[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Rules and Regulations]
[Pages 75356-75371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29265]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-008; 92220-1113-0000; C6]
RIN 1018-AW35


Endangered and Threatened Wildlife and Plants; Reinstatement of 
Protections for the Gray Wolf in the Western Great Lakes and Northern 
Rocky Mountains in Compliance With Court Orders

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 three court orders which have the effect 
of reinstating the regulatory protections under the Endangered Species 
Act of 1973, as amended (ESA), for the gray wolf (Canis lupus) in the 
western Great Lakes and the northern Rocky Mountains. This rule 
corrects the gray wolf listing at 50 CFR 17.11 to reinstate the listing 
of wolves in all of Wisconsin and Michigan, the eastern half of North 
Dakota and South Dakota, the northern half of Iowa, the northern 
portions of Illinois and Indiana, the northwestern portion of Ohio, the 
northern half of Montana, the northern panhandle of Idaho, the eastern 
third of Washington and Oregon, and in north-central Utah as 
endangered, and reinstate the listing of wolves in Minnesota as 
threatened. This rule also reinstates the former designated critical 
habitat in 50 CFR 17.95(a) for gray wolves in Minnesota and Michigan, 
special regulations in 50 CFR 17.40(d) for the gray wolf in Minnesota, 
and special rules in 50 CFR 17.84 designating the gray wolf in the 
remainder of Montana and Idaho and all of Wyoming as nonessential 
experimental populations.

[[Page 75357]]

    This action revises the CFR to comply with three court orders. In 
addition, this final rule takes additional administrative action that 
removes archaic provisions from the gray wolf special regulation at 50 
CFR 17.84(i) and makes corrections to the gray wolf special regulation 
at Sec.  17.84(n) by removing language referring to a Western DPS.

DATES: This action is effective December 11, 2008. However, the court 
orders had legal effect immediately upon their filing on July 18, 2008, 
September 29, 2008, and October 14, 2008.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. It will also be available for inspection, by 
appointment, during normal business hours at U.S. Fish and Wildlife 
Service, Office of the Western Gray Wolf Recovery Coordinator, 585 
Shepard Way, Helena, Montana 59601. Call 406-449-5225 to make 
arrangements. It will also be available for inspection, by appointment, 
during normal business hours at U.S. Fish and Wildlife Service, 1 
Federal Drive, Fort Snelling, Minnesota 55111. Call 612-713-5350 to 
make arrangements.

FOR FURTHER INFORMATION CONTACT: For information on wolves in the 
northern Rocky Mountains contact Edward E. Bangs, Western Gray Wolf 
Recovery Coordinator, U.S. Fish and Wildlife Service, at our Helena 
office (see ADDRESSES) or telephone 406-449-5225, extension 204. For 
information on wolves in the western Great Lakes, contact Laura Ragan, 
Regional Listing Coordinator, U.S. Fish and Wildlife Service, at our 
Fort Snelling, Minnesota Regional Office (see ADDRESSES) or telephone 
612-713-5350. Individuals who are hearing-impaired or speech-impaired 
may call the Federal Relay Service at 1-800-877-8337 for TTY 
assistance.

SUPPLEMENTARY INFORMATION:

Background

    Information about the life history of the gray wolf and previous 
Federal actions can be found in our February 8, 2007 (72 FR 6052), 
final rule for the Western Great Lakes Distinct Population Segment (WGL 
DPS) of the gray wolf and our February 27, 2008 (73 FR 10514), final 
rule for the Northern Rocky Mountains Distinct Population Segment (NRM 
DPS) of the gray wolf.
    On April 16, 2007, three parties filed a lawsuit against the U.S. 
Department of the Interior (Department) and the Service, challenging 
the Service's February 8, 2007 (72 FR 6052), for the WGL DPS. On 
September 29, 2008, the U.S. District Court for the District of 
Columbia ruled in favor of the plaintiffs (Humane Society of the United 
States v. Kempthorne, 1:07-CV-00677 (D. Columbia)). The court granted 
the plaintiffs' motion for summary judgment and vacated and remanded 
the Service's application of the February 8, 2007 (72 FR 6052), final 
rule for the WGL DPS of the gray wolf.
    On April 28, 2008, twelve parties filed a lawsuit in the U.S. 
District Court for the District of Montana challenging the Service's 
February 27, 2008, final rule (73 FR 10514) for the NRM DPS. On July 
18, 2008, the court enjoined the Service's implementation of the 
February 27, 2008, final rule and ordered the reinstatement of 
Endangered Species Act protections for the northern Rocky Mountain gray 
wolf. At the Service's request, the court issued an order on October 
14, 2008, that vacated the final delisting rule and remanded it back to 
the Service for further consideration.
    On April 1, 2003, we published a final rule revising the listing 
status of the gray wolf across most of the conterminous United States 
(68 FR 15804). Within that rule we established three DPSs for the gray 
wolf, including a Western DPS. On January 6, 2005, we published a final 
rule establishing a special regulation at 50 CFR 17.84(n) for the 
Yellowstone and central Idaho nonessential experimental populations 
(NEP) (70 FR 1286). At that time, these NEPs were correctly described 
as existing within the boundaries of a Western DPS. However, on January 
31, 2005, and August 19, 2005, U.S. District Courts in Oregon and 
Vermont, respectively, ruled that our April 1, 2003, final rule 
violated the Act (Defenders of Wildlife v. Norton, 1:03-1348-JO, D. OR 
2005; National Wildlife Federation v. Norton, 1:03-CV-340, D. VT. 
2005). The Courts' rulings invalidated the three DPS designations in 
the April 2003 rule, including the Western DPS. Therefore, as we 
reinstate the special regulations at Sec.  17.84(n) for the Yellowstone 
and central Idaho NEPs, we also remove from the regulation erroneous 
language referring to the defunct Western DPS. In addition, we are 
removing archaic provisions from the gray wolf special regulation at 50 
CFR 17.84(i) that applied only in the immediate aftermath of the NEP 
reintroductions.

Administrative Procedure

    This rulemaking is necessary to comply with the July 18, 2008, 
September 29, 2008, and October 14, 2008, court orders. Therefore, 
under these circumstances, the Director has determined, pursuant to 5 
U.S.C. 553(b), that prior notice and opportunity for public comment are 
impractical and unnecessary. The Director has further determined, 
pursuant to 5 U.S.C. 553(d), that the agency has good cause to make 
this rule effective upon publication.

Effects of the Rule

    As of the filing of the respective court orders, any and all wolves 
in the northern Rocky Mountains and western Great Lakes, except in 
Minnesota, are listed as an endangered species under the ESA. Any and 
all wolves in Minnesota are listed as a threatened species under the 
ESA. The reinstated regulations found at 50 CFR 17.95 designate 
critical habitat for gray wolves in Minnesota and Michigan, and the 
reinstated special regulations in 50 CFR 17.40(d) govern the regulation 
of gray wolves in Minnesota. The provisions of these regulations are 
the same as those in the prior regulations that were removed per our 
February 8, 2007, final delisting rule (72 FR 6052).
    The reinstated special rules found at 50 CFR 17.84(i) and (n) 
designate part of the wolves in the northern Rocky Mountains as 
nonessential experimental populations. The provisions of the special 
rules are the same as those in the prior special rules that were 
removed per our February 27, 2008, final delisting rule (73 FR 10514).
    This means that wolves in Wisconsin, Michigan, North Dakota, South 
Dakota, Iowa, Illinois, Indiana, Ohio, Washington, Oregon, Utah, the 
Idaho panhandle, and northern Montana are hereby listed as endangered 
(50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 
17.11(h)). Wolves in southern Montana, Idaho south of Interstate 90, 
and all of Wyoming are hereby listed as nonessential experimental 
populations under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). 
The maps in the rule portion of this document illustrate the boundaries 
of the nonessential experimental population areas.
    This rule will not affect the status of the gray wolf in the 
western Great Lakes or northern Rocky Mountains under State laws or 
suspend any other legal protections provided by State law. This rule 
will not affect the gray wolf's Appendix II status under the Convention 
on International Trade of Endangered Species of Wild Fauna and Flora 
(CITES).
    Additionally, pursuant to section 6 of the Act, we are able to 
grant available funds to the States for management actions promoting 
the protection of gray wolves in the western Great Lakes and northern 
Rocky Mountains.

