Endangered and Threatened Wildlife and Plants; Final Rule Designating the Greater Yellowstone Area Population of Grizzly Bears as a Distinct Population Segment; Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List as Endangered the Yellowstone Distinct Population Segment of Grizzly Bears

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT38

Endangered and Threatened Wildlife and Plants; Final Rule Designating the Greater Yellowstone Area Population of Grizzly Bears as a Distinct Population Segment; Removing the Yellowstone Distinct Population Segment of Grizzly Bears From the Federal List of Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List as Endangered the Yellowstone Distinct Population Segment of Grizzly Bears

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule; notice of petition finding.

SUMMARY:

The U.S. Fish and Wildlife Service (Service, we or us), hereby establish a distinct population segment (DPS) of the grizzly bear (

Ursus arctos horribilis

) for the Greater Yellowstone Area (GYA) and surrounding area (hereafter referred to as the Yellowstone DPS, Yellowstone grizzly bear DPS, or Yellowstone grizzly bear population) and remove this DPS from the List of Threatened and Endangered Wildlife. The Yellowstone grizzly bear population is no longer an endangered or threatened population pursuant to the Endangered Species Act of 1973, as amended (Endangered Species Act or the Act) (16 U.S.C. 1531

et seq.

), based on the best scientific and commercial data available. Robust population growth, coupled with State and Federal cooperation to manage mortality and habitat, widespread public support for grizzly bear recovery, and the development of adequate regulatory mechanisms has brought the Yellowstone grizzly bear population to the point where making a change to its status is appropriate.

The delisting of the Yellowstone DPS does not change the threatened status of the remaining grizzly bears in the lower 48 States, which remain protected by the Act. In an upcoming but separate notice, we will initiate a 5-year status review of the grizzly bear as listed under the Act based on additional scientific information that is currently being collected and analyzed. Finally, we announce a 90-day finding on a petition (submitted during the public comment period for the proposed rule) to list the Yellowstone grizzly bear population as endangered on the Federal List of Threatened and Endangered Wildlife under the Act and to designate critical habitat. We find that the petition and additional information in our files did not present substantial scientific information indicating that listing the Yellowstone grizzly bear population as endangered may be warranted. Therefore, we are not initiating a status review in response to this petition.

DATES:

This rule becomes effective April 30, 2007.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in preparation of this final rule, are available for inspection, by appointment, during normal business hours, at our Missoula office, Grizzly Bear Recovery Coordinator, University Hall, Room #309, University of Montana, Missoula, Montana 59812. Call (406) 243-4903 to make arrangements. In addition, certain documents such as the Strategy and information appended to the recovery plan are available at

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm.

FOR FURTHER INFORMATION CONTACT:

Dr. Christopher Servheen, Grizzly Bear Recovery Coordinator, U.S. Fish and Wildlife Service, at our Missoula office (see

ADDRESSES

above) or telephone (406) 243-4903. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 1-800-877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION:

Background

Prior to publication of this final rule, we—(1) Finalized the Conservation Strategy (Strategy) that will guide post-delisting monitoring and management of the grizzly bear in the GYA; (2) appended the habitat-based recovery criteria to the 1993 Recovery Plan and the Strategy; and (3) appended an updated and improved methodology for calculating total population size, known to unknown mortality ratios, and sustainable mortality limits for the Yellowstone grizzly bear population to the 1993 Recovery Plan and the Strategy. Additionally, the U.S. Department of Agriculture (USDA) Forest Service finalized the Forest Plan Amendment for Grizzly Bear Habitat Conservation for the GYA National Forests and made a decision to incorporate this Amendment into the affected National Forests' Land Management Plans. Yellowstone and Grand Teton National Parks also appended the habitat standards described in the Strategy to their Park Superintendent's Compendiums, thereby assuring that these National Parks will manage habitat in accordance with those habitat standards.

