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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules management direction for the LUAs and commitments to support barred owl research and management, are expected to result in a net increase in northern spotted owl conservation compared to the status quo. Therefore, we find that excluding the Harvest Land Base acres from the critical habitat designation, as proposed in this document, would not reduce the overall conservation of the northern spotted owl and its habitat provided that the conservation measures in the RMPs are implemented as planned. We thus find that these exclusions would not result in extinction of the species.
BLM will continue to rely on the effectiveness monitoring established under the NWFP for the northern spotted owl and late-successional and old growth ecosystems. Monitoring will assess status and trends in northern spotted owl populations and habitat to evaluate whether the implementation of the RMPs is reversing the downward trend of populations and maintaining and restoring habitat necessary to support viable owl populations BLM
2016a.
In conclusion, the revised BLM RMPs provide for the conservation of the essential PBFs throughout the reserve LUAs and mete out the impacts to northern spotted owl habitat in the Harvest Land Base over time while the habitat conditions in the reserve LUAs improve through ingrowth. Based on our analysis in the biological opinion on the RMPs FWS 2016, pp. 700703 and the BLMs conclusions in its records of decision adopting the RMPs, the conservation strategies in the RMPs are likely to be effective. These conservation measures will continue to be in effect regardless of whether the Harvest Land Base areas are designated as critical habitat for the northern spotted owl.
As described above, these Harvest Land Base areas provide a relatively low level of short-term conservation value.
Retaining them as designated critical habitat, which suggests that they have a conservation value similar or equal to that of the LSR lands, may send a confusing message to the public and local land managers. Also, all Federal actions in these Harvest Land Base areas that may affect currently designated critical habitat would require section 7
consultation. These consultations provide no incremental conservation benefit over what is already provided for in the RMPs and thus would not be an efficient use of limited consultation and administrative resources. The benefits of including Harvest Land Base areas within critical habitat for the northern spotted owl are, therefore,
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limited relative to the conservation value provided by the RMPs.
Additionally, actions within the Harvest Land Base that may affect suitable northern spotted owl habitat will still be subject to section 7 consultation to insure that actions in those areas are not likely to jeopardize the continued existence of the species. Given these provisions and assurances, in conjunction with all of the other considerations discussed above, we conclude that the benefits of including these Harvest Land Base areas in critical habitat are relatively negligible.
On the other hand, some appreciable benefit could be realized by excluding Harvest Land Base areas from critical habitat. Executive Order 12866 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives.
Excluding Harvest Land Base lands from the northern spotted owl critical habitat designation reduces the burden of additional section 7 consultation for these lands that serve primarily to meet BLMs timber sale volume objectives.
Therefore, excluding these Harvest Land Base lands from the critical habitat designation would provide some incremental benefit by clarifying the primary role of these lands in relation to northern spotted owl conservation, and by eliminating any unnecessary regulatory oversight. These benefits of exclusion outweigh the relatively minimal benefit of retaining these lands as critical habitat.
We note that there is ongoing litigation challenging BLMs management of O&C lands under the 2016 RMPs. One district court has concluded the 2016 RMPs including their consideration of the Act do not conflict with the O&C Act, see Pac.
Rivers v. U.S. Bureau of Land Mgmnt., 6:16cv01598JR, 2019 WL 1232835
D. Or. Mar.15, 2019, affd sub nom.
Rivers v. Bureau of Land Mgmt., 815
Fed. Appx 107 9th Cir. 2020. In a separate proceeding, the U.S. District Court for the District of Columbia D.D.C., in a consolidated set of cases, found that the RMPs violate the O&C
Act because BLM excluded portions of O&C timberland from sustained yield harvest i.e., the BLM allocated some timberlands to reserves instead of the Harvest Land Base; see, e.g., American Forest Resource Council et al. v.
Hammond, 422 F. Supp. 3d 184 D.D.C.
2019. The parties have briefed the court on the appropriate remedy, but the court has not yet issued an order.

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We considered this information in developing this proposed rule. This proposed rule is based on the 2016
RMPs as they are, and not as they may be modified in the future. While the litigation outcomes of the cases challenging the BLMs management of O&C lands are not certain and we will not speculate on the ultimate outcomes of the litigation, we acknowledge the potential for future reductions in the BLMs reserves and changes in the Harvest Land Base. As discussed above, in the consolidated D.D.C. cases, the court has already found that the BLM
violated the O&C Act by excluding portions of O&C timberlands from sustained yield timber harvest.
Consequently, the Harvest Land Base might change as a result of this litigation by remedy order of the court either with, or without, land use planning undertaken by BLM.
National Forest System LandsWe evaluated whether exclusions from the critical habitat designation under section 4b2 of the Act should be considered within the relatively small amount of O&C lands managed as National Forest System lands by USFS.
Our preliminary analysis of potential areas to consider for exclusion revealed small areas of lower quality interspersed with higher quality habitat scattered across and imbedded within critical habitat subunits. Therefore, in coordination with USFS, we did not identify any National Forest System lands where we believed the benefits of exclusion outweighed the benefits of inclusion at the critical habitat unit mapping scale. In other words, our preliminary view is that formally excluding these lower quality areas from critical habitat would require significant mapping and analytical effort, and that it is unclear what economic or other administrative benefit might be derived from this process.
To date, we have found all proposed timber harvest under the NWFP on National Forest System lands in critical habitat to: 1 Be compatible with northern spotted owl conservation, and 2 not destroy or adversely modify critical habitat. Therefore, we believe the ongoing section 7 consultation processes with USFS under its current land management plans continue to be the best way to evaluate effects of USFS
actions on critical habitat function. We will continue to work closely with USFS to address the conservation needs of the northern spotted owl as the agency updates its various forest plans.
We invite comments specifically addressing National Forest System lands and the reasons why we should or should not exclude habitat on these
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