[Federal Register Volume 70, Number 4 (Thursday, January 6, 2005)]
[Rules and Regulations]
[Pages 1286-1311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-136]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Regulation for
Nonessential Experimental Populations of the Western Distinct
Population Segment of the Gray Wolf; Final Rule
Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT61
Endangered and Threatened Wildlife and Plants; Regulation for
Nonessential Experimental Populations of the Western Distinct
Population Segment of the Gray Wolf
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) establish a
rule for the nonessential experimental populations (NEPs) of the
Western Distinct Population Segment (DPS) of the gray wolf (Canis
lupus), so that in States and on Tribal reservations with Service-
approved wolf management plans, we can better address the concerns of
affected landowners and the impacts of a biologically recovered wolf
population. In addition, States and Tribes with Service accepted wolf
management plans can petition the Service for lead management authority
for experimental wolves consistent with this rule. Within the
Yellowstone and central Idaho experimental population areas, only the
States of Idaho and Montana currently have approved management plans
for gray wolves. The State of Wyoming has prepared a wolf management
plan that was not approved by the Service. No Tribes have approved
management plans. Therefore, at this point in time these regulatory
changes only affect wolf management within the experimental population
areas in Montana and Idaho. As we discussed in our advance notice of
proposed rulemaking regarding delisting the Western DPS of the gray
wolf (68 FR 15879; April 1, 2003), once Wyoming has an approved wolf
management plan, we intend to propose removing the gray wolf in the
Western DPS from the List of Endangered and Threatened Wildlife. This
rule does not affect gray wolves in the Eastern DPS, the Southwestern
DPS, or the non-experimental wolves in the Western DPS.
DATES: The effective date of this rule is February 7, 2005.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at U.S. Fish and Wildlife
Service, Office of the Western Gray Wolf Recovery Coordinator, 100
North Park, Suite 320, Helena, Montana 59601. Call 406-449-5225 to make
arrangements.
FOR FURTHER INFORMATION CONTACT: Ed Bangs, Western Gray Wolf Recovery
Coordinator, at the above address or telephone 406-449-5225, ext. 204
or at [email protected] or on our Web site at http://westerngraywolf.fws.gov/.
SUPPLEMENTARY INFORMATION:
Background
In 1994, we promulgated special rules under section 10(j) of the
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et
seq.), for the purpose of wolf reintroduction. The rules, codified at
50 CFR 17.84(i), established two nonessential experimental populations
(NEPs), one for the central Idaho area and the other for the
Yellowstone area, that provided management flexibility to address the
potential negative impacts and concerns regarding wolf reintroduction.
On April 1, 2003, we published in the Federal Register (69 FR
15879) an Advance Notice of Proposed Rulemaking under the Act,
announcing our intent to remove the Western DPS of the gray wolf (Canis
lupus) from the List of Endangered and Threatened Wildlife in the near
future. At the time, we indicated that the number of wolves in the
Yellowstone and central Idaho NEP areas had exceeded our numerical
recovery goals. We also emphasized the importance of State wolf
management plans to any delisting decision; we believed these plans
would be the major determinants of wolf protection and prey
availability, and would set and enforce limits on human use and other
forms of take, once the wolf is delisted. These State management plans
will determine the overall regulatory framework for the future
conservation of gray wolves, outside of Tribal reservations, after
delisting. For reasons we discuss in more detail below, we are not yet
prepared to propose delisting the Western DPS of gray wolves; however,
we are issuing a new regulation for the NEPs in the Western DPS for
States or Tribal reservations with Service-approved wolf management
plans.
Gray wolf populations were eliminated from Montana, Idaho, and
Wyoming, as well as adjacent southwestern Canada, by the 1930s (Young
and Goldman 1944). After human-caused mortality of wolves in
southwestern Canada was regulated in the 1960s, populations expanded
southward (Carbyn 1983). Dispersing individuals occasionally reached
the northern Rocky Mountains of the United States (Ream and Mattson
1982, Nowak 1983), but lacked legal protection there until 1974 when
they were listed as endangered under the Act.
In 1982, Congress made significant changes to the Act with the
addition of section 10(j), which provides for the designation of
specific reintroduced populations of listed species as ``experimental
populations.'' Previously, we had authority to reintroduce populations
into unoccupied portions of a listed species' historical range when
doing so would foster the species' conservation and recovery. However,
local citizens often opposed these reintroductions because they were
concerned about the placement of restrictions and prohibitions on
Federal and private activities. Under section 10(j) of the Act, the
Secretary of the Department of the Interior can designate reintroduced
populations established outside the species' current range, but within
its historical range, as ``experimental.'' Based on the best scientific
and commercial data available, we must determine whether experimental
populations are ``essential,'' or ``nonessential,'' to the continued
existence of the species. Regulatory restrictions are considerably
reduced under a Nonessential Experimental Population (NEP) designation.
Without the ``nonessential experimental population'' designation,
the Act provides that species listed as endangered or threatened are
afforded protection primarily through the prohibitions of section 9 and
the requirements of section 7. Section 9 of the Act prohibits the take
of an endangered species. ``Take'' is defined by the Act as harass,
harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt
to engage in any such conduct. Service regulations (50 CFR 17.31)
generally extend the prohibitions of take to threatened wildlife.
Section 7 of the Act outlines the procedures for Federal interagency
cooperation to conserve federally listed species and protect designated
critical habitat. It mandates all Federal agencies to determine how to
use their existing authorities to further the purposes of the Act to
aid in recovering listed species. It also states that Federal agencies
will, in consultation with the Service, ensure that any action they
authorize, fund, or carry out is not likely to jeopardize the continued
existence of a listed species or result in the destruction or adverse
modification of designated critical habitat. Section 7 of the Act does
not affect activities undertaken on private land unless they are
authorized, funded, or carried out by a Federal agency.
For purposes of section 9 of the Act, a population designated as
experimental is treated as threatened regardless of the species'
designation elsewhere in its
[[Page 1287]]
range. Through section 4(d) of the Act, threatened designation allows
us greater discretion in devising management programs and special
regulations for such a population. Section 4(d) of the Act allows us to
adopt regulations that are necessary to provide for the conservation of
a threatened species. In these situations, the general regulations that
extend most section 9 prohibitions to threatened species do not apply
to that species, and the special 4(d) rule contains the prohibitions
and exemptions necessary and appropriate to conserve that species.
Regulations issued under section 4(d) for NEPs are usually more
compatible with routine human activities in the reintroduction area.
For the purposes of section 7 of the Act, we treat NEPs as a
threatened species when the NEP is located within a National Wildlife
Refuge or National Park, and section 7(a)(1) and the consultation
requirements of section 7(a)(2) of the Act apply. Section 7(a)(1)
requires all Federal agencies to use their authorities to conserve
listed species. Section 7(a)(2) requires that Federal agencies, in
consultation with the Service, ensure that any action authorized,
funded, or carried out is not likely to jeopardize the continued
existence of a listed species or adversely modify its critical habitat.
When NEPs are located outside a National Wildlife Refuge or National
Park, we treat the population as proposed for listing and only two
provisions of section 7 would apply--section 7(a)(1) and section
7(a)(4). In these instances, NEPs provide additional flexibility
because Federal agencies are not required to consult with us under
section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer
(rather than consult) with the Service on actions that are likely to
jeopardize the continued existence of a species proposed to be listed.
The results of a conference are advisory in nature and do not restrict
agencies from carrying out, funding, or authorizing activities.
In 1994, we promulgated special rules under section 10(j) of the
Act for the purpose of wolf reintroduction. The rules, codified at 50
CFR 17.84(i), established two NEPs, one for the central Idaho area and
the other for the Yellowstone area. We also identified protective
measures and management practices necessary for the populations'
conservation and recovery. As wolves in the NEPs are generally treated
as a threatened species, these rules provided additional flexibility in
managing wolf populations within the experimental population areas
compared to outside these areas, where wolves were listed as
endangered.
Since their reintroduction in 1994, wolf populations in both
experimental areas have exceeded expectations (Service 2004). This
success prompted the Service to reclassify the status of gray wolves in
the Western DPS, outside of the experimental population areas, to
threatened (68 FR 15804) and publish a special 4(d) rule for the WDPS
(found in 50 CFR 17.40(n)) that provides more flexible management for
wolves outside the experimental population areas. We also published an
advance notice of proposed rulemaking, indicating our intent to delist
the Western DPS of gray wolves in the future (68 FR 15879).
However, the 2003 4(d) rule did not apply within the experimental
population areas in Idaho or Yellowstone; as a result, management of
threatened wolves in the western DPS outside of the experimental
population areas became more flexible than management of wolves inside
the experimental population areas. We now issue a rule for States or
Tribal reservations with Service-approved wolf management plans that
provides for additional flexibility within the experimental population
areas in recognition of the fact that wolves are numerous in the
experimental population areas. In addition, the rule provides for
transition to a State and Tribal lead for wolf management in those
States or reservations with Service-approved wolf management plans,
with the exception of lands managed by the National Park Service or the
Service. The 1994 NEP rules found at 50 CFR 17.84(i) are retained in
Wyoming and on Tribal reservations within Wyoming without approved
management plans.
Previous Federal Actions
The northern Rocky Mountain wolf (Canis lupus irremotus) was listed
as endangered in Montana and Wyoming in the first list of species that
were protected under the 1973 Act, published in May 1974 (U.S.
Department of the Interior 1974). To eliminate problems with listing
separate subspecies of the gray wolf and identifying relatively narrow
geographic areas in which those subspecies are protected, on March 9,
1978, we published a rule (43 FR 9607) relisting the gray wolf at the
species level (Canis lupus) as endangered throughout the conterminous
48 States and Mexico, except Minnesota, where the gray wolf was
reclassified to threatened. In addition, critical habitat was
designated in Minnesota and Michigan in that rulemaking.
On November 22, 1994, we designated areas in Idaho, Montana, and
Wyoming as NEPs in order to initiate gray wolf reintroduction in
central Idaho and the Greater Yellowstone area (59 FR 60252, 59 FR
60266). These experimental population designations contain special
rules that govern the take of wolves within the geographical areas. The
1994 rules governing those experimental populations allowed for
increases in the authority of States and Tribes to manage the wolves
under a State or Tribal management plan approved by the Service.
Specifically, the 1994 rules allowed States or Tribes to expand the
definition of ``livestock'' for purposes of managing conflicts between
wolves and livestock, and the rules also allowed States and Tribes to
document adverse effects of wolves on ungulates for the purposes of
managing those conflicts.
In January 1995, 15 wolves captured in Alberta, Canada, were
released in central Idaho. In January 1996, an additional 20 wolves
from British Columbia were released into the central Idaho experimental
population area. In March 1995, 14 wolves from Alberta were released
from holding pens in Yellowstone National Park. In April 1996, this
procedure was repeated with 17 wolves from British Columbia (Bangs and
Fritts 1996, Fritts et al. 1997, see Service 2004 for additional
references).
On December 11, 1997, we published a proposal to revise the NEP
rules in central Idaho and the Yellowstone area (62 FR 65237). This
proposal attempted to clarify ambiguous language regarding wolf control
options of suspected captive wolves and wolf-dog hybrids found in the
wild within the experimental population areas. Due to litigation over
wolf reintroduction, in which the Service ultimately prevailed, and
other priorities, that proposal was never finalized. This rule resolves
that ambiguous language (see (xi)(H) in this rule).
On July 13, 2000, we published a proposal (65 FR 43450) to revise
the listing of the gray wolf across most of the conterminous United
States. On April 1, 2003, we published a rule establishing three DPSs
(Western, Eastern, and Southwestern) and reclassifying the gray wolf
from endangered to threatened in the Western and Eastern DPSs except
where NEPs existed (68 FR 15804). We established special rules under
section 4(d) of the Act for the Western and Eastern DPSs. Also on April
1, 2003, we published two Advance Notices of Proposed Rulemaking
announcing our intent to delist the gray wolf in the Eastern (68 FR
15876) and Western (68 FR 15879) DPSs in the future.
[[Page 1288]]
We received several petitions during the past decade requesting
delisting of the gray wolf in all or part of the 48 conterminous
States. We subsequently published findings that these petitions did not
present substantial information that delisting gray wolves in all or
part of the conterminous 48 States was warranted (54 FR 16380, April
24, 1989; 55 CFR 48656, November 30, 1990; 63 FR 55839, October 19,
1998).
Recovery Goals
The demographic recovery goal for the WDPS is a minimum of 30
breeding pairs, each consisting of an adult male and an adult female
that successfully produced at least 2 pups that survived until December
31, that are equitably distributed among 3 recovery areas/States for 3
successive years (68 FR 15804). Our current estimates indicate wolf
populations in northwestern Montana where they are designated
threatened, and in central Idaho and Yellowstone where they are
designated experimental, have exceeded this recovery goal. In late 2002
there were about 663 wolves and 43 breeding pairs equitably distributed
throughout Montana (about 183 wolves and 16 breeding pairs), Idaho
(about 263 wolves and 9 breeding pairs), and Wyoming (217 wolves and 18
breeding pairs) (Service et al. 2003). The year 2002 was the third
successive year that the wolf population in Montana, Idaho, and Wyoming
had 30 or more breeding pairs. The wolf population continues to expand
in the NEP areas. At the end of 2003, the wolf population was estimated
at 761 wolves and 51 breeding pairs. Montana had an estimated 182
wolves and 10 breeding pairs, Idaho had 345 wolves and 25 breeding
pairs, and Wyoming had 234 wolves and 16 breeding pairs (Service et al.
2004). Preliminary monitoring in 2004 indicates the wolf population
continues to increase, again primarily in the NEP areas (Service
2004b).
