[Federal Register Volume 77, Number 195 (Tuesday, October 9, 2012)]
[Proposed Rules]
[Pages 61375-61377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24275]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0045; FXES11130900000C2-123-FF09E32000]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on Petitions To List the Mexican Gray Wolf as an Endangered Subspecies 
or Distinct Population Segment With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on two petitions to list the Mexican gray wolf (Canis 
lupus baileyi) (Mexican wolf) as an endangered subspecies or Distinct 
Population Segment (DPS) and designate critical habitat under the 
Endangered Species Act of 1973, as amended (Act). Although not listed 
as a subspecies or DPS, the Mexican wolf is currently listed as 
endangered within the broader 1978 gray wolf listing, as revised, which 
listed the gray wolf in the lower 48 States and Mexico. Therefore, 
because all individuals that comprise the petitioned entity already 
receive the protections of the Act, we find that the petitioned action 
is not warranted at this time. However, we continue to review the 
appropriate conservation status of all gray wolves that comprise the 
1978 gray wolf listing, as revised, and we may revise the current 
listing based on the outcome of that review.

DATES: The finding announced in this document was made on October 9, 
2012.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-2010-0045. Supporting 
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, Headquarters Office, Endangered Species 
Program, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203. 
Please submit any new information, materials, comments, or questions 
concerning this finding to the above street address.

FOR FURTHER INFORMATION CONTACT: Rick Sayers, (see ADDRESSES); by 
telephone at (703) 358-2171; or by facsimile at (703) 358-1735. If you 
use a telecommunications device for the deaf (TDD), please call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires 
that, for any petition to revise the Federal Lists of Endangered and 
Threatened Wildlife and Plants that contains substantial scientific or 
commercial information that listing the species may be warranted, we 
make a finding within 12 months of the date of receipt of the petition. 
In this finding, we will determine that the petitioned action is: (1) 
Not warranted; (2) warranted; or (3) warranted, but the immediate 
proposal of a regulation implementing the petitioned action is 
precluded by other pending proposals to determine whether species are 
endangered or threatened, and expeditious progress is being made to add 
or remove qualified species from the Federal Lists of Endangered and 
Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires 
that we treat a petition for which the requested action is found to be 
warranted but precluded as though resubmitted on the date of such 
finding, that is, requiring a subsequent finding to be made within

[[Page 61376]]

12 months. We must publish these 12-month findings in the Federal 
Register.

Previous Federal Actions

    The Mexican wolf was listed as an endangered subspecies on April 
28, 1976 (41 FR 17736). In 1978, we published a rule (43 FR 9607, March 
9, 1978) reclassifying the gray wolf as an endangered population at the 
species level (C. lupus) throughout the conterminous 48 States and 
Mexico, except for the Minnesota gray wolf population, which was 
classified as threatened. This species level listing 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 did not contain 
measurable recovery criteria for delisting, but rather it 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 (61 FR 67573; December 23, 
1996). On April 3, 1997, the Department of the Interior issued its 
Record of Decision on the Final Environmental Impact Statement (62 FR 
15915). We published a final rule, ``Establishment of a Nonessential 
Experimental Population of the Mexican Gray Wolf in Arizona and New 
Mexico,'' on January 12, 1998 (63 FR 1752), which 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 as endangered was not changed by the 
listing rule or the Courts' invalidation of the rule. Invalidation of 
the rule establishing the three DPSs did cause the suspension of formal 
separate recovery planning for the Southwestern DPS, as that entity no 
longer existed as such, but recovery efforts for the Mexican wolf 
continued as part of the reinstated 1978 lower-48-State-and-Mexico gray 
wolf listing. On May 5, 2010, we announced the availability of the 
Mexican Wolf Conservation Assessment (75 FR 24741), a nonregulatory 
document intended to provide scientific information relevant to the 
conservation of the Mexican wolf in Arizona and New Mexico as a 
component of the Service's gray wolf recovery efforts (Service 2010). 
In December 2010, we convened a new Mexican Wolf Recovery Team, which 
is tasked with revising and updating the 1982 recovery plan. The new 
recovery plan will provide objective recovery criteria for the 
delisting of the Mexican wolf. A draft revised recovery plan is 
anticipated in 2013, and the final plan in late 2014.
    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 agreed, pursuant to a 
stipulated settlement agreement, to complete the 90-day finding in 
response to these petitions by July 31, 2010.
    On August 4, 2010, we published in the Federal Register a notice of 
our 90-day finding (75 FR 46894) addressing both petitions. Our finding 
stated that the petitions presented 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, and we initiated a status review. One of 
the petitions also requested listing of the Mexican wolf as an 
endangered DPS. While we did not address the DPS portion of the 
petition in our finding, we stated that we would further evaluate that 
information during the status review. This notice constitutes the 12-
month finding on the two petitions to list the Mexican wolf as either 
an endangered subspecies or DPS with critical habitat.

