[Federal Register Volume 75, Number 149 (Wednesday, August 4, 2010)]
[Proposed Rules]
[Pages 46894-46898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19199]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0045]
[MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Mexican Gray Wolf as an Endangered Subspecies 
With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status and 
critical habitat review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on two petitions to list the Mexican gray wolf (Canis 
lupus baileyi) (Mexican wolf) as an endangered subspecies and designate 
critical habitat under the Endangered Species Act of 1973, as amended 
(Act). Although not listed as a subspecies, the Mexican wolf is 
currently listed as endangered within the broader listing of gray 
wolves. Based on our review, we find that the petitions present 
substantial scientific or commercial information indicating that the 
Mexican wolf subspecies may warrant listing such that reclassifying the 
Mexican wolf as a separate subspecies may be warranted. One of the 
petitions also requested listing of the Mexican wolf as an endangered 
Distinct Population Segment (DPS). While we have not addressed the DPS 
portion of the petition in this finding, we will further evaluate that 
information during the status review. Therefore, with the publication 
of this notice, we are initiating a review of the status of the Mexican 
wolf subspecies to determine if listing the Mexican wolf as a 
subspecies or DPS is warranted. To ensure that this status review is 
comprehensive, we are requesting scientific and commercial data and 
other information regarding the Mexican wolf. Based on the status 
review, we will issue a 12-month finding on the petitions, which will 
address whether the petitioned action is warranted, as provided in 
section 4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before October 4, 2010. After this 
date, you must submit information directly to the New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section 
below). Please note that we may not be able to address or incorporate 
information that we receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R2-ES-2010-0045 and then follow the instructions 
for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2010-0045; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Field Office, 2105 Osuna NE, 
Albuquerque, NM 87113, by telephone (505-346-2525) or by facsimile 
(505-346-2542). If you use a telecommunications device for the deaf 
(TDD), please call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

    When we make a finding that a petition presents substantial 
information indicating that listing an entity may be warranted, we are 
required to promptly review the status of that entity (status review). 
To ensure that the status review is complete and based on the best 
available scientific and commercial information, we request information 
on the status of the Mexican wolf. We request information from the 
public, other governmental agencies, Native American Tribes, the 
scientific community, industry, and any other interested parties 
concerning the status of the Mexican wolf. We seek information on:
    (1) The historical and current status and distribution of the 
Mexican wolf, its biology and ecology, taxonomy, and ongoing 
conservation measures for the subspecies and its habitat in the United 
States and Mexico; and
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), 
which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;

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    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting the species' 
continued existence and threats to it or its habitat.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.'' Based on the status review, we will issue 
a 12-month finding on the petition, as provided in section 4(b)(3)(B) 
of the Act.
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov. Please 
include sufficient information with your submission (such as full 
references and page numbers) to allow us to verify any scientific or 
commercial information you include.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be available for 
public inspection on http://www.regulations.gov, or by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating 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 scientific or commercial 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 
scientific or commercial information was presented, we are required to 
promptly review the status of the species, which is subsequently 
summarized in our 12-month finding.

Petition History

    On August 11, 2009, we received a petition from the Center for 
Biological Diversity requesting that the Mexican wolf be listed as an 
endangered subspecies or DPS and critical habitat be designated under 
the Act. On August 12, 2009, we received a petition dated August 10, 
2009, from WildEarth Guardians and The Rewilding Institute requesting 
that the Mexican wolf be listed as an endangered subspecies and 
critical habitat be designated under the Act. The petitions clearly 
identified themselves as such and included the requisite identification 
information for the petitioner(s), as required by 50 CFR 424.14(a). On 
October 22, 2009, we responded with letters to the petitioner(s) 
indicating that the petitions were under review and that we would make 
a finding as to whether or not the petitions present substantial 
information indicating that the requested action may be warranted. In 
response to complaints from the petitioners, we have agreed, pursuant 
to a stipulated settlement agreement, to complete the 90-day finding in 
response to these petitions by July 31, 2010. This finding addresses 
both petitions.