Currently Designated Nonessential Experimental Populations of Gray
Wolves
The Secretary designated two NEP areas for gray wolves in the
Northern Rockies. Wolves were reintroduced into the Yellowstone NEP
Area and the Central Idaho NEP Area in 1995 and 1996. The
reintroductions as experimental populations were intended to further
the recovery of gray wolves in the northern United States Rocky
Mountains, as described in the recovery plan (Service 1987), and
provide more management flexibility to address local and State concerns
about wolf-related conflicts.
The Central Idaho Experimental Population Area consists of the
portion of Idaho south of Interstate Highway 90 and west of Interstate
15; and the portion of Montana south of Interstate 90, west of
Interstate 15, and south of Highway 12 west of Missoula (59 FR 60266;
November 22, 1994).
The Yellowstone Experimental Population Area consists of the
portion of Idaho east of Interstate Highway 15; the portion of Montana
east of Interstate Highway 15 and south of the Missouri River from
Great Falls, Montana, to the eastern Montana border; and all of Wyoming
(59 FR 60252; November 22, 1994).
However, as explained below, the new regulation proposed here will
not apply in Wyoming or within any Tribal reservation in Wyoming at
this time.
Current Special Regulations for the Western Distinct Population Segment
Three special rules currently apply to wolves in Montana, Idaho,
and Wyoming. The two 1994 10(j) experimental population rules allow
flexibility in the management of wolves, including authorization for
private citizens to non-injuriously harass wolves and take wolves that
are in the act of attacking livestock on private land, without a
permit. These rules also provide a permit process that similarly allows
the take, under certain circumstances, of wolves in the act of
attacking livestock on public land. In addition, they allow
opportunistic non-injurious harassment of wolves by livestock producers
on private and public grazing lands, and also allow designated
government employees or Service-designated agents under specified
circumstances to perform non-lethal and lethal control to remove
problem wolves. The 1994 rules allow States and Tribes to define
unacceptable impacts on native ungulate herds and relocate wolves to
reduce wolf predation. They also provide a mechanism for increased
State and Tribal participation in wolf management, if cooperative
agreements are developed to make them designated agents of the Service.
The 2003 4(d) rule for the Western DPS outside of the Central Idaho
and Yellowstone NEP areas allows landowners and permittees on Federal
grazing allotments to harass wolves in a non-injurious manner at any
time. Like the 1994 10(j) rules, the 4(d) rule allows flexibility in
the management of wolves, including authorization for private citizens
on private land to non-injuriously harass wolves and take wolves that
are in the act of attacking livestock, livestock herding or guarding
animals, or dogs without a permit. The 4(d) rule also provides a
written authorization process that allows the taking, under certain
circumstances, of wolves on public land in the act of attacking
livestock or livestock herding or guarding animals. In addition, it
allows designated government employees or Service-designated agents to
perform non-lethal and lethal control to remove problem wolves under
specified circumstances. The 4(d) rule allows take of wolves under
written authorization in a few more circumstances than the 1994 10(j)
rules. Like the 1994 10(j) rules, the 4(d) rule allows the State and
Tribes to define unacceptable impacts on native ungulate herds and
relocate wolves to reduce wolf predation. The 4(d) rule, like the 1994
10(j) rules, also provides a mechanism for increased State and Tribal
participation in wolf management, if cooperative agreements are
developed to make them designated agents of the Service. A table
comparing the parameters of wolf management in this final 10(j) rule
with those in the 1994 10(j) rules, and with the 4(d) rules, is
included as part of this rule.
State and Tribal Wolf Management Plans
In order to delist the Western DPS wolf population due to recovery,
the demographic criteria (a minimum of 30 breeding pairs of wolves [an
adult male and female wolf that raise at least 2 pups until December
31] that are equitably distributed throughout Montana, Idaho, and
Wyoming for a minimum of 3 successive years) must be met, and the
Service must determine, based on the best scientific and commercial
data available, that the species is no longer in danger of extinction
and is not likely to be in danger of extinction in the foreseeable
future throughout all or a significant portion of its range. The basis
for the determination is a review of the status of the species in
relation to five factors identified 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; and (E) other natural or
manmade factors affecting its continued existence. These factors are
not analyzed in detail as part of this rule because there was no
proposed change in the WDPS listing status. Rather, this rule focuses
on management of NEP wolves in the WDPS as we await delisting and
transfer of management for
[[Page 1289]]
wolves in the WDPS to the States and Tribes.
State management plans have been determined by the Service to be
the most appropriate means of maintaining a recovered wolf population
and of providing adequate regulatory mechanisms post-delisting (i.e.,
addressing factor D) because the primary responsibility for management
of the species will rest with the States upon delisting and subsequent
removal of the protections of the Act. Therefore, based on the
demographic criteria mentioned above, each State needs to commit to
maintain at least 10 or more breeding pairs, so the wolf population
will not fall below 30 breeding pairs overall, and so that an equitable
distribution of wolf breeding pairs is maintained among the three
States. The northern Rocky Mountain wolf population is a three-part
metapopulation and requires adequate management by all three States to
ensure sufficient connectivity and distribution to remain recovered.
Because the population inhabits parts of Montana, Idaho, and Wyoming,
all three States must have adequate regulatory mechanisms to reasonably
ensure their share of the population will remain recovered before the
Service can propose it be delisted.
The Service determined that Wyoming's current State law and its
wolf management plan do not suffice as an adequate regulatory mechanism
for the purposes of delisting (letter from Service Director Steven
Williams to Montana, Idaho, and Wyoming, January 13, 2004).
Consequently, this rule, which defines the expanded authorities for
States or Tribes with Service-approved plans, does not affect the
portion of the Yellowstone NEP area in Wyoming. Wyoming has initiated
legal action challenging our decision to not approve their wolf
management plan. As the case works its way through the court system, we
will attempt to continue to work with Tribes in Wyoming and the State
of Wyoming to develop a Wyoming State law and State or Tribal wolf
management plans that we can approve. Once we have approved a wolf
management plan for the State of Wyoming, and barring the
identification of any new threats to the species, we expect to propose
rulemaking to remove the Western DPS of the gray wolf from the List of
Endangered and Threatened Wildlife (for additional discussion, see our
Advance Notice of Proposed Rulemaking at 68 FR 15879).
At this time there are few, if any, wolf breeding pairs or packs
that significantly use Tribal reservation lands in the NEPs in Montana,
Idaho, or Wyoming, and the recovery and subsequent maintenance of a
recovered wolf population does not depend upon Tribal reservations or
Tribal wolf management. The Service has not requested wolf management
plans from any Tribe within the Western DPS, and any future delisting
action is unlikely to be dependent on wolf management on Tribal lands.
We do not believe any Tribal treaty rights to hunt and gather on ceded
lands are adversely affected by this rule.
To provide as much flexibility as possible for Tribal members who
are landowners, this rule treats Tribal members' lands on reservations
as private property. Therefore, on Tribal lands within Montana and
Idaho, individuals may take wolves on reservation lands as allowed on
other private lands under this rule, if such take is allowed by Tribal
wildlife regulations. A Tribal government may not assume designated
agent status and lead for wolf management until it has a Tribal wolf
management plan that has been approved by the Service. Tribes in
Wyoming may develop their own wolf management plan for their
reservation, and once accepted by the Service, may assume designated
agent status. In the absence of a Service-approved Tribal wolf
management plan or cooperative agreement, the Service will issue any
written authorization for wolf take on Tribal lands.
Summary of Comments and Recommendations
A. Soliciting Public Comment
In our March 9, 2004, proposed rule and associated notifications,
we requested that all interested parties submit comments, data, or
other information that might aid in our decisions or otherwise
contribute to the development of this final rule. The comment period
for the proposed rule was open from March 9, 2004, through May 10,
2004. During that period we publicized and conducted two public
hearings, one in Helena, Montana, on April 19, 2004, and another in
Boise, Idaho, on April 20, 2004. We did not receive any requests for
additional hearings and none were held. We also provided additional
information at several general public meetings in order to explain the
proposal, respond to questions concerning gray wolf protection and
recovery, and receive input from interested parties. We contacted
appropriate Federal, State, and Tribal agencies, scientific
organizations, agricultural organizations, outdoor user groups,
environmental organizations, animal rights groups, and other interested
parties and requested that they comment on the proposal. We conducted
numerous press interviews to promote wide coverage of our proposed rule
in the media. We published legal notices in many newspapers announcing
the proposal and hearings, and invited comment. We posted the proposal
and numerous background documents on our Web site, and we provided
copies upon request by mail or E-mail and at our hearings and
informational meetings. We established several methods for interested
parties to provide comments and other materials, including verbally or
in writing at public hearings, by letter, E-mail, facsimile, or on our
Web site.
During the 60-day comment period and at our two public hearings, we
received nearly 23,000 separate comments, including comments from 39
individuals or agency representatives who spoke at public hearings.
These comments included form letters and petitions with multiple
signatures. Comments originated from nearly all States and several
countries. We revised and updated the proposed rule in order to address
comments and information we received during the comment period. In the
following paragraphs we address the substantive comments we received
concerning various aspects of the proposed rule. Comments of a similar
nature are grouped together under subject headings (referred to as
``Issues'' for the purpose of this summary) below, along with our
response to each. In addition to the following discussion, refer to the
``Changes from the Proposed Rule'' section (also below) for more
details.
B. Technical and Editorial Comments
Issue 1: Numerous technical and editorial comments and corrections
were provided by respondents.
Response 1-1: We corrected and updated numbers and other data
wherever appropriate. We edited the rule to make its purpose and wolf
management strategies clearer.
Response 1-2: We eliminated or condensed several sections in the
proposed rule because they were either no longer relevant or to improve
the clarity and intent of this rule. These changes include dropping
most references to wolf management and regulations outside of the
Western DPS and the central Idaho and Yellowstone NEP areas; dropping
detailed descriptions of the Montana and Idaho wolf management plans;
and dropping or condensing sections that are no longer relevant because
they applied
[[Page 1290]]
more to the past active wolf reintroduction program rather than the
current program that maintains and manages an established recovered
wolf population.
Response 1-3: We include a table that compares the parameters of
wolf management in this final 10(j) rule with those in the 1994 10(j)
rules and with the 4(d) rule.
Issue 2: Changes were suggested for our definitions of terms such
as ``reasonable belief,'' ``problem wolf,'' ``in the act,''
``landowner,'' ``livestock,'' and ``active den site.'' Most of the
changes were recommended to improve consistency with State or other
Federal rules, to improve law enforcement capabilities, or to clarify
this rule.
Response 2-1: Allowing wolf take because of an individual's
``reasonable belief'' the wolf may attack livestock appeared to invite
abuse of wolf take. The Service and State law enforcement officials
indicated that the term ``reasonable belief'' is largely unenforceable
in the context of its use in the proposed rule, because it could be
read to require proof of an individual's state of mind. It could allow
more liberal take of wolves than current State regulations and
standards allow for defense of private property from other large
carnivores managed by the States. The standards for taking wolves to
protect property on private and public land were changed to make them
more enforceable and also more consistent with State regulations and
enforcement standards. Take will be allowed if wolves are physically
attacking or ``in the act of'' attacking--i.e., molesting, harassing,
chasing--livestock, livestock guarding and herding animals, and dogs),
and if an agency investigation can confirm such take based on physical
evidence of an attack or threat of attack likely to occur at any
moment.
Response 2-2: The definition of take of problem wolves ``in the
act'' has been changed to a definition of ``in the act of attacking,''
meaning `` 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 is likely to occur at any moment.'' Evidence of an
attack must be available upon investigation. If no actual biting,
wounding, grasping or killing has occurred, evidence must be available
that a reasonable person would have believed that it was likely to
occur at any moment. This standard does not require proof of an
individual's state of mind. Instead, the standard requires evidence
that an attack was likely to occur. Such evidence may include
photographs of livestock or of the physical scene immediately following
the wolf taking; indications that livestock were chased, molested or
harassed, such as livestock and wolf tracks, trampled ground, broken
fences, brush or vegetation, or muddied, lathered, bunched or trampled
livestock; or dead or wounded livestock. This change will make take of
wolves in defense of private property more enforceable and more
consistent with State regulations. This standard will still allow the
take of wolves that are physically attacking livestock or dogs on
private lands, and livestock on public lands. We believe that by
expanding the definition of ``in the act'' to include wolves preparing
to attack livestock or dogs, we will more effectively remove problem
wolves, enhance the ability of landowners and public land permittees to
protect their private property, reduce the agency workload, and reduce
the potential for abuse of this regulation that could result in the
take of non-problem wolves, while not resulting in adverse impacts to
wolf populations.
Response 2-3: We agree that the definition of a ``problem wolf''
should not include a wolf attacking any domestic animal, such as a cat,
but should be more specific to the types of animals that have been
attacked in the past such as horses, cattle, sheep, mules, goats,
domestic bison, llamas, and dogs. The definition of a problem wolf has
been changed to a wolf that attacks livestock (defined as cattle,
sheep, horses, mules, goats, domestic bison, certain types of livestock
herding or guarding animals) and dogs on private lands, and livestock
on public lands. The Service or our designated agent(s) can designate
and control a problem wolf, if it has attacked domestic animals other
than livestock or dogs, two or more times in a calendar year.
Response 2-4: Wolves should not be labeled ``problem wolves'' when
they are attracted, artificially fed, or baited, or when livestock are
not reasonably protected. The conditions required for take of a problem
wolf are--(A) Evidence of dead or wounded livestock or dogs caused by
wolves or evidence that an attack on livestock or dogs by wolves is
likely to occur at any moment; (B) A likelihood that additional losses
will occur if no control is taken; (C) No unusual attractants or
artificial or intentional feeding of wolves; and (D) On public lands,
animal husbandry practices specified in approved allotment plans and
annual operating plans are being followed.