Species Description

Grizzly bears are generally larger and more heavily built than other bears (Craighead and Mitchell 1982, p. 517; Schwartz et al. 2003b, p. 558). Grizzly bears can be distinguished from black bears, which also occur in the lower 48 States, by longer, curved claws, humped shoulders, and a face that appears to be concave (Craighead and Mitchell 1982, p. 517). A wide range of coloration from light brown to nearly black is common (LeFranc et al. 1987, pp. 17-18). Spring shedding, new growth, nutrition, and coat condition all affect coloration. Guard hairs (long, course outer hair forming a protective layer over the soft underfur) are often pale in color at the tips; hence the name “grizzly” (Craighead and Mitchell 1982, p. 517). In the lower 48 States, the average weight of grizzly bears is generally 200 to 300 kilograms (kg) (400 to 600 pounds (lb)) for males and 110 to 160 kg (250 to 350 lb) for females (Craighead and Mitchell 1982, pp. 518-520). Grizzly bears are long-lived mammals, generally living to be around 25 years old (LeFranc et al. 1987, pp. 47, 51).

Taxonomy

Grizzly bears (

Ursus arctos horribilis

) are vertebrates that belong to the Class Mammalia, Order Carnivora, and Family Ursidae. The grizzly bear is a member of the brown bear species (

U. arctos

) that occurs in North America, Europe, and Asia; the subspecies

U. a. horribilis

is limited to North America (Rausch 1963, p. 43; Servheen 1999, pp. 50-53). Early taxonomic descriptions of

U. arctos

based primarily on skull measurements described more than 90 subspecies (Merriam 1918, pp. 9-16), but this was later revised to 2 subspecies in North America (

U. a. middendorfi

on the islands of the Kodiak archipelago in Alaska and

U. a. horribilis

in the rest of North America) (Rausch 1963, p. 43). The two North American subspecies approach of Rausch (1963, p. 43) is generally accepted by most taxonomists today, and is the approach we use. Additional discussion of this issue can be found in the proposed rule (70 FR 69854-69855, November 17, 2005). The original 1975 listing (40 FR 31734-31736, July 28, 1975) had been inadvertently modified in the List of Endangered and Threatened Wildlife to

U. arctos

with a historic holarctic range. With this final rule, we have corrected this error to reflect the original listed entity of

U. arctos horribilis

with a historic range of North America.

Behavior

Although adult bears are normally solitary (Nowak and Paradiso 1983, p. 971), home ranges of adult bears frequently overlap (Schwartz

et al.

2003b, pp. 565-566). Grizzly bears display a behavior called natal philopatry in which dispersing young establish home ranges within or overlapping their mother's (Waser and Jones 1983, p. 361; Schwartz

et al.

2003b, p. 566). This type of movement makes dispersal across landscapes a slow process. Radio-telemetry and genetics data suggests females establish home ranges an average of 9.8 to 14.3 kilometers (km) (6.1 to 8.9 miles (mi)) away from the center of their mother's home range, whereas males generally stray further, establishing home ranges roughly 29.9 to 42.0 km (18.6 to 26.0 mi) away from their mother's (McLellan and Hovey 2001, p. 842; Proctor

et al.

2004, p. 1108).

The home range of adult male grizzly bears is typically three to five times the size of an adult female's home range (LeFranc

et al.

1987, pp. 27-30). The large home ranges of grizzly bears, particularly males, enhance genetic diversity in the population by enabling males to mate with numerous females (Blanchard and Knight 1991, pp. 46-51; Craighead

et al.

1995, pp. 303-305). Grizzly bear population densities of one bear per 20 square kilometers (sq km) (8 square miles (sq mi)) have been reported in Glacier National Park (Martinka 1976, p. 150), but most populations in the Lower 48 States are much less dense (LeFranc

et al.

1987, pp. 47, 52-53). For example, estimates of grizzly bear densities in the GYA range from one bear per 50 sq km (20 sq mi) to one bear per 80 sq km (30 sq mi) (Blanchard and Knight 1980, pp. 263-264; Craighead and Mitchell 1982, pp. 537-538).

Grizzly bears have a promiscuous mating system (Hornocker 1962, p. 70; Craighead and Mitchell 1982, p. 522; Schwartz

et al.

2003b, p. 563) with genetic studies confirming that cubs from the same litter can have different fathers (Craighead

et al.

1998, p. 325). Mating occurs from May through July with a peak in mid-June (Craighead and Mitchell 1982, p. 522; Nowak and Paradiso 1983, p. 971). Age of first reproduction and litter size may be related to nutritional state (Stringham 1990, p. 433; McLellan 1994, p. 20; Hilderbrand

et al.

