[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Rules and Regulations]
[Pages 4720-4736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-334]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R6-ES-2008-009; 92220-1113-0000; ABC Code: C3]
RIN 1018-AV39
Endangered and Threatened Wildlife and Plants; Revision of
Special Regulation for the Central Idaho and Yellowstone Area
Nonessential Experimental Populations of Gray Wolves in the Northern
Rocky Mountains
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have revised
the 2005 special rule for the central Idaho and Yellowstone area
nonessential experimental population (NEP) of the gray wolf (Canis
lupus) in the northern Rocky Mountains. Specifically, we have modified
the definition of ``unacceptable impact'' to wild ungulate populations
so that States and Tribes with Service-approved post-delisting wolf
management plans (hereafter, referred to as wolf management plans) can
better address the impacts of a recovered wolf population on ungulate
herds and populations while wolves remain listed. We made other minor
revisions to clarify the requirements and processes for submission of
proposals to control wolves for unacceptable ungulate impacts. We also
modified the 2005 special rule to allow persons in States or on Tribal
lands with wolf management plans to take wolves that are in the act of
attacking their stock animals or dogs. All other provisions of the
special rule remain unchanged. As under the existing terms of the 2005
special rule, these modifications do not apply to States or Tribes
without wolf management plans or to wolves outside the Yellowstone or
central Idaho NEP areas.
DATES: The effective date of this rule is February 27, 2008.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Once the complete decision file for this rule is
completed it will be available for inspection, by appointment, during
normal business hours at U.S. Fish and Wildlife Service, Office of the
Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena,
Montana 59601. Call 406-449-5225 to make arrangements.
FOR FURTHER INFORMATION CONTACT: Ed Bangs, Western Gray Wolf Recovery
Coordinator, at the above address or telephone 406-449-5225, extension
204, at [email protected], or on our Web site at http://westerngraywolf.fws.gov/.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
In 1974, four subspecies of gray wolf were listed as endangered,
including the NRM gray wolf (Canis lupus irremotus), the eastern timber
wolf (C. l. lycaon) in the northern Great Lakes region, the Mexican
wolf (C. l. baileyi) in Mexico and the southwestern United States, and
the Texas gray wolf (C. l. monstrabilis) of Texas and Mexico (50 CFR
17.11(h)). In 1978, we relisted the gray wolf as endangered at the
species level (C. lupus) throughout the conterminous 48 States and
Mexico, except for Minnesota where it was reclassified as threatened
(50 CFR 17.11(h)). In 2007, we delisted the Western Great Lakes
distinct population segment of wolves that includes all of Minnesota,
Wisconsin, Michigan, and parts of North and South Dakota, Iowa,
Illinois, Indiana, and Ohio (72 FR 6051, February 8, 2007). The
Northern Rocky Mountain Wolf Recovery Plan was approved in 1980 (U.S.
Fish and Wildlife Service 1980, p. i) and revised in 1987 (U.S. Fish
and Wildlife Service 1987, p. i).
On November 22, 1994, we designated unoccupied portions of Idaho,
Montana, and Wyoming as two nonessential experimental population (NEP)
areas for the gray wolf under section 10(j) of the Endangered Species
Act of 1973, as amended (Act) (50 CFR 17.84(i)). One area is the
Greater Yellowstone Area experimental population, which includes all of
Wyoming and parts of southern Montana and eastern Idaho. The other is
the central Idaho experimental population area, which includes most of
Idaho and parts of southwestern Montana. In 1995 and 1996, we
reintroduced wolves from
[[Page 4721]]
southwestern Canada into these areas (Bangs and Fritts 1996, pp. 407-
409; Fritts, et al. 1997, p. 7; Bangs, et al. 1998, pp. 785-786). These
reintroductions and accompanying management programs greatly expanded
the numbers and distribution of wolves in the northern Rocky Mountains
(NRM). At the end of 2000, the NRM population first met its numerical
and distributional recovery goal of a minimum of 30 breeding pairs and
more than 300 wolves well-distributed among Idaho, Montana, and Wyoming
(68 FR 15804, April 1, 2003; Service, et al. 2001, Table 4). This
minimum recovery goal has been exceeded annually through 2007 (Service,
et al. 2002-2006, Table 4, Service, et al. 2007, p.1).
On January 6, 2005, we published a revised NEP special rule
increasing management flexibility of these recovered populations for
those States and Tribes with Service-approved wolf management plans (50
CFR 17.84(n)). For additional detailed information on previous Federal
actions, see the 1994 and 2005 NEP special rules (59 FR 60252, November
22, 1994; 59 FR 60266, November 22, 1994; 70 FR 1286, January 6, 2005),
the 2003 reclassification rule (68 FR 15804, April 1, 2003), the
advanced notice of proposed rulemaking to designate the NRM gray wolf
population as a distinct population segment and remove the Act's
protections for this population (71 FR 6634, February 8, 2006), and the
2007 proposal to designate the NRM gray wolf population as a distinct
population segment and remove the Act's protections for this population
(i.e., delist) (72 FR 6106, February 8, 2007).
Background
Addressing Unacceptable Impacts on Wild Ungulate Populations--Both
the 1994 Environmental Impact Statement for wolf reintroduction
(Service 1994, pp. 6, 8) and the 1994 NEP special rules addressed the
potential impact of wolf restoration on State and Tribal objectives for
wild ungulate management. The 1994 NEP special rules allowed, under
certain conditions, States and Tribes to translocate wolves causing
unacceptable impacts to ungulate populations (50 CFR 17.84(i)).
On January 6, 2005, we published a new NEP special rule that
allowed greater management flexibility for managing a recovered wolf
population in the experimental population areas in the NRM for States
and Tribes that had Service-approved wolf management plans (50 CFR
17.84(n)). The 2005 NEP special rule allowed those States and Tribes to
lethally control wolves to address unacceptable impacts to ungulate
populations, under certain conditions. The 2005 NEP special rule also
required that a State or Tribal proposal to control wolves describe
data indicating the ungulate herd is below management objectives, data
indicating impact of wolf predation on the herd, why wolf removal is
warranted, the level and duration of wolf removal, how the ungulate
response would be measured, and other remedies and conservation
measures. The State or Tribe also had to provide an opportunity for
peer review and public comment before submitting the proposal for
Service approval. Before we could approve such proposals, we had to
determine that the proposed wolf control was scientifically based and
would not reduce the wolf population below recovery levels.
The 2005 NEP special rule authorized lethal take because we
recognized that the wolf population had exceeded its recovery goals,
extra management flexibility was required to address conflicts given
the recovered status of the population, most of the suitable wolf
habitat in Idaho, Montana, and Wyoming was occupied by resident wolf
packs, and wolf translocations were likely to fail because no
unoccupied suitable habitat remained (70 FR 1294, January 6, 2005;
Bradley, et al. 2005, p. 1506).
The 2005 NEP special rule's definition of ``unacceptable impact''
was a ``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 made available for review and comment 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''
(50 CFR 17.84(n)(3)). This definition set a threshold that we have
found over time did not provide the intended flexibility to allow
States and Tribes to resolve conflicts between wolves and ungulate
populations. Current information indicates that wolf predation alone is
unlikely to be the primary cause of a reduction of any ungulate herd or
population in Idaho, Montana, or Wyoming (Bangs, et al. 2004, pp. 89-
100). No populations of wild ungulates occur in Montana, Idaho, or
Wyoming where wolves are the sole predator. Wolf predation is unlikely
to impact ungulate population trends substantially unless other factors
contribute, such as declines in habitat quality and quantity (National
Research Council 1997, pp. 185-186; Mech and Peterson 2003, p. 159),
other predators (Barber, et al. 2005, p. 42-43; Smith, et al. 2006, p.
vii), high harvest by hunters (Vucetich, et al. 2005, p. 259; White and
Garrott 2005, p. 942; Evans, et al. 2006, p. 1372; Hamlin 2006, p. 27-
32), weather (Mech and Peterson 2003, pp. 138-139), and other factors
(Pletscher, et al. 1991, pp. 545-548; Garrott, et al. 2005, p. 1245;
Smith, et al. 2006, pp. 246-250). However, in combination with any of
these factors, wolf predation can have a substantial impact to some
wild ungulate herds (National Research Council 1997, p. 183; Mech and
Peterson 2003, pp. 155-157; Evans, et al. 2006, p. 1377) with the
potential of reducing them below State and Tribal herd management
objectives.
The unattainable nature of the threshold set in the 2005 NEP
special rule became apparent soon after its completion. In 2006, the
State of Idaho submitted a proposal to the Service that indicated wolf
predation was impacting the survival of adult cow elk in the Clearwater
area of central Idaho and that some elk populations in the Lolo and
Selway zones in this area were below State management objectives (Idaho
Department of Fish and Game 2006 pp. 11-12, Figures 1, 2, and 3). In
the Clearwater proposal, the State of Idaho and the peer reviewers
clearly concluded that wolf predation was not ``primarily'' the cause
of the elk populations' decline, but was one of the major factors
maintaining the elk populations' status below State management
objectives. Declining habitat quality due to forest maturation was the
primary factor affecting the populations' status, but black bear
predation on elk calves, mountain lion predation on adults, and the
harsh winter of 1996-1997 also were major factors. Data also clearly
indicated that wolf predation was one of the major causes of mortality
of adult female elk, which contributed to the elk populations remaining
below State management objectives. After discussions with the Service,
Idaho put their proposal on hold because the proposal did not meet the
regulatory standard for unacceptable ungulate impacts set by the 2005
special rule.
In this NEP special rule, we have modified the definition of
``Unacceptable impact'' in order to achieve the management flexibility
intended by the 2005 NEP special rule. Specifically, we now define
``Unacceptable impact'' as ``Impact to a wild ungulate population or
herd where a State or Tribe has determined that wolves are one of the
major causes of
[[Page 4722]]
the population or herd not meeting established State or Tribal
population or herd management goals.'' This definition expands the
potential impacts for which wolf removal might be warranted beyond
direct predation or those causing immediate population declines. It
would, in certain circumstances, allow removal of wolves when they are
a major cause of the inability of ungulate populations or herds to meet
established State or Tribal population or herd management goals.
Management goals or their indicators might include population or herd
numbers, calf/cow ratios, movements, use of key feeding areas, survival
rates, behavior, nutrition, and other biological factors.
Under this NEP special rule, as was the case in the 2005 NEP
special rule, proposals for wolf control from a State or Tribe with a
Service-approved wolf management plan will have to undergo both public
and peer review. Based on that peer review and public comment, the
State or Tribe will finalize the proposal and submit it to the Service
for a final determination. This NEP special rule requires the following
to be described in the proposal: (1) The basis of ungulate population
or herd management objectives; (2) what data indicate that the ungulate
herd is below management objectives; (3) what data indicate that wolves
are a major cause of the unacceptable impact to the ungulate
population; (4) why wolf removal is a warranted solution to help
restore the ungulate herd to management objectives; (5) the level and
duration of wolf removal being proposed; (6) how ungulate population
response to wolf removal will be measured and control actions adjusted
for effectiveness; and (7) demonstration that attempts were and are
being made to address other identified major causes of ungulate herd or
population declines or of State or Tribal government commitment to
implement possible remedies or conservation measures in addition to
wolf removal. Before wolf removals can be authorized, the Service must
determine (1) if the State or Tribe followed the rule's procedures for
submitting a proposal to remove wolves in response to unacceptable
impacts; (2) if an unacceptable impact has occurred; (3) if the data
and other information presented in the proposal support the recommended
action; and (4) that the proposed removal would not contribute to the
wolf population in the State below 20 breeding pairs and 200 wolves or
impede recovery of the NRM wolf population.