Response 2-5: Definitions of ``routinely present'' and
``demonstrable but non-immediate threat to human safety'' need
clarification. We dropped these two phrases from the final rule. Issues
regarding potential threat to private property or human safety will be
reworded ``as determined by the Service or our designated agent(s).''
Response 2-6: Some suggested that the definition for ``active den
site'' begin earlier than April 1 or go later than June 30. From 1987
through 2004, we have monitored over 329 breeding pairs of wolves in
Montana, Idaho, and Wyoming (USFWS 2004) and none were documented to
have produced pups before April 1. By June 30 wolf pups are mobile and
many begin moving to rendezvous sites, so we did not expand the time
frame within that definition. Land-use restrictions, even around active
den sites, have rarely been required to protect wolves in the past and
we do not believe they will be necessary in the future (Bangs et al. in
press).
Response 2-7: Some comments suggested certain sex and age classes
of wolves, i.e., breeding females or their pups, should be more
protected than others. We dropped language from the final rule
regarding more restrictive control options for females with pups or
their pups. Our data indicate that after 4-6 weeks other pack members
can successfully raise wolf pups, and removal of the breeding female
does not mean the pups will not survive (Boyd and Jimenez 1994). Most
pups are born by mid-April, and by early summer when most livestock
come onto public grazing allotments, pups are mobile and can be raised
by other pack members. Wolf packs are resilient to change and losing
pack members, including alphas, as this happens frequently in nature
even when humans are not impacting wolf pack social dynamics (Mech and
Boitani 2003). We also recognize that, at times, the presence of wolf
pups and their extra food requirement contribute to livestock
depredation. Therefore, we have left the case-by-case decisions about
wolf removal to our and our designated agent(s)' field personnel. We
believe leaving such decisions to professional personnel in the field
increases management flexibility and will not affect wolf recovery or
the overall level of agency-caused wolf mortality.
Response 2-8: Some commenters recommended a more restrictive
definition for ``landowner'' or restricting the use of take
authorization by private individuals to remove problem wolves. Under
this rule ``landowner'' applies only to private landowners or public
land permittees who actually experience confirmed wolf depredations.
[[Page 1291]]
C. Legal Compliance With Laws, Regulations, and Policy
Issue 3: There was some confusion as to where and when the rule
applies. Some believed it would immediately apply to all parts of any
State with an approved management plan and others believed it would
immediately apply throughout all experimental population areas. Some
perceived that the new rule only applied after States with acceptable
plans sign Memorandum of Agreements (MOAs) with the Secretary.
Response 3-1: This rule applies only to experimental areas within
States or Tribal reservations with approved management plans, which at
this time means only within the States of Montana and Idaho (letter
from Service Director Steven Williams to Montana, Idaho, and Wyoming,
January 13, 2004). Until a management plan from the State of Wyoming or
a Wyoming Tribe is approved by the Service, no part of this rule
applies in Wyoming or on a Tribal reservation in Wyoming. All wolf
management in Wyoming remains under the aegis of the 1994 10(j) rules.
When the Service approves a Wyoming or Tribal wolf management plan in
that State, then this rule also will apply in Wyoming or that Tribal
reservation in Wyoming. Furthermore, no Tribe in Montana or Idaho can
lead wolf management on their reservation until the Tribe has a wolf
management plan approved by the Service. Neither the 1994 rules nor
this rule apply outside of the experimental population areas, except it
provides some management options to the Service and our designated
agent(s) for wolves from the experimental population area that disperse
beyond the experimental population boundaries. Maps are provided to
show the established experimental population areas in which this rule
may apply.
Response 3-2: This rule becomes effective within 30 days in the
experimental population areas in Montana and Idaho, as they have wolf
management plans that have been approved by the Service. As soon as
Wyoming or a Tribal reservation in Wyoming has a wolf management plan
that is approved by the Service, this rule will become immediately
effective in that respective area. While Tribal reservations in Montana
and Idaho are considered as private land for individuals under the
provisions of this rule, Tribal governments may not become designated
agents and lead wolf management on reservations until they have a
Tribal wolf management plan approved by the Service.
Response 3-3: The completion of an MOA with the Secretary of the
DOI which is consistent with this rule allows a State or Tribe to take
the lead in wolf management, to become ``designated agent(s),'' and to
implement all parts of its approved wolf management plan that are
consistent with this rule. This includes issuing written authorization
for take, and making all decisions regarding implementation of the
State or Tribal plan consistent with this rule. Under the MOA process,
the Service will annually review the States' and Tribes' implementation
of their plans to ensure compliance with this rule and to ensure the
wolf population remains above recovery levels. States and Tribes also
can become ``designated agent(s)'' and implement all or selected
portions of this rule by entering into a cooperative agreement with the
Service.
Issue 4: Some commenters believed the new 10(j) rule calls for a
new Environmental Impact Statement (EIS) or additional section 7
consultation.
Response 4-1: We have carefully reviewed the requirements of the
National Environmental Policy Act (NEPA) and its regulations (Council
on Environmental Quality 40 CFR Section 1502.9). We believe this final
rule, as well as the process by which it was developed and finalized,
comply with all provisions of the Act, NEPA, and applicable
regulations. The possible impacts resulting from this rule do not
differ or extend beyond the scope of those examined in the 1994 EIS
(Service 1994) or the 1994 10(j) rules. We do not believe the additions
in this new 10(j) rule constitute substantial changes that create new
environmental concerns. We present the following evidence:
In the 1994 EIS and 10(j) rules we predicted that 100 wolves in
each of the 2 experimental areas would kill an annual average of 10-19
cattle and 57-68 sheep. Confirmed losses have been below predicted
levels, even though wolf population levels are higher than predicted.
From 1995 through 2003, wolves were confirmed to have killed 8.4-13.2
cattle, 33.6-46.3 sheep, and 2.5-2.7 dogs annually per experimental
area. As predicted in the EIS, from 1987 through 2004 a cumulative
total of approximately $440,000 in private compensation has been paid
to livestock producers who have had confirmed or probable livestock
losses caused by wolves, including areas both inside and outside the
experimental population areas. The EIS also predicted that in each of
the two experimental population areas annual livestock losses would
range from $1,888 to $30,470 annually; and in reality, annual
compensation for wolf-caused losses has averaged about $17,000 per area
since 1995. The EIS predicted economic losses (in the range of
$207,000-$857,000), primarily due to decreases in hunting for female
elk; some decreases in winter control hunts for female elk have
occurred, all within predicted levels. The EIS predicted that
visitation to Yellowstone National Park would increase and generate
$23,000,000 of economic activity in Montana, Idaho, and Wyoming. The
popularity of wolf viewing in Yellowstone surpassed our predictions,
although the economic impact is largely unknown.
The EIS predicted that the wolf population (defined by the
distribution of breeding pairs) would likely remain within the EIS
primary analysis area (Forest Service lands and adjacent private lands
in central Idaho, and public land in and around Yellowstone National
Park and private land in adjacent counties). As predicted, although
individual lone wolves have dispersed widely, judging from the
distribution of breeding pairs, the wolf population is contained within
the EIS's primary analysis area.
In the EIS and 1994 10(j) rules, we also anticipated that legal
control of wolves to minimize livestock depredations would annually
remove an average 10 percent of the experimental population. Since 1995
lethal wolf removal has annually removed an average of less than 5
percent of the experimental wolf population. We predicted that the
numerical and temporal goals for wolf population recovery would be
reached in late 2002, with about 129 wolves counted in late winter in
each of the 2 areas. These recovery criteria were reached in late 2002,
but with an estimated 271-284 wolves per recovery area, about twice the
predicted levels.
We anticipate that this rule will result in some additional wolf
mortality by the public over current levels. However, the combination
of agency control and legal control by the public will still likely
effect on average 10 percent or less of the wolf population annually
and we believe will not increase human-caused mortality to a level that
could reduce the wolf population below recovery levels. Thus this rule
does not create impacts that were not already analyzed or anticipated
in the 1994 EIS and 1994 10(j) rules. This rule also provides
safeguards that we believe will maintain the wolf population above
numerical recovery goals in the experimental population areas. These
safeguards are discussed throughout the body and discussion of the
rule, including but not limited to the conditions under which the take
provisions of the rule may be
[[Page 1292]]
implemented. In conclusion, we are adopting the prior EIS for this
rulemaking because the analysis is still applicable, i.e., the
conditions have not changed and the action has not changed
significantly.
Response 4-2: We have conducted an intra-Service section 7
consultation on this rulemaking. We have determined that the original
consultation (contained in Appendix 7 of the 1994 EIS) remains adequate
in its analysis of the gray wolf, woodland caribou, black-footed
ferret, bald eagle, whooping crane, piping plover, least tern, pallid
sturgeon, sockeye salmon, chinook salmon, Kendall Warm Springs dace,
Wyoming toad, five species of Snake River mollusks, and MacFarlene's
four-o'clock. No impacts to these species beyond those predicted in
1994 have occurred and this rule will cause no additional impacts
beyond those envisioned in 1994. Since 1994, Canada lynx, bull trout,
water howellia, white sturgeon, northern Idaho ground squirrel,
Spalding's catchfly, and steelhead have been listed under the Act
within the experimental population areas. In our original consultation,
we determined wolf recovery would not affect any of those species but
did not provide justification. We have updated the consultation to
include a rationale of why the proposed action would not affect these
species. Finally, because three grizzly bear cubs have been killed by
wolves within the action area since the original consultation, we
formally consulted on the effects of the proposed action on the grizzly
bear. In this consultation, we determined that the project was not
likely to jeopardize the continued existence of the grizzly bear (a
copy of this consultation is available; see FOR FURTHER INFORMATION
CONTACT section, above).
Issue 5: Some commenters believed we improperly considered
economic, political, or other factors when developing the proposed
rule. Some believed we favored livestock and State interests, and
others believed we favored outside interests and environmental
organizations.
Response 5: Except when designating critical habitat, the Act
prohibits economic considerations during the rulemaking process and the
Administrative Procedure Act prohibits Federal agencies from providing
special interest groups any special access to the rulemaking process.
This rulemaking has complied with those prohibitions.
Issue 6: Some commenters believed we are violating the Service's
mission.
Response 6: The USFWS mission is working with others, to conserve,
protect, and enhance fish, wildlife and plants and their habitats for
the continuing benefit of the American people. A decade ago, the
Service and our cooperators reintroduced wolves into the northern Rocky
Mountains, and the WDPS wolf population have now exceeded numerical
recovery goals outlined in the 1994 EIS. Nothing in this rule reduces
the ability of the Service to achieve its mission or its responsibility
under the Endangered Species Act to recover gray wolves; rather, this
rule builds on the partnerships already established with the States and
Tribes to manage the species.
Issue 7: One comment suggested the proposed rule violates the
Airborne Hunting Act. Another suggested wolf control for State ungulate
management violates the Wilderness Act.
Response 7-1: This rule does not allow public hunting of wolves,
including by aircraft. It allows management agencies to remove problem
wolves, using such tools as darting, netgunning, or gunning from
aircraft. This type of agency activity is not a violation of the
Airborne Hunting Act.
Response 7-2: This rule does not supersede or invalidate any other
Federal, State, or Tribal laws or regulations. All wolf management
activities under this rule must be conducted in compliance with all
other applicable laws and regulations.
D. Lethal Control
Issue 8: Many commenters expressed varying degrees of opposition or
support for the lethal control of gray wolves. Some commenters asked
that we prohibit any form of lethal take; some supported killing of
wolves only in defense of human life; some supported lethal control
only if carried out by designated government agent(s); and others felt
that lethal control should never occur on public lands. Lethal control
of wolves that kill only pets also was opposed by some. Others
(especially in Idaho) advocated lethal removal of all wolves. Some
commented that all wolf control should be conducted in a humane manner.
Others indicated that for physical evidence to be preserved, the site
of the wolf take should remain undisturbed and be examined quickly to
reduce the potential for abuse of the rule.
Response 8-1: The Service will continue to cooperate with the U.S.
Department of Agriculture-Animal and Plant Health Inspection Service-
Wildlife Services (USDA-APHIS-WS), State agencies, universities, and
special interest groups to investigate ways to reduce the level of
conflict between people, livestock, and wolves (Service 2004; Bangs et
al. in press; Bradley 2003; Bangs and Shivik 2002; Oakleaf 2001). To
date, we and our partners in wolf recovery have investigated and
implemented the use of fencing; guard animals; extra herders; light,
siren, and other scare devices, including those activated by wolf
radio-collars; shock aversion conditioning; flagging; less-than-lethal
munitions; offensive and repelling scents; supplemental feeding;
harassing wolves at dens and rendezvous sites to move the center of
wolf pack activity away from livestock; trapping and moving individual
pack members or the entire pack; moving livestock and providing
alternative pasture; investigating the characteristics of livestock
operations that experience higher depredation rates; and research into
the type of livestock and rate of livestock loss that are confirmed in
remote public grazing allotments. We also correspond with researchers
and wildlife managers around the world to learn how they deal with
similar problems. While preventative and non-lethal control methods can
be useful in some situations, they are not consistently reliable, and
lethal control will remain an important tool to manage wolves that have
learned to depredate on livestock. Lethal removal of problem wolves to
the extent that it reduces the wolf population below recovery levels is
not permitted. Under this rule, we or our designated agent(s) will
regulate human-caused mortality of wolves in a manner that reduces
conflicts between wolves and people while maintaining a recovered wolf
population.
