Federal Register, Volume 73 Issue 209 (Tuesday, October 28, 2008)

[Federal Register Volume 73, Number 209 (Tuesday, October 28, 2008)]
[Proposed Rules]
[Pages 63926-63932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25629]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-008; 92220-1113-0000; ABC Code: C6]
RIN 1018-AW37

Endangered and Threatened Wildlife and Plants; Designating the
Northern Rocky Mountain Population of Gray Wolf as a Distinct
Population Segment and Removing This Distinct Population Segment From
the Federal List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: On February 8, 2007, we, the U.S. Fish and Wildlife Service
(Service), published a proposed rule to establish a distinct population
segment (DPS) of the gray wolf (Canis lupus) in the Northern Rocky
Mountains (NRM) of the United States and to remove the gray wolf in the
NRM DPS from the List of Endangered and Threatened Wildlife under the
Endangered Species Act of 1973, as amended (Act) (72 FR 6106). On
February 27, 2008, we issued a final rule establishing and delisting
the NRM gray wolf DPS (73 FR 10514). Several parties filed a lawsuit
challenging our final rule and asking to have it enjoined. On July 18,
2008, the U.S. District Court for the District of Montana enjoined the
Service's implementation of the final delisting rule, after concluding
that Plaintiffs were likely to prevail on merits of their claims. In
light of this decision, we asked the court to vacate the final rule and
remand it to us. On October 14, 2008, the court issued an order
vacating our February 27, 2008, final rule (73 FR 10514) and remanding

[[Page 63927]]

it back to the Service for further consideration.
We announce the reopening of the comment period for our February 8,
2007, proposed rule (72 FR 6106). We now intend to reconsider our 2007
proposed rule and issue a new listing determination. We seek
information, data, and comments from the public regarding the 2007
proposal with an emphasis on new information relevant to this action,
the issues raised by the Montana District Court (described in more
detail below), and the issues raised by the September 29, 2008, ruling
of the U.S. District Court for the District of Columbia with respect to
the Western Great Lakes gray wolf DPS (also described in more detail
below). If you have previously submitted comments, please do not
resubmit them because we have already incorporated them in the public
record and will fully consider them in our final decision.

DATES: We request that comments on this proposal be submitted by the
close of business on November 28, 2008.

ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: RIN 1018-AW37; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.

We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).

FOR FURTHER INFORMATION CONTACT: Edward E. Bangs, Western Gray Wolf
Recovery Coordinator, U.S. Fish and Wildlife Service, 585 Shepard Way,
Helena, MT 59601 or telephone (406) 449-5225, extension 204.
Individuals who are hearing-impaired or speech-impaired may call the
Federal Relay Service at 1-800-877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we hereby
request data, comments, new information, or suggestions from the
public, other concerned governmental agencies, the scientific
community, Tribes, industry, or any other interested party concerning
this proposed rule. We particularly seek comments concerning:
(1) Whether it is appropriate or necessary to revise our recovery
goal (described below) to clarify that the genetic exchange called for
can be satisfied through either natural migration or managed genetic
exchange.
(2) What additional management, protections, and regulatory
mechanisms may be needed to facilitate genetic exchange (including both
natural migration and managed genetic exchange) including the actions
outlined in the draft memorandum of understanding regarding the
protection of genetic diversity of NRM gray wolves (available online
at: http://westerngraywolf.fws.gov).
(3) What portions of Wyoming need to be managed as a trophy game
area, how Wyoming should manage wolves in the trophy game area, and the
significance of all portions of the range in the State of Wyoming in
maintaining the viability of the NRM DPS.
(4) The adequacy of existing regulatory mechanisms in Montana,
Idaho, and Wyoming, including whether Wyoming's regulatory mechanisms
do or should manage for 15 breeding pairs and 150 wolves in mid-winter
and if Wyoming's malleable trophy game area affects its ability to
manage for such numbers of wolves.
(5) If we determine that Wyoming's State law and State wolf
management plan do not constitute adequate regulatory mechanisms, the
area in northwestern Wyoming that is a significant portion of the range
of the NRM DPS that should retain its nonessential experimental
population status under section 10(j) of the Act, even if we determine
the rest of the DPS should be delisted.
(6) How Idaho, Montana, and Wyoming's management of take associated
with their defense of property laws and hunting regulations affects
each State's commitment and ability to manage for 15 breeding pairs and
150 wolves in mid-winter.
(7) Whether and under what authority the Service may identify and
designate a DPS within a broader pre-existing listing and determine
that this DPS should be removed from the endangered species list.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section. We will not accept anonymous comments; your
comment must include your first and last name, city, State, country,
and postal (zip) code. Finally, we will not consider hand-delivered
comments that we do not receive or mailed comments that are not
postmarked by the date specified in the DATES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information in addition to the required items
specified above, such as your street address, phone number, or e-mail
address, you may request at the top of your document that we withhold
this information from public review. However, we cannot guarantee that
we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Background