[[Page 75358]]

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, in order to comply with the court orders discussed above, 
we amend part 17, subchapter B of chapter I, title 50 of the CFR, as 
set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.11 by revising the entry in the table at paragraph 
(h) for ``Wolf, gray'' as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                              Vertebrate
---------------------------------------------------                     population where                                     Critical
                                                      Historic range     endangered or        Status        When listed       habitat      Special rules
          Common name             Scientific name                          threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
 
                                                                      * * * * * * *
Wolf, gray.....................  Canis lupus......  Holarctic........  U.S.A.,            E.............   1, 6, 13, 15,        17.95(a)             N/A
                                                                        conterminous                                  35
                                                                        (lower 48)
                                                                        States, except
                                                                        MN and where
                                                                        listed as an
                                                                        experimental
                                                                        population
                                                                        below; Mexico.
 Do............................  ......do.........  ......do.........  U.S.A. (MN)......  T.............              35        17.95(a)        17.40(d)
 Do............................  ......do.........  ......do.........  U.S.A. (MT, ID,    XN............        561, 562             N/A       17.84(i),
                                                                        WY--see sections                                                        17.84(n)
                                                                        17.84(i) and
                                                                        17.84(n)).
 Do............................  ......do.........  ......do.........  U.S.A. (portions   XN............             631             N/A        17.84(k)
                                                                        of AZ, NM, and
                                                                        TX--see section
                                                                        17.84(k)).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.40 by adding paragraph (d) as set forth below:


Sec.  17.40  Special rules--mammals.

* * * * *
    (d) Gray wolf (Canis lupus) in Minnesota.
    (1) Zones. For purposes of these regulations, the State of 
Minnesota is divided into the following five zones:
    (i) Zone 1--4,488 square miles. Beginning at the point of 
intersection of United States and Canadian boundaries in Section 22, 
Township 71 North, Range 22 West, in Rainy Lake, then proceeding along 
the west side of Sections 22, 27, and 34 in said Township and Sections 
3, 10, 15, 22, 27 and 34 in Township 70 North, Range 22 West and 
Sections 3 and 10 in Township 69 North, Range 22 West; then east along 
the south boundaries of Sections 10, 11, and 12 in said Township; then 
south along the Koochiching and St. Louis county lines to Highway 53; 
thence southeasterly along State Highway 53 to the junction with County 
Route 765; thence easterly along County Route 765 to the junction with 
Kabetogama Lake in Ash River Bay; thence along the south boundary of 
Section 33 in Township 69 North, Range 19 West, to the junction with 
the Moose River; thence southeasterly along the Moose River to Moose 
Lake; thence along the western shore of Moose Lake to the river between 
Moose Lake and Long Lake; thence along the said river to Long Lake; 
thence along the east shore of Long Lake to the drainage on the 
southeast side of Long Lake in NE \1/4\, Section 18, Township 67 North, 
Range 18 West; thence along the said drainage southeasterly and 
subsequently northeasterly to Marion Lake, the drainage being in 
Sections 17 and 18, Township 67 North, Range 18 West; thence along the 
west shoreline of Marion Lake proceeding southeasterly to the Moose 
Creek; thence along Moose Creek to Flap Creek; thence southeasterly 
along Flap Creek to the Vermilion River; thence southerly along the 
Vermilion River to Vermilion Lake; thence along the Superior National 
Forest boundary in a southeasterly direction through Vermilion Lake 
passing these points: Oak Narrows, Muskrat Channel, South of Pine 
Island, to Hoodo Point and the junction with County Route 697; thence 
southeasterly on County Route 697 to the junction with State Highway 
169; thence easterly along State Highway 169 to the junction with State 
Highway 1; thence easterly along State Highway 1 to the junction with 
the Erie Railroad tracks at Murphy City; thence easterly along the Erie 
Railroad tracks to the junction with Lake Superior at Taconite Harbor; 
thence northeasterly along the North Shore of Lake Superior to the 
Canadian Border; thence westerly along the Canadian Border to the point 
of beginning in Rainy Lake.
    (ii) Zone 2--1,856 square miles. Beginning at the intersection of 
the Erie Mining Co. Railroad and State Highway 1 (Murphy City); thence 
southeasterly on State Highway 1 to the junction with County Road 4; 
thence southwesterly on County Road 4 to the State Snowmobile Trail 
(formerly the Alger-Smith Railroad); thence southwesterly to the 
intersection of the Old Railroad Grade and Reserve Mining Co. Railroad 
in Section 33 of Township 56 North, Range 9 West; thence northwesterly 
along the Railroad to Forest Road 107; thence westerly along Forest 
Road 107 to Forest Road 203; thence westerly along Forest Road 203 to 
the junction with County Route 2; thence in a northerly direction on 
County Route 2 to the junction with Forest Road 122; thence in a 
westerly direction along Forest Road 122 to the junction with the 
Duluth, Missable and Iron Range Railroad; thence in a southwesterly 
direction along the said railroad tracks to the junction with County 
Route 14; thence in a northwesterly direction along County Route 14 to 
the junction with County Route 55; thence in a westerly direction along 
County Route 55 to the junction with County Route 44; thence in a 
southerly direction along County Route 44 to the junction with County 
Route 266; thence in a southeasterly direction along County Route 266 
and

[[Page 75359]]