Response 8-2: To preserve physical evidence of a wolf attack, we
require in the rule that any wolf take be reported within 24 hours and
the site remains undisturbed.
Response 8-3: The Service treats wolves as humanely as conditions
allow. We or our designated agent(s) routinely capture and release
wolves for monitoring, research, and control. We train our employees in
humane wildlife handling techniques. We capture wolves by leg-hold
trapping, snaring, darting, and use the utmost caution to preserve the
health and well-being of the captured animal. Mortalities resulting
from wolf captures are below 2 percent of the animals handled. When we
or our designated agent(s) must kill problem wolves, we use the most
effective and humane techniques possible under field conditions. We
continue to investigate non-lethal ways to reduce wolf-livestock
conflicts, and we prefer to prevent livestock depredations, if
possible, rather than react to them by killing depredating wolves.
[[Page 1293]]
Response 8-4: This rule clearly states that for take by landowners
on their private lands or take on public land by a Federal allotment
permittees of a gray wolf in the act of attacking livestock or dogs,
the carcass of the wolf and the surrounding area should not be
disturbed in order to preserve physical evidence that the take was
conducted according to this rule. The take should be reported
immediately, and the Service or our designated agent(s) will use the
carcass and evidence in the area surrounding it to confirm that the
livestock or dogs were wounded, harassed, molested, or killed by
wolves. The take of any wolf without such evidence of a direct and
immediate threat may be referred to the appropriate authorities for
prosecution.
Issue 9: We received comments about the differentiation in wolf
management between public and private lands, such as: States do not
differentiate between private and public lands for defense of personal
property from most resident predators and neither should the Service;
the Service should not control wolves on public land; the Service
should recognize the difficulties with different wolf management
strategies for livestock producers in checkerboard areas of mixed
public and private ownership; and the Service should recognize the
special authorities of Tribes on reservations and ceded lands.
Response 9-1: Under this rule, any landowner can shoot a wolf
attacking or ``in the act'' of attacking livestock or dogs on private
land without prior written authorization. The rule also allows legally
authorized permittees on public land, including outfitters and guides,
to kill a wolf attacking or ``in the act'' of attacking livestock or
herding or guarding animals being used as part of their Federal land-
use permit on their public allotment without prior written
authorization. We consider reservation lands in States with approved
plans as private land to extend as much management flexibility as
possible to Tribal lands. Any such take of wolves must be reported
immediately and evidence of an attack or that wolves were ``in the
act'' of attacking must be presented to agency investigators. Any take
of wolves without such evidence of attack (such as wounded or dead
livestock or dogs) or without evidence that a reasonable person would
have believed an attack was likely to occur at any moment (such as
indicators that livestock were being chased or harassed by wolves, and
proximity of wolves to livestock), may be referred to the proper
authorities for prosecution. The mandatory evidence and reporting
provisions will reduce the number of wolves killed by permittees, and
will minimize the potential for abuse. Removing the wolves that are
actually attacking livestock is a more effective method of removing
problem wolves, especially on remote public lands, than agency control
days after depredations have occurred. After a problem wolf is removed
by a permittee, further agency control is rarely warranted, especially
because immediate action by the permittee can more easily target the
problem wolf, compared to agency control after-the-fact based on
educated assumptions concerning the identity of the problem wolf. This
provision does not allow the taking of wolves to protect hunting dogs
(because they do not qualify as livestock under this rule) being used
by outfitters and guides on public land, nor will it allow private
individuals recreating on public land who are not public land
permittees to take wolves unless in self-defense or in defense of
others.
Response 9-2: By making the take provisions between private land
and public land similar, we have reduced the confusion that might
surround problem wolf management options in areas of checkerboard
landownership whose borders may be difficult to ascertain.
Issue 10: Some commenters requested the definition of ``public land
permittee'' be expanded to include permitted outfitters and guides.
Response 10-1: We dropped the written authorization requirement for
take of wolves by public land permittees, including guides and
outfitters, when wolves are attacking or are ``in the act'' of
attacking livestock on their allotments during the active period of
their federally-issued land-use permit. ``Public land permittee'' also
includes Tribal members who are legally grazing their livestock on
ceded public lands under Tribal treaty rights. The rule does not allow
the taking of wolves on public lands when wolves attack dogs that are
not being used by permittees for livestock guarding or herding. Private
users of public land or people who are not active public land
permittees may non-injuriously harass wolves that are attacking
livestock or dogs but may not kill or injure wolves on public land for
attacking livestock or dogs.
Response 10-2: This rule allows us or our designated agent(s) to
issue ``shoot on sight'' written authorizations to both private
landowners and public land permittees with active grazing allotments
after wolf depredations have been confirmed, agency lethal control is
already authorized, and wolves still present a significant threat to
livestock. Such take must be conducted in compliance with the
conditions specified in the written take authorization issued by the
Service or our designated agent(s).
Issue 11: We received comments for and against agency control of
wolves in response to wolf impacts on ungulate herds. People against
such control believe that wolves are part of the ecosystem and that
predator and prey should be allowed to naturally fluctuate. People who
supported such agency wolf control believed that wolves could
significantly reduce hunter harvest of ungulates, fostering ill will
and increasing the potential for illegal killing of wolves. Some were
concerned about abuse of this provision and lack of public review and
scientific integrity in the decision-making process. There was some
question as to how wolf management for ungulates would apply in
Wyoming, the only State without an accepted wolf management plan.
Response 11-1: Under the 1994 rules, any State, including Wyoming,
or Tribe can move wolves if they document that wolf predation is
negatively impacting attainment of State or Tribal goals for big game.
To date, no State or Tribe has documented excessive wolf predation on
native ungulate herds, warranting wolf removal, nor has any State or
Tribe requested such.
Response 11-2: In some situations, wolf predation, in combination
with other factors, could potentially contribute to dramatic localized
declines in wild ungulate populations (Mech and Boitani 2003). As noted
in their comments on the proposed rule, segments of the public and
State fish and game agencies are concerned that if these conditions
exist and wolf predation is contributing to dramatic declines in a
local ungulate population, management of wolf predation should be an
available option. Most, if not all, core wolf habitat in the
experimental population areas is now occupied by wolf packs. Any
relocated wolves are likely to settle outside of core areas and near
livestock and private property--likely creating additional conflicts
with local livestock producers (Bradley 2003). This rule allows wolves
to be killed to resolve significant conflicts with State and Tribal
ungulate management objectives.
Response 11-3: States and Tribes can lethally take wolves to
resolve significant ungulate management issues, but only after
submitting a scientific, written proposal that has undergone peer and
public review. The State or Tribal proposal must define the issue,
history, past and future monitoring and management and describe the
data
[[Page 1294]]
indicating the impact by wolf predation on the wild ungulate
population, what degree of wolf removal will occur, and why it believes
wolf control is appropriate. The proposal must discuss other potential
remedies. The Service will review the State's or Tribe's proposal once
it has undergone peer and public review. The Service will only approve
wolf take for ungulate management after we determine that the proposal
scientifically supports wolf removal and does not compromise wolf
recovery objectives.
Issue 12: Some comments supported and others were against
translocation (capturing and releasing at a distant location) of
problem wolves.
Response 12: Translocation of wolves to reduce wolf-livestock
conflicts can be a valuable management tool when wolf populations are
low and empty habitat is available (Bradley 2003). The Rocky Mountain
wolf population is well above recovery levels and nearly all suitable
release sites for translocated wolves are already occupied by resident
wolf packs. Wolves are territorial, and resident packs may kill strange
wolves in their territory. Translocating problem wolves is often
unsuccessful at preventing further problems, because once a wolf has
learned that livestock can be prey, it can carry that learned behavior
to its new location, where it can continue being a problem wolf
(Service 1999). Also, some wolves travel great distances after
translocation and return to the area where they were captured and begin
attacking livestock again. As a result, translocated wolves rarely
contribute to recovery of the Rocky Mountain wolf population (62 FR
65237). The Service or our designated agent(s) will primarily rely on
lethal control for management of wolves that attack livestock, if non-
lethal methods appear ineffective, because most habitat in Montana,
Idaho, and Wyoming that does not have livestock is already occupied by
resident wolf packs. No wolves have been relocated in Montana, Idaho,
or Wyoming since 2001. However, in rare instances, translocation may be
used to resolve conflicts or excessive depredation of native wild
ungulate populations.
Issue 13: Some recommended the Service emphasize non-lethal wolf
control to resolve conflicts, including encouraging ranchers to take
measures to reduce the risk of wolf depredation.
Response 13: The Service works with USDA-APHIS-WS, livestock
organizations, private groups, and individuals to identify and
publicize ways that livestock producers can reduce the risk of wolf
depredation. The decision to use any of the tools offered is strictly
voluntary on the part of the livestock producer, but in the past many
producers have been willing to take additional steps to reduce the risk
of wolf predation. To date, a multitude of preventative and non-lethal
wolf control measures have been used to reduce wolf conflicts with
livestock. None are always reliable or effective, but some can have
limited and temporary benefit (Bangs and Shivik 2002, see Service 2004
for additional references). The Service and our designated agent(s)
will continue to investigate preventative and non-lethal management
options to reduce wolf conflicts with livestock, but lethal control
will continue to be an important option in many situations.
Wolf populations can remain stable while withstanding 25-35 percent
human-caused mortality per year (Mech and Boitani 2003). Agency lethal
control of problem wolves was predicted in the 1994 EIS to remove about
10 percent of the wolf population annually, and at that level lethal
control will reduce the overall level of conflicts with livestock
without reducing the wolf population. To date, agency lethal control of
wolves has removed an average of less than 5 percent of the wolf
population annually and the amount of lethal take allowed under this
new regulation is not predicted to increase annual wolf mortality above
10 percent annually of the population or to a level that reduces the
wolf population below recovery levels.
Issue 14: Some commenters believed the Service should not loosen
restrictions on lethal take of wolves, and that we should base the take
levels on scientific information, not local political pressure.
Response 14: We recognize that excessive human persecution of
wolves is the primary reason for the decline of wolves across North
America. We believe the protections of the Act, in combination with
extensive public education efforts by the Service and numerous private
and public partner organizations, have reduced human persecution and
led to the increase in gray wolf numbers and an expansion of their
range. For the wolf population to remain recovered, human-caused
mortality must be regulated. This rule provides adequate regulation of
human-caused mortality to prevent severe population declines. We have
based our decisions about the appropriate level of wolf control on wolf
biology, research, and our best professional judgment (see Service 2004
for relevant references), despite pressure from interest groups at both
ends of the spectrum of human perspectives about wolves and wolf
management.
Issue 15: Some commenters described the past persecution of wolves
and expressed the belief that similar persecution will resume if the
proposed rule is adopted.
Response 15: This final rule is not expected to significantly
increase the level of human persecution of gray wolves. It does not
reduce the Federal protection for illegally killing gray wolves. We
believe that providing additional mechanisms for the control of problem
wolves, including harassment and control options, will reduce the need
for reactive agency lethal control and the incentive to illegally kill
wolves. We do not believe this rule will increase the threats from
human-caused mortality to the majority of the wolf population that does
not exhibit problem behavior, and indeed will increase human tolerance
for non-depredating wolves and will help decrease those threats.
E. Other Management Concerns
Issue 16: Some asked what procedural steps are required to
determine ``excessive population pressure'' so that wolves might be
hunted by the public. Others requested we not allow public hunting or
trapping of wolves.
Response 16: This rule does not allow public hunting or trapping of
wolves. We do not envision that a case of ``excessive population
pressure'' could be made for this wolf population that would allow
consideration of public hunting while wolves are listed.
F. State Management Concerns
Issue 17: Concern was expressed about whether State or Tribal
management of gray wolves would provide adequate protection to ensure
the continued viability of the wolf population. Others welcomed the
State or Tribal lead in management over the Federal management, though
some were concerned about funding for State and Tribal wolf management.
Some thought the cost of State management should be paid by the Federal
government.
Response 17-1: If a State or Tribe (on its reservation) is
interested in assuming management responsibility for wolves while they
are listed, the Service must first approve their wolf management plan.
The Service must be assured that State or Tribal management will be
consistent with the Act, this rule, and recovery of the species, before
we may delegate management responsibility to that State or Tribe.
States and Tribes with approved plans are only able to manage the wolf
population within the framework established by this rule.
Response 17-2: We have funded State and Tribal wolf monitoring,
research,
[[Page 1295]]
and management planning efforts for gray wolves in Montana, Idaho, and
Wyoming. For the past several years, Congress has targeted funding for
wolf management to Montana, Idaho, and Wyoming, and the Nez Perce
Tribe. In addition, Federal grant programs are available that fund
wildlife management programs by the States and Tribes. The Cooperative
Endangered Species Conservation Fund, for example, provides funds to
states for species and habitat conservation actions for threatened and
endangered and other at-risk species.
G. Native American Management Concerns
Issue 18: Some felt that the Tribal wolf management roles vis-
[agrave]-vis the Federal and State agencies should be clarified and
recognized.
Response 18: This rule provides Tribes with all the same
opportunities on reservation lands, i.e., lands held by a Tribe in fee
simple or held in trust for Tribes, that it offers the States on lands
under State wildlife management authority. Tribes with Service-accepted
wolf management plans and wildlife management authority and capability
can assume the lead for wolf management on their reservation lands
through the same MOA process with the Secretary of DOI that is
available to States, or can serve as designated agents through the
cooperative agreement process. This rule treats Tribal member's lands
on reservations as private property within the borders of States with
approved wolf management plans. Tribal individuals within reservations
may take wolves according to the provisions of this rule, assuming such
take is legal under Tribal regulations. In the absence of a Service-
approved Tribal wolf management plan or cooperative agreement, the
Service will issue any written authorization for wolf take on Tribal
lands.