Northern Rocky Mountains DPS Rulemaking and Litigation--On February
8, 2007, we proposed to designate the NRM DPS of the gray wolf and to
delist all or most of the NRM DPS (72 FR 6106). Specifically, we
proposed to delist wolves in Montana, Idaho, and Wyoming, and parts of
Washington, Oregon, and Utah. The proposal noted that the area in
northwestern Wyoming outside the National Parks (i.e., Yellowstone
National Park, Grand Teton National Park, and John D. Rockefeller
Memorial Parkway) would only be delisted in the final rule if the
Service subsequently determined that adequate State regulatory
mechanisms were developed. If adequate regulatory mechanisms were not
developed, we were considering a final rule that would have continued
to protect wolves under the Act and retained their nonessential
experimental status in the significant portion of the range in
northwestern Wyoming, outside the National Parks, while removing the
Act's protections in the remainder of the DPS.
On July 6, 2007, the Service extended the comment period in order
to consider a 2007 revised Wyoming wolf management plan and State law
(available online at: http://westerngraywolf.fws.gov) that we stated,
if implemented, could allow the wolves in northwestern Wyoming to be
removed from the List of Endangered and Threatened Wildlife (72 FR
36939). On November 16, 2007, the Wyoming Game and Fish Commission
unanimously approved the 2007 Wyoming Plan (Cleveland 2007, p. 1). We
then determined this plan provided adequate regulatory protections to
conserve Wyoming's portion of a recovered wolf population into the
foreseeable future (Hall 2007, pp. 1-2).

[[Page 63928]]