subsequently in a westerly direction to the junction with County Road 
44; thence in a northerly direction on County Road 44 to the junction 
with Township Road 2815; thence westerly along Township Road 2815 to 
Alden Lake; thence northwesterly across Alden Lake to the inlet of the 
Cloquet River; thence northerly along the Cloquet River to the junction 
with Carrol Trail-State Forestry Road; thence west along the Carrol 
Trail to the junction with County Route 4 and County Route 49; thence 
west along County Route 49 to the junction with the Duluth, Winnipeg 
and Pacific Railroad; thence in a northerly direction along said 
Railroad to the junction with the Whiteface River; thence in a 
northeasterly direction along the Whiteface River to the Whiteface 
Reservoir; thence along the western shore of the Whiteface Reservoir to 
the junction with County Route 340; thence north along County Route 340 
to the junction with County Route 16; thence east along County Route 16 
to the junction with County Route 346; thence in a northerly direction 
along County Route 346 to the junction with County Route 569; thence 
along County Route 569 to the junction with County Route 565; thence in 
a westerly direction along County Route 565 to the junction with County 
Route 110; thence in a westerly direction along County Route 110 to the 
junction with County Route 100; thence in a north and subsequent west 
direction along County Route 100 to the junction with State Highway 
135; thence in a northerly direction along State Highway 135 to the 
junction with State Highway 169 at Tower; thence in an easterly 
direction along the southern boundary of Zone 1 to the point of 
beginning of Zone 2 at the junction of the Erie Railroad Tracks and 
State Highway 1.
    (iii) Zone 3--3,501 square miles. Beginning at the junction of 
State Highway 11 and State Highway 65; thence southeasterly along State 
Highway 65 to the junction with State Highway 1; thence westerly along 
State Highway 1 to the junction with State Highway 72; thence north 
along State Highway 72 to the junction with an un-numbered township 
road beginning in the northeast corner of Section 25, Township 155 
North, Range 31 West; thence westerly along the said road for 
approximately seven (7) miles to the junction with SFR 95: thence 
westerly along SFR 95 and continuing west through the southern boundary 
of Sections 36 through 31, Township 155 North, Range 33 West, through 
Sections 36 through 31, Township 155 North, Range 34 West, through 
Sections 36 through 31, Township 155 North, Range 35 West, through 
Sections 36 and 35, Township 155 North, Range 36 West to the junction 
with State Highway 89, thence northwesterly along State Highway 89 to 
the junction with County Route 44; thence northerly along County Route 
44 to the junction with County Route 704; thence northerly along County 
704 to the junction with SFR 49; thence northerly along SFR 49 to the 
junction with SFR 57; thence easterly along SFR 57 to the junction with 
SFR 63; thence south along SFR 63 to the junction with SFR 70; thence 
easterly along SFR 70 to the junction with County Route 87; thence 
easterly along County Route 87 to the junction with County Route 1; 
thence south along County Route 1 to the junction with County Route 16; 
thence easterly along County Route 16 to the junction with State 
Highway 72; thence south on State Highway 72 to the junction with a 
gravel road (un-numbered County District Road) on the north side of 
Section 31, Township 158 North, Range 30 West; thence east on said 
District Road to the junction with SFR 62; thence easterly on SFR 62 to 
the junction with SFR 175; thence south on SFR 175 to the junction with 
County Route 101; thence easterly on County Route 101 to the junction 
with County Route 11; thence easterly on County Route 11 to the 
junction with State Highway 11; thence easterly on State Highway 11 to 
the junction with State Highway 65, the point of beginning.
    (iv) Zone 4-20,883 square miles. Excluding Zones 1, 2 and 3, all 
that part of Minnesota north and east of a line beginning on State 
Trunk Highway 48 at the eastern boundary of the state; thence westerly 
along Highway 48 to Interstate Highway 35; thence northerly on I-35 to 
State Highway 23, thence west one-half mile on Highway 23 to State 
Trunk Highway 18; thence westerly along Highway 18 to State Trunk 
Highway 65, thence northerly on Highway 65 to State Trunk Highway 210; 
thence westerly along Highway 210 to State Trunk Highway 6; thence 
northerly on State Trunk Highway 6 to Emily; thence westerly along 
County State Aid Highway (CSAH) 1, Crow Wing County, to CSAH 2, Cass 
County; thence westerly along CSAH 2 to Pine River; thence 
northwesterly along State Trunk Highway 371 to Backus; thence westerly 
along State Trunk Highway 87 to U.S. Highway 71; thence northerly along 
U.S. 71 to State Trunk Highway 200; thence northwesterly along Highway 
200, to County State Aid Highway (CSAH) 2, Clearwater County; thence 
northerly along CSAH 2 to Shevlin; thence along U.S. Highway 2 to 
Bagley; thence northerly along State Trunk Highway 92 to Gully; thence 
northerly along CSAH 2, Polk County, to CSAH 27, Pennington County; 
thence along CSAH 27 to State Trunk Highway 1; thence easterly on 
Highway 1 to CSAH 28, Pennington County; thence northerly along CSAH 28 
to CSAH 54, Marshall County, thence northerly along CSAH 54 to Grygla; 
thence west and northerly along Highway 89 to Roseau; thence northerly 
along State Truck Highway 310 to the Canadian border.
    (v) Zone 5--54,603 square miles. All that part of Minnesota south 
and west of the line described as the south and west border of Zone 4.
    (vi) Map of regulatory zones follows:

[[Page 75360]]

[GRAPHIC] [TIFF OMITTED] TR11DE08.000

    (2) Prohibitions. The following prohibitions apply to the gray wolf 
in Minnesota.
    (i) Taking. Except as provided in this paragraph (d)(2)(i) of this 
section, no person may take a gray wolf in Minnesota.
    (A) Any person may take a gray wolf in Minnesota in defense of his 
own life or the lives of others.
    (B) Any employee or agent of the Service, any other Federal land 
management agency, or the Minnesota Department of Natural Resources, 
who is designated by his/her agency for such purposes, may, when acting 
in the course of his or her official duties, take a gray wolf in 
Minnesota without a permit if such action is necessary to:
    (1) Aid a sick, injured or orphaned specimen; or
    (2) Dispose of a dead specimen; or
    (3) Salvage a dead specimen which may be useful for scientific 
study.
    (4) Designated employees or agents of the Service or the Minnesota 
Department of Natural Resources may take a gray wolf without a permit 
in Minnesota, in zones 2, 3, 4, and 5, as delineated in paragraph 
(d)(l) of this section, in response to depredations by a gray wolf on 
lawfully present domestic animals: Provided, that such taking must 
occur within one-half mile of the place where such depredation occurred 
and must be performed in a humane manner: And provided further, that 
any young of the year taken on or before August 1 of that year must be 
released.
    (C) Any employee or agent of the Service or the Minnesota 
Department of Natural Resources, when operating under a Cooperative 
Agreement with the Service signed in accordance with section 6(c) of 
the Endangered Species Act of 1973, who is designated by the Service or 
the Minnesota Department of Natural Resources for such purposes, may, 
when acting in the course of his or her official duties, take a gray 
wolf in Minnesota to carry out scientific research or conservation 
programs.
    (ii) Export and commercial transactions. Except as may be 
authorized by a permit issued under Sec.  17.32, no person may sell or 
offer for sale in interstate commerce, import or export, or in the 
course of a commercial activity transport, ship, carry, deliver, or 
receive any Minnesota gray wolf.
    (iii) Unlawfully taken wolves. No person may possess, sell, 
deliver, carry, transport, or ship, by any means whatsoever, a gray 
wolf taken unlawfully in Minnesota, except that an employee or agent of 
the Service, or any other Federal land management agency, or the 
Minnesota Department of Natural Resources, who is designated by his/her 
agency for such purposes, may, when acting in the course of his 
official duties, possess, deliver, carry, transport, or ship a gray 
wolf taken unlawfully in Minnesota.
    (3) Permits. All permits available under Sec.  17.32 (General 
Permits--Threatened Wildlife) are available with regard to the gray 
wolf in Minnesota. All the terms and provisions of Sec.  17.32 apply to 
such permits issued under the authority of this paragraph (d)(3).
* * * * *

0
4. Amend Sec.  17.84 by adding paragraphs (i) and (n) as set forth 
below:


Sec.  17.84  Special rules--vertebrates.