1999, pp. 135-136; Mattson 2000, p. 110). Age of first reproduction varies from 3 to 8 years of age, and litter size varies from one to four cubs (Schwartz

et al.

2003b, p. 563). For the Yellowstone grizzly bear population, the average age of first reproduction is approximately 6 years old, and the average litter size is 2.04 cubs (Schwartz

et al.

2006a, p. 19). Cubs are born in a den in late January or early February and remain with the female for 2 to 3 years before the mother will again mate and produce another litter (Schwartz

et al.

2003b, p. 564). Grizzly bears have one of the slowest reproductive rates among terrestrial mammals, resulting primarily from the late age of first reproduction, small average litter size, and the long interval between litters (Nowak and Paradiso 1983, p. 971; Schwartz

et al.

2003b, p. 564). Given the above factors and natural mortality, it may take a single female 10 years to replace herself in a population (U.S. Fish and Wildlife Service 1993, p. 4). Grizzly bear females cease breeding successfully some time in their mid-to-late 20s (Schwartz

et al.

2003a, pp. 109-110).

For 3 to 6 months during winter, grizzly bears across their range enter dens in an adaptive behavior which increases survival during periods of low food availability, deep snow, and low air temperature (Craighead and Craighead 1972, pp. 33-34). Grizzly bears in the lower 48 States spend between 4 and 6 months in dens beginning in October or November (Linnell

et al.

2000, p. 401). During this period, they do not eat, drink, urinate, or defecate (Folk

et al.

1976, pp. 376-377; Nelson 1980, p. 2955). Hibernating grizzly bears exhibit a marked decline in heart and respiration rate, but only a slight drop in body temperature (Nowak and Paradiso 1983, p. 971). Due to their relatively constant body temperature in the den, hibernating grizzly bears can be easily aroused and have been known to exit dens when disturbed by seismic or mining activity (Harding and Nagy 1980, p. 278) or by human activity (Swenson

et al.

1997a, p. 37). Both males and females have a tendency to use the same general area year after year, but the same exact den is rarely used twice by an individual (Schoen

et al.

1987, p. 300; Linnell

et al.

2000, p. 403). Females display stronger area fidelity than males and generally stay in their dens longer, depending on reproductive status (Judd

et al.

1986, pp. 113-114; Schoen

et al.

1987, p. 300; Linnell

et al.

2000, p. 403).

In preparation for hibernation, bears increase their food intake dramatically during a stage called hyperphagia (Craighead and Mitchell 1982, p. 544). Hyperphagia is defined simply as overeating (in excess of daily metabolic demands) and occurs throughout the 2 to 4 months prior to den entry. During hyperphagia, excess food is deposited as fat, and grizzly bears may gain as much as 1.65 kg/day (3.64 lb/day) (Craighead and Mitchell 1982, p. 544). Grizzly bears must consume foods rich in protein and carbohydrates in order to build up fat reserves to survive denning and post-denning periods (Rode and Robbins 2000, pp. 1643-1644). These layers of fat are crucial to the hibernating bear as they provide a source of energy and insulate the bear from cold temperatures, and are equally important in providing energy to the bear upon emergence from the den when food is still sparse relative to metabolic requirements (Craighead and Mitchell 1982, p. 544).

Although the digestive system of bears is essentially that of a carnivore, bears are successful omnivores, and in some areas may be almost entirely herbivorous (Jacoby

et al.

1999, pp. 924-926; Schwartz

et al.

2003b, pp. 568-569). Grizzly bears are opportunistic feeders and will consume almost any available food including living or dead mammals or fish, and, sometimes, garbage (Knight

et al.

1988, p. 121; Mattson

et al.

1991a, pp. 1620-1624; Schwartz

et al.

2003b, pp. 568-569). In areas where animal matter is less available, grasses, roots, bulbs, tubers, and fungi may be important in meeting protein requirements (LeFranc

et al.

1987, pp. 111-114). High-quality foods such as berries, nuts, insects, and fish are important in some areas (Schwartz

et al.

2003b, pp. 568-569).

The search for food has a prime influence on grizzly bear movements (Mattson

et al.

