory mechanisms to protect Canada lynx habitat are limited.

Although the U.S. Forest Service

[[Page 37005]]

classifies lynx as a sensitive species within the contiguous United

States, few national forests have developed population viability

objectives or management guidelines required by the National Forest

Management Act for Canada lynx because of limited information about the

species' requirements. All national forests are obligated to protect

biological diversity on Federal lands.

In the northeast region, the Green Mountain National Forest Plan

states that the national forest will develop management plans if and

when an established Canada lynx population is detected (U.S. Forest

Service 1986a). There are no specific regulations or guidelines

pertaining to lynx habitat. The White Mountain National Forest Plan

includes Canada lynx as an indicator species and limits recreational

trail density in Canada lynx habitat. The forest plan calls for

consideration of the needs of the species in planning alternatives, the

monitoring of lynx populations, and for initiating or coordinating

studies and/or recovery efforts (U.S. Forest Service 1986b).

In the Great Lakes region, some national forests apply standards

for gray wolf (Canis lupus) to guide Canada lynx habitat management (M.

Shedd, Superior National Forest, pers. comm. 1994). It is unknown

whether wolf standards are appropriate for lynx.

Washington Department of Wildlife (1993) determined that habitat

needs of Canada lynx had not been considered adequately while planning

for timber harvest on national forest and State lands in some areas of

the State.

Several lynx conservation plans exist or are under development.

Such plans include the lynx habitat management guidelines for

Washington (Washington Department of Fish and Wildlife 1993; R. Naney,

Okanogan National Forest, in litt. 1994), the Idaho State conservation

effort (Roloff 1995), Washington Department of Natural Resources

conservation strategy (Washington Department of Natural Resources

1996a), Boise-Cascade Timber Corporation lynx habitat management plan

in Washington (Whitwill and Roloff 1996), Kootenai National Forest in

Montana (Kootenai National Forest 1997), and the Southern Rocky

Mountains, Draft strategy for the conservation and reestablishment of

lynx and wolverine in the southern Rocky Mountains (Colorado Division

of Wildlife et al. 1997). At this time, there has been no comprehensive

review of these plans to determine whether the guidelines in these

plans have the ability to maintain or increase lynx populations. The

degree to which these plans are or will be implemented and monitored

varies.

Land use on private lands can have a great impact on Canada lynx

habitat. The majority of Canada lynx habitat in the Northeast region

occurs on private land, ranging from small residential lots to large

industrial ownerships (Harper et al. 1990). All States in the region

have various laws and regulations regarding environmental issues

(Harper et al. 1990). Indirectly these regulations may promote the

conservation of habitat; however, none are directed specifically to

Canada lynx habitat conservation. In the Northeast region, the Northern

Forest Lands Council has a charter to maintain traditional patterns of

landownership and use; part of this effort includes a forest inventory

(Northern Forest Lands Council, in litt. 1994). How this effort may

affect the conservation of Canada lynx habitat is unknown.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Loss of suitable habitat for Canada lynx reduces the potential for

population growth or recolonization of the lynx and further confines

lynx to smaller, more isolated habitat units (Weaver 1993). Isolation

increases the susceptibility of the lynx to human-caused threats,

natural stochastic events, and effects of genetic bottlenecks (Andrews

1992; Weaver 1993). In the Rocky Mountain/Cascades Region much of lynx

habitat is naturally disjunct and habitat connectivity is required

across large geographic areas to facilitate dispersal and genetic

exchange (Roloff 1995). The increased fragmentation of forest lands and

loss of connectivity within and among blocks of habitat in the interior

Columbia River basin of Washington, Oregon, Idaho, and Montana has

reduced the ability of some wildlife populations to move across the

landscape, resulting in long-term loss of genetic interchange (U.S.

Forest Service and Bureau of Land Management 1997).

Elevated levels of human access into forests are a significant

threat to Canada lynx because they increase the likelihood of lynx

encountering people, which may result in displacement of lynx from

their habitats and/or possible injuries or deaths by intentional or

unintentional shooting, trapping, and vehicle accidents (Hatler 1988;

Thiel 1987; Brittell et al. 1989; Koehler and Brittell 1990; Brocke et

al. 1991; Andrew 1992; Washington Department of Wildlife 1993; Brocke

et al. 1993; M. Hunter, University of Maine, pers. comm. 1994). Human

access into Canada lynx habitat in many areas has increased over the

last several decades because of increasing human populations and

increased construction of roads and trails and the growing popularity

of snowmobiles and offroad vehicles. In the interior Columbia River

basin of Washington, Oregon, Idaho, and Montana, increased human access

has decreased the availability of areas with low human activities,

which are important to large forest carnivores, including lynx (U.S.

Forest Service and Bureau of Land Management 1997).

Lynx will use some types of roads for hunting and travel (Koehler

and Aubry 1994). Koehler and Aubry (1994) concluded road construction

and maintenance are important components of lynx habitat management

because they both destroy and create prey habitat, but also make lynx

more vulnerable to human-caused mortalities. In the interior Columbia

River basin of Washington, Oregon, Idaho, and Montana, high road

densities were found primarily in intensively managed forest lands of

both public and private ownership (U.S. Forest Service and Bureau of

Land Management 1997).

Wide-ranging species are impacted by the increased road densities

that often accompany human-caused forest fragmentation (Litvaitis

1993). The Loomis State Forest in Washington plans to construct a total

of 615 mi of roads from 1996 to 2005 (Washington Department of Natural

Resources 1996b). According to the plan, the density of roads in

primary lynx habitat will be 1.91 to 3.04 road mi per square mile (sq

mi) (Washington Department of Natural Resources 1996b). Even roads that

are considered ``closed'' will continue to be accessible to

snowmobiles, thereby allowing access to higher elevation lynx habitat

by humans and lynx competitors.