The NRM wolf population is a metapopulation comprised of three
primary population segments: central Idaho, northwest Montana, and the
greater Yellowstone area (GYA). These population segments are spatially
separated but are not completely isolated from each other. Each
population segment is comprised of a varying number of packs and
individuals that disperse within segments and to other segments.
Exchange of individuals from these segments also occurs with nearby
wolf packs in Canada. The population segments in central Idaho, GYA,
and to a lesser extent northwestern Montana, include core refugia,
which are areas of relatively high concentrations of wolves on
protected public lands (National Parks or Wilderness areas) or habitats
with very few human-caused impacts. These refugia are primary sources
for a continual supply of dispersing wolves. In this document, the term
``NRM wolf population'' will mean this metapopulation, and the term
``wolf population(s)'' will mean the segments within the NRM wolf
population.
The minimum recovery goal for the NRM wolf population requires at
least 30 breeding pairs and at least 300 wolves equally distributed in
Idaho, Montana, and Wyoming (62 FR 15804). To ensure this goal is
achieved, each of these States has committed to manage for at least 15
breeding pairs in mid-winter (ILWOC 2002, p. 18; MWMAC 2003, App.1;
WGFD 2007a, p. 4). This objective would provide a reasonable cushion to
ensure each State's share of the wolf population does not risk falling
below the minimum recovery goal of 10 breeding pairs and 100 wolves.
Because this NEP special rule will likely result in more wolf
control than is currently occurring, we have established safeguards to
ensure that wolf control for ungulate management purposes would not
undermine the objectives in the States' wolf management plans.
Specifically, before any lethal control of wolves is authorized under
this NEP special rule, we must determine that such actions will not
contribute to reducing the wolf population in the State below 20
breeding pairs and 200 wolves. This safety margin provides a buffer
against unforeseen mortality events that might occur after such
removal, and ensures that each State's ability to manage for 15
breeding pairs would not be compromised. This limit is a necessary and
advisable precaution while wolves remain listed to ensure the
conservation of the species given the additional take that might be
authorized pursuant to this rule.
Providing this revision to the NEP special rule for additional
management flexibility is appropriate because the NRM wolf population
has met all its numerical, temporal, and distributional recovery goals
(62 FR 15804). By middle of 2007, the NRM wolf population was estimated
to contain 1,545 wolves in 105 breeding pairs (over 3 times the minimum
numeric recovery goal for breeding pairs and more than 5 times the
minimum population goal), and will exceed the minimum recovery levels
for the 7th consecutive year. Montana had an estimated 394 wolves in 37
breeding pairs, Idaho had 788 wolves in 41 breeding pairs, and Wyoming
had 362 wolves in 27 breeding pairs.
We do not expect this NEP special rule to adversely affect the
species because wolf biology allows for rapid recovery from severe
disruptions. After severe declines, wolf populations can more than
double in just 2 years if mortality is reduced and adequate food is
available (Fuller, et al. 2003, pp. 181-183). Increases of nearly 100
percent per year have been documented in low-density suitable habitat
(U.S. Fish and Wildlife Service, et al. 2007, Table 4). The literature
suggests that in some situations wolf populations can remain stable
despite annual human-caused mortality rates ranging from about 30 to 50
percent (Keith 1983, p. 66; Fuller, et al. 2003, pp. 182-184). Given
abundant prey availability, wolf populations can sustain such high
levels of human-caused mortality due to their high reproductive
potential and replacement of losses by dispersing wolves from nearby
populations (Fuller, et al. 2003, pp. 183-185).
Total mortality of adults in the NRM wolf population was nearly 26
percent per year from 1994 to 2006, and the human-caused mortality was
about 20 percent per year (Smith 2007). However, the NRM wolf
population still continued to expand at about 24 percent annually
(Service, et al. 2007, p. Table 4). These data indicate that the
current annual human-caused mortality rate of about 20 percent in the
adult portion of the NRM wolf population could be increased to some
extent without causing the NRM wolf population to decline. Wolf
populations and packs within the NRM wolf population are expected to be
quite resilient to regulated mortality because adequate food supplies
are available and core refugia provide a constant source of dispersers
to replenish breeding vacancies in packs.
Wolf populations within the portion of the NRM where this rule
applies are characterized by robust size, high productivity, closely
neighboring packs, and many dispersers (Service, et al. 2007, Figure 1;
Jimenez, et al. in prep.).
[[Page 4723]]
Wolf populations now occupy most of the suitable wolf habitat in the
NRM (Service, et al. 2007, Figure 1). These populations are unlikely to
expand their current distributions because little unoccupied suitable
habitat is available (Bradley, et al. 2005, p. 1506; Service, et al.
2007, Figure 1). Because suitable habitat is nearly saturated, core
refugia within these populations will continue to produce a large
number of ``surplus'' wolves which will either fill in social vacancies
within the core refugia, die, or disperse out of the core refugia.
Therefore, the core refugia would have an abundant supply of wolves
ready to fill any vacancies caused by agency control for unacceptable
ungulate impacts. Even when entire packs are removed, new packs are
likely to form. During wolf control for livestock depredation in
Wyoming, the Daniel, Green River, Carter Mountain, and Owl Creek packs
all reformed after they were entirely or almost entirely removed
(Jimenez, et al. in prep, pp. 198-200). Bradley, et al. (in press, pp.
8-13) found that, following the removal of wolves for livestock
depredation in the NRM wolf population, the breeding status of packs
was not greatly affected, regardless of breeding status of individuals
or proportion of a pack removed.
Furthermore, many ungulate herds and populations in Idaho, Montana,
and Wyoming are at or above State management objectives and most of
those below management objectives are most affected by factors other
than wolves. Of the 78 elk game management units (GMU) in Idaho, 3 GMUs
were identified to be below management objectives with wolves being one
of the major causes of decline between 2003 and 2006 (IDFG 2006, pp.
11-12, Figures 1, 2, and 3). Of the 35 elk herds in Wyoming, wolf packs
were present in the area used by 7 herds. Wyoming Game and Fish
Commission identified 3 of those 7 herds as either below management
objectives or having calf/cow ratios indicating that the herd was
likely to fall below management objectives soon (Wyoming Governor and
Wyoming Game and Fish Commission 2005, pp. 5-6). Because nearly all
suitable wolf habitat is now occupied in the NRM (Bradley, et al. 2005,
p. 1506; Service, et al. 2007, Figure 1), the current wolf distribution
is unlikely to significantly expand and wolves are not likely to begin
affecting elk in many new areas. On the other hand, increasing wolf
density within already occupied wolf habitat in some areas may cause
increased impacts to those elk herds or other wild ungulate herds.
Therefore, we expect the need for wolf control to be relatively
confined to existing areas of wolf-ungulate impacts, although the need
for control in those areas may increase as wolf density increases.
Given the resilience of wolf populations, the current status of the
NRM wolf population, and the number and location of ungulate
populations or herds identified as below management objectives with
wolves as one of the major causes, we determined that any increased
mortality from wolf control actions under this rule would not affect
the recovered status of the NRM wolf population in Idaho, Montana, or
Wyoming.
Addressing Take To Protect Stock Animals and Dogs--The 1994 NEP
special rules stated that any livestock producers on their private land
may take (including to kill or injure) a wolf in the act of killing,
wounding, or biting livestock (defined as cattle, sheep, horses, and
mules) (50 CFR 17.84(i)). Similar provisions applied to livestock
producers on public land if they obtained a permit from the Service (50
CFR 17.84(i)).
The 2005 NEP special rule expanded this provision to allow
landowners in States with Service-approved wolf management plans to
lethally take wolves that were ``in the act of attacking'' their
livestock and any kind of dog on private land, where ``in the act of
attacking'' was defined as ``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.'' (50 CFR 17.84(n)(3)). The expanded definition in the
2005 NEP special rule also provided Federal land permittees the ability
to take wolves in the act of attacking livestock on active public
grazing allotments or special-use areas. The definition of
``Livestock'' was expanded in 50 CFR 17.84(n)(3) as ``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.''
The 1994 and 2005 NEP special rules did not cover some
circumstances for potential damage of private property by wolves. For
instance, landowners could lethally take wolves in the act of attacking
dogs on their own private land, but could not do the same when on
public lands unless the dogs were certain breeds of dogs being used for
herding or guarding livestock and were being used for work on Federal
lands under an active permit. Recreationists also could not lethally
take wolves in the act of attacking stock animals used to transport
people or their possessions.
This NEP special rule adds a new provision for lethal take of
wolves in States with Service-approved wolf management plans when in
defense of ``stock animals'' (defined as ``a horse, mule, donkey,
llama, or goat used to transport people or their possessions'') or any
kind of dog. Specifically, this modified NEP special rule states that
``any legally present person on private or public land except land
administered by the National Park Service may immediately take a wolf
that is in the act of attacking the individual's stock animal or dog,
provided there is no evidence of intentional baiting, feeding, or
deliberate attractants of wolves. The person must be able to provide
evidence that taken wolves were recently (less than 24 hours) in the
act of attacking stock animals or dogs, and we or our designated agents
must be able to confirm that the wolves were in the act of attacking
stock animals or dogs. To preserve evidence that the take of a wolf was
conducted according to this rule, the carcass of the wolf and the area
surrounding should not be disturbed. The take of any wolf without such
evidence of a direct and immediate threat may be referred to the
appropriate authorities for prosecution.''
Since 1995, only 60 wolves (about 9 percent of the 672 wolves
legally removed in agency-authorized control actions) have been legally
killed by persons in defense of their private property in the NRM. Wolf
depredations on stock animals accompanied by their owners have not been
documented in the past 12 years, but a few instances of stock animals
being spooked by wolves have been reported. Two wolves have been taken
by Federal land permittees as wolves chased and harassed horses in
corrals or on pickets. While this revision provides additional
opportunity for persons to protect their private property, these
instances are likely to be rare. Therefore, we expect no impacts on the
recovered status of the NRM wolf population from this additional
flexibility in the rule.
Reports confirm that 101 dogs have been killed by wolves from 1987
to 2007 (Service, et al. 2007, Table 5, Service 2008, p. 1), but no
wolves are known to have been killed solely to protect dogs. We know of
one credible and one unconfirmed report of wolves killing pet dogs
while humans have been nearby (USDA 2007, p. 1). Wolves have killed at
least 35 hunting hounds, primarily on public land. In only a few of
those
[[Page 4724]]
instances, the hounds' owners were close enough that they might have
been able to better protect their dogs by shooting at the wolves
involved. Although we expect that take of wolves involved in conflicts
with pet dogs or hunting hounds would be rare, these reports indicate
that such instances could occur. This modification would allow persons
in States with Service-approved wolf management plans to protect their
dogs from wolf attacks.