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

[[Page 61377]]

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; 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. 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 2011 documented a minimum of 58 Mexican 
wolves in the wild.

Finding

    The Mexican wolf has been listed as endangered as part of the 
broader lower-48-State-and-Mexico gray wolf listing, as revised, since 
1978 (43 FR 9607, March 9, 1978). Thus, although not currently listed 
separately as a subspecies or DPS, Mexican wolves have been protected 
by the Act for the last 36 years. As a result of this protection, and 
the actions described below, the minimum number of Mexican wolves in 
the wild in the United States has risen from none in the late 1990's to 
58 in 2011. It is important to note that the 1978 reclassification rule 
stipulated that ``biological subspecies would continue to be maintained 
and dealt with as separate entities'' (43 FR 9609), and offered ``the 
firmest assurance that [the Service] will continue to recognize valid 
biological subspecies for purposes of its research and conservation 
programs'' (43 FR 9610, March 9, 1978).
    In accordance with these assurances, the Service has actively 
focused on Mexican wolf conservation and recovery beginning with our 
involvement in the establishment of the captive breeding program in the 
late 1970s (Parsons 1996, Lindsey and Siminski 2007), the completion of 
the Mexican wolf recovery plan in 1982 (Service, 1982), the 
establishment of the Mexican Wolf Experimental Population Area in 
central Arizona and New Mexico in 1998 (63 FR 1752), and the 
reintroduction of Mexican wolves into the wild later that same year. 
Further, we are currently in the process of revising and updating the 
1982 recovery plan, which we anticipate releasing for public and peer 
review in 2013. These actions demonstrate the Service's long-standing 
commitment to Mexican wolf recovery.
    The current listing of all gray wolves in the lower 48 states and 
Mexico (save for those in the western Great Lakes, and the northern 
Rocky Mountains) encompasses any gray wolf subspecies or DPS that may 
occur in those same states or Mexico. More generally, the listing of 
any species as endangered or threatened encompasses within it all 
subspecies or potential DPSs comprising that species. Were the Service 
to separately list each constituent subspecies or potential DPS 
comprising an already listed entity, the endangered and threatened list 
would almost certainly be expanded several fold, and the limited 
resources of the Service would be consumed for years by the task, only 
to give again the protection of the Act to individual plants and 
animals that already had it. There is no indication in the Endangered 
Species Act that Congress intended the Service to list separately each 
of the constituent subspecies or DPSs encompassed within a broader 
listed entity, and it has been the consistent practice of the Service 
not to do so.
    Therefore, because all individuals that comprise the petitioned 
entity already receive the protections of the Act, and in fact are 
collectively the focus of a significant Service-led recovery effort 
consistent with the 1978 revised listing, we find the petitioned action 
is not warranted at this time. However, we continue to review the 
appropriate conservation status of all gray wolves that comprise the 
1978 lower-48-State-and-Mexico gray wolf listing, as revised, and we 
may revise the current listing based on the outcome of that review. In 
particular, we note that we could not, consistent with the requirements 
of the Act, take any action that would remove the protections accruing 
to Mexican wolves under the 1978 lower-48-State-and-Mexico listing, as 
revised, without first determining whether the Mexican wolf warranted 
listing separately as a subspecies or a DPS, and, if so, putting a 
separate listing in place.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the U.S. Fish and 
Wildlife Service (see ADDRESSES section).

Authors

    The primary authors of this notice are the staff members of the 
U.S. Fish and Wildlife Service, Headquarters Office, Endangered Species 
Program.

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 10, 2012.
Christine E. Eustis,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2012-24275 Filed 10-5-12; 8:45 am]
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