On February 27, 2008, we issued a final rule establishing the NRM gray
wolf DPS and removing the entire DPS from the List of Endangered and
Threatened Wildlife (73 FR 10514).
On April 28, 2008, 12 parties filed a lawsuit challenging the
designation and delisting of the NRM DPS. The plaintiffs also moved to
preliminarily enjoin the delisting. On July 18, 2008, the U.S. District
Court for the District of Montana granted the plaintiffs' motion for a
preliminary injunction and enjoined the Service's implementation of the
final delisting rule for the NRM DPS of the gray wolf. The court stated
that we acted arbitrarily in delisting a wolf population that lacked
evidence of genetic exchange between subpopulations. The court also
stated that we acted arbitrarily and capriciously when we approved
Wyoming's 2007 statute and wolf management plan because the State
failed to commit to managing for 15 breeding pairs and Wyoming's 2007
statute allowed the Wyoming Fish and Wildlife Commission to diminish
the trophy game area if it ``determines the diminution does not impede
the delisting of gray wolves and will facilitate Wyoming's management
of wolves.'' The court's preliminary injunction order (available online
at: http://westerngraywolf.fws.gov) concluded that the Plaintiffs were
likely to prevail on the merits of their claims. In light of the
district court decision, on September 22, 2008, we asked the court to
vacate the final rule and remand it to us. On October 14, 2008, the
court vacated the final delisting rule and remanded it back to the
Service for further consideration.
Western Great Lakes DPS Rulemaking and Litigation--Some persons who
commented on our proposed rule asserted that the Service may not
designate a DPS within a broader pre-existing listed entity for the
purpose of delisting the DPS. This issue is also the subject of a
recent decision of the U.S. District Court for the District of
Columbia, which remanded and vacated the February 7, 2008, final rule
that established the Western Great Lakes DPS of gray wolves and
determined that it should be delisted (72 FR 6052). The court found
that the Service had made that decision based on its interpretation
that the plain meaning of the ESA authorizes the Service to create and
delist a DPS within an already-listed entity. The court disagreed, and
concluded that the Act is ambiguous as to whether the Service has this
authority. The court accordingly remanded the final rule so that the
Service can provide a reasoned explanation of how its interpretation is
consistent with the text, structure, legislative history, judicial
interpretations, and policy objectives of the Act (Humane Society of
the United States v. Kempthorne, Civil Action No. 07-0677 (PLF)
(D.D.C., Sept. 29. 2008)).
The Service is considering how to proceed with the Western Great
Lakes gray wolf DPS. In the meantime, it is our view that the plain
language of the Act does provide the Service with the flexibility to
designate a DPS within a broader pre-existing listed entity and then to
determine the correct conservation status of the DPS pursuant to
section 4(a)(1) of the Act (i.e., endangered, threatened, or neither),
even though the conservation status of the broader entity may differ.
Alternatively, the Service has reasonably interpreted the Act through
the DPS Policy (61 FR 4722, February 7, 1996) and other actions as
authorizing the Service to designate a DPS within a broader entity and
determine its proper conservation status, even if that means that the
DPS is delisted.
Given the court rulings and orders described above, we now intend
to issue a revised listing determination for the NRM gray wolf DPS to
address the issues noted by the courts and other new information