Previous Federal Actions

    The Mexican wolf was listed as an endangered subspecies on April 
28, 1976 (41 FR 17742). The gray wolf species (Canis lupus) in North 
America south of Canada was listed as endangered on March 9, 1978, 
except in Minnesota where it was listed as threatened (43 FR 9607). 
This listing of the species as a whole subsumed the previous Mexican 
wolf subspecies listing, although it stated that the Service would 
continue to recognize valid biological subspecies for the purpose of 
research and conservation (43 FR 9607). We initiated recovery programs 
for the gray wolf in three broad geographical regions of the country: 
the Northern Rockies, the Great Lakes, and the Southwest. In the 
Southwest, a recovery plan was developed specifically for the Mexican 
wolf, acknowledging and implementing the regional gray wolf recovery 
focus on the conservation of the Mexican wolf as a subspecies. The 1982 
Mexican Wolf Recovery Plan recommended a two-pronged approach to 
conservation that included establishment of a captive breeding program 
and reintroduction of wolves to the wild (Service 1982, p. 28).
    In 1996, we published a Final Environmental Impact Statement, 
``Reintroduction of the Mexican Wolf within its Historic Range in the 
Southwestern United States,'' after assessing potential locations for 
the reintroduction of the Mexican wolf. On April 3, 1997, the 
Department of the Interior issued its Record of Decision on the Final 
Environmental Impact Statement, and on January 12, 1998, a final rule, 
``Establishment of a Nonessential Experimental Population of the 
Mexican Gray Wolf in Arizona and New Mexico'' (63 FR 1752), was 
published and established the Mexican Wolf Experimental Population Area 
in central Arizona and New Mexico, and designated the reintroduced 
population as a nonessential experimental population under section 
10(j) of the Act. In March of that year, 11 Mexican wolves from the 
captive breeding program were released to the wild.
    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 DPS designations 
for the gray wolf. Gray wolves in the Western DPS and the Eastern DPS 
were reclassified from endangered to threatened, except where already 
classified as threatened or as an experimental population. Mexican 
wolves in the Southwestern DPS retained their previous endangered or 
experimental population status. On January 31, 2005, and August 19, 
2005, U.S. District Courts in Oregon and Vermont, respectively, ruled 
that the April 1, 2003, final rule violated the Act (Defenders of 
Wildlife v. Norton, 1:03-1348-JO (D.Or. 2005) and National Wildlife 
Federation v. Norton, 1:03-CV-340, (D. Vt. 2005)). The Courts 
invalidated the revisions of the gray wolf listing, and also 
invalidated the three DPS designations in the April 1, 2003, rule and 
the associated special regulations. The status of the Mexican wolf was 
not changed by the listing rule or the Courts' invalidation of the 
rule, but the invalidation of the three DPS

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designations suspended ongoing recovery planning efforts for the 
Southwestern DPS as the DPS was no longer considered valid.

Species Information

    The Mexican wolf is a genetically distinct subspecies of the North 
American gray wolf; adults weigh 23-41 kilograms (kg) (50-90 pounds 
(lbs)) with a length of 1.5-1.8 meters (m) (5-6 feet (ft)) and height 
at shoulder of 63-81 centimeters (cm) (25-32 inches (in)) (Young and 
Goldman 1944; Brown 1983, p. 119). Mexican wolves are typically a 
patchy black, brown to cinnamon, and cream color, with primarily light 
underparts (Brown 1983, p. 118); solid black or white Mexican wolves do 
not exist as seen in other North American gray wolves.
    Integration of ecological, morphological, and genetic evidence 
supports several conclusions relevant to the southwestern United States 
regarding gray wolf taxonomy and range. First, there is agreement that 
the Mexican wolf is distinguishable from other gray wolves based on 
morphological and genetic evidence. Second, recent genetic evidence 
continues to support the observation that historic gray wolf 
populations existed in intergradations across the landscape as a result 
of their dispersal ability (Leonard et al. 2005, pp. 9-17). Third, 
evidence suggests that the southwestern United States (southern 
Colorado and Utah, Arizona and New Mexico) included multiple wolf 
populations distributed across a zone of intergradation and 
interbreeding, although only the Mexican wolf inhabited the 
southernmost extent (Leonard et al. 2005, pp. 9-17). Currently, Mexican 
wolves exist in the wild only where they have been reintroduced, and 
that population has oscillated between 40 and 60 wolves since 2003.
    Historically, Mexican wolves were associated with montane woodlands 
and adjacent grasslands (Brown 1983, p. 19) in areas where ungulate 
prey were numerous. Wolf packs establish territories, or home ranges, 
in which they hunt for prey. Data from 2008 on the reintroduced Mexican 
wolf population shows an average home range size of 195 square miles 
(mi\2\) (505 square kilometers (km\2\ )), with home ranges varying from 
approximately 60 to 503 mi\2\ (155 to 1302 km\2\) (Service 2010, p. 
37). Recent studies have shown the preferred prey of Mexican wolves to 
be elk (Reed et al. 2006, pp. 1127-1133; Merkle et al. 2009, pp. 480-
485).
    Gray wolves die from a variety of causes including disease, 
malnutrition, debilitating injuries, interpack strife, and human 
exploitation and control (Service 1996, p. A-2). In the reintroduced 
Mexican wolf population, causes of mortality have been largely human-
related (vehicular collision and illegal shooting). Additionally, 
reintroduced Mexican wolves have been removed from the wild for 
management purposes. To date, the Mexican wolf population has had a 
failure (mortality plus removal) rate too high for natural or 
unassisted population growth, and, as stated above, the population has 
oscillated between 40 and 60 wolves since 2003. The most recent end-of-
year population survey in 2009 documented 42 Mexican wolves in the wild 
(Service 2010, pp. 26, 61).