1991a, pp. 1625-1626). In the GYA, four food sources have been identified as important to grizzly bear survival and reproductive success (Mattson

et al.

2002, p. 2). Winter-killed ungulates serve as an important food source in early spring before most vegetation is available (Green

et al.

1997, p. 140; Mattson 1997, p. 165). During early summer, spawning cutthroat trout (

Oncorhynchus clarki

) are a source of nutrition for grizzly bears in the Yellowstone population (Mattson

et al.

1991a, p. 1623; Mattson and Reinhart 1995, p. 2072; Felicetti

et al.

2004, pp. 496, 499). Grizzly bears feed on army cutworm moths (

Euxoa auxiliaris

) during late summer and early fall as they try to acquire sufficient fat levels for winter (Mattson

et al.

1991b, p. 2432; French

et al.

1994, p. 394). Lastly, in some years, whitebark pine (

Pinus albicaulis

) seeds serve as an important fall food due to their high fat content and abundance as a pre-hibernation food (Mattson and Reinhart 1994, p. 212). The distribution and abundance of these grizzly bear foods vary naturally among seasons and years.

On average, approximately 79 percent of the diet of adult male and 45 percent of the diet of adult female grizzly bears in the GYA is terrestrial meat (Jacoby

et al.

1999, p. 925). In contrast, in Glacier National Park, over 95 percent of the diets of both adult male and female grizzly bears are vegetation (Jacoby

et al.

1999, p. 925). Ungulates rank as the second highest source of net digestible energy available to grizzly bears in the GYA (Mealey 1975, pp. 84-86; Pritchard and Robbins 1990, p. 1647; Craighead

et al.

1995, pp. 250-251). Grizzly bears with home ranges in areas with few plant foods depend extensively on ungulate meat (Harting 1985, pp. 69-70, 85-87). Grizzly bears in the GYA feed on ungulates primarily as winter-killed carrion from March through May although they also depredate elk calves for a short period in early June (Gunther and Renkin 1990, pp. 330-332; Green

et al.

1997, p. 1040; Mattson 1997, pp. 165-166). Carcass availability fluctuates with winter severity because fewer ungulates die during mild winters (Mattson

et al.

1991a, pp. 1622-1623).

Due to their high digestibility and protein and lipid content, spawning cutthroat trout are one of the highest sources of digestible energy available to bears during early summer in Yellowstone National Park (Mealey 1975, pp. 84-86; Pritchard and Robbins 1990, p. 1647). Grizzly bears are known to prey on cutthroat trout in at least 36 different streams tributary to Yellowstone Lake (Reinhart and Mattson 1990, pp. 345-346). From 1997 to 1999, Haroldson

et al.

(2000, pp. 32-35) identified 85 different grizzly bears that had likely fished spawning stream tributaries to Yellowstone Lake. While importance varies by season and year, few bears develop a dependence on this food source (Haroldson

et al.

2005, pp. 173-174). Only 23 individuals visited spawning streams more than 1 year out of the 4 years sampled, suggesting that this resource is used opportunistically (Haroldson

et al.

2005, pp. 174-175). In contrast to earlier studies which used different assumptions and methods (Reinhart and Mattson 1990, pp. 345-349; Mattson and Reinhart 1995, pp. 2078-2079), Felicetti

et al.

(2004, pp. 496-499) found that male grizzly bears are the primary consumers of cutthroat trout, accounting for 92 percent of all trout consumed by Yellowstone grizzly bears.

Alpine moth aggregations are an important food source for a considerable portion of the Yellowstone grizzly bear population (Mattson

et al.

1991b, p. 2434). As many as 35 different grizzly bears with cubs-of-the-year have been observed feeding at moth sites in a single season (Ternent and Haroldson 2000, p. 39). Some bears may feed almost exclusively on moths for a period of over a month (French

et al.

1994, p. 393). Moths have the highest caloric content per gram of any other bear food (French

et al.

1994, p. 391). Moths are available during late summer and early fall when bears consume large quantities of foods in order to acquire sufficient fat levels for winter (Mattson

et al.

1991b, p. 2433). A grizzly bear feeding extensively on moths over a 30-day period may consume up to 47 percent of its annual energy budget of 960,000 calories (White

et al.

