[Federal Register Volume 75, Number 111 (Thursday, June 10, 2010)]
[Proposed Rules]
[Pages 32869-32872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13882]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2010-0032; [92220-1111-0000-C5]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List a Distinct Population Segment of the Gray Wolf in
the Northeastern United States as Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list a Distinct Population Segment
(DPS) of the gray wolf (Canis lupus) in five northeastern States as
endangered under the Endangered Species Act of 1973, as amended (Act).
We find that the petition does not present substantial scientific or
commercial information indicating that listing a DPS of the gray wolf
in Massachusetts, New York, Vermont, New Hampshire, and Maine may be
warranted. Therefore, we will not initiate a further status review in
response to this petition. However, we ask the public to submit to us
at any time, any new information that becomes available concerning the
presence of the gray wolf in the northeastern United States,
particularly information to substantiate the presence of breeding
pairs.
DATES: The finding announced in this document was made on June 10,
2010.
ADDRESSES: This finding is available on the Internet at http://www.regulations.gov. Supporting scientific documentation we used in
preparing this finding is available for public inspection, by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, New England Field Office, 70 Commercial Street, Suite
300, Concord, New Hampshire 03301. Please submit any new information,
materials, comments, or questions concerning this finding to the above
address.
FOR FURTHER INFORMATION CONTACT: Thomas Chapman, Field Supervisor, or
Michael Amaral, Fish and Wildlife Supervisory Biologist, of the New
England Field Office (see ADDRESSES), by telephone at 603-223-2541, or
by facsimile to 603-223-0104. If you use a telecommunications device
for the deaf (TDD), please call the Federal
[[Page 32870]]
Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires
that we make a finding on whether a petition to list, delist, or
reclassify a species presents substantial scientific or commercial
information to indicate that the petitioned action may be warranted. We
are to base this finding on information provided in the petition,
supporting information submitted with the petition, and information
otherwise available in our files. To the maximum extent practicable, we
are to make this finding within 90 days of our receipt of the petition,
and publish our notice of the finding promptly in the Federal Register.
Our standard for substantial information within the Code of Federal
Regulations (CFR) with regard to a 90-day petition finding is ``that
amount of information that would lead a reasonable person to believe
that the measure proposed in the petition may be warranted'' (50 CFR
424.14(b)). If we find that substantial information was presented, we
are required to promptly commence a review of the status of the
species.
We base this finding on information provided by the petitioner(s)
and information available in our files at the time of the petition
review. We evaluated that information in accordance with 50 CFR
424.14(b). On an ongoing basis prior to receipt of the petition, we
have had frequent contact with State wildlife biologists from the five-
State area and believe that our files represent the best information
available regarding the potential occurrence of wolves in the
northeastern United States. Our process for making this 90-day finding
under Sec. 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our
regulations is limited to a determination of whether the information in
the petition and in our files meets the ``substantial information''
threshold.
Petition History
On February 4, 2009, we received a petition, dated January 31,
2009, from Mr. John Glowa of South China, Maine (on behalf of himself
and four other private citizens), requesting that we list a
``Northeastern Gray Wolf Distinct Population Segment consisting of the
States of New York, Vermont, New Hampshire, Maine, and Massachusetts.''
The petition did not specify whether the DPS should be listed as
endangered or threatened. The petitioners also requested that we
``regulate the commerce or taking, and treat as endangered species in
the States of New York, Vermont, New Hampshire, Maine, and
Massachusetts, coyotes (Canis latrans), coyote-gray wolf hybrids (Canis
latrans x Canis lupus), eastern wolves (Canis lycaon), eastern wolf-
gray wolf hybrids (Canis lycaon x Canis lupus), coyote-eastern wolf
hybrids (Canis latrans x Canis lycaon), and coyote-eastern wolf/gray
wolf hybrids (Canis latrans x Canis lycaon x Canis lupus) because of
their close resemblance to the federally endangered and protected gray
wolf.'' In addition, the petitioners requested that we develop and
implement a Northeastern Gray Wolf Recovery Plan. The request to
regulate the commerce and taking of coyotes and wolf-like canids, and
the request to develop a Northeastern Gray Wolf Recovery Plan, are not
petitionable actions under the Act and will be addressed separately
from this finding.
The petition clearly identified itself as such and included the
identification information of the petitioner required at 50 CFR
424.14(a). We acknowledged receipt of the petition in a letter to Mr.