Dispersing wolves would quickly fill vacancies created by any take
of wolves to protect stock animals and dogs. Because such take of
wolves is expected to be extremely low, cumulative impacts of this take
combined with agency control for ungulate impacts would be negligible.
Summary of Peer Reviews
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), and the Office of Management
and Budget's (OMB) Final Information Quality Bulletin for Peer Review,
dated December 16, 2004, we solicited independent review of the science
in the proposed NEP special rule from ten experts on wolves, ungulates,
or predator-prey relationships. The purpose of such review was to
ensure that our decisions on the proposed revisions to the 10(j)
special regulations were based on scientifically sound data,
assumptions, analyses, and conclusions. All ten peer reviewers
submitted comments on the proposed rule. We considered their comments
and recommendations as we made our final decision on the proposed
revisions. Substantive peer reviewer comments are summarized in the
remaining paragraphs of this section as well as discussed in greater
detail in the appropriate Issue/Response sections that follow.
All eight peer reviewers who specifically stated an opinion on the
soundness of our proposed revisions regarding management of wolves for
impacts to ungulates confirmed that our approach was reasonable. Seven
of them provided additional considerations and recommendations. The
remaining two peer reviewers raised some concerns and recommendations
described below, but did not explicitly express opposition or support
to the proposed revisions.
In general, the peer reviewers agreed with our conclusion that wolf
predation is never the primary cause of ungulate population impacts but
can be among major contributing factors. They also generally confirmed
that the proposed safeguards are appropriate for ensuring that wolf
control under the revised special regulations would not compromise wolf
recovery in the NEP areas of the NRM. While none of the peer reviewers
expressed concern that such wolf control would adversely impact wolf
recovery, four reviewers questioned a claim in the proposal regarding
the level of mortality wolf populations could sustain while maintaining
positive growth. Four peer reviewers believed the proposed safety
margin of 20 breeding pairs and 200 wolves and other safeguards were
adequate to prevent impacts to wolf recovery, while two questioned the
necessity of the additional safety margin given the resilience of wolf
populations to relatively high mortality.
Two peer reviewers expressly stated that the proposed criteria,
required in the NEP special rule, for Service approval of State or
Tribal wolf control proposals were adequate or ``sufficiently
rigorous.'' Three others indicated that the standards should be made
more specific. One reviewer thought the proposed NEP special rule did
not clearly identify criteria for assessing whether a wolf control
program will result in ungulate population recovery. Their suggestions
for improving the standards included requiring effectiveness monitoring
and that we suggest the kind of data to be used for determining wolf
predation impacts and ungulate population vigor.
Three reviewers raised a concern for a potential lack of biological
validity of ungulate management objectives set by a State or Tribe.
Their concerns included objectives that may be based on historical
ungulate population levels in the absence of wolves, desired hunter
harvest, or without consideration for the inverse relationship between
density and productivity in ungulate populations.
Two peer reviewers indicated that the NEP special rule should
explicitly require States and Tribes to address other major factors
affecting ungulate populations along with wolf control. Two peer
reviewers recommended that we define ``major'' for the purpose of
determining when wolves may be one of the major causes of unacceptable
ungulate impacts.
Two peer reviewers agreed that the proposed revised NEP special
rule provided an appropriate, transparent review process to ensure
science-based decisions, but another reviewer warned that, due to the
complexities of predator-prey relationships and other influencing
factors, trusting the peer review process to catch and identify all
interactions that should be considered in a control program may be
difficult.
One peer reviewer expressed a preference that hunting and trapping
be used as methods of wolf control over aerial gunning or poisoning for
more public acceptance of control programs. He did not make a
recommendation that the preferred methods be required. None of the
other peer reviewers offered opinions on control methods.
The six peer reviewers who specifically addressed the revisions
addressing lethal take of wolves for the protection of stock animals
and dogs stated that our approach was reasonable. There was general
agreement that this additional protection was not likely to result in a
level of take that would affect wolf populations. One reviewer agreed
with our opinion that it might increase public tolerance of wolves.
One peer reviewer asked what kind of evidence would support a claim
of ``harassment'' where physical evidence may be lacking. He
acknowledged that such specifics need not be incorporated into the
rule, but cautioned that the Service develop sound procedures
addressing this issue to prevent abuse.
Summary of Comments and Recommendations
A. Soliciting Public Comment
In our July 6, 2007, proposed rule (72 FR 36942), we requested that
all interested parties submit comments or information that might aid in
our decisions or otherwise contribute to the development of this final
rule. We also contacted the appropriate Federal, State, and local
agencies, Tribes, and scientific and other interested parties and
organizations and invited them to comment on the proposed rule. 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 them upon request by mail or e-mail and at our hearings
and informational meetings. We established several avenues for
interested parties to provide comments and other information, including
verbally or in writing at public hearings, by letter, e-mail, or
facsimile transmission.
The initial comment period was open from July 6, 2007, through
August 6, 2007. During that period, we publicized and conducted public
hearings on the proposed revised special rule in Cody, Wyoming, on July
17, 2007; in Helena, Montana, on July 18, 2007; and in Boise, Idaho, on
July 19, 2007. We also held general public meetings on the same day
[[Page 4725]]
of each hearing to provide additional information and explain our
proposal. At these meetings, we also offered the public opportunity to
ask questions and provide input.
A second comment period was opened from September 11, 2007, through
October 11, 2007, to provide the public additional opportunity to
review and comment on the proposal concurrent with a public comment
period on the draft environmental assessment (EA) of the proposed
revisions.
At the three hearings, 54 people testified, and we received 19
written comments. During the first comment period, we received more
than 176,000 comments by e-mail. During the second comment period, we
received about 86,000 additional comments by e-mail. We received a
total of approximately 450 mailed and faxed comments. Comments were
submitted by a wide array of parties, including the general public,
environmental organizations, hunting and outfitter's groups, Tribes,
agricultural agencies and organizations, and Federal, State, and local
government agencies. Comments originated from throughout the country
and even from people in a few other nations.
The Wyoming Game and Fish Department submitted a letter commenting
on the proposed NEP special rule on August 3, 2007 (WGFD 2007b). On
October 22, 2007, the Wyoming Governor issued a letter (Wyoming
Governor 2007) describing how several stipulations in Wyoming law
related to delisting and management of the gray wolf are being
resolved. One of these stipulations included modifications to the NEP
special rule. The Wyoming Governor stated that in light of the
resolution of this stipulation, the comments submitted on the proposed
NEP special rule are now superseded and do not require our response.
Therefore, we do not respond to the comments from the Wyoming Game and
Fish Department in this document. However, we have responded to similar
comments if they were raised by other parties.
Substantive comments and new information received from peer
reviewers and the public during the comment period have either been
addressed below or incorporated directly into this final rule. Related
comments (referred to as ``Issues'') are grouped together below and are
followed by our responses. In addition to the following discussion,
refer to the ``Changes From the Proposed Rule'' section for more
details. We received thousands of messages supporting and protesting
the proposed revisions that did not include substantive comments or new
information. Although we reviewed these messages, the number of
opinions was not part of the basis of our decisions on the final rule.
B. Technical and Editorial Comments
Issue 1--Peer reviewers and commenters provided editorial
suggestions, information updates, and corrections to literature
citations. Some peer reviewers thought we misstated conclusions from
the Oakleaf, et al. (2006, pp. 554-559) study. One peer reviewer asked
if we could provide any published citations besides the personal
communication (Smith 2005) regarding a 26 percent mortality rate in the
NRM wolf population.
Response 1--We corrected and updated numbers and other data where
appropriate. We edited the preamble to the rule to make its intent and
purpose clearer.
The reference year for the Oakleaf, et al. (2006, p. 556) wolf pack
home range analysis was 2000. The study indicated that at that time
relatively large tracts of suitable wolf habitat remain unoccupied in
the Rocky Mountains (Oakleaf, et al. 2006, p. 554). Since then, the
wolf population continued to grow, as the study predicted, to 1,545
wolves in summer 2007 (Service 2008, p. 1), and most habitat predicted
by Oakleaf, et al. (2006, Figure 2) as suitable is now occupied
(Service, et al. 2007, Figure 1). We have corrected the citations and
text in the rule's preamble to reflect this information.
The data on wolf survival and mortality in the NRM has not been
published yet, but Smith (2007) is currently preparing it for
publication. We have determined that the data, although not yet
published, constitutes the best scientific data available on wolf
survival and mortality in the NRM. This information was gathered and
compiled by State, Tribal, and Federal members of the Interagency Wolf
Recovery Team and entails data from over 900 radio-collared wolves in
the NRM population since 1994.
Issue 2--A few commenters expressed confusion over the difference
between the 1994 and 2005 rules and the revised rule because we did not
include the entire 50 CFR 17.84(n) regulations in the Federal Register
notice for the proposed rule. Some thought we would now have four
different 10(j) rules in place.
Response 2--In 1994 we promulgated special regulations at 50 CFR
17.84(i) for the reintroduction of two NEPs of the wolf in the NRM. In
2005, we modified the NEP special rule, 50 CFR 17.84(n), and we are
doing so again in this rule. This approach does not result in multiple
sets of these regulations. The regulations in 50 CFR 17.84(i), which
apply to States and Tribes without wolf management plans, will remain
the same, and the revised regulations in 50 CFR 17.84(n), which apply
to States and Tribes with wolf management plans, will supersede the
2005 edition. We have included additional explanation in this rule's
preamble to ensure clarity of the changes.
Issue 3--Some peer reviewers questioned the claim in the proposed
rule that the literature indicates that wolf populations could sustain
an annual human-caused mortality of 30 percent or more. One peer
reviewer pointed out that this statement does not provide an upper
bound on mortality rate and, therefore, could be misleading. Another
did not recommend that such a high rate of mortality be allowed, but
acknowledged that the rule's safeguards would preclude this concern.
Response 3--We corrected the rule's preamble to indicate that the
literature indicates that some wolf populations could remain stable at
mortality rates of around 30 to 50 percent.
Issue 4--Several commenters questioned the need for the proposed
revisions because they believed that the 2005 special regulation
already allows for control of wolves because of ungulate impacts. Many
expressed the concern that the biology and current ungulate herd and
population numbers do not justify a need for increasing flexibility for
wolf control. A few commenters did not think increasing flexibility to
control wolves to protect stock animals was necessary because the
current special regulations already allow wolf control to protect
livestock or because there is no evidence that wolves attack stock
animals.
Response 4--As explained in the proposed rule and the preamble of
this final rule, the 2005 NEP special regulations did not provide
States and Tribes the intended flexibility to control wolves causing
unacceptable impacts to ungulate herds or populations because such
impacts have never been shown to be ``primarily caused by wolf
predation.'' Thus, the wording in the definition of ``unacceptable
impact'' to a wild ungulate population or herd in the 2005 special
regulation set an unattainable standard for approval of wolf control
and no State or Tribe was able to use the special rule for that
purpose. The revision of the definition of ``unacceptable impact'' to
include wolves as ``one of the major causes'' now provides the intended
flexibility for wolf management by States and Tribes.