Issue 19: The Nez Perce Tribe asked for Government-to-Government
discussions with the Service.
Response 19: The Service met with Nez Perce Tribal representatives
on October 25, 2004, in Boise, Idaho, to fulfill their request for a
government-to-government meeting regarding the Tribe's role in wolf
management. We also acknowledged receipt of their draft wolf management
plan titled ``Nez Perce Tribal Gray Wolf Conservation and Management
Plan.'' We were unable to discuss the details of this final rule at
that time, and agreed to review their draft wolf management plan once
this rule is promulgated. The Nez Perce Tribe has done a commendable
job in the wolf recovery program since 1995. During wolf recovery,
under contract with the Service, the Nez Perce Tribe has provided such
services as wolf monitoring, communications with affected and
interested parties, and research. We encourage the continued
cooperation and coordination between the Tribes and States to delineate
the roles and responsibilities for management of wolves both inside and
outside Tribal reservations. Tribal reservations within States with
approved wolf management plans are considered `private land' for the
purposes of this rule. Therefore, individuals on Tribal lands may take
wolves according to the provisions of this final rule for private
landowners, and thereby benefit from the additional flexibility this
rule provides, as long as it does not violate Tribal regulations.
Issue 20: Tribes have extensive treaty rights on ceded lands
throughout the experimental population areas.
Response 20: The provisions of this rule are available to Tribal
governments only on their reservation lands. Wolf management on private
inholdings within reservations without approved Tribal wolf management
plans will be coordinated by the Service. The States have lead resident
game management authorities outside of reservations and should include
any Tribal treaty rights in their State management plans. Tribal treaty
rights, such as a share of the potential legal wolf harvest, are not an
issue affected by this rule. This rule does recognize and encourage
State and Tribal cooperative agreements to provide opportunities for
increased wolf management flexibility and consistency throughout
reservations, ceded lands, and other areas within States. This rule
also acknowledges Tribal treaty rights for pasturing and grazing
livestock on ceded lands, as specified below. This rule treats wolves
on reservations in States with approved wolf management plans as if
they were on private property, thereby affording individuals on those
reservations additional management flexibility to deal with problem
wolves.
G. Memorandum of Agreement Concerns
Issue 21: Two interpretations were expressed about the relationship
between this rule and the proposed MOAs. Some thought this rule would
go into effect immediately in any State with an approved plan, and that
the MOA was a subsequent and separate process. Another interpretation
was this rule would only go into effect after a State or Tribe
completed an MOA with the DOI.
Response 21: This rule is effective in 30 days from the date of
publication within any part of the experimental population area within
a State or Tribal reservation that has a Service-accepted wolf
management plan. The MOA process is a separate and subsequent issue.
The States or Tribes can choose to become designated agents under this
rule through either an MOA or a cooperative agreement.
Issue 22: The intent of the MOA was questioned. Some thought the
MOA allowed a State or Tribe to implement this rule while others
thought it allowed additional flexibility beyond that permitted by this
rule.
Response 22: The MOA process cannot allow wolf management beyond
that authorized by this rule without further public comment and
modification of this rule. The MOA process gives States or Tribes the
opportunity to take the lead in implementing all parts of this rule,
including issuance of take authorization, and determining what types
and levels of control are necessary to manage problem wolves.
Issue 23: Some questioned whether this rule or an MOA under this
rule would cover management of areas outside the 10(j) experimental
population areas.
Response 23: This rule and related MOAs only apply to State or
Tribal management inside the experimental population areas.
Issue 24: A few comments addressed the exclusion of Wyoming from
this rule because Wyoming lacks a Service-approved plan. Some argued
Wyoming's plan should have been approved. The support was mixed, some
wanting this rule to apply in Wyoming, regardless of State plan
approval. Others indicated that Wyoming should not get the benefit of
this rule's additional flexibility without an adequate State plan.
Response 24: This rule will apply in Wyoming only after Wyoming has
a wolf management plan that is approved by the Service. Likewise this
rule will apply to any Tribal reservation land in Wyoming only after
that Tribe has a wolf management plan approved by the Service. In the
absence of a Service-approved wolf management plan, the 1994 10(j)
rules still apply to Wyoming and all Tribal reservations within the
experimental population areas in Wyoming.
Issue 25: Concerning the timing of implementation of the provisions
of the rule, some wanted it to be effective immediately, others wanted
a phase-in period. Some indicated that if the Secretary can terminate
an MOA in 90
[[Page 1296]]
days, the States and Tribes should be allowed to do the same.
Response 25-1: This rule becomes effective in 30 days from date of
publication. The Secretary will review any State or Tribal petition as
soon as possible; references to a 30-day timeframe for acting on the
MOA have been removed.
Response 25-2: The language in the final rule has been changed to
allow either party to terminate the MOA with 90 days notice.
H. General Comments on the Proposed Experimental Rule
Issue 26: The bulk of the comments from the public were very
similar. While most stated the proposed rule was not protective enough
of wolves, others said it was too protective.
Response 26: We solicited comments to identify new information and
search for new ideas to improve wolf management under this rule. We
addressed the substantive comments we received, and did not modify this
rule because more people expressed one opinion over another.
Issue 27: Some believed that States with approved wolf management
plans should be able to be delisted separately.
Response 27: We are not proposing to delist the WDPS gray wolves at
this time. Therefore, comments of this nature are not addressed in this
rule. In addition, at this time the Act does not allow wolves to be
delisted on a State-by-State basis.
I. Comments Not Germane to This Rulemaking
Some comments went beyond the scope of this rulemaking, or beyond
the authority of Service or the Act. Since these issues do not relate
to the action we proposed, they are not addressed here. These comments
included support or opposition for future delisting proposals. Some
indicated concern that this rule might lead to the killing of wolf-like
canids (dogs) by the public. Some comments indicated wolves were either
not native to the experimental areas, wolf reintroduction was illegal,
wolf reintroduction usurped States' rights, that the type of wolf that
currently lives in Montana, Idaho, and Wyoming is a non-native wolf, or
that the Service fails to use the definition of a species as proposed
by Linnaeus. Many of these types of comments were discussed in the
reclassification rule (68 FR 15804). We also received comments
expressing support for, and opposition to, wolf recovery and the
proposal (or parts of it) without further elaboration or explanation.
Issue 28: Where did the idea for this rule come from; was it
politically motivated?
Response 28: The Service proposed a rule revision in 1997 (62 FR
65237) but litigation postponed development of a final rule. The
States, particularly Idaho, raised the issue of a rule revision in 2002
when the WDPS wolf population first achieved its recovery goal.
However, the Service did not initiate a rule revision at that time
because we believed the recovered wolf population should be delisted
and instead focused our resources and efforts on helping the States
develop wolf management plans and on preparing a delisting proposal.
However, in 2004 after the Service did not approve the Wyoming wolf
plan and it appeared delisting would be delayed, we reconsidered a rule
change. The Service developed this rule to assist in management of the
recovered wolf population and to begin the transition to increased
State and Tribal involvement while we continue our efforts to delist
the recovered wolf population.
Changes to the Final Rule
As a result of comments, additional data received during the
comment period, and additional analysis, several changes were made to
the special rule we proposed on March 9, 2004 (69 FR 10956). Every
section of the rule received some degree of specific or general public
comment. The following paragraphs discuss significant changes.
Comments showed a polarization over the issues of when, where, by
whom, and under what circumstances lethal control would occur. The
conditions under which a private citizen can take a wolf in this final
rule differ slightly from the March 2004 proposed rule. The net result
of the changes will likely slightly increase the level of problem wolf
take by the public on public land, and slightly decrease the level of
public wolf take on private land, over that proposed in March 2004.
This rule will result in a higher level of problem wolf take on both
private and public land by the public than the 1994 10(j) rules (see
Comparison Table). We expect this take to be minimal, but it may
slightly decrease the overall rate of livestock depredation and
slightly decrease agency expenditures to control problem wolves. The
main potential effect of this rule is to slightly shift the ability to
remove problem wolves to the affected landowners and public land
permittees, from the Service and our designated agent(s). These changes
will more closely align wolf management strategy with existing State
management of large carnivores and the approved Montana and Idaho State
wolf management plans.
Since 1995, when the first wolves were reintroduced into the
experimental population areas, less than two wolves have been taken by
the public each year. Six wolves have been shot on private land as they
attacked livestock and eight wolves were killed on private land under
``shoot-on-sight'' written authorizations for chronic livestock
depredations. No wolves have been killed by the public on public land,
even though the Service has issued written authorizations to shoot
wolves attacking livestock on grazing allotments. Overall agency take
to resolve conflicts with livestock, including authorized take by the
public, resulted in an average of 6.6 percent (range 0-11.2 percent)
and 2.9 percent (range 0-4.8 percent) of the NEP wolves being removed
annually from 1995 though 2003, in the Yellowstone and central Idaho
areas, respectively. Before wolves were reintroduced in 1995, we
predicted that agency wolf control (including legal regulated take in
defense of private property) would remove an average 10 percent of the
population annually. We do not foresee this final rule increasing wolf
mortality, including regulated take by the public in defense of their
private property or by States or Tribes in response to unacceptable
impacts to ungulate populations, to levels that average more than 10
percent annually, or to a level that threatens wolf recovery. Mandatory
reporting and the requirement for evidence of wolf attacks are similar
to State requirements for taking black bears and mountain lions to
protect private property. These mandatory conditions should minimize
the potential for abuse of the regulations and take of non-problem
wolves.
Significant changes to and clarifications of the final rule are
discussed in the following sections.
1. Proposed--Allowed only landowners and public land permittees to
opportunistically harass wolves in a non-injurious manner at any time
for any reason. Such harassment was allowed only when there were not
purposeful actions to attract, track, wait for, or search out the wolf.
Examples of this type of harassment include scaring the wolf with noise
[yelling or shooting into the air], movement [running or driving toward
the wolf], or objects [throwing a rock at a wolf or releasing bear
pepper spray]. Such harassment must be of a very limited duration,
cannot result in any injuries to the wolf, and must be reported to us
or our designated agent(s) within 7 days.
1. Final--Allows anyone to opportunistically harass wolves in a
non-injurious manner at any time for
[[Page 1297]]
any reason. All the same conditions as proposed apply in that such
harassment must be conducted on an opportunistic basis, may not
physically harm the wolf, and there can be no purposeful actions to
attract, track, wait for or search out the wolf. Such harassment must
be reported within 7 days.
Discussion--Wolves are normally wary of humans. However, wolves can
become accustomed to being around people unless people teach them to
avoid close contact. We believe that allowing anyone to
opportunistically harass a wolf, as long as the wolf is not injured,
will not result in any physical harm to wolves, but could make them
more wary of people (Bangs and Shivik 2001; Bangs et al In press). Such
harassment will provide people with an extra means to protect their
livestock and pets from wolf conflict, without harming the wolf. Wary
wolves should be more likely to avoid areas with high levels of human
activity, which should reduce conflicts with people and their
livestock, thereby reducing the level of reactive lethal control. Such
non-injurious harassment should also make wolves more cautious of
people which could reduce the opportunity for people to illegally take
wolves.
2. Proposed--Allowed the take of wolves attacking any domestic
animal on private land or when there was a ``reasonable belief'' that
such an attack was imminent.
2. Final--Allows the take of wolves attacking (actually biting,
wounding, grasping) or in the act of chasing, molesting, or harassing
that would indicate to a reasonable person that such biting, wounding,
grasping, or killing is likely to occur at any moment. On private land,
wolves can be taken without written take authorization if they are
attacking livestock (defined as cattle, sheep, horses, mules, goats,
domestic bison, and livestock herding or guarding animals) or dogs. On
public land, wolves can be taken without written take authorization
when they are attacking livestock but only by a permittee with a
current Federal land-use permit that requires livestock use. On both
private and public land, evidence of an attack, such as wounded
livestock, or evidence that a reasonable person would have believed an
attack was likely to occur at any moment, such as indicators that
livestock were being chased or harassed by wolves, and proximity of
wolves to livestock, must be presented to investigators. This is more
protective of wolves on private land because the final rule limits this
take to livestock or dogs, less protective on public land because it
allows take without take authorization, and overall, less protective of
wolves than the 1994 10(j) rules or the March 2004 proposed rule.
Discussion--Some wildlife law enforcement agents claimed parts of
the proposed rule were unenforceable. For example, we received comments
that ``reasonable belief'' was a vague term, as used in the proposed
rule, and would invite abuse and killing of non-problem wolves. The
definition of ``in the act of attacking'' in this final rule is
consistent with existing State statutes regarding the legal take of
mountain lions and black bears to protect private property. This type
of ``defense of property'' regulation has generally worked well--take
of both mountain lions and black bears under such State regulations is
generally limited to less than 10 individuals per year. The wording in
this final rule does not require determination of a person's state of
mind; instead it requires physical evidence to verify the attack, or
physical evidence that a reasonable person would have believed an
attack was likely to occur at any moment. Take of wolves must be
reported within 24 hours (with additional reasonable time to report
take allowed if access to the site is limited). Take without such
evidence may be referred to the proper authorities for prosecution.
Allowing public take of problem wolves in such a manner allows for
effective removal of problem wolves and reduces the likelihood of abuse
of the regulations.
3. Proposed--Allowed take on private land of a wolf attacking any
domestic animal.
