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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules
Tribes. We also consider any social impacts that might occur because of the designation.

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Indian Lands Several Executive Orders, Secretarial Orders, and departmental policies address how we engage with Tribes.
These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Indian lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-togovernment basis.
A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service Services, Secretarial Order 3206, American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act June 5, 1997
S.O. 3206, affirms that Tribes may participate fully in the listing process, including designation of critical habitat.
The appendix to S.O. 3206 also states:
In keeping with the trust responsibility, the Services shall consult with the affected Indian 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. Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands. In light of this instruction, when we undertake a discretionary section 4b2 exclusion analysis, we will always consider exclusions of Indian lands under section 4b2 of the Act prior to finalizing a designation of critical habitat, and will give great weight to Tribal comments in analyzing the benefits of exclusion.
However, S.O. 3206 does not preclude us from designating Indian lands or waters as critical habitat, nor does it state that Indian lands or waters cannot meet the Acts definition of critical habitat. We are directed by the Act 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 landownership. While S.O. 3206
provides important direction, it
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expressly states that it does not modify the Secretaries statutory authority.
In our December 4, 2012, final rule 77 FR 71876, we prioritized areas for critical habitat designation by looking first to Federal lands, followed by State, private, and Indian lands. No Indian lands were designated in our final rule because we found that we could achieve the conservation of the northern spotted owl by limiting the designation to other lands. However, on January 8, 2018, the Western Oregon Tribal Fairness Act Pub. L. 115103 was passed by Congress and signed by the President.
This act mandated that certain lands managed by BLM be taken into trust by the United States for the benefit of the Cow Creek Band of Umpqua Tribe of Indians CCBUTI and the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians CTCLUSI. In January 2020, BLM released its decision record BLM 2020 transferring management authority of approximately 17,800 acres 7,203 hectares to CCBUTI and 14,700
acres 5,949 hectares to CTCLUSI. Of the transferred lands, 20,179 acres 8,166 hectares are located within designated critical habitat for the northern spotted owl. We have considered this new information and are now proposing these lands for exclusion under section 4b2 of the Act, as explained below.
Of the lands transferred in trust to the CCBUTI, 14,604 acres 5,910 hectares are located within currently designated critical habitat. These lands will be managed under the Tribes Forest Resource Management Plan CCBUTI
2019 using a continuous forest management approach that provides for a continued supply of timber, a steady stream of income, and a reduction in the risk of wildfire and disease. The land within the CCBUTI
conveyance is in the Klamath Physiographic Province, an area disproportionally impacted by fire. The objectives in the CCBUTI forest management plan addresses fire risk and disease concerns to alleviate the risk of wildfire. Of the lands transferred in trust to the CTCLUSI, 5,575 acres 2,256 hectares are located within the critical habitat designation. The Tribe is developing a management plan for these recently transferred lands Andringa 2020, pers. comm.. We will continue to provide technical assistance to the Tribes on the conservation of endangered and threatened species and on the development and implementation of their forest management plans; however, these plans are not the basis of our proposal to exclude these lands from the critical habitat designation.

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In accordance with S.O. 3206 and other directives, we believe that fish, wildlife, and other natural resources on Indian lands may be more appropriately managed under Tribal authorities, policies, and programs than through Federal regulation where Tribal management addresses the conservation needs of listed species. Supporting Tribal management strengthens the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of endangered and threatened species populations depend. Additionally, the Indian lands proposed for exclusion represent only 0.21 percent of the current critical habitat designation. Although these lands contribute to the conservation of the northern spotted owl, we believe the conservation needs of the northern spotted owl can be achieved by limiting the designation to the other lands in the critical habitat designation. We also find that the benefit of our partnerships with these Tribal governments and our acknowledgment of Tribal sovereignty over managing these lands by excluding them from the critical habitat designation outweigh the conservation value of including these 20,179 acres 8,166 hectares in the designation.
Federal Lands O&C LandsIn general, our proposed exclusions of critical habitat for the northern spotted owl are focused on the Oregon and California Railroad Revested Lands O&C lands, particularly those areas that have been identified primarily for commercial timber harvest under Federal resource management plans. The O&C lands were revested to the Federal Government under the Chamberlin-Ferris Act of 1916
39 Stat. 218. The Oregon and California Revested Lands Sustained Yield Management Act of 1937 O&C
Act; Pub. L. 75405 addresses the management of O&C lands. The O&C
Act identifies the primary use of revested timberlands for permanent forest production. These lands occur in western Oregon in a checkerboard pattern intermingled with private land across 18 counties. Most of these lands 82 percent are administered by BLM
FWS 2019, p. 1 pursuant to its RMPs.
BLMs RMPs identify certain revested timberlands for commercial timber harvest. The opening statement of the O&C Act provides that these lands be managed for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principle of sustained yield for the purpose of providing a permanent source of timber supply, protecting
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