[[Page 4726]]
We acknowledged in the preamble of the revised rule and final EA
that many ungulate populations and herds currently are at or above
States' management objectives. However, we also are aware of a few
instances where herds are not meeting or soon may not meet those
objectives, and evidence indicates that wolves are one of the major
causes of the failure to maintain those objectives (Wyoming Governor
and Wyoming Game and Fish Commission 2005, pp. 5-6; IDFG 2006, pp. 11-
12, Figures 1, 2, and 3). The intention of this revision is to provide
States and Tribes the flexibility to control wolves in such localized
situations. We expect that such situations will continue to be few,
and, along with the safeguards in the revised NEP special rule,
resulting take of wolves would not have a meaningful impact on wolf
populations and would not affect recovery of the NRM wolf population.
The terms ``livestock'' and ``stock animals'' were confusing to
some commenters who thought the revision to increase wolf control
flexibility for the latter is unnecessary. Although the animals listed
in ``livestock'' overlap with some ``stock animals'' (e.g., horse,
mule, donkey, llama), the latter refers to animals used for transport
of people or their possessions. The revision does not supplant the
definition of livestock with that of stock animals. The 2005 special
regulation did not allow any person on public land, who was legally
present but did not have a land-use permit to graze livestock or
operate an outfitter or guiding business, to kill wolves in defense of
these animals. For example, an individual using a llama to pack-in gear
while recreating on public lands for his or her enjoyment was not
allowed to lethally take a wolf to protect that llama under the 2005
special regulation. The revised special regulation now allows anyone
legally present on private or public land, except land administered by
the National Park Service, to lethally take wolves in defense of
horses, mules, donkeys, llamas or goats that are being used to
transport people or their possessions. The 2005 rule also did not allow
outfitters and guides or the public on public land to take wolves to
protect hunting dogs. The revised rule now allows anyone legally
present on private or public land, except land administered by the
National Park Service, to take wolves in defense of any dog.
While there have been no reports of wolves depredating stock
animals accompanied by their owners in recent years, some reports
indicate that wolves have been close enough to spook stock animals. Two
wolves have been taken by Federal land permittees as wolves chased and
harassed horses in corrals or on pickets. This demonstrates that wolves
may occasionally attack stock animals. The increased flexibility in the
revised special regulation will allow owners to protect their private
property in the few instances when this type of situation may occur.
Issue 5--A large proportion of commenters were alarmed because they
believed that the revisions to the 2005 NEP special rule would allow
States and Tribes to kill wolves in large numbers, reduce populations
to the minimum recovery numbers, or even reduce them below recovery
levels. Others thought that the safety margin of 20 breeding pairs and
200 wolves per State was not adequate based on population viability
analysis theories. Some stated that the constraints in the rule on wolf
control are not adequate to prevent abuse of the increased management
flexibility and that wolves could be killed for reasons other than
those described. Others thought the rule would allow ``open season'' or
public hunting of wolves. On the other hand, some supporters of the
revised rule expressed belief that a wolf population explosion has
decimated elk and moose populations. They advocated killing as many
wolves as possible by any means necessary.
Response 5--The minimum numerical and distributional recovery goal
for the NRM wolf population is at least 10 breeding pairs and at least
100 wolves in each of the States of Idaho, Montana, and Wyoming (62 FR
151804). Under this modified special rule, a State cannot be authorized
to control wolves for ungulate population impacts if such control would
contribute to reducing wolves to below 20 breeding pairs and 200 wolves
in that State. These numbers are twice the minimum recovery goals.
Therefore, this NEP special rule should not result in the reduction of
the NRM wolf population to minimum recovery numbers. Furthermore, this
NEP special rule's restriction preventing wolf control below 20
breeding pairs and 200 wolves does not mean that States and Tribes will
be allowed to eliminate all wolves above those levels. This is only one
of many prerequisites. As in the 2005 special rule, this modified NEP
special rule requires States and Tribes to address specific criteria in
their proposals for wolf control and follow rigorous peer review,
public comment, and Service approval processes before control can be
authorized. The State or Tribe proposing to control wolves would have
to demonstrate that an ungulate herd or population cannot meet
management objectives and wolves are one of the major causes. They also
have to scientifically demonstrate that wolf control is warranted and
the proposed level and duration of wolf control is appropriate for
addressing the impacts to ungulates.
As explained in the preamble, many of the elk populations in the
NEP areas are currently at or above State management objectives and
only a few elk herds or other ungulate populations are considered to be
declining or low due to wolf predation. We also explain in the preamble
that core refugia in the NRM would supply a constant source of
dispersers to fill in vacancies created by agency control. Because
agency control of wolves is likely to occur in only a few discrete
areas, the movement of dispersers between packs and populations, and
thus connectivity, would not be disrupted.
This rule applies only to wolves in the two NRM NEP areas in States
with Service-approved wolf management plans. Control of wolves in
national parks and other lands administered by the National Park
Service, as well as wolves listed as endangered, is not authorized by
this rule.
Furthermore, the standards in this NEP special rule for approving a
wolf control proposal would not allow wolves to be killed for just any
reason. In their proposal, the State or Tribe must describe impacts
from wolves on the ungulate herd or populations and demonstrate in the
proposal that wolf control is warranted for relieving unacceptable
impacts to ungulate herds or populations. If effects to ungulates by
wolves are not among the major causes of the inability to achieve
management objectives, wolf control would not be appropriate.
Based on records of wolf threats or attacks on dogs and stock
animals, the number of incidents in which wolves might be taken under
the modified special rule for these purposes is expected to be very
small. Furthermore, when one wolf out of an attacking group is shot,
the rest of the wolves almost invariably flee. Fleeing wolves could no
longer be ``in the act of attacking'' and taking of such wolves would
be in violation of the law. Therefore, we fully expect that abuse of
the law and taking of more than one wolf during each incident to be
unlikely.
This modified NEP special rule does not authorize open public
hunting nor would it allow States or Tribes to use public hunting as a
method for controlling wolves causing unacceptable impacts to
ungulates. A State or Tribe may choose to enlist persons as designated
agents of that agency to conduct highly controlled damage hunts
[[Page 4727]]
on private property for controlling wolves, but this method would need
to be included in their proposal and subject to all the NEP special
rule's criteria and procedural requirements for our approval.
Evidence does not support the belief that wolves are decimating
ungulate populations in the NRM. Currently many elk populations are at
or above management objectives in Idaho, Montana, and Wyoming. Some
populations of other ungulates, such as mule deer, bighorn sheep, and
moose are depressed in some areas, but this is mostly due to causes
other than wolf predation, such as disease and poor habitat quality.
The need for wolf control to help restore ungulate herds or populations
to State or Tribal management objectives is not pervasive, and
uncontrolled removal of wolves is not necessary, appropriate, or
allowable under this NEP special rule.
We agree that wolf populations tend to be resilient to regulated
human-caused mortality. However, because we anticipated that the
revised NEP special rule may result in more killing of wolves than is
currently occurring, we established measures to ensure that wolf
control for ungulate management purposes would not undermine wolf
recovery goals or the States' ability to manage for 15 breeding pairs
as obligated by their Service-approved wolf management plans. Most peer
reviewers noted that the rule's safeguards and safety margins were
adequate to prevent abuse and that the revisions would result in little
impact to the recovered wolf population. No peer reviewer expressed
concern that the revisions would result in significant impacts to the
recovered NRM wolf population or that the rule's safety margin is
inadequate. Two peer reviewers questioned the necessity of the
additional safety margin of 20 breeding pairs and 200 wolves in
consideration of the resilience of wolves to take and the current
recovery level safety margin of 15 breeding pairs required by the
States' Service-approved wolf management plans. The additional safety
margin of 5 breeding pairs above the 15 breeding pairs the States will
manage for is the same size of the safety margin over the 10 breeding
pairs necessary for delisting. This buffer is intended to prevent the
compromise of State wolf management objectives from unforeseen events
that may cause wolf declines in combination with the additional
mortality from wolf control.
Issue 6--We received a number of comments, including from two peer
reviewers, that the term ``major causes'' in the proposed revised
definition of ``unacceptable impacts'' be further defined. One of the
peer reviewers suggested some criteria to consider. Some commenters
said that long-term studies would be necessary to show that wolves are
one of the major causes of ungulate declines.
Response 6--Consideration of whether wolves are one of the major
causes of ungulate population declines would require comparing the
significance of the wolf impact with that of the other causes. Because
the relationship between wolf predation and ungulate populations is
very complex (Mech and Peterson 2003, pp. 146) and because a host of
other interconnected local factors can influence how it might affect
ungulate populations (Garrott, et al. 2005, pp. 1245), we could not
predict all the specifics in each way wolves could be one of the major
causes of ungulate impacts. If we attempted to develop a specific list
of required criteria, we may unintentionally exclude other valid
conditions. Furthermore, even the suggested criteria from the peer
reviewer included some level of subjectivity (e.g., ``high
proportion,'' ``strong evidence,'' ``excessive'') that would require
further definition. Therefore, we believe that the validity of a
State's claim that wolves are a major cause of ungulate impacts would
be better determined on a case-by-case basis, where such a
determination will depend upon the adequacy of the data and science
describing the conditions, and their relative importance, contributing
to ungulate herd or population declines. We would rely on professional
evaluation and judgment inherent in the required peer reviews and our
approval process to ensure that such determinations are appropriate.
Due to the complexity of wolf-ungulate interactions, it may be
difficult to unequivocally prove that wolves are one of the major
causes of ungulate decline. However, reasonable inferences can
sometimes be made by comparing ungulate herds or populations with
similar environmental conditions where wolves are absent, are present
in much smaller numbers, and are present in similar or larger numbers.
We would consider this information along with other data required by
the NEP special rule and the soundness of the science presented in the
proposal.
Issue 7--We received several suggestions that the States should be
required to demonstrate that they are addressing other major causes of
ungulate herd or population declines in concert with wolf control.
These suggestions were in response to an interpretation that the rule
requires the States or Tribes merely to describe the other major causes
in their proposals. We also received a comment that the State may not
have control over all other major causes, such as climate change.
Response 7--Our intent was that States or Tribes would need to
demonstrate that they have attempted to address other major causes or
that they are committed to do so in concert with wolf control. We have
refined the wording in the rule so that it more clearly expresses that
intent (see Changes From the Proposed Rule section). We would not
disapprove a proposal merely because the State or Tribe has no power to
address certain other causes of ungulate declines. However, we would
expect the proposal to describe why the State or Tribe does not have
control over those issues and how they otherwise might be addressed.
Issue 8--Some commenters stated that social effects to wolf packs
from killing alpha males and females (i.e., breeders) were not
considered, nor were effects to pack structure and productivity from
killing subadults and pups. Others thought removing entire packs would
fragment populations and prevent genetic exchange.
Response 8--As explained in the preamble, wolf packs and
populations are known to be very resilient to a number of causes of
mortality, including human-caused, as long as there is adequate food
and a surrounding population with dispersing individuals to provide
replacements. Ultimately, the population's productivity in terms of
recruitment and immigration is what allows it to persist under human
harvest (Fuller, et al. 2003, pp. 184-185). Populations with average or
high productivity can withstand higher levels of take, especially if
populations that can provide replacements are nearby (Fuller, et al.