3. Final--Only allows take on private land of a wolf attacking
livestock (cattle, sheep, horses, mules, goats, domestic bison, and
herding and guarding animals) or dogs. This is more protective of
wolves than the proposed rule and less protective than the 1994 10(j)
rules.
Discussion--In 1987, the first livestock depredation by wolves in
Montana in recent history occurred. From 1987 through 2003, wolves have
been confirmed to have killed a minimum total of 301 cattle, 804 sheep,
20 other livestock (10 goats, 9 llamas, and a foal horse), and 63 dogs
in Montana, Idaho, and Wyoming. There have been a few scattered reports
of suspected wolf depredations on poultry, cats, or hares--but none of
these were ever confirmed. Public comment indicated that abuse of the
regulation was more likely if wolf take was allowed for any domestic
animal. We agreed and concluded that wolf control should be restricted
to types of domestic animals that have been attacked in the past, are
common in the experimental areas, are often free-ranging, and are large
enough that if they are attacked there would be physical evidence to
investigate and confirm wolf involvement.
4. Proposed--Allowed take, by grazing permittees on public land, of
wolves attacking livestock, after a confirmed depredation on livestock
had already occurred and a written Federal take authorization had been
issued.
4. Final--Allows take by some public land permittees on public land
of wolves attacking or in the act of attacking livestock--without
written take authorization. Public land permittees include Tribal
members who are legally grazing livestock on ceded lands under
recognized treaty rights. This rule does not allow take of wolves by
the general public on public land or take of wolves attacking dogs,
with the exception of dogs being used by permittees for herding or
guarding livestock. We believed that permittees should be allowed to
immediately remove problem wolves without a take authorization, if
wolves are caught in the act of attacking their livestock in their area
of designated use. This is less protective of wolves than the proposed
rule or the 1994 10(j) rules, but should lead to more effective control
with more surety that the problem wolves are the ones taken.
Discussion--The most effective mechanism to target and remove
individual problem wolves is to immediately take wolves seen attacking
or in the act of attacking livestock. We believe that such take will be
limited. To date no wolf has been legally taken on public land under a
written lethal take authorization by a livestock producer who saw it
attacking his/her livestock. The opportunity for abuse and excessive
take is reduced by requirements to report the take, hold an active
Federal land-use permit for livestock use or be a Tribal member
exercising recognized treaty rights, and limit such take to a specific
active allotment. We do not allow lethal take of wolves to protect
hunting hounds or pet dogs that are not being used by permittees to
guard or herd livestock, nor do we allow lethal take of wolves by the
general public recreating on public lands to protect livestock or dogs.
We believe that hound hunters and the general public can adequately
protect their livestock and dogs on public land by opportunistic non-
injurious harassment of wolves.
5. Proposed--Allowed issuance to private landowners or their
adjacent neighbors or public land grazing permittees written take
authorization of limited duration to shoot on sight wolves on private
property or adjacent
[[Page 1298]]
private property or active allotment, after (1) One confirmed wolf
depredation on livestock or domestic animals; and (2) We determine
wolves are routinely present and are a significant risk.
5. Final--Allows issuance to private landowners with confirmed
depredation on their private property or public land livestock grazing
permittees, written take authorization of limited duration to shoot on
sight wolves on their private property or their active allotment, after
(1) One confirmed wolf depredation on livestock or dogs on that private
property or one confirmed depredation on livestock on an active grazing
allotment; (2) We or our designated agent(s) determine that wolves are
routinely present and are a significant risk; and (3) We or our
designated agent(s) are authorized to do lethal control. Written take
authorization may be issued at our or our designated agent(s)';
discretion on a case-by-case basis to assist in the removal of problem
wolves. On private land, this is less protective of wolves than the
proposed rule, and more protective than the 1994 10(j) rules that
allowed ``shoot-on-sight'' written take authorization to be issued
after the second confirmed livestock depredation, even to adjacent
neighbors who did not have previous depredations on their property. On
public grazing allotments, it is less protective of wolves than the
proposed rule or the 1994 10(j) rules.
Discussion--Shoot-on-sight written take authorizations should only
be issued when the agencies also are actively trying to lethally remove
problem wolves, as is currently the case. Such take authorizations
should be an option on public land grazing allotments, where access and
agency removal of problem wolves is often more difficult. Narrowing the
scope by which such take authorizations can be issued will more closely
focus removal on problem adult wolves and resolution of chronic
livestock depredations, and will reduce the potential for abuse. This
provision of the final rule is consistent with management of large
predators causing property damage on public land under current State
wildlife regulations.
6. Proposed--Allowed States or Tribes to lethally remove wolves
causing unacceptable impacts to native ungulate populations or herds,
after they consulted with the Service, and identified possible
mitigation measures and remedies, and only if such take would not
inhibit wolf recovery.
6. Final--Provides a process for the States or Tribes to lethally
remove wolves in response to wild ungulate impacts, similar to the
proposed rule but in a more structured, transparent, and science-based
process. The State or Tribe would develop a science-based plan and make
it available for peer and public review. Based on that peer review and
public comment, the State or Tribe would finalize the plan and then
submit it to the Service for written concurrence. The Service would
approve the plan if we determine the proposal is scientifically-based
and would not reduce the wolf population below recovery levels. The
final rule is similar to the proposed rule and less protective of
wolves than the 1994 10(j) rules, which only allowed relocation of
wolves in response to wild ungulate impacts.
Discussion--Commenters showed a lot of mistrust over the issue of
lethally removing wolves for State ungulate management objectives. To
provide checks and balances in this process and satisfy our mandates
under the Act that our decisions are made upon the best scientific
information available, we recommend an open, transparent, science-based
process. We believe that scientific studies in North America
demonstrate that under some circumstances wolf predation can effect
ungulate populations and hunter harvest (Mech and Boitani 2003) and
predicted as much in our 1994 EIS analysis of the effects of wolf
reintroduction. Because there are no large blocks of unoccupied wolf
habitat in the experimental population areas, this final rule allows
for the lethal removal rather than relocation of wolves that are
causing significant impact to State or Tribal managed ungulate herds.
7. Proposed--Required the release of any breeding female and her
pups if caught on public land before October 1 during an initial agency
wolf control action.
7. Final--Allows the Service or our designated agent(s) the
discretion to decide whether to remove any depredating wolf, including
breeding females or their pups, on public land after the first
confirmed livestock depredation. The final rule is less protective of
female wolves and their pups than either the proposed rule or the 1994
10(j) rules.
Discussion--Pups less than 6 months of age do not have permanent
teeth and are rarely directly involved in killing livestock. However,
breeding females can be active hunters for the pack, and packs with
pups may need to hunt more often to feed the pups. Pups older than 6
weeks have been successfully reared by pack members other than the
breeding female (Boyd and Jimenez 1994). Most livestock are not grazed
on public land until June, when the pups are old enough to be raised by
other pack members. Pups younger than 6 months are rarely targeted
during agency wolf control actions, but the alpha female may be
identified as the primary livestock killer. The final rule allows the
Service or our designated agent(s) more management flexibility to make
decisions in the field on a case-by-case basis depending on the best
information available at the time. We do not expect this flexibility to
result in any significant increase in the take of either breeding
females or pups, but control may occur earlier in the year than in the
past.
8. Proposed--Allowed the States with accepted wolf management plans
to petition the Secretary to assume wolf management authority and
possibly identify and implement management strategies in the accepted
State wolf plan beyond those identified in the proposed rule. The
Secretary would have to respond within 30 days of receipt of the
petition.
8. Final--Allows both States and Tribes on their reservations, with
approved wolf management plans, to petition the Secretary to lead
implementation of this rule. Under an MOA, the States or Tribes could
authorize and conduct all the wolf management activities that the
Service currently conducts and implement all portions of their approved
State or Tribal wolf management plan that are consistent with this
rule. These activities include: (1) Wolf monitoring--such as capture,
radio-collaring, telemetry monitoring, and other wolf population census
techniques; (2) wolf control--such as implementing or authorizing USDA-
APHIS-WS to use non-lethal or lethal control to minimize damage to
private property by wolves, issue written take authorizations (less-
than-lethal munitions and shoot-on-sight written take authorizations)
to the public on both private and public land; (3) determining whether
wolf control is needed to resolve excessive wolf predation on big game
populations; (4) wolf-related research--such as investigating the
relationships between wolves and livestock and the effect of wolf
predation on big game populations and hunter harvest; (5) conducting
wolf information and educational programs; and (6) assisting in the
enforcement of regulations designed to conserve the wolf population.
All or some of these authorities and responsibilities also can be
assumed without an MOA, with ``designated agent'' status under a
cooperative agreement with the Service, but routine coordination on a
daily or weekly basis is required. Under a cooperative agreement, only
the specific
[[Page 1299]]
provisions of the 10(j) rule are implemented, not the State or Tribal
wolf management plan. Under an MOA, all applicable portions of the
State or Tribal wolf management plan which are consistent with this
rule can be implemented. The Service oversight is limited to a general
review of the overall program on an annual basis to ensure the wolf
population is being maintained above recovery levels.
This rule eliminates reference to the 30-day requirement to approve
an MOA. The Secretary will approve the petition as soon as possible but
only after he/she determines all applicable policies and laws were
appropriately addressed.
States or Tribes with approved plans may not implement additional
management strategies beyond those identified in this rule, without a
proposed amendment to the 10(j) rule and an opportunity for public
comment.
Discussion--Commenters pointed out that the term ``designated
agent'' was used inconsistently in the proposed rule, and that Tribes
have unique wildlife management authorities and wildlife treaty rights
separate from the States. In the final rule, we clarify that the Tribes
have their own rights and separate governments and have the ability to
enter into an MOA with the Secretary of DOI if they have accepted wolf
management plans for their reservation lands. States or Tribes with
approved wolf management plans can become designated agents for the
purposes of this rule in two ways:
(1) Cooperative Agreements--The States and Tribes can enter into
cooperative agreements with the Service to implement portions of this
experimental rule, and serve as Service's ``designated agent'' for all
or parts of this rule. States and Tribes that develop cooperative
agreements with the Service are responsible for implementing this rule
as written and are required to routinely consult with the Service on
all the wolf management activities the States or Tribe has agreed to
implement.
(2) MOA--Under an MOA, the Secretary may appoint the State or Tribe
to be a ``designated agent'' and may delegate all wolf management
responsibilities to the State or Tribe, and the State or Tribe may
implement all portions of this rule and applicable portions of their
management plan without day-to-day oversight by the Service. These are
in addition to the authorities given to a ``designated agent.'' Under
an MOA, the States and Tribes must report to the Service on an annual
basis, and the Service review ensures that State or Tribal management
maintains the wolf population at or above recovery levels.
The differences between an MOA and a cooperative agreement are that
the cooperative agreement allows the States or Tribes to assist the
Service to implement various parts of the Service's wolf conservation
and management program as a designated agent, while the MOA provides
the States or Tribes the opportunity to independently lead their
approved wolf management and conservation efforts, plus act as a
designated agent. The States and Tribes may enforce their own
regulations and assist in our investigations under this rule, but under
either a cooperative agreement or an MOA the Service retains the lead
for law enforcement investigations and prosecution of violations of
this rule.
Final Rule Compared to the 1994 Experimental Population Special Rules and the 2003 4(d) Rule
Refer to the regulations in 50 CFR for the complete wording and reporting requirements.
----------------------------------------------------------------------------------------------------------------
Final experimental
Provision population rules 50 CFR 1994 rules 50 CFR 2003 4(d) Rule 50 CFR
17.84(n) 17.84(i) 17.40(n)
----------------------------------------------------------------------------------------------------------------
Geographic Area.................. Same as 1994 rules. This Same as final........... This special applies to
special rule applies the gray wolf in
only to wolves within Washington, Oregon,
the areas of two NEPs, California, Idaho,
which together include-- Nevada, Montana, Utah
Wyoming, the southern north of U.S. Highway
portion of Montana, & 50, and Colorado north
Idaho south of of Interstate Highway
Interstate 90 but only 70, except where listed
in States or on Tribal as an experimental
lands that have State or population in Idaho,
Tribal wolf management Montana, and Wyoming.
plans accepted by the
Secretary.
Interagency Coordination (Section Same as 1994 rules. Same as final........... Consultations would
7 Consultation). Federal agency occur for the gray wolf
consultation with the as they would for any
Service on agency threatened species.
actions that may affect
gray wolves is not
required within the two
NEPs, unless those
actions are on lands of
the National Park System
or the National Wildlife
Refuge System.
Take in Self Defense............. Same as 1994 rules. Any Same as final........... Same as final.
person may take a wolf
in self defense or in
defense of others.
Protection of Human Life & Safety Same as 1994 rules. The Same as final........... Same as final.
Service, or our
designated agents, may
promptly remove (that
is, place in captivity
or kill) any wolf
determined by the
Service or designated
agent to be a threat to
human life or safety.
Opportunistic Harassment......... Anyone can Landowners & permit Same as 1994 rules.
opportunistically harass holders on Federal land
gray wolves in a non- (including guides &
injurious manner without outfitters) can
Service written opportunistically
authorization. harass gray wolves in a
non-injurious manner
without Service written
authorization.
[[Page 1300]]
Intentional Harassment........... The Service or our No specific provision Same as final, except
designated agent can for intentional written authorization
issue a 1-year take harassment were is for 90 days.
authorization to private available in the 1994
landowners & to Federal rules, but since 2000
permittees after over 150 intentional
verified persistent wolf take authorizations
activity on their have been issued for 90-
private land or days on private land,
allotment. The written under Section 17.32
take authorization would research permits within
allow intentional & the experimental areas.
potentially injurious, No wolves have been
(less-than-lethal seriously injured.
munitions) but non-
lethal, harassment of
wolves.