relevant to this action. We also will comprehensively address other
issues outlined in the complaint and a notice of intent to sue. Several
of the most important issues being reconsidered are discussed below.
Comments are also requested on each of these issues.

Recent Status and Distribution Information

In mid-September of each year we estimate the number of wolves,
packs, and breeding pairs, as well as livestock depredations and wolves
killed as a result of agency-authorized control. These counts are
preliminary, because wolf counting conditions are most accurate in
early winter due to snow cover. Consequently, the estimates given below
should be interpreted cautiously. The only ``official'' annual wolf
population statistics are provided in the interagency annual report,
which is normally available in March each year.
Our annual mid-September wolf population estimate indicates that
the overall NRM wolf population in 2008 will be about the same as it
was in 2007. We also predict that both livestock depredations and
problem wolf removal in 2008 will be slightly higher than they were in
2007.
Our mid-September 2007 estimate indicated that this time last year
there were approximately 1,544 wolves (394 in Montana; 788 in Idaho;
362 in Wyoming) in 179 packs (71 in Montana; 75 in Idaho; 33 in
Wyoming) with 105 of those classified as breeding pairs (37 in Montana;
41 in Idaho; 27 in Wyoming). Our mid-September 2007 estimate indicated
wolves had killed 112 cattle (48 in Montana; 36 in Idaho; 28 in
Wyoming), 185 sheep (19 in Montana; 150 in Idaho; 16 in Wyoming), 10
dogs (1 in Montana; 7 in Idaho; 2 in Wyoming), and a horse (in
Montana). In response, 135 depredating wolves (50 in Montana; 40 in
Idaho; 45 in Wyoming) had been killed.
Our mid-September 2008 estimate indicated there were approximately
1,463 wolves (360 in Montana; 771 in Idaho; 332 in Wyoming) in 197
packs (74 in Montana; 89 in Idaho; 34 in Wyoming) with 97 of those
classified as breeding pairs (36 in Montana; 39 in Idaho; 22 in
Wyoming). Our mid-September 2008 estimate indicated wolves had killed
170 cattle (44 in Montana; 81 in Idaho; 45 in Wyoming), 244 sheep (39
in Montana; 189 in Idaho; 16 in Wyoming), 10 dogs (in Idaho), and 6
llamas (in Montana). In response, 172 depredating wolves (60 in
Montana; 81 in Idaho; 31 in Wyoming) had been killed.
No unusual wolf dispersal events were documented in the NRM DPS in
2008. A radio-collared wolf from central Idaho continues to live in
Yellowstone National Park, but it has not joined an existing pack, nor
did it appear to breed in 2008. A report of a pack of wolves in
northeastern Utah east of Flaming Gorge Reservoir (outside the proposed
NRM DPS) was investigated in spring 2008. The existence of this pack
was not confirmed. A report of a wolf pack with pups in northeastern
Oregon (inside the proposed NRM DPS) was investigated in August 2008.
The existence of this pack was not confirmed.
A wolf pack (2 adults and 6 pups) was discovered near Twisp,
Washington, in July 2008. Their territory is outside the proposed NRM
DPS border. Genetic analysis indicated the two adults did not come from
the wolf population in the NRM DPS. Instead, they likely originated
from southcentral British Columbia. The pack is being monitored via
radio telemetry by Washington Department of Fish and Wildlife (WDFW).
On August 22, 2008, the WDFW published a draft State wolf management
plan for public review and comment. The comment period for this plan
runs through October 27, 2008. The WDFW anticipates their proposed plan
will be revised and sent to the Washington Fish and Wildlife Commission
for approval in late 2009.
We are reopening the public comment period on our 2007 delisting
proposal to