2003, pp. 184-185). Population size, proximity of other wolf packs, and
the number of dispersing wolves influence the frequency with which
alpha males and females will be replaced (Brainerd , et al. in press,
pp. 15-16). Wolf populations in the NRM where this rule applies are
characterized by robust size, high productivity, and closely
neighboring packs, and have many dispersers (Jimenez, et al. in prep).
Therefore, social vacancies, whether from loss of breeders or
nonbreeders, in these areas are likely to be quickly filled by
dispersing wolves or other wolves within the pack. Often subadults and
pups are the first to be removed in wolf control programs because they
tend to be naive and, therefore, more vulnerable to take. Vacancies
from loss of subadults and pups, like other age-class vacancies,
[[Page 4728]]
are likely to be readily filled by dispersers or new offspring, given
the ready supply of dispersers from core refugia in the NRM. If an
entire pack is removed, a new pack is likely to form for the same
reasons as described earlier in this preamble. Therefore, gaps that
would fragment populations and disrupt genetic exchange are not likely
to occur in the NRM wolf population.
Issue 9--Some commenters stated that localized wolf control would
create population sinks that deplete nearby source populations. Others
thought wolf control to relieve unacceptable ungulate impacts would be
futile because wolves would constantly fill in vacancies created by
control actions.
Response 9--We agree that the vacancies created by wolf control (or
other forms of wolf mortality) are likely to be filled with wolves from
other packs. However, in the NRM this situation is not likely to
constitute a population sink that depletes or affects stability of
source populations (core refugia). Wolves disperse from their natal
packs regardless of human-caused mortality elsewhere. Wolf populations
and packs routinely turn over members (Mech 2007). Vacancies created by
wolf control are most likely to be filled by young adult dispersers
that leave their packs because they are unable to breed or as an
evolutionary strategy to avoid inbreeding (VonHoldt, et al. 2007),
because they are attempting to increase access to food (Mech and
Boitani 2003, p. 12), or due to social tensions in their natal pack
(Mech and Boitani 2003, p. 13). Such individuals would not have
directly contributed, through breeding, to the productivity of the
packs they left. Although some of these dispersers may have filled
other vacancies within the source population and had the potential to
breed there, those vacancies will be quickly filled by other dispersing
wolves or wolves within those packs (Fuller, et al. 2003, p. 181 and
183). As described earlier in this preamble, core refugia in the NRM
wolf population provide a constant source of dispersers. While removing
a pack may draw another pack into that area, approved wolf removal
under this rule will not be at a rate and level (see preamble) that
would create a void large and long enough in the core refugia to impact
the stability of the wolf populations in the NRM.
While vacancies created by wolf control are likely to be filled,
wolf density in the control area could be temporarily lowered to the
extent that would allow the ungulate herd or population to respond,
depending on the proposed level and duration of control. For example,
control on an annual basis for 3 to 5 years may decrease predation and
relieve impacts to the herd or population enough to allow the
population to return to management objective levels. As long as other
major causes of ungulate population impacts have been addressed, the
lowered post-control wolf density should allow the ungulate herd or
population to remain at management objectives. Wolf removal as
envisioned under this rule is limited in time until the ungulate herd
meets its management objectives or until it is evident that wolf
removal is not having a positive effect on the herd's status. If the
required monitoring shows that the desired results are not achieved
under the terms of the approved proposal, we would expect the State or
Tribe to reevaluate whether continued control is warranted. If wolf
densities and ungulate depredation return to levels that cause the
ungulate herd or population to decline below management objectives
again, the State or Tribe would need to submit another proposal under
the processes required by this rule.
Issue 10--Commenters provided several reasons why they believe the
NEP special rule was inappropriate, such as: (1) Wolves keep ungulate
herds healthy by culling the sick and weak; (2) it allows killing of
wolves for preying on their natural prey; (3) wolves are keystone
predators that play an important role in the ecosystem; and (4) wolves
decrease impacts of ungulate herds on riparian vegetation.
Response 10--Although wolves often prey on the less fit individuals
of a prey population, they can also kill healthy animals resulting in
additive mortality that can contribute to failure to sustain State or
Tribal ungulate management objectives. We agree that ungulates are part
of wolves' natural prey base and that wolves can play an important role
in ecosystem function, as do other large predators. However, the
anticipated levels of wolf removal under this NEP special rule would
not result in disruption of ecosystem functions or meaningful impacts
on other species that benefit from wolf presence. The most dramatic
improvement of riparian vegetation after the return of wolves appeared
to reduce elk browsing pressure is in Yellowstone National Park, where
this rule does not apply and wolf control would not be allowed.
However, the magnitude of cascading ecological effects from wolves is
under some debate (Ripple and Beschta 2004, p. 755), and a number of
biotic and abiotic factors are believed to affect woody browse
conditions along with changes in ungulate behavior due to wolf presence
(Smith, et al. 2003, pp. 338-339). Given observations in Yellowstone
National Park and depending on a variety of conditions, removal of
wolves to meet State or Tribal ungulate management objectives for a
particular herd or population may result in increased browsing pressure
in those localized areas. However, balancing management of ungulate
populations with that of plant communities and habitats outside Federal
lands is under the purview of State and Tribal natural resource
agencies, not the Act.
Issue 11--Some commenters were concerned that wolf control would
prevent wolves from re-establishing in neighboring States that do not
currently have wolf populations.
Response 11--Given the levels and extent of anticipated control of
wolves for unacceptable ungulate impacts, we do not expect wolf numbers
to be reduced enough to cause a meaningful reduction in the probability
of dispersers reaching other States.
Issue 12--Some commenters believed that we improperly considered
economic, political, or other factors in developing the proposed rule.
Some believed we were influenced by special interests and State
politicians, while others thought we favored environmental interests
and the public outside the affected region. Several commenters believed
that we neglected to address economic impacts to the tourist industry
in the Yellowstone area and provided a citation on the economic
benefits of wolves (Duffield, et al. 2006, p. 51). Others expressed
that wolf predation on ungulates has negatively affected local
economies by reducing clients for outfitters and guides and causing elk
to move from feed grounds into areas where they cause damage and
transmit disease to livestock.
Response 12--The Act requires that the decision to list a species
as threatened or endangered be based on the best available science, and
this prohibits economic considerations when making that decision.
However, no similar prohibition is applicable to the promulgation of a
10(j) rule, and economic and other factors, including the effects on
other wildlife populations, are appropriate for consideration. In
promulgating this regulation, we have fully complied with the
requirements of the Administrative Procedures Act. Moreover, we have
addressed the various benefits and costs associated with this
rulemaking as required by the Regulatory Flexibility Act and the Small
Business Regulatory Enforcement Fairness Act (SBREFA) (see Required
Determinations section).
[[Page 4729]]
In particular, the expected level of wolf control resulting from this
rule and the fact that this rule does not apply within Yellowstone
National Park, where most of the public now goes to view wolves, will
not affect wolf numbers and distribution in a manner that will
significantly alter the opportunities for the public to observe and
enjoy wolves in the wild. Therefore, we do not expect wolf-based
tourism and dependent economies to be materially affected. We also
acknowledge that in some situations this rule may result in economic
benefits for guides and outfitters, and possibly other associated
businesses, if wolf control results in higher ungulate populations that
allow higher rates of hunter harvest.
Issue 13--Some commenters believed that we are promoting public
intolerance by allowing killing of wolves for natural predation and
others questioned the basis of our statement that the revision to the
NEP special rule may increase public tolerance and decrease illegal
take. Others suggested that public education should be used to reduce
anti-wolf sentiments instead of controlling wolves.
Response 13--Because wolves are currently at population levels much
higher than recovery goals, we believe it is appropriate to provide
increased management flexibility to address conflicts between wolves
and human uses. It is not unreasonable to assume that incentives for
illegal take of wolves would be diminished by providing a legal and
responsible mechanism for addressing those issues that are part of the
basis for intolerance of wolves. However, because data are not
available to support or disclaim this premise, we have removed this
claim from the EA. State and Federal agencies, such as the National
Park Service (NPS), and numerous conservation organizations continue to
provide the public extensive information about wolf biology, ecology,
and behavior.
Issue 14--Some, including one peer reviewer, questioned how we
would be able to determine that a killed wolf had been chasing or
harassing a dog or stock animal, when such activities would not result
in physical signs on the subject of the attack.
Response 14--Making such a determination may be difficult in some
cases, especially if the incident is not reported quickly because such
evidence is generally temporary in nature. The requirement for
reporting within 24 hours of take of the wolf will help ensure that the
evidence is 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. In such cases, we expect that the wolf carcass
would be in very close proximity to the stock animal or dog or evidence
that the stock animal or dog was chased, molested, or harassed by
wolves. Evidence to indicate this activity may include photographs of
stock animals or dogs, pickets, temporary livestock corrals or camps,
the wolf carcass, and the surrounding area immediately following the
taking of the wolf, and/or tracks of the stock animal or dog and wolf,
hairs, damaged vegetation, or trampled ground. Since the 2005 special
rule went into effect, 27 wolves have been killed while in the act of
attacking livestock and, based on the evidence, the resulting
investigations resulted in determinations that most of these wolves had
been chasing, molesting, or harassing livestock. In two additional
incidents where wolves were killed, one person was charged and
convicted for violating the law and a second person is under
investigation because the evidence did not indicate that wolves were in
the act of attacking livestock. Thus, staff from State and Federal
agencies involved with livestock depredations have developed expertise
in determining wolf activities from field evidence and in most cases
can make a reasonable determination whether that evidence indicates
that a wolf was in the act of attacking the stock animal or dog.
Issue 15--The Wildlife Services division of the U.S. Department of
Agriculture's Animal and Plant Health Inspection Service indicated that
language in the proposed rule implied that dogs are safe from wolf
attack if they are near humans and provided information on some reports
of wolves killing pet, herding, and guarding dogs with humans nearby
(USDA 2007, p. 1).
Response 15--Although wolf attacks on dogs in the presence of
humans are extremely rare, we acknowledge that the possibility exists.
Hence, the revision to the NEP special rule to provide individuals the
additional flexibility to defend their dogs against wolf attacks. We
have added the information on reported attacks in the preamble of this
final rule.
Issue 16--Several commenters were concerned that wolves would be
killed when attracted to dogs used for hunting, or when protecting
pups.
Response 16--The rule prohibits killing of wolves with the use of
intentional baiting, feeding, or deliberate attractants of wolves. For
example, it would be unlawful to knowingly approach a wolf den or
rendezvous site with a dog and then attempt to shoot those wolves.
Anyone who uses dogs to deliberately attract wolves to kill them while
in the guise of hunting would also be in violation of the law. On the
other hand, the rule is intended to allow hunters to protect their
hunting dogs from wolves that are in the act of attacking their dogs,
if the hunter did not knowingly attract those wolves to the dogs.
Issue 17--One peer reviewer thought we should clarify what take
this NEP special rule would allow in national parks and asked for
clarification of what the ``legally present'' requirement means.