1999, pp. 149-150). Moths also are valuable to bears because they are located in remote areas, thereby reducing the potential for grizzly bear/human conflicts during the late-summer tourist months (Gunther

et al.

2004, p. 15).

Due to their high fat content and potential abundance as a pre-hibernation food, whitebark pine seeds are an important fall food for bears in the GYA (Mattson and Jonkel 1990, p. 223; Mattson

et al.

1991a, p. 1623). Yellowstone grizzly bears consume whitebark pine seeds extensively when whitebark cones are available. Bears may feed predominantly on whitebark pine seeds when production exceeds 20 cones per tree (Blanchard 1990, p. 362; Mattson

et al.

1992, pp. 433, 436). During years of low whitebark pine seed availability, grizzly bears often seek alternate foods at lower elevations in association with human activities (Mattson

et al.

1992, p. 436; Knight and Blanchard 1995, p. 23; Gunther

et al.

1997, pp. 9-11; Gunther

et al.

2004, p. 18).

The production and availability of these four major foods can have a positive effect on reproduction and survival rates of Yellowstone grizzly bears (Mattson

et al.

2002, p. 5). For example, during years when whitebark pine seeds are abundant, there are fewer grizzly bear/human conflicts in the GYA (Mattson

et al.

1992, p. 436; Gunther

et al.

2004, pp. 13-15). Grizzly bear/human conflicts are incidents in which bears kill or injure people, damage property, kill or injure livestock, damage beehives, obtain anthropogenic (man-made) foods, or damage or obtain garden and orchard fruits and vegetables (USDA Forest Service1986, pp. 53-54). During poor whitebark pine years, grizzly bear/human conflicts are more frequent, resulting in higher numbers of human-caused grizzly bear mortalities due to defense of life or property and management removals of nuisance bears (Mattson

et al.

1992, p. 436; Gunther

et al.

2004, pp. 13-14). A nuisance bear is one that seeks human food in human-use areas, kills lawfully present livestock, or displays unnatural aggressive behavior toward people (USDA Forest Service 1986, pp. 53-54). Introduced organisms (e.g., white pine blister rust and lake trout), habitat loss, and other human activities can negatively impact the quantity and distribution of these four primary foods (Reinhart

et al.

2001, pp. 285-286). Potential effects to food supply and human/bear conflict are discussed in more detail in the 5-factor analysis.

Recovery

Prior to the arrival of Europeans, the grizzly bear occurred throughout the western half of the contiguous United States, central Mexico, western Canada, and most of Alaska (Roosevelt 1907, pp. 27-28; Wright 1909, pp. vii, 3, 185-186; Merriam 1922, p. 1; Storer and Tevis 1955, p. 18; Rausch 1963, p. 35; Herrero 1972, pp. 224-227; Mattson

et al.

1995, p. 103; Schwartz

et al.

2003b, pp. 557-558). Pre-settlement population levels for the western contiguous United States are believed to be in the range of 50,000 animals (Servheen 1999, p. 50). With European settlement of the American West, grizzly bears were shot, poisoned, and trapped wherever they were found, and the resulting range and population declines were dramatic (Roosevelt 1907, pp. 27-28; Wright 1909, p. vii; Storer and Tevis 1955, pp. 26-27; Leopold 1967, p. 30; Koford 1969, p. 95; Craighead and Mitchell 1982, p. 516; Mattson

et al.

1995, p. 103). The range and numbers of grizzlies were reduced to less than 2 percent of their former range and numbers by the 1930s, approximately 125 years after first contact (U.S. Fish and Wildlife Service 1993, p. 9; Mattson

et al.

1995, p. 103; Servheen 1999, p. 51). Of 37 grizzly populations present in 1922, 31 were extirpated by 1975 (Servheen 1999, p. 51).

By the 1950s, with little or no conservation effort or management directed at maintaining grizzly bears anywhere in their range, the GYA population had been reduced in numbers and was restricted largely to the confines of Yellowstone National Park and some surrounding areas (Craighead

et al.

1995, pp. 41-42; Schwartz

et al.

2003b, pp. 575-579). High grizzly bear mortality in 1970 and 1971, following closure of the open-pit dumps in Yellowstone National Park (Gunther 1994, p. 550; Craighead

et al.