* * * * *

[[Page 75361]]

    (i) Gray wolf (Canis lupus).
    (1) The gray wolves (wolf) identified in paragraph (i)(7) of this 
section are nonessential experimental. These wolves will be managed in 
accordance with the respective provisions of this paragraph (i).
    (2) The Service finds that reintroduction of nonessential 
experimental gray wolves, as defined in paragraph (i)(7) of this 
section, will further the conservation of the species.
    (3) No person may take this species in the wild in an experimental 
population area except as provided in paragraphs (i)(3), (7), and (8) 
of this section.
    (i) Landowners on their private land and livestock producers (i.e., 
producers of cattle, sheep, horses, and mules or as defined in State 
and tribal wolf management plans as approved by the Service) who are 
legally using public land (Federal land and any other public lands 
designated in State and tribal wolf management plans as approved by the 
Service) may harass any wolf in an opportunistic (the wolf cannot be 
purposely attracted, tracked, waited for, or searched out, then 
harassed) and noninjurious (no temporary or permanent physical damage 
may result) manner at any time, provided that such harassment is 
nonlethal or is not physically injurious to the gray wolf and is 
reported within 7 days to the Service project leader for wolf 
reintroduction or agency representative designated by the Service.
    (ii) Any livestock producers on their private land may take 
(including to kill or injure) a wolf in the act of killing, wounding, 
or biting livestock (cattle, sheep, horses, and mules or as defined in 
State and tribal wolf management plans as approved by the Service), 
provided that such incidents are reported within 24 hours to the 
Service project leader for wolf reintroduction or agency representative 
designated by the Service, and livestock freshly (less than 24 hours) 
wounded (torn flesh and bleeding) or killed by wolves must be evident. 
Service or other Service-authorized agencies will confirm if livestock 
were wounded or killed by wolves. The taking of any wolf without such 
evidence may be referred to the appropriate authorities for 
prosecution.
    (iii) Any livestock producer or permittee with livestock grazing 
allotments on public land may receive a written permit, valid for up to 
45 days, from the Service or other agencies designated by the Service, 
to take (including to kill or injure) a wolf that is in the act of 
killing, wounding, or biting livestock (cattle, sheep, horses, and 
mules or as defined in State and tribal wolf management plans as 
approved by the Service), provided that six or more breeding pairs of 
wolves have been documented in the experimental population area and the 
Service or other agencies authorized by the Service has confirmed that 
the livestock losses were caused by wolves and has completed agency 
efforts to resolve the problem. Such take must be reported within 24 
hours to the Service project leader for wolf reintroduction or agency 
representative designated by the Service. There must be evidence of 
freshly wounded or killed livestock by wolves. Service or other 
Service-authorized agencies will investigate and determine if the 
livestock were wounded or killed by wolves. The taking of any wolf 
without such evidence may be referred to the appropriate authorities 
for prosecution.
    (iv) Potentially affected States and tribes may capture and 
translocate wolves to other areas within an experimental population 
area as described in paragraph (i)(7) of this section, provided the 
level of wolf predation is negatively impacting localized ungulate 
populations at an unacceptable level. Such translocations cannot 
inhibit wolf population recovery. The States and tribes will define 
such unacceptable impacts, how they would be measured, and identify 
other possible mitigation in their State or tribal wolf management 
plans. These plans must be approved by the Service before such movement 
of wolves may be conducted.
    (v) The Service, or agencies authorized by the Service, may 
promptly remove (place in captivity or kill) any wolf that the Service 
or agency authorized by the Service determines to present a threat to 
human life or safety.
    (vi) Any person may harass or take (kill or injure) a wolf in self 
defense or in defense of others, provided that such take is reported 
within 24 hours to the Service reintroduction project leader or Service 
designated agent. The taking of a wolf without an immediate and direct 
threat to human life may be referred to the appropriate authorities for 
prosecution.
    (vii) The Service or agencies designated by the Service may take 
wolves that are determined to be ``problem'' wolves. Problem wolves are 
defined as wolves that in a calendar year attack livestock (cattle, 
sheep, horses, and mules or as defined by State and tribal wolf 
management plans approved by the Service) or wolves that twice in a 
calendar year attack domestic animals (all domestic animals other than 
livestock). Authorized take includes, but is not limited to, nonlethal 
measures such as: Aversive conditioning, nonlethal control, and/or 
translocating wolves. Such taking may be done when five or fewer 
breeding pairs are established in an experimental population area. If 
the take results in a wolf mortality, then evidence that the mortality 
was nondeliberate, accidental, nonnegligent, and unavoidable must be 
provided. When six or more breeding pairs are established in the 
experimental population area, lethal control of problem wolves or 
permanent placement in captivity will be authorized but only after 
other methods to resolve livestock depredations have been exhausted. 
Depredations occurring on Federal lands or other public lands 
identified in State or tribal wolf management plans and prior to six 
breeding pairs becoming established in an experimental population area 
may result in capture and release of the female wolf and her pups at or 
near the site of capture prior to October 1. All wolves on private 
land, including female wolves with pups, may be relocated or moved to 
other areas within the experimental population area if continued 
depredation occurs. Wolves attacking domestic animals other than 
livestock, including pets on private land, two or more times in a 
calendar year will be relocated. All chronic problem wolves (wolves 
that depredate on domestic animals after being moved once for previous 
domestic animal depredations) will be removed from the wild (killed or 
placed in captivity). The following three criteria will be used in 
determining the status of problem wolves within the nonessential 
experimental population area:
    (A) There must be evidence of wounded livestock or partial remains 
of a livestock carcass that clearly shows that the injury or death was 
caused by wolves. Such evidence is essential since wolves may feed on 
carrion that they found and did not kill. There must be reason to 
believe that additional livestock losses would occur if no control 
action is taken.
    (B) There must be no evidence of artificial or intentional feeding 
of wolves. Improperly disposed of livestock carcasses in the area of 
depredation will be considered attractants. Livestock carrion or 
carcasses on public land, not being used as bait under an agency-
authorized control action, must be removed or otherwise disposed of so 
that it will not attract wolves.
    (C) On public lands, animal husbandry practices previously 
identified in existing approved allotment plans and annual operating 
plans for allotments must have been followed.

[[Page 75362]]