In the Pioneer Mountains of Montana, a currently narrow, unpaved

road is being paved and widened to further encourage already high

recreational use of the forest (Harding Lawson Associates

Infrastructure, Inc. 1996). The project area is occupied, high-quality

lynx habitat, although lynx use of the area is currently restricted

because of intense recreational use of the area (Harding Lawson

Associates Infrastructure, Inc. 1996). Completion of this road project

will impact lynx by causing further deterioration of lynx habitat,

because increased human activity will sever lynx travel corridors and

mortalities from vehicle collisions will increase (Harding Lawson

Associates Infrastructure, Inc. 1996).

Blocks of suitable habitat, both public and private, are often

dissected by extensive networks of paved roads. Traffic on highways has

been shown to

[[Page 37006]]

pose a considerable mortality risk to Canada lynx (Brocke et al. 1991;

B. Ruediger, U.S. Forest Service, pers. comm. 1997). Highway densities

are a contributing factor in the decline of carnivores, including the

lynx, in the contiguous United States (Ruediger 1996). Dispersing or

transient lynx are more vulnerable to traffic deaths than resident lynx

because their movements over large areas increase their exposure to

roads. In the Great Lakes States, recent records of lynx are from

mortalities due to vehicle collisions, which could limit the potential

for reestablishment of populations in Wisconsin or Michigan.

Increasing human access into Canada lynx habitat has increased the

vulnerability of Canada lynx to both legal and illegal harvest in areas

that, historically, were relatively isolated from humans (Todd 1985;

McKay 1991; Washington Department of Wildlife 1993; M. Hunter, pers.

comm. 1994). In the Uinta Mountains of Utah, most of the documented

Canada lynx specimens were shot during deer hunting season in an area

easily accessed by hunters (McKay 1991). In Washington, there is

concern that human access may reduce the number of Canada lynx

emigrating from British Columbia, further increasing the vulnerability

of the remaining small population (Washington Department of Wildlife

1993). The high degree of access into Alberta's forests created by

petroleum development and logging was suggested as an explanation for

why Alberta produced a large proportion of the total Canadian lynx

harvest in the 1970's and 1980's (Todd 1985).

Human access is a particularly important factor during periods when

Canada lynx populations are low and concentrated in localized refugia.

Brand and Keith (1979) indicated that refugia may have supported only

adult lynx during population lows. Refugia were therefore critical for

repopulating available range elsewhere when the population increased

(Todd 1985). If such refugia were accessible to humans, local lynx

populations could be easily extirpated by trapping, particularly if

there are incentives such as high pelt prices (Carbyn and Patriquin

1983; Ward and Krebs 1985; Bailey et al. 1986; J. Weaver, pers. comm.

1994; Koehler and Aubry 1994).

The Canada lynx may be displaced or eliminated when competitors

(e.g., bobcat, coyote) expand into its range (de Vos and Matel 1952;

Parker et al. 1983; Quinn and Parker 1987; M. DonCarlos, pers. comm.

1994; D. Major, U.S. Fish and Wildlife Service, pers. comm. 1994; J.

Weaver, pers. comm. 1994). The Canada lynx is at a competitive

disadvantage against these other species because it is a specialized

predator, whereas bobcat and coyotes are generalists that are able to

feed on a wide variety of prey. Historically, bobcat and coyotes have

not been able to compete with lynx in areas that receive deep snow

cover, where lynx are much more highly adapted. Where Canada lynx and

bobcat or coyote ranges overlapped, their niches were segregated by

winter range conditions (McCord and Cardoza 1982; Parker et al. 1983;

Quinn and Parker 1987). In Yukon, Canada, coyotes selected snow that

was shallower and harder than that used by lynx (Murray et al. 1994).

Some biologists believe competition has played a significant role

in the decline of Canada lynx (Brocke 1982; Parker et al. 1983; E.

Bangs, U.S. Fish and Wildlife Service, pers. comm. 1994). Murray et al.

(1994) speculate that, in Yukon, use of open spruce forests by lynx may

have been to avoid areas where coyotes were present. In Utah, where

more habitat is suitable for bobcat, it has been suggested that bobcat

competition with Canada lynx resulted in the possible extirpation of

Canada lynx from Utah (B. Blackwell, pers. comm. 1994). Research has

detected direct competition in certain areas, as on Cape Breton Island

where, without changes in forest habitat, bobcats displaced Canada lynx

from all areas except high elevations, where snow accumulation limited

the bobcat's range (Parker et al. 1983).

Competition between Canada lynx and other species may be

facilitated through alteration of forests by timber harvest or other

human activities. Modified habitat may be more suitable to Canada lynx

competitors or may facilitate the establishment of a competitor after

local extirpation of the lynx (McCord and Cardoza 1982; Quinn and

Parker 1987). In the Northeast United States, extensive clearing of

forests for timber and agriculture improved conditions for white-tailed

deer (Odocoileus virginianus) populations, which subsequently may have

influenced a northward expansion of bobcats into the region (K.

Gustafson, pers. comm. 1994). Additionally, mild weather in some

regions for the past decade has improved conditions and habitat for

bobcat and coyotes, particularly by minimizing snow depth (Quinn and

Parker 1987; J. Weaver, pers. comm. 1994). Coyotes have been colonizing

Maine and New Hampshire since the 1970's (Litvaitis and Harrison 1989).

Competition during late winter, a time when lynx are already

nutritionally stressed, may be especially detrimental to lynx (Koehler

and Aubry 1994). Snowmobile trails and roads that are maintained for

winter recreation and forest management activities enable coyotes and

bobcats to access lynx winter habitat (Koehler and Aubry 1994).

Snowmobile use in the Great Lakes and Rocky Mountain/Cascades

regions has resulted in an increase in both human presence and the

prevalence of packed snow corridors in lynx habitat. The increased

snowmobile use and the increased area in which snowmobiles are used

likely diminishes habitat quality for lynx, and also decreases the

lynx's competitive advantage in deep snow. This results in an increased

threat posed by competitors, as a result of the increase in hard-packed

snow trails.