Taking wolves ``in the act'' of Landowners on their own The 1994 rules allowed Landowners on their own
attacking livestock on PRIVATE private land may take a wolf take on private private land may shoot
land by private individuals gray wolf attacking land without written wolves that are biting,
without prior written (killing, wounding, or authorization, when wounding or killing
authorization. biting) or in the act of wolves were physically livestock, herding or
attacking (actively biting & grasping guard animals, or dogs.
chasing, molesting, livestock (cattle, Landowners shall
harassing) their sheep, horses, & provide evidence of
livestock (includes mules). Six wolves have animals wounded or kill
livestock herding & been killed attacking by wolves in less than
guarding animals) or livestock since 1995. 24 hours, and Service
dogs. Such take must be confirms animals were
reported in 24 hours & wounded or killed by
injured or dead wolves.
livestock or dogs or
physical evidence that
would lead a reasonable
person to believe that
an attack would occur at
any moment on livestock
or dogs must be evident
to verify the wolf
attack.
Taking persistent problem wolves ``Livestock'' is defined The 1994 rules mandated Same as 1994 rules,
``in the act'' on PUBLIC land by to include livestock that after six breeding except written
public land permittees. herding or guarding pairs of wolves were authorization to
animals. Public land is established in an NEP livestock grazing
only Federal land. area, livestock permittees would also
Livestock producers & producers & permittees allow the killing of
some permittees with an with current valid wolves attacking
active valid Federal livestock grazing herding or guard
grazing or outfitting/ allotments on public animals on Federal
guiding permits could land could get a 45-day lands and there are no
take wolves that were written authorization limitations based upon
attacking or in the act from the Service or our the number of breeding
of attacking livestock designated agents, to pairs.
on their active Federal take gray wolves in the
allotment or areas of act of killing,
use--without written wounding, or biting
take authorization. Such livestock. The Service
taking must be reported must have verified
within 24 hours & previous attacks by
physical evidence of an wolves, & must have
attack or in the act of completed agency
an attack by wolves on efforts to resolve the
livestock must be problem. No wolves were
evident. ever taken under these
written authorizations.
Additional taking by private If we or our designated There were no specific Same as 1994 rules, but
citizens on their PRIVATE LAND agent confirm a provision for such specifically allows
or an active GRAZING ALLOTMENT depredation on livestock written authorizations written authorization
for chronic wolf depredation. or dogs on private in the 1994 rules. to shoot wolves on
property or livestock on However, since 1999, sight maybe issued to a
a public grazing about 50 shoot-on-sight private property owner
allotment, & we have written take or adjacent private
confirmed that wolves authorizations (CFR landowners after at
are routinely present on 17.32) have been issued least two separate
that property & present on private land, confirmed depredations
a significant risk to including adjacent by wolves on livestock,
livestock or dogs, & neighbors, with chronic livestock herding or
have authorized agency (2 or more) livestock guarding animals, or
lethal control--the depredations. Eight dogs, and the Service
private landowner or wolves have been killed. has determined that
grazing permittee that wolves are routinely
experienced the present and present a
depredation may receive significant risk to
written authorization their livestock.
from us or our
designated agent to kill
``shoot on sight'' those
problem wolves on their
private land or their
grazing allotment, under
specified conditions.
[[Page 1301]]
Government take of PROBLEM WOLVES Same as 1994, with ``Problem wolves'' are Same as 1994 rules,
wording clarifications. defined as wolves that except as in final
The Service or our attack livestock once rule--includes dogs,
designated agent may or any domestic animal and livestock herding
take any wolves that twice in a calendar an guarding animals.
attack livestock or dogs year. Depredations on
once on private or dogs could only be
public land--or that resolved by relocation
twice in a calendar year of the problem wolf.
attack domestic animals Criteria to determine
other than livestock or when take will be
dogs on private land. initiated are similar
Taking may include non- to those for the NEP--
lethal measures such as (1) evidence of the
aversive conditioning, attack, (2) reason to
nonlethal control, &/or believe that additional
translocating wolves or attacks will occur, (3)
lethal control. There no evidence of unusual
are no agency wolf attractants, & (4)
limitations based on the any previously
total numbers of wolves specified animal
or the sex & age of the husbandry practices
wolves being controlled. have been implemented,
Criteria to determine if on public lands.
when take will be Lethal control cannot
initiated are--(1) be used when five or
physical evidence of the fewer packs are present
attack, (2) reason to in the experimental
believe that additional population area, &
attacks will occur, (3) there is additional
no evidence of unusual protection of females
wolf attractants, & (4) with pups & pups prior
any previously specified to October 1, when five
animal husbandry or fewer pack or
practices have been present in the
implemented, if on experimental population
public lands. area.
Government removal killing or the Similar to the 1994 Under the 1994 Same as 1994 rules,
translation (capture & moving) rules, but wolves may be regulation, the States except after 10
of wolves to reduce impacts on lethally removed by or Tribes may capture & breeding pairs are
wild ungulates. State or Tribal translocate wolves to documented, the
personnel. If gray wolf other areas within the Service, in
predation is negatively same NEP area, if the consultation with
impacting localized wild gray wolf predation is states and tribes, may
ungulate populations at negatively impacting relocate wolves that
an unacceptable level, localized wild ungulate are significantly
as defined by the States populations at an impacting native
& Tribes (on unacceptable level, as ungulate herds.
reservations) wolves defined by the States &
maybe lethally removed. Tribes. State/Tribal
Removal can only occur wolf management plans
after the States or must be approved by the
Tribes have identified Service before such
other possible movement of wolves may
mitigative measures or be conducted, & the
remedies, & they have Service must determine
completed a peer- that such translations
reviewed written will not inhibit wolf
proposal that has population growth
undergone public toward recovery levels.
comment. The Service
will determine if such
removal will inhibit
maintaining wolf
recovery levels before
any such removal could
be authorized.
Incidental take.................. Same as 1994 rules with The 1994 rules stated-- Same as final.
minor word changes for Any person may take a
clarification. Any gray wolf if the take
person may take a gray is incidental to an
wolf if the take is otherwise lawful
incidental to an activity, & is
otherwise lawful accidental,
activity, & if unavoidable,
reasonable due care was unintentional, not
practiced to avoid such resulting from
taking, & such taking negligent conduct
was reported within 24 lacking reasonable due
hours. (We may allow care, & due care was
additional time if exercised to avoid
access is limited.). taking the wolf.
Permits for recovery actions that Same as the 1994 rules. Available for scientific Same as final.
include take of gray wolves. Available for scientific purposes, enhancement
purposes, enhancement of of propagation or
propagation or survival, survival, zoological
zoological exhibition, exhibition, educational
educational purposes, or purposes, or other
other purposes purposes consistent
consistent with the Act with the Act (50 CFR
(50 CFR 17.32). 17.32).
[[Page 1302]]
Additional taking provisions for Same as the 1994 rules, The 1994 rules Same as final.
agency employees. except provision (H) was permitted--Any employee
added. Any employee or or agent of the Service
agent of the Service or or appropriate Federal,
appropriate Federal, State, or Tribal
State, or Tribal agency, agency, who is
who is designated in designated in writing
writing for such for such purposes by
purposes by the Service, the Service, when
when acting in the acting in the course of
course of official official duties, may
duties, may take a wolf take a wolf from the
from the wild, if such wild, if such action is
action is for--(A) for--(A) scientific
scientific purposes; (B) purposes; (B) to avoid
to avoid conflict with conflict with human
human activities; (C) to activities; (C) to
relocate a wolf within relocate a wolf within
the NEP areas to improve the NEP areas to
its survival & recovery improve its survival &
prospects; (D) to return recovery prospects; (D)
wolves that have to return wolves that
wandered outside of the have wandered outside
NEP areas; (E) to aid or of the NEP areas; (E)
euthanize sick, injured, to aid or euthanize
or orphaned wolves; (F) sick, injured, or
to salvage a dead orphaned wolves; (F) to
specimen which may be salvage a dead specimen
used for scientific which may be used for
study; (G) to aid in law scientific study; (G)
enforcement to aid in law
investigations involving enforcement
wolves or (H) that investigations
allows such take of involving wolves.
wolves to prevent wolves
with abnormal physical
or behavioral
characteristics, as
determined by the
Service.
The States or Tribes can become The States & Tribes with The 1994 rule had no Same as 1994 rules but
``designated agents'' to approved wolf plans can provisions for MOAs but States and Tribes could
implement the 10j regulations implement all or select States & Tribes could be designated agents &
through cooperative agreements parts of this rule be designated agents & implement the 4(d)
with the Service or under an MOA through ``designated implement the 10j rule.
with the Secretary of the agent'' status in regulations, & expand
Interior. cooperative agreements certain rule
with the Service. Agency definitions--such as
coordination would occur the definition of
on a daily or weekly livestock--under
basis. The States & cooperative agreements
Tribes can implement all with the Service. No
of this rule including public hunting or
all compatible portions trapping can occur
of their approved wolf without a determination
management plans under of excessive population
an MOA with the pressure.
Secretary of the
Interior. No management
outside the provisions
of this rule is allowed
unless additional public
comment is solicited &
this rule is modified.
Under an MOA, State or
Tribal coordination with
the Service must only
occur on a yearly basis.
No public hunting or
trapping can occur
without a determination
of excessive population
pressure.
Land-use restrictions on private Land-use restrictions may The 1994 rules stated-- Same as final.
or Federal public lands. only be employed for When five or fewer
wolf recovery purposes breeding pairs of
on National Parks & wolves are in an
National Wildlife experimental population
Refuges except between area, temporary land-
April 1 & June 30, when use restrictions may be
land-use restrictions employed on Federal
may be employed to public lands to control
prevent lethal take of human disturbance
wolves at active den around active wolf den
sites on Federal public sites. These
lands. restrictions may be
required between April
1 & June 30, within 1
mile of active wolf den
or rendezvous sites, &
would only apply to
Federal public lands or
other such lands
designated in State &
Tribal wolf management
plans. When six or more
breeding pairs are
established in an
experimental population
are, no land-use
restrictions may be
employed on Federal
public lands outside of
National Parks or
National Wildlife
Refuges, unless that
wolf population fails
to maintain positive
growth rates for 2
consecutive years.
----------------------------------------------------------------------------------------------------------------
[[Page 1303]]
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this rule
is a significant regulatory action and subject to Office of Management
and Budget (OMB) review. An economic analysis is not required because
this rule will result in only minor (positive) effects on the very
small percentage of livestock producers in Idaho and Montana.
(a) This regulation does not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A brief assessment to
clarify the costs and benefits associated with this rule follows.
Costs Incurred
Under this rule, various expenses that are currently incurred by
the Service to manage the wolves in the NEPs would be transferred to
the States or Tribes, either through a cooperative agreement or under a
Memorandum of Agreement (MOA) entered into voluntarily by a State or
Tribe. Although potential costs are addressed here, we do not quantify
these expected expenditures. Costs would include personnel costs to
implement, manage, and monitor the NEP. The personnel costs would be
based upon the number of hours (and associated salary) necessary to
perform these tasks. Other costs would include transportation and
equipment necessary to maintain the NEP. States currently estimate
their management costs will be 2-3 times higher than our current costs
of $300K per State.
We have funded State and Tribal wolf monitoring, research, and
management planning efforts for gray wolves in Montana, Idaho, and
Wyoming. For the past several years Congress has targeted funding for
wolf management to Montana, Idaho, and Wyoming, and the Nez Perce. In
addition, Federal grant programs are available that fund wildlife
management programs by the States and Tribes. The Cooperative
Endangered Species Conservation Fund, for example, provides funds to
states for species and habitat conservation actions for threatened and
endangered and other at-risk species.
Benefits Accrued
This rule would have a beneficial economic effect in that it would
reduce or remove some regulatory restrictions. The objective of the
rule is to maintain wolf recovery in the WDPS, which would result in a
variety of benefits. This rule will also reduce the overall level of
conflicts between wolves and livestock, particularly on private land.
This rule is expected to result in more public removal of problem
wolves, thereby reducing the need for reactive agency removal of
problem wolves. The methods necessary to quantify these expected
benefits would be prohibitively expensive to conduct. Therefore, this
section is limited to qualitative analysis. The potential benefits
include maintaining a recovered wolf population and reducing conflicts
between wolves and humans, leading to higher local tolerance of wolves
and perhaps a lower level of illegal killing.
(b) This regulation does not create inconsistencies with other
agencies' actions. It is exactly the same as the other NEP rules
currently in effect, in regards to agency responsibilities under
Section 7 of the ESA. This rule reflects continuing success in
recovering the gray wolf through long-standing cooperative and
complementary programs by a number of Federal, State, and Tribal
agencies. Implementation of Service-approved State or Tribal wolf
management plans supports these existing partnerships.
(c) This rule will not alter the budgetary effects or entitlements,
grants, user fees, or loan programs, or the rights and obligations of
their recipients. Because there are no expected new impacts or
restrictions to existing human uses of lands in Idaho or Montana as a
result of this rule, nor in Wyoming or any Tribal reservations that
remain under the 1994 10(j) rules, no entitlements, grants, user fees,
loan programs, or the rights and obligations of their recipients are
expected to occur.