1995, pp. 34-36), and concern about grizzly population status throughout its remaining range prompted the 1975 listing of the grizzly bear as a threatened species in the lower 48 States under the Act (16 U.S.C. 1531

et seq.

) (40 FR

31734-31736, July 28, 1975). When the grizzly bear was listed in 1975, the population estimate in the GYA ranged from 136 to 312 individuals (Cowan

et al.

1974, pp. 32, 36; Craighead

et al.

1974, p. 16; McCullough 1981, p. 175).

In 1981, we hired a grizzly bear recovery coordinator to direct recovery efforts and to coordinate all agency efforts on research and management of grizzly bears in the lower 48 States. In 1982, the first Grizzly Bear Recovery Plan (Recovery Plan) was completed (U.S. Fish and Wildlife Service 1982, p. ii). The Recovery Plan identified five ecosystems within the conterminous United States thought to support grizzly bears. Today, grizzly bear distribution is primarily within, but not limited to, the areas identified as Recovery Zones (U.S. Fish and Wildlife Service 1993, pp. 10-13, 17-18), including—the GYA in northwest Wyoming, eastern Idaho, and southwest Montana (24,000 sq km (9,200 sq mi)) at more than 500 bears (Interagency Grizzly Bear Study Team 2006, p. 15); the Northern Continental Divide Ecosystem (NCDE) of north central Montana (25,000 sq km (9,600 sq mi)) at more than 500 bears (Kendall 2006); the North Cascades area of north central Washington (25,000 sq km (9,500 sq mi)) at less than 20 bears (Almack

et al.

1993, p. 4); the Selkirk Mountains area of north Idaho, northeast Washington, and southeast British Columbia (5,700 sq km (2,200 sq mi)) at approximately 40 to 50 bears (64 FR 26730, May 17, 1999; 70 FR 24870, May 11, 2005); and the Cabinet-Yaak area of northwest Montana and northern Idaho (6,700 sq km (2,600 sq mi)) at approximately 30 to 40 bears (Kasworm and Manley 1988, p. 21; Kasworm

et al.

2004, p. 2). There is an additional Recovery Zone known as the Bitterroot Recovery Zone in the Bitterroot Mountains of east-central Idaho and western Montana (14,500 sq km (5,600 sq mi)), but this area does not contain any grizzly bears at this time (U.S. Fish and Wildlife Service 1996, p. 1; 65 FR 69624, November 17, 2000; U.S. Fish and Wildlife Service 2000, p. ix). The San Juan Mountains of Colorado also were identified as an area of possible grizzly bear occurrence (40 FR 31734-31736, July 28, 1975; U.S. Fish and Wildlife Service 1982, p. 12; U.S. Fish and Wildlife Service 1993, p. 11), but no confirmed sightings of grizzly bears have been found in the San Juan Mountains since a bear was killed there in 1979 (U.S. Fish and Wildlife Service 1993, p. 11).

In the initial Recovery Plan, the Yellowstone Grizzly Bear Ecosystem, later called the Yellowstone Grizzly Bear Recovery Zone, was defined as an area large enough and of sufficient habitat quality to support a recovered grizzly bear population within which the population and habitat would be monitored (U.S. Fish and Wildlife Service 1982, pp. 55-58; U.S. Fish and Wildlife Service 1993, pp. 41). In 1993, we revised the Recovery Plan to include additional tasks and new information that increased the focus and effectiveness of recovery efforts (U.S. Fish and Wildlife Service 1993, pp. 41-58).

However, recovery plans are not regulatory documents and are instead intended to provide guidance to us, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. In that instance, we may judge that the threats have been minimized sufficiently, and the species is robust enough, to reclassify the species from endangered to threatened or delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the Recovery Plan was finalized. These opportunities may be used instead of methods identified in the Recovery Plan. Likewise, information on the species may be learned that was not known at the time the Recovery Plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management (defined as a 6-step feedback loop including assessment, design of management actions and associated monitoring and research, implementation of management according to the design, monitoring, evaluation of outcomes, and adjustment of management based on evaluation of initial management actions) that may, or may not, fully follow the guidance provided in a recovery plan. In the end, any determination of whether a species is no longer in need of the protections of the Act must be based on an assessment of the threats to the species.