    (viii) Any person may take a gray wolf found in an area defined in 
paragraph (i)(7) of this section, provided that the take is incidental 
to an otherwise lawful activity, accidental, unavoidable, 
unintentional, not resulting from negligent conduct lacking reasonable 
due care, and due care was exercised to avoid taking a gray wolf. Such 
taking is to be reported within 24 hours to a Service or Service-
designated authority. Take that does not conform with such provisions 
may be referred to the appropriate authorities for prosecution.
    (ix) Service or other Federal, State, or tribal personnel may 
receive written authorization from the Service to take animals under 
special circumstances. Wolves may be live-captured and translocated to 
resolve demonstrated conflicts with ungulate populations or with other 
species listed under the Act, or when they are found outside of the 
designated experimental population area. Take procedures in such 
instances would involve live-capture and release to a remote area or 
placement in a captive facility, if the animal is clearly unfit to 
remain in the wild. Killing of wolves will be a last resort and is only 
authorized when live-capture attempts have failed or there is clear 
endangerment to human life.
    (x) Any person with a valid permit issued by the Service under 
Sec.  17.32 may take wolves in the wild in the experimental population 
area, pursuant to terms of the permit.
    (xi) Any employee or agent of the Service or appropriate Federal, 
State, or tribal agency, who is designated in writing for such purposes 
by the Service, when acting in the course of official duties, may take 
a wolf from the wild within the experimental population area, if such 
action is for:
    (A) Scientific purposes;
    (B) To relocate wolves to avoid conflict with human activities;
    (C) To relocate wolves within the experimental population areas to 
improve wolf survival and recovery prospects;
    (D) To relocate wolves that have moved outside the experimental 
population area back into the experimental population area;
    (E) To aid or euthanize sick, injured, or orphaned wolves;
    (F) To salvage a dead specimen that may be used for scientific 
study; or
    (G) To aid in law enforcement investigations involving wolves.
    (xii) Any taking pursuant to this section must be reported within 
24 hours to the appropriate Service or Service-designated agency, which 
will determine the disposition of any live or dead specimens.
    (4) Human access to areas with facilities where wolves are confined 
may be restricted at the discretion of Federal, State, and tribal land 
management agencies. When five or fewer breeding pairs are in an 
experimental population area, land-use restrictions may also be 
employed on an as-needed basis, at the discretion of Federal land 
management and natural resources agencies to control intrusive human 
disturbance around active wolf den sites. Such temporary restrictions 
on human access, when five or fewer breeding pairs are established in 
an experimental population area, may be required between April 1 and 
June 30, within 1 mile of active wolf den or rendezvous sites and would 
apply only to public lands or other such lands designated in State and 
tribal wolf management plans. When six or more breeding pairs are 
established in an experimental population area, no land-use 
restrictions may be employed outside of national parks or national 
wildlife refuges, unless wolf populations fail to maintain positive 
growth rates toward population recovery levels for 2 consecutive years. 
If such a situation arose, State and tribal agencies would identify, 
recommend, and implement corrective management actions within 1 year, 
possibly including appropriate land-use restrictions to promote growth 
of the wolf population.
    (5) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or part thereof 
from the experimental populations taken in violation of the regulations 
in paragraph (i) of this section or in violation of applicable State or 
tribal fish and wildlife laws or regulations or the Endangered Species 
Act.
    (6) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed any offense defined in this 
paragraph (i).
    (7) The sites for reintroduction are within the historic range of 
the species:
    (i) The central Idaho area is shown on the following map. The 
boundaries of the nonessential experimental population area will be 
those portions of Idaho that are south of Interstate Highway 90 and 
west of Interstate 15, and those portions of Montana south of 
Interstate 90, Highways 93 and 12 from Missoula, Montana, west of 
Interstate 15.
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[GRAPHIC] [TIFF OMITTED] TR11DE08.001

    (ii) The Yellowstone Management Area is shown on the following map. 
The boundaries of the nonessential experimental population area will be 
that portion of Idaho that is east of Interstate Highway 15; that 
portion of Montana that is east of Interstate Highway 15 and south of 
the Missouri River from Great Falls, Montana, to the eastern Montana 
border; and all of Wyoming.

[[Page 75364]]

[GRAPHIC] [TIFF OMITTED] TR11DE08.002

    (iii) All wolves found in the wild within the boundaries of this 
paragraph (i)(7) after the first releases will be considered 
nonessential experimental animals. In the conterminous United States, a 
wolf that is outside an experimental area (as defined in paragraph 
(i)(7) of this section) would be considered as endangered (or 
threatened if in Minnesota) unless it is marked or otherwise known to 
be an experimental animal; such a wolf may be captured for examination 
and genetic testing by the Service or Service-designated agency. 
Disposition of the captured animal may take any of the following 
courses:
    (A) If the animal was not involved in conflicts with humans and is 
determined likely to be an experimental wolf, it will be returned to 
the reintroduction area.
    (B) If the animal is determined likely to be an experimental wolf 
and was involved in conflicts with humans as identified in the 
management plan for the closest experimental area, it may be relocated, 
placed in captivity, or killed.
    (C) If the animal is determined not likely to be an experimental 
animal, it will be managed according to any Service-approved plans for 
that area or will be marked and released near its point of capture.
    (D) If the animal is determined not to be a wild gray wolf or if 
the Service or agencies designated by the Service determine the animal 
shows physical or behavioral evidence of hybridization with other 
canids, such as domestic dogs or coyotes, or of being an animal raised 
in captivity, it will be returned to captivity or killed.
    (8) The reintroduced wolves will be monitored during the life of 
the project, including by the use of radio telemetry and other remote 
sensing devices as

[[Page 75365]]

appropriate. All released animals will be vaccinated against diseases 
and parasites prevalent in canids, as appropriate, prior to release and 
during subsequent handling. Any animal that is sick, injured, or 
otherwise in need of special care may be captured by authorized 
personnel of the Service or Service-designated agencies and given 
appropriate care. Such an animal will be released back into its 
respective reintroduction area as soon as possible, unless physical or 
behavioral problems make it necessary to return the animal to captivity 
or euthanize it.
    (9) The Service does not intend to reevaluate the ``nonessential 
experimental'' designation. The Service does not foresee any likely 
situation that would result in changing the nonessential experimental 
status until the gray wolf is recovered and delisted in the northern 
Rocky Mountains according to provisions outlined in the Act.
* * * * *
    (n) Gray wolf (Canis lupus).
    (1) The gray wolves (wolf) identified in paragraphs (n)(9)(i) and 
(ii) of this section are nonessential experimental populations. These 
wolves will be managed in accordance with the respective provisions of 
this paragraph (n) in the boundaries of the nonessential experimental 
population (NEP) areas within any State or Tribal reservation that has 
a wolf management plan that has been approved by the Service, as 
further provided in this paragraph (n). Furthermore, any State or Tribe 
that has a wolf management plan approved by the Service can petition 
the Secretary of the Department of the Interior (DOI) to assume the 
lead authority for wolf management under this rule within the borders 
of the NEP areas in their respective State or reservation.
    (2) The Service finds that management of nonessential experimental 
gray wolves, as defined in this paragraph (n), will further the 
conservation of the species.
    (3) Definitions of terms used in paragraph (n) of this section 
follow:
    Active den site--A den or a specific above-ground site that is 
being used on a daily basis by wolves to raise newborn pups during the 
period April 1 to June 30.
    Breeding pair--An adult male and an adult female wolf that, during 
the previous breeding season, produced at least two pups that survived 
until December 31 of the year of their birth.
    Designated agent--Includes Federal agencies authorized or directed 
by the Service, and States or Tribes with a wolf management plan 
approved by the Director of the Service and with established 
cooperative agreements with us or Memoranda of Agreement (MOAs) 
approved by the Secretary of the DOI. Federal agencies, States, or 
Tribes may become ``designated agents'' through cooperative agreements 
with the Service whereby they agree to assist the Service to implement 
some portions of this rule. If a State or Tribe becomes a ``designated 
agent'' through a cooperative agreement, the Service will help 
coordinate their activities and retain authority for program direction, 
oversight, and guidance. States and Tribes with approved plans also may 
become ``designated agents'' by submitting a petition to the Secretary 
to establish an MOA under this rule. Once accepted by the Secretary, 
the MOA may allow the State or Tribe to assume lead authority for wolf 
management and to implement the portions of their State or Tribal plans 
that are consistent with this rule. The Service oversight (aside from 
Service law enforcement investigations) under an MOA is limited to 
monitoring compliance with this rule, issuing written authorizations 
for wolf take on reservations without approved wolf management plans, 
and an annual review of the State or Tribal program to ensure the wolf 
population is being maintained above recovery levels.
    Domestic animals--Animals that have been selectively bred over many 
generations to enhance specific traits for their use by humans, 
including use as pets. This includes livestock (as defined below) and 
dogs.
    Intentional harassment--The deliberate and pre-planned harassment 
of wolves, including by less-than-lethal munitions (such as 12-gauge 
shotgun rubber-bullets and bean-bag shells), that are designed to cause 
physical discomfort and temporary physical injury but not death. The 
wolf may have been tracked, waited for, chased, or searched out and 
then harassed.
    In the act of attacking--The actual biting, wounding, grasping, or 
killing of livestock or dogs, or chasing, molesting, or harassing by 
wolves that would indicate to a reasonable person that such biting, 
wounding, grasping, or killing of livestock or dogs is likely to occur 
at any moment.
    Landowner--An owner of private land, or his/her immediate family 
members, or the owner's employees who are currently employed to 
actively work on that private land. In addition, the owner(s) (or his/
her employees) of livestock that are currently and legally grazed on 
that private land and other lease-holders on that private land (such as 
outfitters or guides who lease hunting rights from private landowners), 
are considered landowners on that private land for the purposes of this 
regulation. Private land, under this regulation, also includes all non-
Federal land and land within Tribal reservations. Individuals legally 
using Tribal lands in States with approved plans are considered 
landowners for the purposes of this rule. ``Landowner'' in this 
regulation includes legal grazing permittees or their current employees 
on State, county, or city public or Tribal grazing lands.
    Legally present--A person is legally present when (i) on his or her 
own property, (ii) not trespassing and has the landowner's permission 
to bring his or her stock animal or dog on the property, or (iii) 
abiding by regulations governing legal presence on public lands.
    Livestock--Cattle, sheep, horses, mules, goats, domestic bison, and 
herding and guarding animals (llamas, donkeys, and certain breeds of 
dogs commonly used for herding or guarding livestock). Livestock 
excludes dogs that are not being used for livestock guarding or 
herding.
    Non injurious--Does not cause either temporary or permanent 
physical damage or death.
    Opportunistic harassment--Harassment without the conduct of prior 
purposeful actions to attract, track, wait for, or search out the wolf.
    Private land--All land other than that under Federal Government 
ownership and administration and including Tribal reservations.
    Problem wolves--Wolves that have been confirmed by the Service or 
our designated agent(s) to have attacked or been in the act of 
attacking livestock or dogs on private land or livestock on public land 
within the past 45 days. Wolves that we or our designated agent(s) 
confirm to have attacked any other domestic animals on private land 
twice within a calendar year are considered problem wolves for purposes 
of agency wolf control actions.
    Public land--Federal land such as that administered by the National 
Park Service, Bureau of Land Management, USDA Forest Service, Bureau of 
Reclamation, Department of Defense, or other agencies with the Federal 
Government.
    Public land permittee--A person or that person's employee who has 
an active, valid Federal land-use permit to use specific Federal lands 
to graze livestock, or operate an outfitter or guiding business that 
uses livestock. This definition does not include private individuals or 
organizations who have Federal permits for other activities on public 
land such as collecting firewood, mushrooms, antlers, or Christmas 
trees;