Legal trapping activities for bobcat, coyotes, and other furbearers

create a potential for incidental capture of lynx. The threat to

resident lynx from legal trapping for other species may be limited

because most bobcat or coyote trapping occurs in areas unlikely to

support lynx (M. DonCarlos, pers. comm. 1994; K. Elowe, Maine

Department of Inland Fisheries and Wildlife, pers. comm. 1994; J.

Lanier, pers. comm. 1994; D. Mech, pers. comm. 1994; Maine Department

of Inland Fisheries and Wildlife, in litt. 1997).

Where Canada lynx populations have been substantially reduced or

extirpated in the contiguous United States, natural recolonization of

suitable habitat likely will require lynx migration from other areas in

the contiguous United States or Canada. However, because of the

unsuitable habitat isolating Colorado and southeastern Wyoming from the

remainder of the Rocky Mountains/Cascades, recolonization through

immigration is extremely unlikely.

Winter navigation and associated ice breaking on the St. Mary's

River between Ontario and Upper Michigan could be a potential threat to

reestablishment or maintenance of a lynx population in that area.

Presently, the St. Mary's River shipping channel is not kept open

between January 15 and March 25. Ice breaking before or after that

period could reduce the amount of time available for lynx to immigrate

across the St. Mary's shipping channel from Ontario to Michigan

(Robinson and Fuller 1980).

Distinct Population Segment

For a species to be listable under the Act, it must meet the

definition of a ``species'' as provided in the Act. The Act defines

``species'' as a species, subspecies, or distinct population segment of

a vertebrate species. On

[[Page 37007]]

February 7, 1996 (61 FR 4722), the Service and National Marine

Fisheries Service published final policy guidance concerning

recognition of Distinct Vertebrate Population Segments for

consideration under the Act. It is necessary for the Service to use

this Vertebrate Population Policy when it is considering listing a

vertebrate species or species as endangered or threatened in only a

portion of its range. In developing this proposed rule the Service

evaluated whether Canada lynx in the contiguous United States

constitutes a distinct population segment under the population policy.

While application of the vertebrate population policy may result in

the identification of a greater number of potentially listable

entities, the policy was developed specifically to allow for more

refined application of the Act that better reflects the biological

needs of the taxon being considered and avoids the inclusion of

entities that may not require the considerable protections of the Act.

This approach better serves Congress's intent that listing of distinct

population segments be conducted ``sparingly.''

Under the vertebrate population policy, two elements, discreteness

and significance, must be considered to determine whether a species'

population meets the definition of a distinct population segment. If a

population is discrete and significant, its status is evaluated using

the five listing factors described in section 4(a)(1) of the Act to

determine if it meets the definition of either threatened or

endangered.

A species' population segment can be considered discrete from the

remainder of the taxon if it satisfies either one of the following

conditions: (1) ``it is markedly separated from other populations of

the same taxon as a consequence of physical, physiological, ecological,

or behavioral factors,'' or (2) ``it is delimited by international

governmental boundaries within which differences in control of

exploitation, management of habitat, conservation status, or regulatory

mechanisms exist that are significant in light of section 4(a)(1)(D) of

the Act.'' Given that the Service has determined that resident, viable

numbers of Canada lynx exist in the contiguous United States (see

Background section), the Service concludes that the contiguous United

States population of the Canada lynx is discrete based on the

international boundary between Canada and the contiguous United States

because of differences in status and management of Canada lynx between

the United States and Canada.

In Canada, management of forest lands and conservation of wildlife

habitat varies depending on Provincial regulations. In Alberta, there

is no law regulating forest practices and the status of Canada lynx in

Alberta is of concern because of habitat-related threats as a result of

logging (B. Triechel, Alberta Environmental Protection, pers. comm.

1997). There is no overarching forest practices legislation in Canada,

such as the United States' National Forest Management Act, governing

management of national lands and/or providing for consideration of

wildlife habitat requirements. Additionally, in Canada, lynx harvest

regulations vary, being regulated by individual Province or, in some

cases, individual trapping district.

According to the Vertebrate Population policy, a population segment

can be considered significant based on information such as the

following: (1) ``Persistence of the discrete population segment in an

ecological setting unusual or unique for the taxon''; (2) ``Evidence

that loss of the discrete population segment would result in a

significant gap in the range of the taxon''; (3) ``Evidence that the

discrete population segment represents the only surviving natural

occurrence of a taxon that may be more abundant elsewhere as an

introduced population outside its historic range;'' and (4) ``Evidence

that the discrete population segment differs markedly from other

populations of the species in its genetic characteristics.''

In a general sense, Canada lynx in the contiguous United States

might be considered biologically and/or ecologically significant simply

because they represent the southern extent of the species' overall

range. There are climatic and vegetational differences between Canada

lynx habitat in the contiguous United States and that in northern

latitudes in Canada and Alaska (Kuchler 1965). In the contiguous United

States, Canada lynx inhabit a mosaic between boreal forests and

sublpine coniferous forests or northern hardwoods, whereas in more

northern latitudes, Canada lynx habitat is the boreal forest ecosystem

(Barbour et al. 1980; McCord and Cardoza 1982; Koehler and Aubry 1994;

M. Hunter, University of Maine, pers. comm. 1994; Colorado Division of

Wildlife et al. 1997) (see Background section).