(d) This rule does raise novel legal or policy issues. Since 1994,
we have promulgated section 10(j) rules for gray wolves in Idaho,
Montana, and Yellowstone (Idaho/Wyoming). The gray wolves in the WDPS
have achieved their recovery population numbers. A status review of the
species' listing status has determined that the species could be
delisted once a State wolf management plan has been approved by the
Service for Montana, Idaho, and Wyoming. State management plans have
been determined by the Service to be the most appropriate means of
maintaining a recovered wolf population and of providing adequate
regulatory mechanisms post-delisting (i.e., addressing factor D,
``inadequacy of existing regulatory mechanisms'' of the five listing
factors identified under section 4(a)(1) of the Act) because the
primary responsibility for management of the species will rest with the
States upon delisting and subsequent removal of the protections of the
Act. The States of Idaho and Montana have Service-approved wolf
management plans. For a variety of reasons, the Service determined that
Wyoming's current State law and its wolf management plan do not suffice
as an adequate regulatory mechanism for the purposes of delisting
(letter from Service Director Steven Williams to Montana, Idaho, and
Wyoming, January 13, 2004). The Service developed this rule to assist
in management of the recovered wolf population and to begin the
transition to increased State and Tribal involvement while we continue
our efforts to delist the recovered wolf population.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. The SBREFA also amended the Regulatory Flexibility Act to
require a certification statement. Based on the information that is
available to us at this time, we certify that this regulation will not
have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
The majority of wolves in the West are currently protected under
NEP designations that cover Wyoming, most of Idaho, and southern
Montana and that treat wolves as a threatened species. Special
regulations exist for these experimental populations that currently
allow government employees and designated agents, as well as livestock
producers, to take problem wolves. This regulation does not change the
nonessential experimental designation, but does contain additional
special regulations so that States and Tribes with wolf management
plans approved by the Service can petition the Service to manage
nonessential experimental
[[Page 1304]]
wolves under this more flexible rule. These changes only have effect in
States or Tribes (on Tribal reservations) that have an approved
management plan for gray wolves. Within the Western DPS of the gray
wolf, only the States of Idaho and Montana have approved plans.
Therefore, the regulation is expected to result in a small economic
gain to some livestock producers in States with approved wolf
management plans (i.e., Idaho and Montana) within the boundary of the
NEPs of gray wolves in the Western DPS (Central Idaho NEP area and
Yellowstone NEP area); it will have no economic impact on livestock
producers in Wyoming or on any Tribal reservations in Wyoming as at
this time their plans have not been approved.
This regulation adopts certain provisions of Sec. 17.40(n), which
covers the area in northwestern Montana outside of the two NEP areas
mentioned above and adjacent States, providing for more consistent
management both inside and outside of the NEP areas, unless identified
otherwise. Additionally, new regulations were added that expand or
clarify current prohibitions. Secondly, we identify a process for
transferring authorities within the experimental population boundaries
to States or Tribes with approved plans.
Expanded or clarified prohibitions in this rule include the
following. Intentional or potentially injurious harassment can occur by
written take authorization on private land and public land. Wolves
attacking not only livestock, but also dogs, on private land can be
taken without a permit if they are caught in the act of attacking such
animals. On public land, some permittees can take wolves attacking
livestock without a permit. Written authorizations can be issued by the
Service to take wolves on private land if they are a significant risk
to livestock or dogs or on public lands if livestock are at risk. The
new special regulation clarifies how take of wolves can occur if they
are determined to be causing unacceptable impacts to wild ungulate
populations. In addition, the new special regulation define livestock
to include herding and guarding animals.
The new special regulation provides for States or Tribes with wolf
management plans approved by the Service to transition from the
provisions of this rule to the provisions of the State or Tribal wolf
management plan that are consistent with Federal regulations within the
boundaries of the NEP areas. States or Tribes may, at their discretion,
administer this transition through new or existing agreements with the
Service.
In anticipation of delisting the Western DPS of the gray wolf, we
have worked closely with States to ensure that their plans provide the
protection and flexibility necessary to manage wolves at or above
recovery levels. Approved plans are those plans that have passed peer
review and Service scrutiny aimed at ensuring that recovery levels are
maintained. It is appropriate to have States which have met this
approval standard begin managing wolves according to their approved
plans for several reasons. The States already assume an important role
in the management of this species, the goals for recovery have been
exceeded, and a gradual transfer of responsibilities while the wolves
are protected under the Act provides an adjustment period for both the
State wildlife agencies, Federal agencies (the Service, USDA), and
Tribes. The adjustment period will allow time to work out any
unforeseen issues that may arise.
The reduced restrictions on taking problem wolves in this rule will
make their control easier and more effective, thus reducing the
economic losses that result from wolf depredation on livestock and
guard animals and dogs. Furthermore, a private program compensates
livestock producers if they suffer confirmed livestock losses by
wolves. Since 1995, annual compensation for livestock losses has
averaged $17,000 in each recovery area. The potential effect on
livestock producers in western States is very small, but more flexible
wolf management will be entirely beneficial to the operations of a few
individuals.
Small Business Regulatory Enforcement Fairness Act
This regulation is not a major rule under 5 U.S.C. 801 et seq., the
SBREFA.
(a) This regulation will not have an annual effect on the economy
of $100 million or more and is fully expected to have no significant
economic impacts. The majority of livestock producers within the range
of the wolf are on small ranches, and the total number of livestock
producers that may be affected by wolves is small. The regulation
further reduces the effect that wolves will have on individual
livestock producers by eliminating some permit requirements.
Compensation programs also are in place to offset losses to individual
livestock producers. Thus, even if livestock producers affected are
small businesses, the combined economic effects are minimal and provide
a benefit to small business.
(b) This regulation will not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions and will impose no
additional regulatory restraints in addition to those already in
operation.
(c) This regulation will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of United States-based enterprises to compete with foreign-
based enterprises. Based on the analysis of identified factors, we have
determined that no individual industries within the United States will
be significantly affected and that no changes in the demography of
populations are anticipated. The intent of this special rule is to
facilitate and continue existing commercial activities while providing
for the conservation of species by better addressing the concerns of
affected landowners and the impacts of a biologically recovered wolf
population.
Unfunded Mandates Reform Act
The regulation defines a process for voluntary and cooperative
transfer of management responsibilities for a listed species back to
the States. Therefore, in accordance with the Unfunded Mandates Reform
Act (2 U.S.C. 1501, et seq.):
(a) This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. As stated
above, this regulation will result in only minor positive economic
effects for a very small percentage of livestock producers.
(b) This rule will not produce a Federal mandate of $100 million or
greater in any year; that is, it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. This rule is not
expected to have any significant economic impacts nor will it impose
any unfunded mandates on other Federal, State or local government
agencies to carry out specific activities.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, this rule will not have
significant implications concerning taking of private property by the
Federal government. This rule will substantially advance a legitimate
government interest (conservation and recovery of listed species) and
will not present a bar to all reasonable and expected beneficial use of
private property. Because of the regulatory flexibility provided by NEP
designations under section 10(j) of the Act, we believe that the
increased flexibility in this regulation and State or Tribal lead wolf
management will reduce regulatory restrictions on private lands and
will result in minor positive
[[Page 1305]]
economic effects for a small percentage of livestock producers.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, this regulation will not
have significant Federalism effects. This rule will not have
substantial direct effects on the States, on the relationship between
the States and the Federal Government, or on the distribution of power
and responsibilities among the various levels of government. The State
wildlife agencies in Idaho and Montana requested that we undertake this
rulemaking in order to assist the States in reducing conflicts with
local landowners and returning the species to State or Tribal
management. Maintaining the recovery goals for these wolves will
contribute to their eventual delisting and their return to State
management. No intrusion on State policy or administration is expected;
roles or responsibilities of Federal or State governments will not
change; and fiscal capacity will not be substantially directly
affected. The special rule operates to maintain the existing
relationship between the States and the Federal government and is being
undertaken at the request of State agencies. We have endeavored to
cooperate with the States in the preparation of this rule. Therefore,
this rule does not have significant Federalism effects or implications
to warrant the preparation of a Federalism Assessment pursuant to the
provisions of Executive Order 13132.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the DOI has determined
that this rule does not unduly burden the judicial system and meets the
applicable standards provided in sections 3(a) and 3(b)(2) of the
order.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR 1320,
which implement provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.) require that Federal agencies obtain approval from OMB
before collecting information from the public. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information, unless it displays a currently valid control
number. This rule does not contain any new collections of information
other than those permit application forms already approved under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of
Management and Budget clearance number 1018-0094, and the collection of
information on experimental populations already approved under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of
Management and Budget clearance number 1018-0095.
National Environmental Policy Act
In 1994, the Service issued an EIS (Service 1994) that addressed
the impacts of introducing gray wolves to Yellowstone National Park and
central Idaho and the NEP rule for these reintroductions. The 1994 EIS
addressed cooperative agreements whereby the States of Wyoming,
Montana, and Idaho could assume the lead for implementing wolf recovery
and anticipated that the States and Tribes would be the primary
agencies implementing the experimental population rule outside National
Parks and National Wildlife Refuges. We evaluated whether any revisions
to the EIS were required prior to finalizing this proposed regulation,
and determined that there are no new significant impacts or effects
caused by this rule beyond those previously identified and evaluated in
the Service's 1994 EIS on wolf reintroduction. Thus, we are adopting
the prior EIS for this rulemaking because the analysis is still
applicable, i.e., the conditions have not changed and the action has
not changed significantly.
Government-to-Government Relationship With Tribes (Executive Order
13175)
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we
are coordinating this rule with affected Tribes within the Western DPS.
We fully considered all of the comments on the proposed special
regulation that were submitted during the public comment period and
attempted to address those concerns, new data, and new information
where appropriate. The Service representatives met with members of the
Nez Perce Tribe in October 2004 to discuss wolf management in Idaho.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from our Helena office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Final Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, 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(h) by revising the existing entries in the List of
Endangered and Threatened Wildlife under MAMMALS for ``Western Distinct
Population Segment U.S.A. (CA, ID, MT, NV, OR, WA, WY, UT north of U.S.
Highway 50, and CO north of Interstate Highway 70, except where listed
as an experimental population)'' and ``Wolf, gray U.S.A. (WY and
portions of ID and MT)'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
------------------------------------------------------ Historic range where endangered or Status When listed Critical Special
Common name Scientific name threatened habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 1306]]
* * * * * * *
Mammals
* * * * * * *
Wolf, gray...................... Canis lupus........ Holarctic......... Western Distinct T 1, 6, 13, N/A 17.40(n)
Population Segment-- 15, 35,
U.S.A. (CA, ID, MT, 561, 562,
NV, OR, WA, WY, UT 735, 745
north of U.S. Highway
50, and CO north of
Interstate Highway 70,
except where listed as
an experimental
population).
* * * * * * *
Wolf, gray...................... Canis lupus........ Holarctic......... U.S.A. (WY and portions XN 561, 562, N/A 17.84(i),
of ID and MT--see 745 17.84(n)
17.84(i)).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend 17.84 by adding paragraph (n), including maps, as set forth
below:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(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.
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.
[[Page 1307]]
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, 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, Christmas trees,
or 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; ``1994 rules'' refers to the 1994
NEP rules (50 CFR 17.84(i)); and ``4(d) rule'' refers to the 2003
special 4(d) regulations for threatened wolves in the Western DPS (50
CFR 17.40(n)), outside of the experimental population areas.
Unacceptable impact--State or Tribally-determined decline in a wild
ungulate population or herd, primarily caused by wolf predation, so
that the population or herd is not meeting established State or Tribal
management goals. The State or Tribal determination must be peer-
reviewed and reviewed and commented on by the public, prior to a final
determination by the Service that an unacceptable impact has occurred,
and that wolf removal is not likely to impede wolf recovery.
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; 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; and take for
research purposes. 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 their 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/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 agency 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/her livestock
on his/her allotment or other area authorized for his/her use without
prior written authorization, provided 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-on-sight written take
authorization of limited duration (45 days or less) to a public land
grazing permittee to take problem wolves on
[[Page 1308]]
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 agency 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 States or Tribes must
prepare a science-based document that:
(1) Describes what data indicate that ungulate herd is below
management objectives, what data indicate the impact by wolf predation
on the ungulate population, why wolf removal is a warranted solution to
help restore the ungulate herd to State or Tribal management
objectives, the level and duration of wolf removal being proposed, and
how ungulate population response to wolf removal will be measured;
(2) Identifies 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.
(B) We must determine that such actions are scientifically-based
and will not reduce the wolf population below recovery levels before we
authorize lethal wolf removal.
(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, non lethal 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.
(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 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
[[Page 1309]]
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 Map 1. 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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(ii) The Yellowstone NEP is shown on Map 2. 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 1310]]
[GRAPHIC] [TIFF OMITTED] TR06JA05.001
(iii) All wolves found in the wild within the boundaries of these
experimental areas are considered nonessential experimental animals. In
the Western Gray Wolf Distinct Population Segment (Washington, Oregon,
California, Nevada, Montana, Idaho, Wyoming, and Utah and Colorado
north of Highway 50 and Interstate 70), any wolf that is outside an
experimental area is considered threatened. Disposition of wolves
outside the NEP areas may take any of the following courses:
(A) Any wolf dispersing from the experimental population areas into
other parts of the Western DPS will be managed under the special 4(d)
rule for threatened wolves in the Western DPS (50 CFR 17.40(n)).
(B) Any wolf originating from the experimental population areas and
dispersing beyond the borders of the Western DPS may be managed by the
wolf management regulations established for that area, or may be
returned to the experimental population areas if it has not been
involved in conflicts with people, or may be removed if it has been
involved with conflicts with people.
(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.
[[Page 1311]]
(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 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 gray wolf in the Western DPS,
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 gray wolf in the Western
DPS. 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 gray wolf in the Western DPS; 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.
Dated: December 29, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-136 Filed 1-4-05; 8:45 am]
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