[[Page 63929]]

allow the public to consider and comment on all new information on the
NRM wolf population and issues regarding the proposed delisting on this
population including that which is summarized in this notice.

Genetics Relative to Our Recovery Criteria

The Service's current recovery goal for the NRM gray wolf
population is: Thirty or more breeding pairs (an adult male and an
adult female that raise at least 2 pups until December 31) comprising
300+ wolves in a metapopulation (a population that exists as partially
isolated sets of subpopulations) with genetic exchange between
subpopulations (USFWS 1994; Fritts and Carbyn 1995). Step-down recovery
targets require Montana, Idaho, and Wyoming to each maintain at least
10 breeding pairs and 100 wolves by managing for a safety margin of 15
breeding pairs and 150 wolves in mid-winter. The NRM wolf population
met the numeric recovery goal of at least 30 breeding pairs and at
least 300 wolves in mid-winter for the first time in 2000. By the end
of 2008, the NRM wolf population will have surpassed the numerical
recovery goal for 9 consecutive years.
As stated above, the current recovery goal also notes the goal of a
metapopulation with genetic exchange between subpopulations. In its
discussion of this issue, our 1994 environmental impact statement
(Service 1994, appendix 9) said a recovered NRM wolf population would
be composed of three parts or subpopulations (Yellowstone, central
Idaho, and northwestern Montana), which in combination would be called
a metapopulation. Such a metapopulation structure would depend on
wolves from a healthy subpopulation to rekindle a neighboring
subpopulation should it experience disruptions from stochastic events
like fire, disease, human-caused mortality, or reduced genetic
viability (Service 1994, appendix 9). The 1994 environmental impact
statement (Service 1994, appendix 9) stated that the need for ongoing
genetic exchange is lessened where the population is large, not
completely isolated, and diversity is inherently high due to a large
number of genetically diverse founders; all three NRM DPS
subpopulations meet this standard.
Currently, genetic diversity throughout the NRM is very high
(Forbes and Boyd 1996, p. 1084; Forbes and Boyd 1997, p. 226; vonHoldt
et al. 2007, p. 19). Wolves in northwestern Montana and both the
reintroduced populations are as genetically diverse as their source
populations in Canada; thus, inadequate genetic diversity is not a wolf
conservation issue in the NRM at this time (Forbes and Boyd 1997, p.
1089; vonHoldt et al. 2007, p. 19). As a result, there is currently no
need for management activities designed to increase genetic diversity
anywhere in the NRM DPS.
The July 18, 2008, U.S. District Court for the District of Montana
decision cited vonHoldt et al. (2007), which concluded ``if the
Yellowstone [National Park] wolf population remains relatively constant
at 170 individuals (estimated to be Yellowstone [National Park's]
carrying capacity), the population will demonstrate substantial
inbreeding effects within 60 years,'' resulting in an ``increase in
juvenile mortality from an average of 23 to 40%, an effect equivalent
to losing an additional pup in each litter.'' The court also cited
previous Service statements that call for ``genetic exchange'' among
recovery areas. The court further stated that dispersal of wolves
between the Greater Yellowstone Area and the northwestern Montana and
central Idaho core recovery areas was ``a precondition to genetic
exchange.'' The preliminary injunction order cited our 1994
environmental impact statement (Service 1994) and vonHoldt et al.
(2007) to support its conclusion.
We question many of the assumptions that underpin the vonHoldt et