Canada lynx and snowshoe hare population dynamics in portions of

the contiguous United States are different from those in northern

Canada. Historically, Canada lynx and snowshoe hare populations in some

areas of the contiguous United States have not exhibited the extreme

cyclic population fluctuations of the northern latitudes for which

Canada lynx are noted (Dolbeer and Clark 1975; Brittell et al. 1989;

Wolff 1980; Buehler and Keith 1982; Koehler 1990; Koehler and Aubry

1994) (see Background section). This less cyclic population has been

attributed to the lower quality and quantity of snowshoe hare habitat

available in southern latitudes and/or the presence of additional

snowshoe hare predators (Buehler and Keith 1982, Wolff 1982 in Koehler

and Aubry 1994, Koehler 1990, Koehler and Aubry 1994).

Extirpation of the contiguous United States population of the

Canada lynx would result in a significant gap in the range of the

taxon. Canada lynx would not only be lost throughout a broad region of

the United States, but a number of ecosystems would lose a top-level

carnivore from their representative fauna.

After review and consideration of Canada lynx status and management

in the contiguous United States and Canada, contacts with recognized

experts, lynx life history, habitat, and population dynamics, the

Service has determined that the Canada lynx in the contiguous United

States is discrete and significant and, therefore, qualifies as a

distinct population segment to be considered for listing under the Act.

Finding

Based on historic observations, trapping records and other evidence

available to the Service at this time, the Service finds that,

historically, Canada lynx were resident in 16 of the contiguous United

States. The overall numbers and range of Canada lynx in the contiguous

United States are substantially reduced from historic levels.

Currently, resident populations of lynx likely exist in Maine, Montana,

Washington, and possibly Minnesota. States with recent records of

individual lynx sightings, but possibly no longer sustaining self-

supporting populations, include Wisconsin, Michigan, Oregon, Idaho,

Wyoming, Utah, and Colorado. Lynx may be extirpated from New Hampshire,

Vermont, New York, Pennsylvania, and Massachusetts.

At present, lynx numbers in the contiguous United States have not

recovered from the overexploitation by both unregulated and regulated

trapping that occurred in the 1970's and 1980's. As a result, the other

threats to the lynx described earlier under the ``Summary of Factors

Affecting the Species'' section have a serious effect on the remaining

population. Where Canada lynx numbers have been substantially reduced

or extirpated, natural recolonization of suitable habitat likely

[[Page 37008]]

will require lynx migration from other areas in the contiguous United

States or Canada. In Maine, there is evidence that lynx move back and

forth across the Canadian border, indicating that Maine lynx habitat is

contiguous with occupied habitat in Quebec and possibly, New Brunswick

(M. Amaral, in litt. 1998).

Forest management practices that result in the loss of diverse age

structure, roading, urbanization, agriculture, recreational

developments, and unnatural fire frequencies have altered suitable lynx

habitat in many areas throughout the contiguous United States. As a

result, many states may have insufficient habitat quality and/or

quantity to sustain lynx or their prey.

The likelihood of lynx encountering people has dramatically

increased over the last few decades as a result of elevated levels of

human access into lynx habitat. Roads and trails, snowmobiles, offroad

vehicles, and ski area developments enable human access into

historically remote forests, thereby increasing the likelihood of lynx

being displaced from otherwise suitable habitats and increasing the

vulnerability of lynx to human-induced mortality.

Although the legal taking of lynx is highly restricted in the

contiguous United States, existing regulatory mechanisms may be

inadequate to protect the small, remnant lynx populations or to

conserve Canada lynx habitat.

The cumulative effect of these habitat changes has been the

creation of habitats and prey bases that are better able to support

lynx competitors, such as bobcats and coyotes, rather than lynx.

Bobcats are able to outcompete lynx except in habitats with excessive

snow depths. Roads and packed snow trails have allowed bobcats and

coyotes to access the winter habitats for which lynx are highly

specialized.

Recently, some States, Federal agencies, and other entities have

initiated survey and research efforts to better evaluate the status of

the Canada lynx within the contiguous United States. Additionally, some

States such as Washington, Colorado, and Idaho are in the process of

developing strategies to conserve and restore lynx in their states.

Resident lynx populations still occur in Montana, Washington, Maine

and, possibly, Minnesota. According to Montana Fish, Wildlife and

Parks, Montana's lynx numbers are fairly stable. Therefore, the Service

concludes that a designation as threatened is appropriate. A threatened

species is defined in the Act as a species likely to become an

endangered species within the foreseeable future throughout all or a

significant portion of its range.

Based on the preceding discussions and analyses, using the best

available scientific and commercial information available, the Service

finds that listing of the Canada lynx within the contiguous United

States is warranted. The Service proposes to list the contiguous United

States Canada lynx population segment (consisting of the States of

Maine, New Hampshire, Vermont, New York, Pennsylvania, Massachusetts,

Michigan, Wisconsin, Minnesota, Washington, Oregon, Idaho, Montana,

Wyoming, Utah, and Colorado) as threatened.

Critical Habitat

Critical habitat is defined in section 3(5)(a) of the Act as-- (i)

the specific areas within the geographical area occupied by a species,

at the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

considerations or protection and; (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. The term ``conservation'' as defined in section 3(3) of

the Act means ``to use and the use of all methods and procedures

necessary to bring any endangered or threatened species to the point at

which the measures provided pursuant to this Act are no longer

necessary,'' i.e., the species is recovered and can be removed from the

list of endangered and threatened species.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. The Service

finds that designation of critical habitat is not prudent for the

Canada lynx at this time. Service regulations (50 CFR 424.12(a)(1))

state that designation of critical habitat is not prudent when one or

both of the following situations exist--(1) the species is threatened

by taking or other human activity, and identification of critical

habitat can be expected to increase the degree of threat to the

species, or (2) such designation of critical habitat would not be

beneficial to the species.

In accordance with the definition of critical habitat provided by

section 3(5)(A)(I) of the Act, the Service's regulations require the

Service to consider those physical and biological features that are

essential to the conservation of the species and that may require

special management considerations or protection. Such requirements

include, but are not limited to--(1) space for individual and

population growth, and for normal behavior; (2) food, water, air,

light, minerals, or other nutritional or physiological requirements;

(3) cover or shelter; (4) sites for breeding, reproduction, rearing of

offspring, germination, or seed dispersal; and, generally, (5) habitats

that are protected from disturbance or are representative of the

historic geographical and ecological distributions of a species.