[[Page 75366]]

logging; mining; oil or gas development; or other uses that do not 
require livestock. In recognition of the special and unique authorities 
of Tribes and their relationship with the U.S. Government, for the 
purposes of this rule, the definition includes Tribal members who 
legally graze their livestock on ceded public lands under recognized 
Tribal treaty rights.
    Remove--Place in captivity, relocate to another location, or kill.
    Research--Scientific studies resulting in data that will lend to 
enhancement of the survival of the gray wolf.
    Rule--Federal regulations--``This rule'' or ``this regulation'' 
refers to this final NEP regulation.
    Stock animal--A horse, mule, donkey, llama, or goat used to 
transport people or their possessions.
    Unacceptable impact--Impact to ungulate population or herd where a 
State or Tribe has determined that wolves are one of the major causes 
of the population or herd not meeting established State or Tribal 
management goals.
    Ungulate population or herd--An assemblage of wild ungulates living 
in a given area.
    Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or 
other evidence of physical damage caused by a wolf bite.
    (4) Allowable forms of take of gray wolves. The following 
activities, only in the specific circumstances described under this 
paragraph (n)(4), are allowed: Opportunistic harassment; intentional 
harassment; take on private land; take on public land except land 
administered by National Parks; take in response to impacts on wild 
ungulate populations; take in defense of human life; take to protect 
human safety; take by designated agents to remove problem wolves; 
incidental take; take under permits; take per authorizations for 
employees of designated agents; take for research purposes; and take to 
protect stock animals and dogs. Other than as expressly provided in 
this rule, all other forms of take are considered a violation of 
section 9 of the Act. Any wolf or wolf part taken legally must be 
turned over to the Service unless otherwise specified in this paragraph 
(n). Any take of wolves must be reported as outlined in paragraph 
(n)(6) of this section.
    (i) Opportunistic harassment. Anyone may conduct opportunistic 
harassment of any gray wolf in a non-injurious manner at any time. 
Opportunistic harassment must be reported to the Service or our 
designated agent(s) within 7 days as outlined in paragraph (n)(6) of 
this section.
    (ii) Intentional harassment. After we or our designated agent(s) 
have confirmed wolf activity on private land, on a public land grazing 
allotment, or on a Tribal reservation, we or our designated agent(s) 
may issue written take authorization valid for not longer than 1 year, 
with appropriate conditions, to any landowner or public land permittee 
to intentionally harass wolves. The harassment must occur in the area 
and under the conditions as specifically identified in the written take 
authorization.
    (iii) Take by landowners on their private land. Landowners may take 
wolves on their private land in the following two additional 
circumstances:
    (A) Any landowner may immediately take a gray wolf in the act of 
attacking livestock or dogs on his or her private land, provided the 
landowner provides evidence of livestock or dogs recently (less than 24 
hours) wounded, harassed, molested, or killed by wolves, and we or our 
designated agent(s) are able to confirm that the livestock or dogs were 
wounded, harassed, molested, or killed by wolves. The carcass of any 
wolf taken and the area surrounding it should not be disturbed in order 
to preserve physical evidence that the take was conducted according to 
this rule. The take of any wolf without such evidence of a direct and 
immediate threat may be referred to the appropriate authorities for 
prosecution.
    (B) A landowner may take wolves on his or her private land if we or 
our designated agent issued a ``shoot-on-sight'' written take 
authorization of limited duration (45 days or less), and if:
    (1) This landowner's property has had at least one depredation by 
wolves on livestock or dogs that has been confirmed by us or our 
designated agent(s) within the past 30 days; and
    (2) We or our designated agent(s) have determined that problem 
wolves are routinely present on that private property and present a 
significant risk to the health and safety of other livestock or dogs; 
and
    (3) We or our designated agent(s) have authorized lethal removal of 
problem wolves from that same property. The landowner must conduct the 
take in compliance with the written take authorization issued by the 
Service or our designated agent(s).
    (iv) Take on public land. Any livestock producer and public land 
permittee (see definitions in paragraph (n)(3) of this section) who is 
legally using public land under a valid Federal land-use permit may 
immediately take a gray wolf in the act of attacking his or her 
livestock on the person's allotment or other area authorized for his or 
her use without prior written authorization, provided that that 
producer or permittee provides evidence of livestock recently (less 
than 24 hours) wounded, harassed, molested, or killed by wolves, and we 
or our designated agent(s) are able to confirm that the livestock were 
wounded, harassed, molested, or killed by wolves. The carcass of any 
wolf taken and the area surrounding it should not be disturbed, in 
order to preserve physical evidence that the take was conducted 
according to this rule. The take of any wolf without such evidence may 
be referred to the appropriate authorities for prosecution.
    (A) At our or our designated agent(s)' discretion, we or our 
designated agent(s) also may issue a shoot-onsight written take 
authorization of limited duration (45 days or less) to a public land 
grazing permittee to take problem wolves on that permittee's active 
livestock grazing allotment if:
    (1) The grazing allotment has had at least one depredation by 
wolves on livestock that has been confirmed by us or our designated 
agent(s) within the past 30 days; and
    (2) We or our designated agent(s) have determined that problem 
wolves are routinely present on that allotment and present a 
significant risk to the health and safety of livestock; and
    (3) We or our designated agent(s) have authorized lethal removal of 
problem wolves from that same allotment.
    (B) The permittee must conduct the take in compliance with the 
written take authorization issued by the Service or our designated 
agent(s).
    (v) Take in response to wild ungulate impacts. If wolf predation is 
having an unacceptable impact on wild ungulate populations (deer, elk, 
moose, bighorn sheep, mountain goats, antelope, or bison) as determined 
by the respective State or Tribe, a State or Tribe may lethally remove 
the wolves in question.
    (A) In order for this provision to apply, the State or Tribes must 
prepare a science-based document that:
    (1) Describes the basis of ungulate population or herd management 
objectives, what data indicate that the ungulate population or herd is 
below management objectives, what data indicate that wolves are a major 
cause of the unacceptable impact to the ungulate population or herd, 
why wolf removal is a warranted solution to help restore the ungulate 
population or herd to State or Tribal management objectives, the level 
and duration of wolf removal being proposed, and how ungulate 
population or herd response to wolf removal will be measured and

