[Federal Register Volume 89, Number 105 (Thursday, May 30, 2024)]
[Rules and Regulations]
[Pages 46822-46824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11758]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2023-0215; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BH68
Endangered and Threatened Wildlife and Plants; Revision of the
Critical Habitat Designation for the Jaguar in Compliance With a Court
Order
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing
this final rule to comply with a court order to vacate Subunit 4b and a
portion of Unit 3 in Arizona from the March 5, 2014, final rule
designating lands in Arizona as critical habitat for the jaguar
(Panthera onca) under the Endangered Species Act of 1973, as amended
(Act). In compliance with the court order, this final rule removes
approximately 64,797 acres (26,222 hectares) of land within Arizona
from the designation of critical habitat for the jaguar. The remaining
total acreage of designated critical habitat for the jaguar is
approximately 640,124 acres (259,049 hectares) in Pima, Santa Cruz, and
Cochise Counties, Arizona.
DATES: This rule is effective May 30, 2024. However, the court order
had legal effect immediately upon being filed on August 11, 2023.
FOR FURTHER INFORMATION CONTACT: Heather Whitlaw, U.S. Fish and
Wildlife Service, 9828 North 31st Avenue #C3, Phoenix, AZ 85051;
telephone: 602-242-0210; email at [email protected]. Individuals
in the United States who are deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
On March 5, 2014, we published in the Federal Register (79 FR
12572) a final rule designating approximately 764,207 acres (309,263
hectares) of land in New Mexico and Arizona as critical habitat for the
jaguar under the Act (16 U.S.C. 1531 et seq.). The jaguar's critical
habitat designation is set forth in our regulations in title 50 of the
Code of Federal Regulations (CFR) at Sec. 17.95(a) (50 CFR 17.95(a)).
Please see the March 5, 2014, final rule for a complete discussion of
previous Federal actions pertaining to this designation.
On July 22, 2021, we published in the Federal Register (86 FR
38570) a final rule revising the critical habitat designation for the
jaguar in compliance with a different court order to remove Unit 6 and
the New Mexico portion of Unit 5 from the designation. In that final
rule, we erroneously stated that the rule removed approximately 110,438
acres (44,693 hectares) of land within New Mexico from the designation
of critical habitat for the jaguar. On February 2, 2022, we published a
correction in the Federal Register (87 FR 5737); the correction stated
that the July 22, 2021, rule removed 59,286 acres (23,993 hectares) in
New Mexico from the designation of critical habitat for the jaguar.
Background
In 2016, we issued a biological opinion, as required under the Act
(16 U.S.C. 1536), regarding the development of a copper mine by the
Rosemont Copper Company (Rosemont) on lands administered by the
Coronado National Forest. The action area of the proposed mine and
associated infrastructure included portions of the critical habitat
designation for the jaguar, specifically portions of Unit 3 and Subunit
4b. In our biological opinion, we found that the proposed mine was not
likely to jeopardize the continued existence of the jaguar or result in
the destruction or adverse modification of its critical habitat.
On September 25, 2017, the Center for Biological Diversity filed a
lawsuit against the Service and the U.S. Forest Service. The Center for
Biological Diversity alleged that we violated the Act and the
Administrative Procedure Act (APA; 5 U.S.C. 551 et seq.) in concluding
that the mine would not destroy or adversely modify the designated
critical habitat. Rosemont intervened and filed a crossclaim
challenging the March 5, 2014, final rule's designation of Subunit 4b
and a portion of Unit 3 in the Santa Rita Mountains as critical habitat
for the jaguar. On February 10, 2020, the Arizona district court denied
in part and affirmed in part the Service's critical habitat
designation. As part of its decision, the district court found that we
erred in designating Unit 3 as occupied critical habitat but granted
summary judgement in favor of designating Unit 3 and subunit 4B as
unoccupied critical habitat.
Rosemont appealed the district court decision to the U.S. Court of
Appeals for the Ninth Circuit. On May 17, 2023, the appellate court
affirmed in part and reversed in part the decision of the district
court and remanded the relevant portions of the jaguar critical habitat
rule for proceedings consistent with its decision. See Ctr. for
Biological Diversity v. U.S. Fish and Wildlife Serv., 67 F.4th 1027
(May 17, 2023), which is available in Docket No. FWS-R2-ES-2023-0215 on
https://www.regulations.gov. Upon remand, on August 11, 2023, the
Arizona district court ordered the Service to vacate a portion of Unit
3 and all of Subunit 4b as critical habitat. This rule implements the
district court's August 11, 2023, order.
Administrative Procedure
This rulemaking is necessary to comply with the August 11, 2023,
court order remanding to the agency to vacate the critical habitat
designations challenged by Rosemont. Therefore, under these
circumstances, the Service Director (Director) has determined, pursuant
to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public
comment are impracticable and unnecessary. Because the court order had
legal effect immediately upon being filed on August 11, 2023, the
Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that
the agency has good cause to make this rule effective immediately upon
publication.
Effects of the Rule
This rule is an administrative action to remove approximately
64,797 acres (26,222 hectares) of land within Arizona from the jaguar's
critical habitat designation at 50 CFR 17.95(a).
[[Page 46823]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Amendment
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below.
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.95, in paragraph (a), in the entry for ``Jaguar
(Panthera onca)'', by revising paragraphs (5) and (6), to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) * * *
* * * * *
Jaguar (Panthera onca)
* * * * *
(5) Note: Index map follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR30MY24.016
(6) Units 1, 2, 3, and 4: Baboquivari, Atascosa, Patagonia, and
Whetstone Units, Pima, Santa Cruz, and Cochise Counties, Arizona. Map
of Units 1, 2, 3, and 4 follows:
[[Page 46824]]
[GRAPHIC] [TIFF OMITTED] TR30MY24.017
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-11758 Filed 5-29-24; 8:45 am]
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