Potential benefits of critical habitat designation derive from

section 7(a)(2) of the Act, which requires Federal agencies, in

consultation with the Service, to ensure that their actions are not

likely to jeopardize the continued existence of listed species or to

result in the destruction or adverse modification of critical habitat

of such species. Critical habitat, by definition, applies only to

Federal agency actions. The 50 CFR 402.02 defines ``jeopardize the

continued existence of'' as meaning to engage in an action that would

reasonably be expected, directly or indirectly, to reduce appreciably

the likelihood of both the survival and recovery of a listed species in

the wild by reducing the reproduction, numbers, or distribution of that

species. ``Destruction or adverse modification'' is defined as a direct

or indirect alteration that appreciably diminishes the value of

critical habitat for both the survival and recovery of a listed

species. Such alterations include, but are not limited to, alterations

adversely modifying any of those physical or biological features that

were the basis for determining the habitat to be critical. Thus, in the

section 7(a)(2) consultation process, the jeopardy analysis focuses on

potential effects on the species' populations, whereas the destruction

or adverse modification analysis focuses on habitat value.

Common to both a jeopardy and the destruction or adverse

modification of critical habitat is the requirement that the Service

find an appreciable effect on both the species' survival and recovery.

This is in contrast to the public perception that the adverse

modification standard sets a lower threshold for violation of section 7

than that for jeopardy. Thus, Federal actions satisfying the standard

for adverse modification are nearly always found to also jeopardize the

species concerned, and the existence of critical habitat designation

does not materially affect

[[Page 37009]]

the outcome of consultation. Biological opinions that conclude that a

Federal agency action is likely to adversely modify critical habitat

but is not likely to jeopardize the species for which it is designated

are extremely rare historically; none have been issued in recent years.

Thus, the Service believes that, from a section 7 consultation

perspective, no additional conservation benefit would be achieved for

the contiguous United States Canada lynx population by the designation

of critical habitat.

Currently, in the contiguous United States, legal harvest of lynx

is not a threat to the population because all States, except Montana,

have closed seasons on the harvest of lynx. Montana has an extremely

low quota, allowing two lynx to be harvested per season. Additionally,

current prices for lynx pelts are relatively low so there is little

incentive to trap lynx. However, should pelt prices increase again in

the future, there will be strong incentive to trap lynx as evidenced by

trapping records from the 1970's and 1980's (see Factor B, above).

Designation of critical habitat would increase the vulnerability of

lynx to poaching; therefore, the Service concludes it would not be

prudent to designate critical habitat.

In the contiguous United States, Canada lynx inhabit a mosaic

between boreal forests and subalpine coniferous forests or northern

hardwoods, as described earlier in the Background section. Canada lynx

are highly dependent on snowshoe hares to supply an adequate food

source. Canada lynx concentrate their foraging activities in areas

where hare activity is high. Snowshoe hares prefer structurally diverse

forests, often early successional stages, with stands of conifers and

shrubby understories that provide for feeding, escape from predators,

and protection during extreme weather. For denning, it is believed

Canada lynx require late successional forests that provide downed logs

and windfalls for cover. Additionally, Canada lynx are highly mobile

and can move long distances in search of prey (see Background section,

above). Home range sizes vary widely (12 to 243 sq km (5-94 sq mi)

depending primarily on the density of lynx and availability of prey in

an area. For example, the estimated range of one male lynx would

encompass all protected lands in the White Mountain National Forest in

New Hampshire and Maine (Brocke et al. 1993).

The Service concludes it would not be beneficial to designate

specific geographic locations as critical habitat because snowshoe hare

habitat and lynx denning habitat will always shift spatially and

temporally across the landscape as a result of natural (e.g., fire,

forest maturation, seasonal) and human-caused changes (e.g., logging,

thinning). Canada lynx would reasonably be expected to relocate in

response to the natural dynamics of lynx population levels, prey

availability, and habitat conditions, thereby making little use of

specific areas designated as critical habitat.

Attempting to encompass lynx movements or the spatial shifts in

lynx foraging or denning habitat that will occur over time by

designating critical habitat on a large-scale (e.g., an entire national

forest or wilderness area) would not be beneficial to the species.

Under such a designation, it would be impracticable to assert that a

single Federal action would appreciably diminish the value of critical

habitat for both the survival and recovery of a listed species or that

the entire expansive area requires special management or protection

(the purpose of a critical habitat designation) for lynx. Additionally,

Forest Plans that dictate how an entire national forest would be

managed are already subject to review under section 7.

A large-scale designation would be over inclusive because it would

contain many areas that never were or will be lynx habitat and areas

that, although they may be used by lynx, would not require special

management or protection for lynx. For example, in 1994, nearly 60

percent of the approximately 17 million acres of national forests in

Montana were classified as roadless or designated wilderness areas (J.

Gatchell, Montana Wilderness Association, pers. comm. 1994). However, a

large proportion of these areas are not suitable lynx habitat because

they consist of rock- and ice-covered mountaintops.

A substantial amount of Federal land exists in the Western and

Great Lakes regions of the contiguous United States lynx population

segment in Washington, Oregon, Idaho, Montana, Wyoming, Utah, Colorado,

Minnesota, Wisconsin, and Michigan. Actions on these Federal lands are

ensured of the benefit of review under section 7 of the Act, regardless

of whether or not critical habitat is designated. Potential and

occupied Canada lynx habitat exists primarily on Federal lands managed

by the U.S. Forest Service. Additional Federal land managers include

but are not limited to the National Park Service and Bureau of Land

Management. Currently, the U.S. Forest Service, Bureau of Land

Management, and the Service are developing a section 7 conferencing and

consultation strategy to conserve lynx on the 56 National Forests and

numerous Bureau of Land Management districts within its historic range

in the contiguous United States (B. Ruediger, in litt. 1998).