Response 17--This NEP special rule does not authorize any take of
wolves on lands administered by the National Park Service. ``Legally
present'' means that the person is (1) on their own property, (2) not
trespassing and has the landowner's permission to bring their stock
animal or dog on the property, or (3) abiding by regulations governing
legal presence on public lands. As a means of clarification we have
included this definition in this NEP special rule (see Changes From the
Proposed Rule section).
Issue 18--We received requests that goats be added to the
definition of stock animals in the revised NEP special rule, because
goats are used as pack animals in areas of the NRM where wolves could
be a threat.
Response 18--We revised the definition of stock animals to add
goats to the list (see Changes From the Proposed Rule section).
C. Comments on Processes and Requirements
Issue 19--Questions arose from commenters and peer reviewers
regarding how approvals of proposals to control wolves could be
scientifically based, as required by the NEP special rule, should State
or Tribal management objectives for ungulate populations or herds have
no biological basis. Some feared that management objectives would be
deliberately inflated as an excuse to kill wolves. Others, including
two peer reviewers, were concerned that management objectives may be
set on carrying capacity for ungulates without consideration of the
presence of wolves and thus unattainable with wolves in the system.
Another peer reviewer stressed that ungulate populations at high
densities relative to available resources will have low productivity
regardless of wolf predation. This peer reviewer suggested that we
provide a list of potential morphological indices of population vigor
related to resource availability (such as antler size, hind leg length,
and newborn calf weight) that
[[Page 4730]]
States and Tribes could consider in the development of management
objectives.
Response 19--We agree that determining the scientific validity of a
proposal to control wolves to restore ungulate herd or population
management objectives would be difficult without a clear picture of the
basis of those objectives. However, because the States and Tribes are
experts in management of their ungulate populations, and management
objectives may need to be determined by a number of complex factors and
can change depending on conditions, we have elected not to direct
specific factors the States and Tribes should consider in the
establishment of their management objectives. Instead, we have added a
requirement that the basis of the State or Tribal management objectives
for the affected ungulate herd or population be described in the
proposals for wolf control (see Changes From the Proposed Rule
section). The NEP special rule also requires any such proposal for wolf
control to include a description of the data indicating that the
ungulate herd or population is below management objectives and why wolf
control is a warranted solution to restore the herd or population to
management objective levels. If management objectives are not being met
because ungulate productivity is affected by its population density,
the State or Tribe will still have to demonstrate in the proposal that
the removal of wolves will help restore the ungulate herd or population
to management objectives because wolves are a major factor in the
decline of the herd or population. We believe that inclusion of such
information in the proposal, combined with the required peer review and
public comment processes, will enable us to make a sound science-based
determination on whether the proposed wolf control is appropriate.
Issue 20--We received requests to include a trigger in the rule to
allow wolf control when calf/cow ratios in elk populations drop below
30 calves per 100 cows.
Response 20--As explained in Response 19, we will rely on the
States and Tribes to provide in their proposals specific information
indicating that ungulate herd or population objectives cannot be met.
With respect to this comment, the proposal will need to demonstrate
that a specific calf/cow ratio indicates that the herd or population
will be unable to meet the established management objectives that
wolves are a primary cause of the inability to meet management
objectives, and that wolf control will resolve this problem.
Issue 21--Some commenters wanted the definition of unacceptable
impacts to include effects caused by wolves at key ungulate feeding
areas or feed grounds. Others expressed disapproval that wolf control
would be allowed for merely causing ungulate herds or populations to
move from normal feeding areas.
Response 21--As explained in Response 19, we do not specify factors
that the State or Tribe must consider in the establishment of their
ungulate management objectives. If the State or Tribe proposes to
control wolves because they are affecting ungulates at key feeding
areas, we will expect the proposal to include information that
demonstrates that management objectives cannot be met because wolves
are disrupting ungulate feeding patterns and behavior. The proposal
should provide support linking wolf activities at the feeding areas
with disruption of ungulate feeding, poor nutrition in ungulates, and
effects to survival and recruitment of ungulates as a consequence.
Issue 22--Some commenters thought that the Service, rather than the
State or Tribe, should select peer reviewers or at a minimum have the
option to reject peer reviews of proposals to control wolves for
unacceptable ungulate impacts. Others recommended that we drop the
requirement for peer and public review altogether so that wolf control
actions would not be delayed when critically needed.
Response 22--Independent peer review plays an important role in
maximizing the quality, objectivity, utility, and integrity of the
information upon which we will base our decisions. Peer review will
help ensure that such information is the best scientific and commercial
information available. Because the relationships between ungulate
populations and wolves and other factors affecting such populations are
highly complex, peer review from those with expertise in these
relationships is even more critical in evaluating whether proposed wolf
control is appropriate. Through their extensive level of experience
with ungulate conservation, State and Tribal game and fish agencies
have access to experts on predator-prey relationships in the academic
and scientific communities. Assigning the responsibility to conduct
peer reviews to each State and Tribe proposing to control wolves will
result in a more efficient process.
In this final NEP special rule, we clarify that the States and
Tribes will be required to follow the OMB Final Information Quality
Bulletin for Peer Review (70 FR 2664, January 14, 2005), which provides
the professional standards that the Service uses in soliciting peer
review from independent experts who have demonstrated expertise and
specialized knowledge on the relevant issues. We also added details to
the NEP special rule to clarify the requirements for peer review of
wolf control proposals. Specifically, before submitting a wolf control
proposal to us for approval, the State or Tribe will need to obtain
five independent peer reviews of the proposal. To avoid a potential
appearance of conflict of interest, those peer reviews must be obtained
from experts other than staff of State, Tribal, or Federal agencies
directly or indirectly involved in predator control or ungulate
management in Montana, Idaho, or Wyoming. The State or Tribe also must
explain in their proposal how the standards of the OMB peer review
bulletin were considered and satisfied (see Changes From the Proposed
Rule section).
Wolf predation significantly impacting ungulate populations is
known to occur only in combination with a number of other causes of
population declines. The relationships between these other factors,
wolves, and prey populations are very complex and rarely result in a
sudden precipitous decline requiring response in less than the normal
time to conduct peer reviews and a public comment process.
Issue 23--A number of commenters objected to approval of any State
or Tribal programmatic proposal for wolf control because they feared
such an approach would allow the States or Tribes to rely on claims of
broad-based ungulate impacts rather than providing evidence of
localized impacts to a particular herd or population. Some commenters
were also concerned that peer reviewers would not be able to predict
the significance of the role of wolf predation in future ungulate
impacts given the complex nature of interrelated factors affecting
ungulate populations. Some also believed that programmatic proposals
would limit the ability of the public to comment on issues related to
local conditions and specific actions that would not be evident at the
time of public review of the programmatic proposal. A commenter asked
what the consequences would be if a control project was not consistent
with an approved programmatic proposal. On the other hand, some
promoted acceptance of programmatic proposals because such an approach
would allow
[[Page 4731]]
States and Tribes to expeditiously address wolf impacts without delay
associated with peer and public review on each individual control
action.
Response 23--The NEP special rule does not discuss programmatic
proposals per se. A programmatic proposal could be approved if it
adequately addresses all the criteria required by the NEP special rule
to show that the science supports the need for the proposed wolf
control and has undergone all the procedural requirements for
submission to the Service. We expect a programmatic proposal to clearly
delineate specific conditions that would warrant wolf control for the
period of time and geographic area covered by the proposal.
Furthermore, before we could approve a programmatic proposal, we would
have to be able to determine that control under such a proposal would
not contribute to reducing the wolf population in the State below 20
breeding pairs and 200 wolves.
A programmatic proposal must undergo the same peer and public
review processes as would a specific proposal. As stated above, a
programmatic proposal would need to contain enough details to show that
the required criteria for approving wolf control have been met. During
review, peer reviewers and the public would have the opportunity to
provide input on whether the details are sufficient or appropriate in
such a programmatic proposal.
If a specific control action is not consistent with the approved
programmatic plan, it would be subject to enforcement of the Act's
existing regulations governing NEPs of the gray wolf.
As explained in our response to Issue 22, typical times for peer
review and public comment processes are not expected to affect the
timeliness of control actions.
Issue 24--Some commenters wanted the regulations to include and
describe an appeal process for the approval or disapproval of a
proposal to control wolves for ungulate impacts. We also received
requests that the regulations require specific means for public review
of proposals, such as posting proposals on the Internet and providing
60-day comment periods. Others asked how we would rescind an approval
if a State or Tribe continued to control wolves if the State's
population dropped below the special rule's safety margin of 20
breeding pairs and 200 wolves.
Response 24--We encourage States and Tribes to work closely with us
while developing their proposals to ensure that all the required
criteria in the regulations will be met. Based on expected coordination
with the States and Tribes, we do not believe an appeal process for
disapproved proposals is necessary. We believe that transparency of the
peer review and public comment processes, the NEP special rule's
criteria for an approvable proposal, and our standards for the use of
the best scientific and commercial information available preclude the
need for an appeal process. Furthermore, should we disapprove a
proposal, we would explain the reasons for the disapproval, and the
State or Tribe may revise the proposal and resubmit it for further
consideration.
In the NEP special rule, we intend to allow for a transparent
process for review of wolf control proposals by requiring the State or
Tribe to implement peer reviews and a public comment period. The
methods and processes for providing adequate and reasonable public
review and input will be determined by the State or Tribe submitting a
wolf control proposal.
Monitoring of wolf populations (see Response 26) will provide a
feedback loop that would inform the State or Tribe if the control
actions are no longer appropriate or in danger of noncompliance with
the regulations. If a State or Tribe continued to take wolves after the
State's wolf population dropped below the rule's safety margin, the
State or Tribe will be in violation of the law and subject to an
investigation and further action by the Service's Division of Law
Enforcement.
Issue 25--We received thousands of comments asking to prohibit
aerial gunning as part of wolf control actions and some suggesting that
the proposed revisions to the NEP special rule would violate the
Airborne Hunting Act. Other commenters asked for prohibitions on a
variety of methods, including but not limited to hunting, trapping,
poisoning, and killing with motorized vehicles. One peer reviewer
expressed a preference for hunting and trapping over aerial gunning and
poisoning to gain more public acceptance of control measures. Some
commenters objected to the use of trapping and poisoning on public
property. Some commenters suggested using various forms of nonlethal
control before resorting to killing wolves.
Response 25--The States will likely use shooting from the ground
and air as the primary method of control of wolves for ungulate
impacts. These methods are considered the most efficient and humane of
those available. Based on the experience and expertise of State agency
staff, we believe the States should be allowed the flexibility to
determine the appropriate methods of control within the confines of
existing laws and regulations. This NEP special rule does not supersede
or invalidate any other Federal, State, or Tribal laws and regulations,
including the Airborne Hunting Act. All management activities under
this NEP special rule must be conducted in compliance with all other
applicable laws and regulations. Furthermore, if control methods result
in take of wolves exceeding the level in an approved proposal under
this NEP special rule, the control actions must cease and will be
subject to enforcement under the Act.
We and our partners in wolf recovery continue to investigate and
implement a variety of nonlethal methods of wolf management. While
preventative and nonlethal control methods can be useful in some
situations, they are not consistently reliable, so lethal control
remains a primary tool for managing wolves affecting ungulate
populations, livestock, and domestic animals.