al. (2007) study's conclusions. First, while the study found no
evidence of genetic exchange into Yellowstone National Park (8,987
km\2\ (3,472 mi\2\)), the Park is only a small portion of the Greater
Yellowstone Area (63,700 km\2\ (24,600 mi\2\)). Further limiting the
study's ability to detect genetic exchange among subpopulations is the
fact that most wolves that disperse to the Greater Yellowstone Area
tend to avoid areas with existing resident packs or areas with high
wolf densities, such as Yellowstone National Park. Moreover, even among
the Yellowstone National Park wolves the study was limited to a
subsample of Park wolves from 1995-2004 (i.e., the radio collared
wolves). It is important to consider that our ability to detect genetic
exchange within the NRM population is further limited by the genetic
similarity of the NRM subpopulations. Specifically, because both the
central Idaho and Greater Yellowstone Area subpopulations originate
from a common source, only first generation offspring of a dispersing
wolf can be detected. Additional genetic analysis of wolves from
throughout the NRM population, including a larger portion of the
Greater Yellowstone Area than just Yellowstone National Park, is
ongoing.
Second, the vonHoldt et al. (2007) prediction of eventual
inbreeding in Yellowstone National Park relies upon several unrealistic
assumptions. One such assumption limited the wolf population analysis
to Yellowstone National Park's (8,987 km² (3,472
mi²)) carrying capacity of 170 wolves, instead of the more
than 300 wolves likely to be managed for in the entire Greater
Yellowstone Area (63,700 km² (24,600 mi²)) by
Montana, Idaho, and Wyoming. The vonHoldt et al., (2007) predictive
model also capped the population at the Yellowstone National Park
population's winter low point, rather than at higher springtime levels
when pups are born. Springtime levels are sometimes double the winter
low.
It is our current professional judgment that even in the highly
unlikely event that no new genes enter Yellowstone National Park or the
Greater Yellowstone Area in the next 100 years, that wolf population's
currently high genetic diversity would be slightly reduced, but not to
the point the Greater Yellowstone Area wolf population would be
threatened. Review of the scientific literature shows that, throughout
the world, truly isolated wolf populations that are far smaller and far
less genetically diverse than the Greater Yellowstone Area population
have persisted for many decades and even centuries (Fritts and Carbyn
1995, p. 33; Boitani 2003, pp. 322-23, 330-335; Liberg 2005, pp.5-6; 73
FR 10514, February 27, 2008). Additionally, in mate selection, wolves
have a strong tendency to avoid inbreeding by selecting breeders based
on genetic difference; the vonHoldt et al. (2007) study proved this in
Yellowstone National Park. Thus, the predictions by the Vortex model
used by vonHoldt et al. (2007) were overly pessimistic regarding the
potential effect of theoretical future inbreeding, because it ignored
the strong outbreeding selection by wolves. Natural wolf mate selection
tendencies show that future dispersers into a system experiencing some
level of inbreeding would be much more likely to be selected for
breeding and have their genes incorporated into the inbred population
(Bensch et al., 2006, p. 72; vonHoldt et al., 2007, p. 1; 73 FR 10514,
February 27, 2008). Introduction of just one or two new genetic lines
can save a severely inbred small wolf population (Vila et al., 2003, p.
9; Liberg et al., 2004; Liberg 2005, pp. 5-6; Mills 2007, pp. 195-196;
Fredrickson et al., 2007, p. 2365; 73 FR 10514, February 27, 2008).
Multiple approaches may be taken to facilitate genetic exchange
between