Designation of critical habitat provides no limitations or

constraints on private landowners if there is no Federal involvement

and, as such, provides the species no conservation benefit. The amount

of Federal land in the northeastern United States range of the lynx is

small (primarily the White Mountain and Green Mountain National Forests

in parts of Vermont, New Hampshire, and Maine) compared to the amount

of non-Federal land. Because few Federal actions occur in the

northeastern United States range of the lynx, project review under

section 7 of the Act would be rarely required (M. Amaral, pers. comm.

1998).

In the Rocky Mountain/Cascades, Great Lakes, and Northeast regions

of the lynx range, there are large parcels of land in corporate

ownership. Actions on these lands will either have no Federal nexus or

will require review under section 7 of the Act.

Protection of lynx habitat can be addressed in habitat conservation

plans voluntarily developed by landowners under the section 10

permitting process. In the State of Washington, Canada lynx are covered

under a multispecies Habitat Conservation Plan on forest lands owned by

Plum Creek Timber Company in the central Cascades mountain range.

Therefore, because of the increased vulnerability of the lynx, the

spatial and temporal changes in lynx foraging and denning habitats, the

high mobility of individual lynx, the inability to control lynx habitat

in Canada, and the fact that designation of critical habitat would

provide little different or greater benefit than that provided by the

jeopardy standard under section 7 regulations, the Service has

determined that the designation of critical habitat for the contiguous

United States population of the Canada lynx is not prudent.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing results in public awareness and

conservation actions by Federal, State, and local agencies, private

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires

[[Page 37010]]

that recovery actions be carried out for all listed species. The

protection required of Federal agencies and the prohibitions against

taking and harm are discussed, in part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any species that is proposed or listed as

endangered or threatened and with respect to its critical habitat, if

any is being designated. Regulations implementing this interagency

cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) requires Federal agencies to confer with the Service on

any action that is likely to jeopardize the continued existence of a

species proposed for listing or result in destruction or adverse

modification of proposed critical habitat. If a species is listed

subsequently, section 7(a)(2) requires Federal agencies to ensure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of the species or destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into formal consultation with the Service.

The contiguous United States population of the Canada lynx occurs

on lands administered by the U.S. Forest Service, National Park

Service, Bureau of Land Management; Tribal lands, State lands, and

private lands. Examples of Federal agency actions that may require

conference and/or consultation as described in the preceding paragraph

include timber, silviculture/thinning, road construction, fire, and

recreation management activities or plans by the Forest Service, Bureau

of Land Management, and National Park Service; Federal highway

projects, and U.S. Housing and Urban Development projects.

The Act and implementing regulations set forth a series of general

prohibitions and exceptions that apply to all threatened wildlife. The

prohibitions, codified at 50 CFR 17.21 and 17.31, in part, make it

illegal for any person subject to the jurisdiction of the United States

to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect; or attempt any of these), import or export, ship

in interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

also is illegal to possess, sell, deliver, carry, transport, or ship

any such wildlife that has been taken illegally. Certain exceptions

apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered or threatened wildlife under certain

circumstances. Regulations governing permits are codified at 50 CFR

17.32. Such permits are available for scientific purposes, to enhance

the propagation or survival of the species, and/or for incidental take

in the course of otherwise lawful activities. For threatened species,

permits also are available for zoological exhibition, educational

purposes, or special purposes consistent with the purposes of the Act.

Regulations governing permits for species listed as threatened due to

similarity of appearance are codified at 50 CFR 17.52 and regulation

implementing CITES are codified at 50 CFR part 23.

It is the policy of the Service (59 FR 34272; July 1, 1994) to

identify to the maximum extent practicable at the time a species is

listed those activities that would or would not constitute a violation

of section 9 of the Act. The intent of this policy is to increase

public awareness of the effect of this listing on proposed and ongoing

activities within the species' range.

For the contiguous United States population of the Canada lynx, the

Service believes the following actions would not likely result in a

violation of section 9:

(1) Actions that may affect Canada lynx in the contiguous United

States that are authorized, funded or carried out by a Federal agency

when the action is conducted in accordance with an incidental take

statement issued by the Service pursuant to section 7 of the Act;

(2) Actions that may result in take of Canada lynx in the

contiguous United States when the action is conducted in accordance

with a permit under section 10 of the Act; For the contiguous United

States population of the Canada lynx, the following actions likely

would be considered a violation of section 9:

(1) Actions that take Canada lynx that are not authorized by either

a permit under section 10 of the Act, or an incidental take permit

under section 7 of the Act; the term ``take'' includes harassing,

harming, pursuing, hunting, shooting, wounding, killing, trapping,

capturing, or collecting, or attempting any of these actions;

(2) Possess, sell, deliver, carry, transport, or ship illegally

taken Canada lynx;

(3) Interstate and foreign commerce (commerce across State and

international boundaries) without the appropriate permits under section

10(a)(1)(a), 50 CFR 17.32 and/or CITES.

(4) Significant lynx habitat modification or degradation, including

but not limited to forest management (e.g., logging, road construction

and maintenance, prescribed fire), and recreational, urban, or

agricultural development, to the point that it results in death or

injury by significantly impairing essential behavioral patterns,

including breeding, feeding, or sheltering.

Requests for copies of the regulations regarding listed wildlife

and inquiries about prohibitions and permits may be addressed to U.S.

Fish and Wildlife Service, P.O. Box 25486, Denver Federal Center,

Denver, Colorado 80225.