Glowa dated February 24, 2009. This finding addresses the petition to
list a Northeastern DPS of the gray wolf (Canis lupus).
Previous Federal Actions
In 1974, we listed two subspecies of gray wolf as endangered: The
Northern Rocky Mountain (NRM) gray wolf (C. l. irremotus) and the
eastern timber wolf (C. l. lycaon) in the Great Lakes region (39 FR
1158, January 4, 1974). We listed a third gray wolf subspecies, the
Mexican wolf (C. l. baileyi), as endangered on April 28, 1976 (41 FR
17736), in Mexico and the southwestern United States. On June 14, 1976
(41 FR 24062), we listed the Texas gray wolf subspecies (C. l.
monstrabilis) as endangered in Texas and Mexico.
In 1978, we listed the gray wolf species, Canis lupus, as
endangered throughout the lower 48 States, except for a threatened
listing in Minnesota (43 FR 9607, March 9, 1978). Recovery efforts that
followed were most successful in the species' core areas in the
Northern Rocky Mountains and the Western Great Lakes. In 2000, we
proposed to revise this species listing into four DPSs: the Western
Great Lakes, Western, Northeastern, and Southwestern DPSs (65 FR 43450,
July 13, 2000). We also proposed to downlist all but the Southwestern
DPS to threatened status based on recovery in the core areas within the
Western and Western Great Lakes DPSs.
In a 2003 final rule (68 FR 15804, April 1, 2003), we found that
listing a Northeastern DPS of the gray wolf was not warranted because
the available data and public comments did not show any breeding
population in the Northeast. In addition, there was scientific
uncertainty about the species of wolf that occurred in this region
historically, as well as uncertainty regarding the taxonomic identity
of the wolves indigenous to nearby areas in Ontario and Quebec, Canada.
This issue is under continuing study. We, therefore, combined the wolf
range in the Northeast with the Western Great Lakes DPS and called it
the Eastern DPS. The 2003 final rule downlisted the Eastern DPS and a
Western DPS to threatened based on wolf recovery in the core population
areas. The 2003 rule also listed a Southwestern DPS as endangered.
Plaintiffs in Oregon opposed to the downlistings challenged the
2003 rule that reclassified these DPSs from the endangered lower 48
population. The District Court in Oregon held that the 2003 rule
violated the Act, in part because it created the new threatened DPSs
without analyzing the threats to any wolves outside their core recovery
areas (Defenders of Wildlife v. Secretary, 354 F. Supp.2d 1156, 1171-72
(D. Ore. 2005)). Plaintiffs in Vermont also challenged the 2003 rule,
and the District Court there likewise stated that the rule failed to
analyze the threats outside the core areas (National Wildlife
Federation v. Norton, 386 F. Supp.2d 553, 565 (D. Vt. 2005)). The
Vermont court also rejected the biological basis of the Eastern DPS
because the 2003 rule suggested that, based on the best information
available at that time, any wolves in the Northeast, and those in
Eastern Canada, were a different population from wolves in the Midwest.
Because the two courts vacated the 2003 rule, the endangered
listing throughout the lower 48 States (and threatened in Minnesota)
was reinstated. Neither court addressed the question whether a
Northeastern DPS could ever be designated with that region's ``low to
non-existent'' population of wolves (Defenders of Wildlife, 354 F.
Supp.2d at 1173; National Wildlife Federation, 386 F. Supp.2d at 565).
As suggested by the two courts, we have since described core
populations in smaller Western Great Lakes and Northern Rocky Mountains
DPSs that may be recovered (74 FR 15070, 15123; April 2, 2009). Those
findings have been challenged. Except for the threatened listing in
Minnesota; where listed as an experimental population; and where
[[Page 32871]]
delisted due to recovery in Montana, Idaho, portions of eastern
Washington, portions of eastern Oregon, and portions of north-central
Utah, wolves in the lower 48 States' range, including the Northeast,
currently remain listed as endangered (50 CFR 17.11(h)).
In an April 1, 2003, petition to list a Northeastern gray wolf DPS,
the Defenders of Wildlife and the Sierra Club (and others) concurred
with the determination in our 2003 final rule regarding the absence of
a breeding population (Defenders of Wildlife et al. 2003). Their
petition stated ``Since no wolves have formed packs or established
territories over the course of the past few decades in the northeast
region, there is little reason to believe that they will do so in the
future.'' In regard to the 2003 Defenders et al. petition, the Service
responded that the absence of a wolf population in the Northeast
precluded us from designating that entity as a DPS (J. Geiger, FWS in
litt. Sept. 12, 2003).