[[Page 63930]]

subpopulations, including natural migration or, if necessary, genetic
management (moving individual wolves or their genes into the affected
population segment). We have never suggested, nor does the recovery
goal require, that natural migration is the only approach to address
this potential issue (USFWS 1994, appendix 9). Furthermore, detection
of such natural genetic exchange is not required by the recovery goal
and would not be practical to require in routine monitoring protocols.
Therefore, a revised listing determination may review the recovery goal
and any inaccurate implication that the recovery goal requires natural
connectivity. This review could result in a revision of our recovery
goal and a clarification of the appropriate range of options for
maintaining or increasing genetic diversity in the NRM wolf population.
In terms of natural migration, the northwestern Montana and central
Idaho core recovery areas are well connected to each other, and to wolf
populations in Canada, through regular dispersals. These subpopulations
have established genetic and demographic linkages. The Greater
Yellowstone Area is the most isolated core recovery area within the NRM
DPS (Oakleaf et al., 2006, p. 554; vonHoldt et al., 2007, p. 19). Radio
telemetry data indicate that about one wolf per year disperses into the
Greater Yellowstone Area from the other recovery areas. However,
natural connectivity is not and has never been required to achieve our
recovery goal.
Human intervention in maintaining recovered populations is
necessary for many conservation-reliant species and a well-accepted
practice in dealing with population concerns (Scott et al., 2005). The
1994 wolf reintroduction environmental impact statement indicated that
intensive genetic management might become necessary if any of the sub-
populations developed genetic demographic problems (USFWS 1994). The
1994 wolf reintroduction environmental impact statement went on to say
that other wolf programs rely upon such agency-managed genetic exchange
and that the approach should not be viewed negatively (USFWS 1994). An
example of successful managed genetic exchange in the NRM population
was the release of 10 wolf pups/yearlings translocated from
northwestern Montana to Yellowstone National Park in the spring of
1997. Future managed genetic exchange could include relocating other
wolf age and sex classes, cross-fostering young pups, artificial
insemination, or other means of introducing novel wolves or wolf DNA
(deoxyribonucleic acid) into a recovery area if it were ever to be
needed.
As we continue to evaluate and possibly reconsider this portion of
our recovery goal, we request comments on the role, if any, that
natural genetic exchange should play in maintenance of the NRM wolf
population's genetic diversity. Applying specific management practices
in targeted geographic areas may further encourage successful natural
wolf dispersal and natural genetic exchange. Some possible management
practices to consider include: reducing the rate of population turnover
and fostering persistent wolf packs in all or select core recovery
segments or all or select areas of suitable habitat (Oakleaf et al.,
2006; 72 FR 6106, February 8, 2007); creating occasional disruptions of
wolf pack structure or reduced wolf density in select areas of suitable
habitat to create social vacancies or space for dispersing wolves to
fill; maintaining higher rather than lower overall wolf numbers in all
or select recovery areas; maintaining more contiguous and broader wolf
distribution instead of disjunction and limited breeding pair
distribution; minimizing or precluding human-caused wolf mortality
between and around core recovery segments during critical wolf
dispersal and breeding periods (December through April); and reducing
the rates of or eliminating human-caused mortality in core recovery
segments during denning and pup rearing periods (April through
September).
The current post-delisting wolf management approach encourages, but
does not require, natural dispersal and natural genetic exchange
between core recovery areas. Under this approach some State management
practices for delisted wolves could preclude or significantly reduce
the opportunity for natural genetic exchange between core recovery
segments. Under the current post-delisting wolf management approach,
should any genetic problems materialize, they would be addressed
through the managed genetic exchange committed to by the States.
Given the recent court ruling, we intend to consider in our new
listing determination if additional monitoring and management of wolf
dispersal and natural genetic exchange between core recovery areas is
necessary. A draft memorandum of understanding (available at: http://westerngraywolf.fws.gov) outlines some of the strategies that we and
the States might use to further facilitate natural genetic exchange. We
welcome comments on this draft memorandum of understanding.
Wyoming's current regulatory framework for delisted wolves
minimizes the likelihood of successful migration through the area
designated as predatory animals by Wyoming statute. As part of an
expanded effort to facilitate natural genetic exchange, we also intend
to consider whether it would be appropriate or necessary for Wyoming's
trophy game area to be expanded and its predatory control area
decreased. Wolf dispersal patterns suggest dispersing wolves moving
into the Greater Yellowstone Area from Idaho or Montana tend to move
through the predatory area. Physical barriers (such as high-elevation
mountain ranges that are difficult to traverse in winter) appear to
discourage dispersal through the National Parks' northern and western
boundaries. Limited social openings in the National Parks' wolf packs
also direct dispersing of wolves from Idaho and Montana toward the
predatory area portions of Wyoming. Finally, Wyoming's winter elk
feeding grounds attract and could potentially hold dispersing wolves in
the predatory area. We believe dispersal is more likely to lead to
genetic exchange if dispersers have safe passage through the predatory
area. Figure 1 illustrates the current Wyoming trophy game area and the
suitable habitat in Wyoming (Oakleaf et al., 2006; 72 FR 6106, February
8, 2007). We are accepting comments on the current and adequate
alternative boundaries of Wyoming's trophy game area, the current
authority of the State to reduce the trophy game area, as well as the
significance of all portions of the range in the State of Wyoming in
maintaining the viability of the NRM wolf population. Additional
information on significant portion of its range can be found in the
2007 solicitor's opinion (available at: http://www.doi.gov/solicitor/opinions/M37013.pdf) and in our 2007 proposed rule (72 FR 6106,
February 8, 2007).