Special Rule

The implementing regulations for threatened wildlife under the Act

incorporate the section 9 prohibitions for endangered wildlife (50 CFR

17.31), except when a special rule promulgated pursuant to section 4(d)

applies (50 CFR 17.31(c)). Section 4(d) of the Act provides that

whenever a species is listed as a threatened species, the Service shall

issue regulations deemed necessary and advisable to provide for the

conservation of the species. Conservation means the use of all methods

and procedures necessary to bring the species to the point at which the

protections of the Act are no longer necessary. Section 4(d) also

states that the Service may, by regulation, extend to threatened

species, prohibitions provided for endangered species under Section 9.

This special rule will provide for the take of captive-bred Canada

lynx without permit, allow the continuation of the export of captive-

bred Canada lynx under CITES export permits, and provide for the

transportation of lynx skins in commerce within the United States. The

export of properly tagged (with valid CITES export tag) skins from lynx

documented as captive-bred will be permitted in accordance with part 23

of this chapter. Properly tagged skins may be transported in interstate

trade without permits otherwise required under part 17.32.

Public Comments Solicited

The Service intends that any final action resulting from this

proposal will be as accurate and as effective as possible. Therefore,

comments, or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning this proposed rule are hereby solicited. Comments

particularly are sought concerning:

(1) Biological, commercial trade, or other relevant data concerning

any threat (or lack thereof) to this species;

[[Page 37011]]

(2) Additional information concerning the range, distribution, and

population size of the species;

(3) Current or planned activities in the subject area and their

possible impacts on this species;

(4) Additional information pertaining to the promulgation of a

special rule to provide States and Tribes the opportunity to maintain

the lead role in protection, management, and recovery of the species

through the voluntary development and implementation of a conservation

plan. Such conservation plans would address activities having the

potential to adversely impact lynx or lynx habitat, including

activities that may result in the take of lynx incidental to otherwise

lawful activities; provisions to avoid and minimize those impacts; and

existing or planned conservation measures that will be implemented to

result in a net recovery benefit for lynx. Potential activities to be

addressed in such a plan may include trapping and hunting programs that

target species other than lynx; forest management; road construction,

maintenance and use; and recreational development. Approved

conservation plans would authorize the non deliberate or non purposeful

take of lynx incidental to otherwise lawful State or Tribal activities.

The final decision on this proposal will take into consideration

the comments and any additional information received by the Service,

and such communications may lead to a final regulation that differs

from this proposal.

The Act provides for at least one public hearing on this proposal,

if requested. However, given the high likelihood of several requests

throughout the species' range, the Service has scheduled hearings in

advance of any request. For additional information on public hearings,

see the SUPPLEMENTARY INFORMATION section.

Similarity of Appearance

Section 4(e) of the Act authorizes the treatment of a species (or

subspecies or population segment) as an endangered or threatened

species even though it is not otherwise listed as endangered or

threatened if: (a) The species so closely resembles in appearance an

endangered or threatened species that enforcement personnel would have

substantial difficulty in differentiating between listed and unlisted

species; (b) the effect of this substantial difficulty is an additional

threat to the endangered or threatened species; and (c) that such

treatment will substantially facilitate the enforcement and further the

policy of the Act.

The Canada lynx is included in Appendix II of the Convention on

International Trade in Endangered Species of Wild Fauna and Flora

(CITES). CITES is an international treaty that regulates international

trade in certain animal and plant species. Exports of animals and

plants listed on CITES Appendix II as a similarity of appearance

species may occur only if the Scientific Authority has advised the

Management Authority that such exports will not be detrimental to the

survival of the look alike species, and if the Management Authority is

satisfied that the animals or plants were not obtained in violation of

laws for their protection. The Canada lynx was included in CITES

Appendix II on February 4, 1977, as a part of the listing of all

Felidae that were not already included in the appendices. A CITES

export permit pursuant to 50 CFR part 23 must be issued by the

exporting country before an Appendix II species may be shipped. All

Felidae were included in Appendix II to enable better protection of

look alike species that were or could be threatened with extinction

without strict regulation of trade. After inclusion of the lynx (as

well as the bobcat and river otter) in CITES Appendix II, the Service

worked with the States to develop guidelines for State programs that

would provide the information needed to satisfy CITES export

requirements. Under the State CITES export programs, all skins to be

exported are required to be tagged with a permanently attached,

serially numbered tag that identified the species, State of origin, and

season of taking. The tags are provided to the States by the Service.

The States that were approved for export of lynx are Alaska, Idaho,

Minnesota, Montana, and Washington. Canada lynx in Alaska are not

encompassed by this listing, all existing CITES requirements remaining

the same. Of the 48 contiguous States, Montana is the only State that

still has a wild lynx harvest with a quota of two.

Currently there are facilities in Idaho, Minnesota, Montana, North

Dakota, and Utah that raise captive-bred Canada lynx for commercial

purposes. At least some of the farms report that their initial stock

was obtained from Canada. From 1992 through 1997, Minnesota and Montana

reported that a total of 139 lynx pelts were tagged for export under

the CITES program and these primarily originated from farmed animals.

The Service currently has an application pending for the export of 254

captive-bred lynx from Utah. These captive-bred specimens have neither

a positive or negative effect on the species in the wild.

Current prices for lynx pelts are relatively low so there is little

present incentive to trap lynx. However, should pelt prices increase

again in the future, there could be strong incentive to trap wild lynx

and export their pelts. Lynx are easy to trap and the illegal take of

lynx may present an enforcement and inspection problem for Service

personnel. Captive-bred Canada lynx cannot be effectively

differentiated from wild Canada lynx by Service law enforcement and

inspection personnel without proper tagging. For these reasons, the

Service is listing the captive populations of Canada lynx within the

United States as threatened due to similarity of appearance. However,

under the latitude for threatened species afforded by the Act and 50

CFR 17.31(c) the Service is proposing to issue permits for captive-bred

Canada lynx to facilitate the lawful export of Canada lynx. The listing

of the captive populations of Canada lynx within the United States as

threatened due to similarity of appearance eliminates the ability of

persons to misrepresent illegally taken wild Canada lynx as captive-

bred Canada lynx for commercial purposes.