Species Information
The biology and ecology of the gray wolf has been widely reported
in the scientific literature (e.g., Carbyn et al. 1995; Wydeven et al.
2009), in Service recovery plans (e.g., Recovery Plan for the Eastern
Timber Wolf (Service 1992)), and in previous proposed and final rules
(e.g., 68 FR 15804, April 1, 2003; 71 FR 15266, March 27, 2006; and 74
FR 15123, April 2, 2009). In brief, gray wolves are the largest wild
members of the Canidae, or dog family. Adults can range from 18 to 80
kilograms (40-175 pounds), depending on sex and geographic locale. In
North America, wolves are primarily predators of large mammals, such as
moose (Alces alces), white-tailed deer (Odocoileus virginianus), and
beaver (Castor canadensis). Wolves are social animals, normally living
in packs of 2 to12 animals, but occasionally pack sizes of greater than
20 animals are reported (68 FR 15805).
Distribution and Taxonomy
The gray wolf historically occurred across most of North America,
Europe, and Asia. The only areas of the coterminous United States that
apparently lacked gray wolf populations since the last glacial period
are parts of California and portions of the southern and eastern United
States (an area occupied by the red wolf, C. rufus). The identity of
the precolonial wolf species that inhabited the northeastern United
States has recently been called into question because there is some
evidence that indicates that contemporary wolves in southeastern
Ontario and southeastern Quebec (and some historical wolf specimens
from the northeastern United States) are genetically more closely
related to the red wolf than the gray wolf (Wilson et al. 2000; Wilson
et al. 2003; Grewal et al. 2004; Kyle et al. 2006; and Kyle et al.
2008).
Status of the Species
It is widely accepted that wolves became extirpated from the
northeastern United States by the year 1900 (Young and Goldman 1944 in
Carbyn et al. 1995; Nowak 2002; Villemure and Jolicoeur 2004). As noted
above, from 2000 to 2003, the Service reviewed the existing status of
the wolf in the northeastern United States and found no reliable
evidence of breeding pairs or wolves that had established territories.
The petition lists information on eight wolves or wolf-like canids
killed in the northeastern United States over a 40-year period from
1968 to 2007, and one additional animal in southern Quebec Province,
Canada. The species' identity and the origin of several of the animals
remain uncertain, and available genetic data indicate that two of the
wolves were likely the result of a domestic breeding. The 2002
occurrence of a wolf killed in southern Quebec Province was noted as
the first confirmed record of a wolf south of the St. Lawrence River in
over 100 years (Villemure and Jolicoeur 2004). The Service finds that
this is strong evidence that wolf breeding pairs have not become
established in southern Quebec Province, a forested and mixed
agricultural landscape contiguous with forested habitats in Maine and
New Hampshire. Statements by the petitioners that in 2005, ``wildlife
workers'' were monitoring a wolf pack 20 miles north of the Vermont
border in Quebec could not be verified (Struhsacker, NWF in litt.
2008), and no further reports of wolves in that area are known to the
Service (USFWS unpublished data).
The petition provides an accounting of individual dead wolves and
wolf-like canids. It also includes information that potential source
populations of wolves occur north of the St. Lawrence River in Quebec
and Ontario, Canada, from which wolves could disperse to the five-State
area. The Service concurs that source populations of wolves do occur
within the recorded dispersal capability of a wolf. However, the
petition and our files do not include information sufficient to
conclude that wolves may have formed breeding pairs in the five-State
area.
Distinct Population Segment Analysis
Section 3 of the Act defines ``species'' as including ``any
subspecies of fish or wildlife or plants, and any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds
when mature.'' The term ``distinct population segment'' is not
recognized in the scientific literature. Therefore, the Service and the
National Marine Fisheries Service adopted a joint policy for
recognizing DPSs under the Act (DPS Policy; 61 FR 4722) on February 7,
1996. The DPS Policy requires the consideration of two elements when
evaluating whether a vertebrate population segment may be considered a
DPS: (1) The discreteness of the population segment in relation to the
remainder of the species or subspecies to which it belongs; and (2) the
significance of the population segment to the species or subspecies to
which it belongs.
A population segment of a vertebrate species may be considered
discrete if it satisfies either one of the following conditions: (1) It
is markedly separated from other populations of the same taxon (an
organism or group of organisms) as a consequence of physical,
physiological, ecological, or behavioral factors; or (2) it is
delimited by international governmental boundaries within which
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of Sec. 4(a)(1)(D) of the Act (i.e., inadequate
regulatory mechanisms).