Issue 26--Some commenters, including two peer reviewers, said that
the rule should include a requirement for monitoring to determine
effectiveness of wolf control actions and a process for adaptive
management. Some questioned how monitoring by the States or Tribes
would be funded or urged us to provide such funding.
Response 26--In the NEP special rule's requirement for wolf control
proposals to include a description of how ungulate population responses
to wolf removal will be measured, we now specify that the proposal must
describe how control actions will be adjusted to maintain their
effectiveness. While the wolf is listed, Idaho and Montana receive
Federal funding to conduct wolf population monitoring, and we provide
staff to conduct monitoring in Wyoming. Wolf control for livestock
depredation is reported informally on a weekly basis and officially in
annual reports. The annual reports include comprehensive information on
control actions, wolf population status, and analyses of the
effectiveness of wolf control for livestock depredation. This reporting
mechanism will be used for wolf control actions for unacceptable
ungulate impacts under this rule. We expect the annual reports to
include an evaluation of the effectiveness of wolf control and other
measures in relieving unacceptable impacts to ungulate herds or
populations just as is done for wolf control for livestock depredation.
An adaptive management framework for wolf control for unacceptable
ungulate impacts may entail slight modifications to the approved
control actions. However, any necessary changes that
[[Page 4732]]
would increase level and duration of take of wolves or impacts to wolf
populations that were not considered for the approval of the control
actions will require submission of a new proposal and must comply with
the rule's criteria and procedures for approval. The Idaho Department
of Fish and Game's proposal for wolf control, submitted in 2006 (Idaho
Department of Fish and Game 2006, pp. 20-21), provides an example of
the type of information on proposed monitoring that should be included.
Wolf populations in the NRM have been and will continue to be
intensively monitored. This monitoring is conducted by the Service,
NPS, Nez Perce Tribe, and the States of Idaho, Montana, and Wyoming and
will help provide information on any effects to wolf populations from
wolf control actions. Currently, Idaho and Montana receive Federal
funding for wolf management and monitoring. Such funding is likely to
continue at least until the wolf is delisted. While the wolf is listed,
the Service provides funding and staff to conduct wolf management and
monitoring in Wyoming outside the national parks. The NPS covers
funding for monitoring in the national parks, but wolf control under
this rule will not occur there.
Issue 27--A couple of commenters claimed that the proposed rule is
arbitrary and capricious because (1) the post-delisting wolf management
plans, required for a State or Tribe to be eligible to use the NEP
special rule, would be implemented only after delisting, yet we could
approve wolf control before then, and (2) the Act provides no basis for
allowing wolf control before delisting based on how a State or Tribe
might manage wolves after delisting.
Response 27--The requirement for approved post-delisting management
plans for a State or Tribe to be eligible to apply the revised NEP
special rule is not based on the specifics of wolf management after
delisting, when the NEP special rule will no longer exist. Development
of a wolf management plan demonstrates that the State or Tribe has
undertaken a formal process that commits it to a management strategy
for sustaining wolf recovery. This commitment assures that any proposal
to remove wolves will be in alignment with long-term wolf conservation
and not based solely on a goal to benefit ungulate populations. In
addition, adoption of the wolf management plan will demonstrate that
the wildlife agency has received the necessary local political and
administrative support within the State or Tribe for implementing the
plan and approved wolf control.
Issue 28--We received requests, including from a State agency, to
increase the required reporting period after a wolf is killed from 24
to 72 hours to accommodate instances where the take occurred in remote
areas.
Response 28--In recognition of the need for a greater reporting
time in certain situations, 50 CFR 17.84(n)(6) already allows for
reasonable additional time for reporting if access to a site is
limited. We believe this existing provision appropriately addresses the
concern raised by the commenter and that no modification is needed.
Issue 29--One commenter recommended that the NEP special rule
specifically prohibit trapping of wolves in primary conservation areas
for grizzly bears.
Response 29--Only two grizzly bears have been accidently trapped
since trapping wolves for monitoring and livestock control purposes
began in 1986. The type of trap in one incident is now used by State or
Federal agency staff only when grizzly bears are hibernating. In the
other incident in Glacier National Park, a trapped bear was killed by
another bear. Currrently, several measures are implemented to minimize
accidental trapping and safety issues for nontarget species and agency
staff (unintentional trapping of bears is much more dangerous to agency
staff than it is to the bears). Some of these measures include the use
of transmitters on traps to detect sprung traps, careful placement of
traps, and use of less odorous bait to minimize attracting bears. If a
bear is accidentally trapped, agency staff dart and release it.
Therefore, wolf control authorized by this NEP special rule is highly
unlikely to compromise grizzly bear conservation.
Issue 30--Some commenters requested additional time for public
comment. Some believed that we did not advertise the hearings and
public comment periods sufficiently. Some objected that hearings were
not held in major population areas such as Denver, Colorado, or
Portland, Oregon.
Response 30--We provided a total of 60 days in two separate 30-day
periods for public comment. We announced information on the comment
period and hearings in the Federal Register notice of the proposed
rule, our national Web site, and regional Web sites in the two affected
regions. We also provided legal notices of the comment period and
hearings for publication in 11 major and local newspapers in Idaho,
Montana, and Wyoming. We sent out press releases to print and broadcast
media; members of Congress; relevant State, Tribal, Federal, and local
agencies; and hundreds of interested parties in Idaho, Montana,
Wyoming, Utah, Colorado, North Dakota, South Dakota, Nebraska, and
Kansas. We also sent information on the opportunity for public comment
to two major national environmental organizations that distributed the
information to their membership, on their Web sites, and to other
organizations that made similar efforts. Given that we received more
than 260,000 comments from throughout the country, we believe
sufficient notice and time was provided for widespread public comment.
In selecting hearing locations, we believe that we achieved a balance
between proximity to the most affected public in the three States where
the rule would apply and the public's accessibility to the hearing
locations.
D. Comments on Legal Compliance With Laws, Regulations, and Policies
Issue 31--The proposed revised special rule is not in compliance
with section 2 of the Act nor does it conform to the purposes of
section 10(j) because it does not further the conservation of the
species. The proposed revisions are tantamount to delisting and in
violation of Section 4 of the Act by allowing take as if the species
was not listed.
Response 31--The regulations under the Act relating to
establishment of experimental populations specifically recognize the
creation of special rules containing both prohibitions and exceptions
for those populations (50 CFR 17.82). Under section 10(j), such
exceptions are intended to allow management practices to address
potential negative impacts or concerns from reintroductions. The 10(j)
special regulations of 1994 and 2005 for the NEP of the gray wolf in
the NRM include provisions for managing wolf populations impacting
livestock and ungulate populations. Such provisions are necessary for
the continued enhancement and conservation of wolf populations because
they foster local tolerance of introduced wolves. However, these
revisions do not alter the protected status of the gray wolf in the NRM
provided under section 4 of the Act. The reintroduction of the gray
wolf into Central Idaho, Southwestern Montana, and Yellowstone National
Park under the 10(j) provisions clearly furthered the conservation of
the species. Since 1995, when the reintroductions first occurred, wolf
populations expanded in size and distribution and reached the minimum
recovery goals in 2000 and have exceeded those goals every year since
then. As described above, our
[[Page 4733]]
modifications to the provisions of the 2005 special rule do not
compromise the continued conservation of these populations in this
remarkable recovery success story.
Issue 32--One commenter thought that we should prepare an
environmental impact statement rather than an EA to comply with the
National Environmental Policy Act (NEPA) because the rule would allow
the killing of nearly 1,000 wolves, constituting a major Federal action
significantly affecting the quality of the human environment.
Response 32--As a result of the analysis in the EA, we made a
finding of no significant impact because we concluded, among other
reasons, that the likely amount of take of wolves that the rule would
authorize would be relatively low and would not compromise recovery of
the NRM wolf population. Based on the current available information
where wolves may be causing unacceptable impacts to ungulate
populations, it is our expectation that the total number of wolves
taken would be well below 1,000.
E. General Comments on the Proposed Rule
Issue 33--The State of Montana supported all aspects of the
revisions to the 10(j) special rule, but did not want efforts to
finalize it to take priority over, and thus delay, finalizing the
delisting rule.
Response 33--The Service remains committed to finalizing both the
10(j) rule and its decision on the proposed delisting rule in early
2008. The revised 10(j) special rule is intended to provide flexibility
for wolf management in the NEP areas (including in Montana) in case the
final determination on the delisting is delayed or concludes the wolf
should remain listed.
F. Comments Not Germane to the Revisions of the Special Regulations
Some comments went beyond the scope of this rulemaking, or beyond
the authority of the 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,
assertions that wolf reintroduction was illegal and/or usurped States'
rights, and that the type of wolf that currently lives in Montana,
Idaho, and Wyoming is a nonnative wolf. Many of these types of comments
were discussed in the reclassification rule (68 FR 15804, April 1,
2003). We also received comments expressing support for, and opposition
to wolf recovery efforts and the proposal (or parts of it) without
further explanation.
Changes From the Proposed Rule
As a result of comments and additional information received during
the comment period, and additional analysis, we made several changes to
the special rule as proposed on July 6, 2007 (72 FR 36942). We describe
the specific changes below. Discussion of the basis for these changes
are in our responses to the relevant comments where indicated below.
1. Proposed--Among the criteria States or Tribes would be required
to address in a proposal to control wolves for unacceptable impacts to
ungulate herds or populations was ``Identifies possible remedies or
conservation measures in addition to wolf removal.''
1. Final--The requirement is changed to ``Demonstrates that
attempts were and are being made to address other identified major
causes of ungulate herd or population declines or the State or Tribal
government commitment to implement possible remedies or conservation
measures in addition to wolf removal; * * *.'' See Response 7 in
Summary of Comments and Recommendations.
2. Proposed--Defined ``stock animal'' as a ``horse, mule, donkey,
or llama used to transport people or their possessions.''
2. Final--The definition of ``stock animal'' is changed to ``a
horse, mule, donkey, llama, or goat used to transport people or their
possessions.'' See Response 18 in Summary of Comments and
Recommendations.
3. Proposed--Required States and Tribes to describe data showing
that ungulate herds or populations are below management objectives, but
did not require a description of the basis of the management
objectives.
3. Final--In proposals for wolf control to address unacceptable
ungulate impacts, in addition to other criteria States and Tribes must
meet, the basis of the ungulate management objectives must be
described. See Response 19 in Summary of Comments and Recommendations.
4. Proposed--Required States and Tribes to conduct peer review of
wolf control proposals before submission to the Service for approval,
but did not provide details of peer review requirements.
4. Final--The rule now specifies that the State or Tribe must
conduct the peer review process in conformance with the OMB's Final
Information Quality Bulletin for Peer Review and obtain five peer
reviews from experts on the related issues, other than those employed
by State, Tribal, or Federal agencies directly or indirectly involved
in predator control or ungulate management. See Response 22 in Summary
of Comments and Recommendations.
5. Proposed--Required State or Tribal proposals to control wolves
for unacceptable ungulate impacts to include a description of how
ungulate population responses to wolf control would be measured, but
did not address adaptive management.
5. Final--The rule now includes a requirement that the proposal
describe how control actions will be adjusted for effectiveness. See
Response 26 in Summary of Comments and Recommendations.
