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Federal Register / Vol. 86, No. 199 / Tuesday, October 19, 2021 / Proposed Rules
whether we are evaluating a conservation plan that involves permits under Section 10 or a non-permitted plan. See 50 CFR 17.90d34.

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Southern California Edison Company Southern California Edison Company SCE, a private electric utility company and landowner, owns and manages approximately 10,254 ac 4,150 ha of lands within Unit 4 of the proposed critical habitat designation for the SSN
DPS of fisher. SCE currently manages these lands to maintain a natural vegetation structure while enhancing wildlife habitat, forest and watershed health, as well as providing recreation opportunities and timber revenue SCE
2021, p. 1. SCE uses an uneven-aged timber management system, which replicates and re-establishes natural ecosystem process resulting in an increase in the diversity of vegetation, providing a broader range of habitat characteristics for wildlife to utilize SCE 2021, p. 4. These forest management practices have maintained and enhanced vital habitat for fishers and have reduced threats facing the DPS, including improving resiliency against severe fire and tree mortality SCE 2021, pp. 45. Additionally, SCE
implements a number of avoidance and protection measures to safeguard biological resources during the implementation of timber management activities, including fisher-specific measures such as avoiding the denning period and retaining specific habitat features that are important to the fisher e.g., hardwoods, live trees with cavities or other similar features, snags, platforms and other resting structures, existing logs and slash SCE 2021, pp.
1012. SCE has developed a draft plan to guide their management of fisher and fisher habitat on their forested lands located in the Shaver Lake and Dinkey Creek areas that describes their current management techniques and fisherspecific avoidance and protection measures SCE 2021, entire. A final plan is expected to be completed before the final designation.
Tribal Lands Several Executive Orders, Secretarial Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis.
A joint Secretarial Order that applies to both the Service and the National
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Marine Fisheries ServiceSecretarial Order 3206, American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act June 5, 1997 S.O. 3206
is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat.
In addition to the general direction discussed above, the Appendix to S.O.
3206 explicitly recognizes the right of Tribes to participate fully in any listing process that may affect Tribal rights or Tribal trust resources; this includes the designation of critical habitat. Section 3b4 of the Appendix requires the Service to consult with affected Tribes when considering the designation of critical habitat in an area that may impact Tribal trust resources, Triballyowned fee lands, or the exercise of Tribal rights. That provision also instructs the Service to avoid including Tribal lands within a critical habitat designation unless the area is essential to conserve a listed species, and it requires the Service to evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.
Our implementing regulations at 50
CFR 17.90d1i are consistent with S.O. 3206. When we undertake a discretionary exclusion analysis, in accordance with S.O. 3206, we consult with any Tribe whose Tribal trust resources, Tribally-owned fee lands, or Tribal rights may be affected by including any particular areas in the designation, and we evaluate the extent to which the conservation needs of the species can be achieved by limiting the designation to other areas. We then weight nonbiological impacts to Tribal lands and resources consistent with the information provided by the Tribes.
However, S.O. 3206 does not override the Acts statutory requirement of designation of critical habitat. As stated above, we must consult with any Tribe when a designation of critical habitat may affect Tribal lands or resources.
The Act requires us to identify areas that meet the definition of critical habitat i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species, without regard to land ownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretarys
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statutory authority under the Act or other statutes.
There are Tribal lands included in the proposed designation of critical habitat for the SSN DPS of fisher. Using the criteria described under Criteria Used To Identify Critical Habitat, we have determined that Tribal lands that are occupied by the SSN DPS of the fisher contain the feature essential to the conservation of the species. We have begun government-to-government consultation with the Tribe, and will continue to do so throughout the public comment period and during development of the final designation of critical habitat for the SSN DPS of fisher. We will consider these areas for exclusion from the final critical habitat designation to the extent consistent with the requirements of section 4b2 of the Act.
The Tule River Indian Tribe of the Tule River Reservation, California Lands that are held in trust by BIA for the Tule River Indian Tribe of the Tule River Reservation overlap with 16,246
ac 6,574 ha of Unit 2 of the proposed critical habitat for the SSN DPS of fisher. We sent a notification letter in September 2019 to the Tribe describing our efforts to evaluate the species status and to develop critical habitat and soliciting information to aid in our development of a proposed critical habitat designation. Since then, we have engaged in conversations with BIA and the Tribe about the proposal. BIA, in coordination with the Tribe, also reviewed and provided comments on the draft IEM, in which they expressed support for the exclusion of the Tribal reservation lands from critical habitat designation. We will continue to coordinate with the Tribe on this proposal.
The Tribe has a long history of managing and protecting forest resources on the Reservation. A forest management program that emphasizes forest health and protection has been in place for over 70 years Garfield 2021, p. 2. The Tribes integrated resources management plan IRMP Lwenya 2013, entire guides the activities that occur on the Reservation, including, but not limited to, forest management e.g., forest health projects, sustainable timber harvest, thinning, planting, range management, fire management e.g., suppression, fuels reduction, post-fire rehabilitation, prescribed burning, and water quality management e.g., remediation of marijuana grow sites.
Fishers have long been known to occur in the higher-elevation forests of the Reservation, and both radio telemetry monitoring and camera surveys have
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