This proposed rule would, in addition to the export under 50 CFR

part 23 of live captive-bred Canada lynx, allow the export of skins

derived from captive-bred populations of Canada lynx if the specimens

are tagged with a CITES export tag and accompanied by a valid CITES

export permit. The import of lawfully obtained Canada lynx pelts

originating in the nation of Canada would continue to require the

necessary CITES export permits, but no additional Endangered Species

Act import permit would be required. Interstate transport and/or

commerce in skins that are properly tagged with valid CITES export tags

would be allowed without permits otherwise required under 50 CFR 17.32.

The export or interstate transport of skins of Canada lynx taken

incidental to otherwise lawful trapping for species other than Canada

lynx will not be permitted under the special rule. The import of live

specimens would require permits under the Act.

Regulations implementing the Endangered Species Act are set forth

at 50 CFR part 17. Any person intending to engage in an activity for

which a permit is required such as exporting lawfully obtained Canada

lynx must, before commencing such activity, obtain a valid permit

authorizing such activity. Permit requirements for threatened species

are set forth at 50 CFR 17.31 and 17.32. Permit requirements for

species

[[Page 37012]]

listed by similarity of appearance are set forth at 50 CFR 17.52, with

exceptions to permit requirements provided by special rule as proposed

herein. The Service's general permit procedures are set forth at 50 CFR

part 13. Uniform rules and procedures for the importation, exportation

and transportation of wildlife are set forth at 50 CFR part 14.

In summary, CITES/Endangered Species Act permits will be required

for U.S. captive-bred lynx being sold abroad. No U.S. Fish and Wildlife

permits will be required for the importation of lynx products into the

U.S., and permits will not be required for interstate transport and

commerce in skins that are properly tagged with valid CITES export

tags.

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Act. A notice outlining the Service's reasons for this

determination was published in the Federal Register on October 25, 1983

(48 FR 49244).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements for which Office of Management and Budget (OMB) approval

is required. Persons exporting captive-bred Canada lynx may continue to

obtain permits which are already authorized under 50 CFR part 23 as

approved by OMB and assigned clearance number 1018-0022.

The Service invites comments on the anticipated direct and indirect

costs and benefits or cost savings associated with the special rule for

the captive Canada lynx population. In particular the Service is

interested in obtaining information on any significant economic impacts

of the proposed rule on small public and private entities. Once we have

reviewed the available information, we will prepare an initial

regulatory flexibility analysis for the special rule and make this

available for public review. This analysis will be revised as

appropriate and incorporated into the record of compliance (ROC)

certifying that the special rule complies with the various applicable

statutory, Executive Order, and Departmental Manual requirements.

Pursuant to the Endangered Species Act, the ROC is not applicable to

the listing of the Canada lynx. In accordance with the criteria in

Executive Order 12866, neither the listing nor the special rule are

significant regulatory actions subject to review by the Office of

Management and Budget.

References Cited

A complete list of all references cited herein, as well as others,

is available upon request from the Montana Field Office (see ADDRESSES

section).

Author

The primary author of this document is Lori H. Nordstrom, Montana

Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby proposes to amend Part 17,

Subchapter B of Chapter I, Title 50 of the U.S. Code of Federal

Regulations, as set forth below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend 17.11(h) by adding the following, in alphabetical order

under ``MAMMALS,'' to the List of Endangered and Threatened Wildlife to

read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate

-------------------------------------------------------- population where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

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

Mammals

* * * * * * *

Lynx, Canada..................... Lynx canadensis..... USA (WA, OR, WA, (Unless bred in T N/A N/A

OR, ID, MT, ID, captivity).

MT, UT, UT, WY,

CO, MN, WY, CO,

MN, WI, MI, ME,

VT, WI, MI, ME,

NH, NY, MA, VT,

NH, NY, PA, MA,

PA, AK), Canada.

Do............................... ......do............ ......do........... All captive animals T(S/A) N/A 17.40(k)

within the

coterminous U.S.A.

(lower 48 States),

activities as

prohibited or

allowed under

17.31, 17.32,

17.40(k), 17.52,

and part 23.

* * * * * * *

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

3. Amend Sec. 17.40 by adding paragraph (k) to read as follows:

Sec. 17.40 Special rules--mammals.

* * * * *

(k) Canada lynx (Lynx canadensis) population--(1) Prohibitions. (i)

Except as noted in paragraph (k)(2) of this

[[Page 37013]]

section, all prohibitions of 50 CFR 17.31 and exemptions of 50 CFR

17.32 and 17.52 apply to the captive Canada lynx population within the

coterminous United States (lower 48 States).

(2) Exceptions. (i) The Service may issue incidental take permits

or permits authorizing activities that would otherwise be unlawful

under paragraph (k)(1) of this section for education purposes,

scientific purposes, the enhancement or propagation for survival of

Canada lynx, zoological exhibition, and other conservation purposes

consistent with the Act in accordance with 50 CFR 17.52 and pursuant to

a section 6 cooperative agreement with a State, if applicable.

(ii) No permit will be required for taking of lawfully obtain

captive-bred lynx. The Service may issue CITES export permits for

captive-bred Canada lynx and properly tagged captive-bred Canada lynx

skins in accordance with 50 CFR part 23. Interstate transport and or

commerce in skins that are properly tagged with a valid CITES export

tag would be allowed without a permit. The export or interstate

transport of skins of Canada lynx taken incidental to otherwise lawful

trapping for species other than Canada lynx will not be permitted.

Dated: June 26, 1998.

Donald Barry,

Acting Assistant Secretary, Fish and Wildlife and Parks.

[FR Doc. 98-17771 Filed 6-30-98; 11:22 am]

BILLING CODE 4310-55-P