If a population segment is found to be discrete under one or more
of the above conditions, its biological and ecological significance to
the taxon to which it belongs is evaluated. This consideration may
include, but is not limited to: (1) Persistence of the discrete
population segment in an ecological setting unusual or unique for the
taxon; (2) evidence that the loss of the discrete population segment
would result in a significant gap in the range of a taxon; (3) evidence
that the discrete population segment represents the only surviving
natural occurrence of a taxon that may be more abundant elsewhere as an
introduced population outside its historic range; and (4) evidence that
the discrete population segment differs markedly from other populations
of the species in its genetic characteristics.
The definition of a ``population'' is central to our analysis under
the DPS policy. Our regulations define a ``population'' as a ``group of
fish or wildlife * * * in common spatial arrangement that interbreed
when
[[Page 32872]]
mature'' (50 CFR 17.3). We have refined that definition in experimental
wolf reintroduction rules to mean ``at least two breeding pairs of gray
wolves that each successfully raise at least two young'' annually for 2
consecutive years (59 FR 60252, 60266; November 22, 1994).
Under the Act, an experimental population must be ``wholly separate
geographically from nonexperimental populations of the same species''
(16 U.S.C. 1539(j)(1)). Opponents of wolf reintroduction in Yellowstone
National Park have argued that releasing an experimental population
would violate this separation requirement because individual wolves
sometimes disperse to Yellowstone from natural populations to the
north. The Court of Appeals rejected this argument: ``by definition
lone dispersers do not constitute a population or even part of a
population, since they are not `in common spatial arrangement'
sufficient to interbreed with other members of a population'' (Wyoming
Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1234 (10th Cir.
2000)). This decision followed another Court of Appeals holding that,
despite ``sporadic sightings of isolated indigenous wolves in the
release area, lone wolves, or `dispersers,' do not constitute a
population'' under the Act (U.S. v. McKittrick, 142 F.3d 1170, 1175
(9th Cir. 1998), cert. denied, 525 U.S. 1072 (1999)). Thus, the courts
have upheld the Service's interpretation that pairs must breed in order
to have a ``population.''
The petition provides an account of individual wolves and wolf-like
canids dispersing into the petitioned DPS area, as occurs in
Yellowstone National Park. However, the petition does not provide
information suggesting that dispersing wolves may be interbreeding. Nor
do we have any information in our files indicating that dispersing
wolves may be interbreeding. While the occurrence of dispersing wolves
raises the theoretical possibility that a population could exist, it
does not constitute substantial information that a population may
actually exist. That is, it is not the amount of information that would
lead a reasonable person to conclude that a population (i.e., at least
two breeding pairs of gray wolves that each successfully raise at least
two young annually for 2 consecutive years) may exist. Because we do
not have substantial information that any ``population'' of the gray
wolf may exist in the Northeast, we lack substantial information that
there may be a discrete population in the Northeast. Because we find
that there is not substantial information that a discrete gray wolf
population may exist in the Northeast, we do not evaluate whether such
a population could be significant, and could be endangered or
threatened.
Finding
We have reviewed the petition and supporting information provided
with the petition, as well as information in our files. Based on this
review, we find that the petition and information in our files do not
present substantial information indicating that listing a gray wolf DPS
in the States of Massachusetts, New York, Vermont, New Hampshire, and
Maine as threatened or endangered may be warranted. If you wish to
provide information regarding the Northeast DPS of gray wolf, you may
submit your information or materials to the Field Supervisor/Listing
Coordinator, New England Field Office (see ADDRESSES), at any time.
As explained above in the Previous Federal Actions section, any
wolf found in the Northeast is still classified as endangered under the
lower 48 United States listing. Therefore, should one or more wolves
disperse into the Northeast from Canada, the protections of the Act
would apply.
References Cited
A complete list of all references cited in this document is
available on the Internet at http://www.regulations.gov and upon
request, from the New England Field Office (see FOR FURTHER INFORMATION
CONTACT).
Author
The primary author of this notice is Michael Amaral, Supervisory
Fish and Wildlife Biologist, (see ADDRESSES). Martin Miller, Chief,
Division of Threatened and Endangered Species, U.S. Fish and Wildlife
Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035, also
contributed to this finding.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 12, 2010.
Daniel M. Ashe,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-13882 Filed 6-9-10; 8:45 am]
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