[[Page 63931]]

[GRAPHIC] [TIFF OMITTED] TP28OC08.000

Implementation of the draft memorandum of understanding and
protecting wolves throughout a larger portion of Wyoming would make it
even more unlikely that managed genetic exchange would be necessary in
the foreseeable future. However, if genetic problems ever materialize,
they could be resolved by agency-managed genetic exchange.
Both the current post-delisting wolf management approach and the
expanded effort to facilitate natural genetic exchange described above
allow for eventual managed genetic exchange should it become necessary.
During our recent litigation, the plaintiffs contended that delisting
required an all-natural approach to maintaining genetic diversity. We
invite the public to comment on the potential application of an all-
natural approach versus the alternative approaches laid out above.

New State Laws, Policies, and Regulations

Since publication of our 2007 proposed rule, a number of State
laws, policies, and regulations have been developed that could impact
the long-

[[Page 63932]]

term viability of the NRM gray wolf population. Below we discuss each
of these regulatory developments.
Wyoming--The U.S. District Court for the District of Montana's
preliminary injunction order cited several examples of what it
perceived as deficiencies in the adequacy of Wyoming's regulatory
mechanisms. The court stated that plaintiffs were likely to prevail on
their claim that Wyoming State law did not commit the State to
maintaining 15 breeding pairs of wolves. We have long maintained that
Wyoming, Montana, and Idaho must each manage for 15 breeding pairs and
150 wolves in mid-winter to ensure the population never falls below the
minimum recovery goal of 10 breeding pairs and 100 wolves per State. We
are accepting comments on the ability of Wyoming State law and their
management plan to satisfy this necessary commitment.
Further, the preliminary injunction order questioned our approval
of a trophy game area that we estimate as 12 percent of the land area
of the State and 70 percent of the suitable habitat (Oakleaf et al.
2006; 72 FR 6106, February 8, 2007) and that could be reduced by the
Wyoming Fish and Wildlife Commission. Wolves are unlikely to survive in
the 88 percent of Wyoming where they are classified as predatory
animals. Potential expansion of the predatory animal area could further
limit occupancy in Wyoming. The court concluded that the plaintiffs
were likely to prevail on their claim that the Wyoming State law and
management plan were not adequate regulatory mechanisms. Based on the
concerns expressed by the U.S. District Court, we also are accepting
comments on the size and ``malleability'' of the trophy game area,
including whether a larger or Statewide trophy game area designation
for wolves is necessary.
The court also stated that the State management regime in regard to
control of wolves in defense of property and take associated with a
hunt presented the possibility of irreparable harm to the population.
The court also was concerned about the ``expansive'' nature of take
authorized Wyoming's depredation control law. On March 13, 2008, the
Wyoming Game and Fish Commission adopted regulations (Wyoming Chapter
21) for the management and control of gray wolves designated as trophy
game animals.
Wyoming's hunting season was designed around an allowable hunter-
caused mortality in each of four hunting districts in the trophy game
area. Hunting would end by December 31 or when 25 wolves had been
harvested, whichever is sooner. This level of hunter-caused mortality
would likely result in a Wyoming wolf population outside the National
Parks of just under 200 wolves by mid-winter 2008. Wolves in the
National Parks would not be substantially affected by a regulated
public hunt, as hunting is not allowed in National Parks and our data
demonstrate that wolves rarely leave the parks during the time period
when the fall hunting season would occur. As a result of the court's
July 18, 2008, order, the delisting was preliminarily enjoined, thus
barring the implementation of the 2008 hunting season. We invite public
comment on Wyoming's management regime in regard to control of wolves
in defense of property and take associated with a hunt.
The Wyoming State law, their wolf management plan, their
implementing regulations (Wyoming Chapter 21), and other supporting
information are available on our Web site at: http://westerngraywolf.fws.gov.
Idaho--The court stated that Idaho's depredation control law was
not likely to threaten the continued existence of the wolf in Idaho
because that State has committed to managing for at least 15 breeding
pairs. However, the court also specifically noted that Idaho's final
wolf hunting regulations set a quota of 428 wolves from all causes of
mortality Statewide with the season set to end December 31, 2008.
Mortality limits also were set by zone so that once reached, the
hunting season for that zone would be closed. As implemented, Idaho
included all take in defense of property in the above total allowable
mortality levels. Mandatory reporting of harvest or defense of property
take is required within 72 hours. The court's July 18, 2008, order
preliminarily enjoining the delisting rule prevented implementation of
the 2008 hunting season. Had the hunting season occurred, this level of
wolf mortality would have likely resulted in a remaining wolf
population in Idaho of at least 518 wolves by mid-winter 2008. We
invite public comment on these potential sources of take and the
adequacy of Idaho's regulatory mechanisms. Hunt and defense of property
laws, regulations, and other background information can be viewed at:
http://westerngraywolf.fws.gov.
Montana--The court stated that Montana's depredation control law
was also not likely to threaten the continued existence of the wolf.
Montana's wolf hunting regulations would have established a quota-based
system in which the total hunter harvest within a hunting district was
pre-determined after taking into account the level and causes of non-
hunting wolf mortality, reproduction, immigration, and emigration.
Montana was to establish wolf harvest quotas for each district and sub-
area annually. Up to, but not more than, 25 percent of the total quota
for a district was to be harvested in December. The agency recommended,
and the Montana Fish, Wildlife, and Parks Commission adopted, a
tentative Statewide total harvest quota of 75 wolves for the fall 2008
season. This conservative level of harvest would likely still result in
a Statewide increase in the total wolf population and the number of
breeding pairs from the previous year. As a result of the court's July
18, 2008, order, the delisting was preliminarily enjoined, thus barring
the implementation of the 2008 hunting season. Montana's commitment to
manage for at least 15 breeding pairs ensured licensed public hunting
would not occur unless this minimum standard was satisfied. The Montana
defense of property policy is similar to the Service's regulations and
policies under the experimental population regulations for States with
approved post-delisting wolf management plans. Hunt and defense of
property laws, regulations, and other background information can be
viewed at: http://westerngraywolf.fws.gov. We invite public comment on
these potential sources of take and the adequacy of Montana's
regulatory mechanisms.

Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Dated: October 21, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-25629 Filed 10-27-08; 8:45 am]
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