6. Proposed--Referred to the individuals to whom the take
provisions in this rule would apply as ``citizens''.
6. Final--To be consistent with the language in the Act, the rule
now substitutes the word ``person'' for ``citizen''.
7. Proposed--Specified that individuals must be ``legally present''
on private or public land in order to lethally take wolves in defense
of their stock animals and dogs, but did not provide a description of
what we meant by ``legally present''.
7. Final--As a means of clarification this rule now includes a
definition of when a person is ``Legally present''. See Response 17 in
Summary of Comments and Recommendations.
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
and positive economic effects on a small percentage of people in Idaho,
Montana, and Wyoming.
(a) This regulation will 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, management of wolves by States or
Tribes with wolf management plans is voluntary. Therefore, associated
costs to States and Tribes for control of wolves causing unacceptable
impacts to ungulate herds or populations are discretionary. While we do
not quantify expected expenditures, these costs may consist of staff
time and salary as well as transportation and equipment
[[Page 4734]]
necessary to control wolves. Costs to the Service would include those
associated with staff time and salary coordinating with States and
Tribes during development of wolf control proposals and review and
determination of approval of proposals.
We have funded State and Tribal wolf monitoring, research, and
management efforts for gray wolves in Montana, Idaho, and Wyoming, and
intend to continue to do so as long as wolves are listed in these
States. For the past several years Congress has specifically provided
funding for wolf management to Montana, Idaho, and Wyoming, and the Nez
Perce. In addition, Federal grant programs are available that fund or
partially fund wildlife management programs by the States and Tribes.
Benefits Accrued--The objectives of the proposed rule change are
(1) to provide a means for States and Tribes with Service-approved wolf
management plans to address the unacceptable impacts of a recovered
wolf population to ungulate populations and herds, and (2) to allow
persons in the boundaries of the NEP areas within any States or Tribal
lands that has a Service-approved wolf management plan other than on
lands administered by NPS to take wolves that are in the act of
attacking their stock animals or dogs. Allowing wolf removal in
response to unacceptable impacts will help maintain ungulate
populations or herds at or above State or Tribal objectives. As a
result, hunters and associated businesses, including guides,
outfitters, and the hunting retail industry, may benefit from increased
hunting opportunities. Increased hunting opportunities provide States
with additional revenue which is used for wildlife management and
habitat restoration, protection, and enhancement.
Allowing take of wolves in the act of attacking stock animals or
dogs would have a beneficial economic impact to the affected
individuals by allowing them to protect such private property, as well
as avoid the need for persons to unnecessarily replace and retrain
these animals.
(b) This regulation does not create inconsistencies with other
agencies' actions. Agency responsibilities for section 7 of the Act are
the same for this rule as the previous NEP special rules. This rule
reflects the 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 we do not foresee, as a result of this rule,
any new impacts or restrictions to existing human uses of lands in
Idaho, Montana, Wyoming, or any Tribal reservations that remain under
the 1994 NEP special rules.
(d) OMB has determined that this rule could raise novel legal or
policy issues.
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 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 revisions in this rule relax some of the previous restrictions
on take of wolves and do not increase restrictions. For a discussion of
how small entities may benefit from this increased flexibility see the
Benefits Accrued section in the Required Determinations section above.
One study indicated that the return of wolves to the NRM infused
approximately $35.5 million to local economies from increased tourism
to observe wolves in the wild (Duffield, et al. 2006, p.51). The
expected level of wolf control resulting from this rule and the fact
that this rule does not apply within Yellowstone National Park, where
most of the public goes to view wolves, will not affect wolf numbers
and distribution in a manner that would significantly alter the
opportunities for the public to observe and enjoy wolves in the wild.
Therefore, local small entities benefiting from tourism associated with
wolf-viewing are not likely to see decreases in business as the result
of the revisions to this rule.
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 proposed regulation further reduces the effect
that wolves will have on a few persons by increasing the opportunity
for them to protect their stock animals and dogs. Since there are so
few small businesses impacted by this regulation, the combined economic
effects are minimal.
(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 recovered wolf population.
Unfunded Mandates Reform Act
This rule 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.
(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.
[[Page 4735]]
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 this proposed rule change pertains only to
the relaxation of restrictions on lethal removal of wolves, it will not
result in any takings of private property.
Federalism (Executive Order 13132)
This rule maintains the existing relationship between the States
and the Federal Government. The State of Wyoming requested that we
undertake this rulemaking in order to assist the States in reducing
conflicts with local landowners and returning wolf management to the
States or Tribes. We have cooperated with the States in preparation of
this rule. Maintaining the recovery goals for these wolves will
contribute to their eventual delisting and their return to State
management. It is a voluntary decision whether to undertake Programs
and actions to take wolves under this rule. 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. 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. 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 Department of the
Interior 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. A Federal 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 OMB
control number. This rule does not contain any new collections of
information that would require us to obtain OMB approval. OMB approval
is required if information will be collected from 10 or more persons (5
CFR 1320.3). ``Ten or more persons'' refers to the persons to whom a
collection of information is addressed by the agency within any 12-
month period, and to any independent entities to which the initial
addressee may reasonably be expected to transmit the collection of
information during that period, including independent State,
territorial, Tribal, or local entities and separately incorporated
subsidiaries or affiliates. For the purposes of this definition,
``persons'' does not include employees of the respondent acting within
the scope of their employment, contractors engaged by a respondent for
the purpose of complying with the collection of information, or current
employees of the Federal government when acting within the scope of
their employment, but it does include former Federal employees. This
rule includes a requirement that a State or Tribe requesting approval
to control wolves for unacceptable ungulate impacts submit a proposal
to us. However, as these proposals will only be submitted by States or
Tribes with Service-approved wolf management plans, we do not
anticipate that it will affect 10 or more persons, as defined above.
Therefore, OMB approval and a control number are not needed for
information collections associated with these proposals. Existing
information collections already approved under the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq. include permit application forms, assigned
OMB control number 1018-0094, and the notification requirements in our
experimental population regulations under 50 CFR 17.84, assigned OMB
control number 1018-0095.
National Environmental Policy Act (NEPA)
We have prepared an environmental analysis and finding of no
significant impact, as defined under the authority of the NEPA of 1969.
These documents are available from the Office of the Western Gray Wolf
Recovery Coordinator (see ADDRESSES section) or from our Web site at
http://westerngraywolf.fws.gov/.
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
have coordinated with affected Tribes within the experimental
population areas of Idaho, Montana, and Wyoming on this rule. We have
fully considered all comments on the proposed special regulations that
were submitted by Tribes and Tribal members during the public comment
period and have attempted to address those concerns, new data, and new
information where appropriate.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211
requiring agencies to prepare Statements of Energy Effects when
undertaking certain actions that significantly affect energy supply,
distribution, and use. 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.
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. 17.84 by revising paragraph (n) as follows:
0
a. In paragraph (n)(3), revise the term ``unacceptable impact'' and, in
alphabetical order, add the terms ``legally present,'' ``stock
animal,'' and ``ungulate population or herd,'' to read as set forth
below; and
[[Page 4736]]
0
b. In paragraph (n)(4), revise the first sentence following the heading
and paragraph (n)(4)(v) and add paragraph (n)(4)(xiii) to read as set
forth below:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(n) * * *
(3) * * *
* * * * *
Legally present--A Person is legally present when (1) on their own
property, (2) not trespassing and has the landowner's permission to
bring their stock animal or dog on the property, or (3) abiding by
regulations governing legal presence on public lands.
* * * * *
Stock animal--A horse, mule, donkey, llama, or goat used to
transport people or their possessions.
Unacceptable impact--Impact to ungulate population or herd where a
State or Tribe has determined that wolves are one of the major causes
of the population or herd not meeting established State or Tribal
management goals.
Ungulate population or herd--An assemblage of wild ungulates living
in a given area.
* * * * *
(4) Allowable forms of take of gray wolves. The following
activities, only in the specific circumstances described under this
paragraph (n)(4), are allowed: Opportunistic harassment; intentional
harassment; take on private land; take on public land except land
administered by National Parks; take in response to impacts on wild
ungulate populations; take in defense of human life; take to protect
human safety; take by designated agents to remove problem wolves;
incidental take; take under permits; take per authorizations for
employees of designated agents; take for research purposes; and take to
protect stock animals and dogs. * * *
* * * * *
(v) Take in response to wild ungulate impacts. If wolf predation is
having an unacceptable impact on wild ungulate populations (deer, elk,
moose, bighorn sheep, mountain goats, antelope, or bison) as determined
by the respective State or Tribe, a State or Tribe may lethally remove
the wolves in question.
(A) In order for this provision to apply, the State or Tribes must
prepare a science-based document that:
(1) Describes the basis of ungulate population or herd management
objectives, what data indicate that the ungulate population or herd is
below management objectives, what data indicate that wolves are a major
cause of the unacceptable impact to the ungulate population or herd,
why wolf removal is a warranted solution to help restore the ungulate
population or herd to State or Tribal management objectives, the level
and duration of wolf removal being proposed, and how ungulate
population or herd response to wolf removal will be measured and
control actions adjusted for effectiveness;
(2) Demonstrates that attempts were and are being made to address
other identified major causes of ungulate herd or population declines
or the State or Tribe commits to implement possible remedies or
conservation measures in addition to wolf removal; and
(3) Provides an opportunity for peer review and public comment on
their proposal prior to submitting it to the Service for written
concurrence. The State or Tribe must:
(i) Conduct the peer review process in conformance with the Office
of Management and Budget's Final Information Quality Bulletin for Peer
Review (70 FR 2664, January 14, 2005) and include in their proposal an
explanation of how the bulletin's standards were considered and
satisfied; and
(ii) Obtain at least five independent peer reviews from individuals
with relevant expertise other than staff employed by a State, Tribal,
or Federal agency directly or indirectly involved with predator control
or ungulate management in Idaho, Montana, or Wyoming.
(B) Before we authorize lethal removal, we must determine that an
unacceptable impact to wild ungulate populations or herds has occurred.
We also must determine that the proposed lethal removal is science-
based, will not contribute to reducing the wolf population in the State
below 20 breeding pairs and 200 wolves, and will not impede wolf
recovery.
* * * * *
(xiii) Take to protect stock animals and dogs. Any person legally
present on private or public land, except land administered by the
National Park Service, may immediately take a wolf that is in the act
of attacking the individual's stock animal or dog, provided that there
is no evidence of intentional baiting, feeding, or deliberate
attractants of wolves. The person must be able to provide evidence of
stock animals or dogs recently (less than 24 hours) wounded, harassed,
molested, or killed by wolves, and we or our designated agents must be
able to confirm that the stock animals or dogs were wounded, harassed,
molested, or killed by wolves. To preserve evidence that the take of a
wolf was conducted according to this rule, the person must not disturb
the carcass and the area surrounding it. The take of any wolf without
such evidence of a direct and immediate threat may be referred to the
appropriate authorities for prosecution.
* * * * *
Dated: December 27, 2007.
Kenneth Stansell,
Acting Director,
U.S. Fish and Wildlife Service.
[FR Doc. 08-334 Filed 1-24-08; 8:45 am]
BILLING CODE 4310-55-P