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a factor to evaluate whether the 
species may respond to the factor in a way that causes actual impacts 
to the species. If there is exposure to a factor and the species 
responds negatively, the factor may be a threat and, during the 
subsequent status review, we attempt to determine how significant a 
threat it is. The threat is significant, if it drives, or contributes 
to, the risk of extinction of the species such that the species may 
warrant listing as threatened or endangered as those terms are defined 
in the Act. However, the identification of factors that could impact a 
species negatively may not be sufficient to compel a finding that the 
information in the petition and our files is substantial. The 
information must include evidence sufficient to suggest that these 
factors may be operative threats that act on the species to the point 
that the species may meet the definition of threatened or endangered 
under the Act.
    The petitioners assert that listing the Mexican gray wolf under the 
Act as a subspecies is both biologically warranted and legally 
required. It is important to mention that we already recognize the 
endangered status of the Mexican wolf under the current listing of the 
gray wolf species (43 FR 9607). However, this 90-day finding evaluates 
the information provided by the petitioners and other information 
readily available in our files, and determines whether it is 
substantial scientific or commercial information indicating that 
listing of the Mexican wolf as a subspecies may be warranted. Our 
evaluation of this information is presented below.
    The petitioners assert that listing the Mexican wolf as a 
subspecies under the Act is appropriate on the basis of taxonomy. The 
petitioners cite Young and Goldman 1994, Hall 1981, Bogan and Melhop 
1983, Hoffmeister 1986, Nowak 1995, Leonard et al. 2005, Wayne et al. 
1992, Garcia-Moreno et al. 1996, and Hedrick et al. 1997 in asserting 
that the Mexican wolf is clearly identified as a taxonomically valid 
subspecies. Information in our files support this assertion and 
indicate that, in the past, the Service has recognized the Mexican wolf 
as a taxonomically valid subspecies (41 FR 17742; 43 FR 9607).
    The petitioners assert the Mexican wolf is in danger of extinction 
due to four of the five factors set forth at 16 U.S.C. 1533(a)(1)(A)-
(E), stating the only factor not considered a threat to the Mexican 
wolf is Factor B. Several analyses of the five listing factors have 
been conducted for the Mexican wolf. The initial proposal to list the 
Mexican wolf as endangered in 1975 (40 FR 17590), and the 1978 listing 
of the entire gray wolf species as endangered throughout the 
coterminous United States (except for Minnesota, where it was 
classified as threatened) (43 FR 9607), found that threats from habitat 
loss (Factor A), sport hunting (Factor B), and inadequate regulatory 
protection from human persecution (Factor D) were responsible for the 
subspecies' decline and near extinction.
    We again assessed threats to the Mexican wolf in 2003 as part of 
the Southwest DPS when we reclassified the gray wolf into three DPSs 
(68 FR 15804). The reclassification rule stated that habitat 
destruction or modification (Factor A) was not currently considered a 
threat or deterrent for restoration of southwestern (Mexican) gray 
wolves. ``Take'' for commercial or recreational purposes, Factor B, was 
not considered a threat, nor were diseases and parasites (Factor C). 
Illegal killing was considered