[[Page 75367]]

control actions adjusted for effectiveness;
    (2) Demonstrates that attempts were and are being made to address 
other identified major causes of ungulate herd or population declines 
or the State or Tribe commits to implement possible remedies or 
conservation measures in addition to wolf removal; and
    (3) Provides an opportunity for peer review and public comment on 
their proposal prior to submitting it to the Service for written 
concurrence. The State or Tribe must:
    (i) Conduct the peer review process in conformance with the Office 
of Management and Budget's Final Information Quality Bulletin for Peer 
Review (70 FR 2664, January 14, 2005) and include in their proposal an 
explanation of how the bulletin's standards were considered and 
satisfied; and
    (ii) Obtain at least five independent peer reviews from individuals 
with relevant expertise other than staff employed by a State, Tribal, 
or Federal agency directly or indirectly involved with predator control 
or ungulate management in Idaho, Montana, or Wyoming.
    (B) Before we authorize lethal removal, we must determine that an 
unacceptable impact to wild ungulate populations or herds has occurred. 
We also must determine that the proposed lethal removal is science-
based, will not contribute to reducing the wolf population in the State 
below 20 breeding pairs and 200 wolves, and will not impede wolf 
recovery.
    (vi) Take in defense of human life. Any person may take a gray wolf 
in defense of the individual's life or the life of another person. The 
unauthorized taking of a wolf without demonstration of an immediate and 
direct threat to human life may be referred to the appropriate 
authorities for prosecution.
    (vii) Take to protect human safety. We or our designated agent(s) 
may promptly remove any wolf that we or our designated agent(s) 
determines to be a threat to human life or safety.
    (viii) Take of problem wolves by Service personnel or our 
designated agent(s). We or our designated agent(s) may carry out 
harassment, nonlethal control measures, relocation, placement in 
captivity, or lethal control of problem wolves. To determine the 
presence of problem wolves, we or our designated agent(s) will consider 
all of the following:
    (A) Evidence of wounded livestock, dogs, or other domestic animals, 
or remains of livestock, dogs, or domestic animals that show that the 
injury or death was caused by wolves, or evidence that wolves were in 
the act of attacking livestock, dogs, or domestic animals;
    (B) The likelihood that additional wolf-caused losses or attacks 
may occur if no control action is taken;
    (C) Evidence of unusual attractants or artificial or intentional 
feeding of wolves; and
    (D) Evidence that animal husbandry practices recommended in 
approved allotment plans and annual operating plans were followed.
    (ix) Incidental take. Take of a gray wolf is allowed if the take is 
accidental and incidental to an otherwise lawful activity and if 
reasonable due care was practiced to avoid such take, and such take is 
reported within 24 hours. Incidental take is not allowed if the take is 
not accidental or if reasonable due care was not practiced to avoid 
such take, or it was not reported within 24 hours (we may allow 
additional time if access to the site of the take is limited), and we 
may refer such taking to the appropriate authorities for prosecution. 
Shooters have the responsibility to identify their target before 
shooting. Shooting a wolf as a result of mistaking it for another 
species is not considered accidental and may be referred to the 
appropriate authorities for prosecution.
    (x) Take under permits. Any person with a valid permit issued by 
the Service under Sec.  17.32, or our designated agent(s), may take 
wolves in the wild, pursuant to terms of the permit.
    (xi) Additional take authorization for agency employees. When 
acting in the course of official duties, any employee of the Service or 
our designated agent(s) may take a wolf or wolf-like canid for the 
following purposes:
    (A) Scientific purposes;
    (B) To avoid conflict with human activities;
    (C) To further wolf survival and recovery;
    (D) To aid or euthanize sick, injured, or orphaned wolves;
    (E) To dispose of a dead specimen;
    (F) To salvage a dead specimen that may be used for scientific 
study;
    (G) To aid in law enforcement investigations involving wolves; or
    (H) To prevent wolves or wolf-like canids with abnormal physical or 
behavioral characteristics, as determined by the Service or our 
designated agent(s), from passing on or teaching those traits to other 
wolves.
    (I) Such take must be reported to the Service within 7 days as 
outlined in paragraph (n)(6) of this section, and specimens are to be 
retained or disposed of only in accordance with directions from the 
Service.
    (xii) Take for research purposes. We may issue permits under Sec.  
17.32, or our designated agent(s) may issue written authorization, for 
individuals to take wolves in the wild pursuant to approved scientific 
study proposals. Scientific studies should be reasonably expected to 
result in data that will lend to development of sound management of the 
gray wolf, and lend to enhancement of its survival as a species.
    (xiii) Take to protect stock animals and dogs. Any person legally 
present on private or public land, except land administered by the 
National Park Service, may immediately take a wolf that is in the act 
of attacking the individual's stock animal or dog, provided that there 
is no evidence of intentional baiting, feeding, or deliberate 
attractants of wolves. The person must be able to provide evidence of 
stock animals or dogs recently (less than 24 hours) wounded, harassed, 
molested, or killed by wolves, and we or our designated agents must be 
able to confirm that the stock animals or dogs were wounded, harassed, 
molested, or killed by wolves. To preserve evidence that the take of a 
wolf was conducted according to this rule, the person must not disturb 
the carcass and the area surrounding it. The take of any wolf without 
such evidence of a direct and immediate threat may be referred to the 
appropriate authorities for prosecution.
    (5) Federal land use. Restrictions on the use of any Federal lands 
may be put in place to prevent the take of wolves at active den sites 
between April 1 and June 30. Otherwise, no additional land-use 
restrictions on Federal lands, except for National Parks or National 
Wildlife Refuges, may be necessary to reduce or prevent take of wolves 
solely to benefit gray wolf recovery under the Act. This prohibition 
does not preclude restricting land use when necessary to reduce 
negative impacts of wolf restoration efforts on other endangered or 
threatened species.
    (6) Reporting requirements. Except as otherwise specified in 
paragraph (n) of this section or in a permit, any take of a gray wolf 
must be reported to the Service or our designated agent(s) within 24 
hours. We will allow additional reasonable time if access to the site 
is limited. Report any take of wolves, including opportunistic 
harassment, to U.S. Fish and Wildlife Service, Western Gray Wolf 
Recovery Coordinator (100 North Park, Suite 320, Helena, Montana 59601, 
406-449-5225 extension 204; facsimile 406-449-5339), or a Service-
designated agent of another Federal, State, or Tribal agency. Unless 
otherwise specified in paragraph (n) of this section, any wolf or wolf 
part taken legally must be turned over to the

