[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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