[[Page 46897]]

in Factor C in the 2003 rule, and was recognized as a factor that may 
slow, but not likely preclude, recovery in the Southwest. Regulatory 
protection for reintroduced Mexican wolves was deemed adequate (Factor 
D). Finally, public attitudes toward gray wolves were cited as a 
primary determinant in the long-term recovery status of wolves (Factor 
E), and the 2003 rule anticipated that the potential for human-wolf 
conflicts would increase as the number of wolves increased.
    The most recent analysis of the five listing factors was performed 
in the Mexican Wolf Conservation Assessment (Service 2010, pp. 44-62). 
While Factor A was not considered a threat to the current wild 
population of Mexican wolves, the document states the degree to which 
habitat alteration may hinder future recovery must consider projections 
of future events and landscape trends in relation to updated recovery 
criteria. According to Carroll et al. (2003, pp. 536-548; 2006, pp. 25-
37), there are a number of adequately sized, ecologically suitable 
blocks of habitat in the Southwest, southern Rockies, and Mexico for 
establishment of wolf populations; however, as the petitioners assert, 
these sites may be impacted in the future by human population growth 
and associated road development.
    The petitioners assert that disease and predation (Factor C) are a 
current threat to the Mexican wolf. Disease and predation have not been 
recognized as a threat in any of our analyses. In the recent 
Conservation Assessment, disease is not considered a threat to the 
Mexican wolf based on known occurrences in the wild population and the 
active vaccination program (Service 2010, p. 51). Predation is also not 
considered a threat to the Mexican wolf because no wild predator 
regularly preys on wolves (Service 2010, p. 51).
    The petitioners assert that regulatory protections for Mexican 
wolves are inadequate (Factor D). The petitioners refer to restrictions 
within the 1998 rule (63 FR 1752), recommendations in the program's 
Three-year review (Paquet et al. 2001) that have not been implemented, 
and an unpublished powerpoint by Parsons and Ossario (2007) to show 
that current regulatory mechanisms are a primary cause for the failure 
to reach reintroduction objectives. We will further evaluate the 
adequacy of existing regulatory mechanisms during our status review.
    The petitioners assert that other natural or manmade factors 
(Factor E) affect the continued existence of the Mexican wolf. The 
petitioners reference studies of captive Mexican wolves by Hedrick et 
al. (1997) and Fredrickson et al. (2007) and assert the Mexican wolf 
contains reduced genetic diversity from their original population, and 
that signs of inbreeding depression have been observed such as smaller 
size, reduced fertility, and lower litter sizes. Information in our 
files generally supports this assertion. However, while inbreeding may 
have the potential to decrease fitness, growth rate, and genetic 
variation of the current wild population unless management actions to 
increase genetic representation are employed (Service 2010, pp. 58-60), 
the information presented by the petitioners and readily available in 
our files does not indicate that inbreeding may be a current threat to 
the captive population of Mexican wolves.
    Finally, the petitioners assert that federal control of wolves, 
illegal shootings, and vehicular collisions affect the continued 
existence of the Mexican wolf (Factor E). Information in our files 
supports the assertion that two sources of human-caused mortality 
(vehicular collision and illegal shooting) are responsible for the 
majority of the deaths within the wild population of Mexican wolves, 
and that the cumulative effects from the combination of human-caused 
wolf mortality and removal of wolves for management purposes has 
resulted in a failure rate (combined removal and mortality) too high to 
allow recovery through unassisted population growth (Service 2010, p. 
61).

Finding

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating 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 process for making this 90-day finding under section 4(b)(3)(A) 
of the Act is limited to a determination of whether the information in 
the petition presents ``substantial scientific and commercial 
information,'' which is interpreted in our regulations as ``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)). 
We have reviewed the petitions and the literature cited in the 
petitions, and evaluated the information to determine whether the 
sources that were cited supported the petitioned actions. We also 
reviewed reliable information that was readily available in our files 
to clarify and verify information in the petitions. Based on our 
evaluation of the information provided in the petitions, we find that 
the petitions present substantial scientific or commercial information 
indicating that listing the Mexican wolf as a subspecies may be 
warranted. One of the petitions received also included listing the 
Mexican wolf as a DPS. Since substantial scientific or commercial 
information was found at the subspecies level, in this finding we did 
not assess whether the petitions present substantial scientific or 
commercial information indicating listing the Mexican wolf as a DPS may 
be warranted. However, we will fully assess whether the species 
warrants listing as either a subspecies or a DPS in the 12-month 
finding.
    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we have determined that the petitions present substantial 
scientific or commercial information indicating that reclassification 
of the gray wolf to list the Mexican wolf as a subspecies throughout 
its entire range may be warranted. Because we have found that the 
petitions present substantial information indicating that listing the 
Mexican wolf as a subspecies may be warranted, we are initiating a 
status review to determine whether listing the Mexican wolf as a 
subspecies under the Act is warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

    A complete list of references cited in this finding is available 
upon request from the New Mexico Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT section above).

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Author

    The primary authors of this notice are the staff members of the New 
Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT section above).

Authority

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

    Dated: July 12, 2010
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-19199 Filed 8-3-10; 8:45 am]
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