[[Page 75368]]

Service, which will determine the disposition of any live or dead 
wolves.
    (7) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or part thereof 
from the experimental populations taken in violation of the regulations 
in paragraph (n) of this section or in violation of applicable State or 
Tribal fish and wildlife laws or regulations or the Act.
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed any offense defined in this 
section.
    (9) The sites for these experimental populations are within the 
historic range of the species as designated in Sec.  17.84(i)(7):
    (i) The central Idaho NEP area is shown on the following map. The 
boundaries of the NEP area are those portions of Idaho that are south 
of Interstate Highway 90 and west of Interstate 15, and those portions 
of Montana south of Interstate 90, Highways 93 and 12 from Missoula, 
Montana, west of Interstate 15.
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[GRAPHIC] [TIFF OMITTED] TR11DE08.003

    (ii) The Yellowstone NEP is shown on the following map. The 
boundaries of the NEP area are that portion of Idaho that is east of 
Interstate Highway 15; that portion of Montana that is east of 
Interstate Highway 15 and south of the Missouri River from Great Falls, 
Montana, to the eastern Montana border; and all of Wyoming.

[[Page 75370]]

[GRAPHIC] [TIFF OMITTED] TR11DE08.004

    (iii) All wolves found in the wild within the boundaries of these 
experimental areas are considered nonessential experimental animals.
    (10) Wolves in the experimental population areas will be monitored 
by radio-telemetry or other standard wolf population monitoring 
techniques as appropriate. Any animal that is sick, injured, or 
otherwise in need of special care may be captured by authorized 
personnel of the Service or our designated agent(s) and given 
appropriate care. Such an animal will be released back into its 
respective area as soon as possible, unless physical or behavioral 
problems make it necessary to return the animal to captivity or 
euthanize it.
    (11) Memoranda of Agreement (MOAs). Any State or Tribe with gray 
wolves, subject to the terms of this paragraph (n), may petition the 
Secretary for an MOA to take over lead management responsibility and 
authority to implement this rule by managing the nonessential 
experimental gray wolves in that State or on that Tribal reservation, 
and implement all parts of their approved State or Tribal plan that are 
consistent with this rule, provided that the State or Tribe has a wolf 
management plan approved by the Secretary.
    (i) A State or Tribal petition for wolf management under an MOA 
must show:
    (A) That authority and management capability resides in the State 
or Tribe to conserve the gray wolf throughout the geographical range of 
all experimental populations within the State or within the Tribal 
reservation.
    (B) That the State or Tribe has an acceptable conservation program 
for the gray wolf, throughout all of the NEP areas within the State or 
Tribal reservation, including the requisite authority and capacity to 
carry out that conservation program.
    (C) A description of exactly what parts of the approved State or 
Tribal

[[Page 75371]]

plan the State or Tribe intends to implement within the framework of 
this rule.
    (D) A description of the State or Tribal management progress will 
be reported to the Service on at least an annual basis so the Service 
can determine if State or Tribal management has maintained the wolf 
population above recovery levels and was conducted in full compliance 
with this rule.
    (ii) The Secretary will approve such a petition upon a finding that 
the applicable criteria are met and that approval is not likely to 
jeopardize the continued existence of the endangered gray wolf, as 
defined in Sec.  17.11(h).
    (iii) If the Secretary approves the petition, the Secretary will 
enter into an MOA with the Governor of that State or appropriate Tribal 
representative.
    (iv) An MOA for State or Tribal management as provided in this 
section may allow a State or Tribe to become designated agents and lead 
management of nonessential experimental gray wolf populations within 
the borders of their jurisdictions in accordance with the State's or 
Tribe's wolf management plan approved by the Service, except that:
    (A) The MOA may not provide for any form of management inconsistent 
with the protection provided to the species under this rule, without 
further opportunity for appropriate public comment and review and 
amendment of this rule;
    (B) The MOA cannot vest the State or Tribe with any authority over 
matters concerning section 4 of the Act (determining whether a species 
warrants listing);
    (C) The MOA may not provide for public hunting or trapping absent a 
finding by the Secretary of an extraordinary case where population 
pressures within a given ecosystem cannot be otherwise relieved; and
    (D) In the absence of a Tribal wolf management plan or cooperative 
agreement, the MOA cannot vest a State with the authority to issue 
written authorizations for wolf take on reservations. The Service will 
retain the authority to issue these written authorizations until a 
Tribal wolf management plan is approved.
    (v) The MOA for State or Tribal wolf management must provide for 
joint law enforcement responsibilities to ensure that the Service also 
has the authority to enforce the State or Tribal management program 
prohibitions on take.
    (vi) The MOA may not authorize wolf take beyond that stated in the 
experimental population rules but may be more restrictive.
    (vii) The MOA will expressly provide that the results of 
implementing the MOA may be the basis upon which State or Tribal 
regulatory measures will be judged for delisting purposes.
    (viii) The authority for the MOA will be the Act, the Fish and 
Wildlife Act of 1956 (16 U.S.C. 742a-742j), and the Fish and Wildlife 
Coordination Act (16 U.S.C. 661-667e), and any applicable treaty.
    (ix) In order for the MOA to remain in effect, the Secretary must 
find, on an annual basis, that the management under the MOA is not 
jeopardizing the continued existence of the endangered gray wolf as 
defined in Sec.  17.11(h). The Secretary or State or Tribe may 
terminate the MOA upon 90 days notice if:
    (A) Management under the MOA is likely to jeopardize the continued 
existence of the endangered gray wolf as defined in Sec.  17.11(h); or
    (B) The State or Tribe has failed materially to comply with this 
rule, the MOA, or any relevant provision of the State or Tribal wolf 
management plan; or
    (C) The Service determines that biological circumstances within the 
range of the gray wolf indicate that delisting the species is not 
warranted; or
    (D) The States or Tribes determine that they no longer want the 
wolf management authority vested in them by the Secretary in the MOA.
* * * * *

0
5. Amend Sec.  17.95(a) by adding an entry for ``Gray Wolf (Canis 
lupus)'' in the same alphabetical order in which this species appears 
in the table in Sec.  17.11(h) to read as set forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
    Gray Wolf (Canis lupus)
    Michigan. Isle Royale National Park.
    Minnesota. Areas of land, water, and airspace in Beltrami, Cook, 
Itasca, Koochiching, Lake, Lake of the Woods, Roseau, and St. Louis 
Counties, with boundaries (4th and 5th Principal meridians) identical 
to those of zones 1, 2, and 3, as delineated in 50 CFR 17.40(d)(l).
* * * * *

    Dated: December 4, 2008.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
 [FR Doc. E8-29265 Filed 12-10-08; 8:45 am]
BILLING CODE 4310-55-C