Grizzly bear recovery has required cooperation among numerous Federal agencies, State agencies, non-government organizations, local governments, and citizens. In recognition that grizzly bear populations were unsustainably low, the Interagency Grizzly Bear Study Team (hereafter referred to as the Study Team) was created in 1973 to provide detailed scientific information for the management and recovery of the grizzly bear in the GYA. Current members of the Study Team include scientists from the Service, U.S. Geological Survey, USDA Forest Service, academia, and each State game and fish agency involved in grizzly bear recovery. The Study Team has developed protocols to monitor and manage grizzly bear populations and important habitat parameters.

In 1983, the Interagency Grizzly Bear Committee was created to coordinate management efforts and research actions across multiple Federal lands and States within the various Recovery Zones to recover the grizzly bear in the lower 48 States (USDA and U.S. Department of the Interior 1983). Its objective was to change land management practices to more effectively provide security and maintain or improve habitat conditions for the grizzly bear (USDA and U.S. Department of the Interior 1983). The Interagency Grizzly Bear Committee is made up of upper level managers from all affected State and Federal agencies (USDA and U.S. Department of the Interior 1983). Also in 1983, the Yellowstone Ecosystem Subcommittee, a subcommittee of the Interagency Grizzly Bear Committee, was formed to coordinate recovery efforts specific to the GYA (USDA and U.S. Department of the Interior 1983, p. 3). Members of the Yellowstone Ecosystem Subcommittee are mid-level managers and include—the Service; representatives from the six GYA National Forests (the Shoshone, Custer, Beaverhead-Deerlodge, Bridger-Teton, Gallatin, and Targhee); Yellowstone National Park; Grand Teton National Park; the Wyoming Game and Fish Department (WGFD); the Montana Department of Fish, Wildlife, and Parks (MTFWP); the Idaho Department of Fish and Game (IDFG); the Bureau of Land Management (BLM); the Study Team; county governments from each affected State; the Northern Arapahoe Tribe; and the Eastern Shoshone Tribe (USDA and U.S. Department of the Interior 1983).

In 1994, The Fund for Animals, Inc., and 42 other organizations and individuals filed suit over the adequacy of the 1993 Recovery Plan (

Fund for Animals

v.

Babbitt

, 903 F. Supp. 96 (D. D.C. 1995); 967 F. Supp. 6 (D. D.C. 1997). In 1995, the U.S. District Court for the District of Columbia issued an order that remanded for further study and clarification four issues that are relevant to the GYA—(1) The method used to measure the status of bear populations; (2) the impacts of genetic isolation; (3) monitoring of the mortalities related to livestock; and (4)

the monitoring of disease (

Fund for Animals

v.

Babbitt,

903 F. Supp. 96 (D. D.C. 1995); 967 F. Supp. 6 (D. D.C. 1997)). Following this court decision, all parties filed appeals. In 1997, the parties reached a settlement whereby we agreed to append habitat-based recovery criteria to the Recovery Plan (Settlement dated March 31, 1997, and approved by the court on May 5, 1997,

Fund for Animals

v.

Babbitt,

967 F. Supp. 6 (D. D.C. 1997)) (hereafter

Fund for Animals

v.

Babbitt

). These four issues and the necessary supplement to the Recovery Plan as required by the court order and subsequent settlement are discussed in detail in this section and in the threats analysis.

Habitat Management and Development of Habitat-based Recovery Criteria

—In 1979, the Study Team developed the first comprehensive Guidelines for Management Involving Grizzly Bears in the GYA (hereafter referred to as the Guidelines) (Mealey 1979, pp. 1-4). We determined in a biological opinion that implementation of the Guidelines by Federal land management agencies would promote conservation of the grizzly bear (U.S. Fish and Wildlife Service 1979, p. 1). Beginning in 1979, the six affected National Forests (Beaverhead-Deerlodge, Bridger-Teton, Caribou-Targhee, Custer, Gallatin, and Shoshone), Yellowstone and Grand Teton National Parks, and the BLM in the GYA began managing habitats for grizzly bears under direction specified in the Guidelines.

In 1986, the Interagency Grizzly Bear Committee modified the Guidelines to more effectively manage habitat by mapping and managing according to three different management situations (USDA Forest Service 1986, pp. 35-39). In areas governed by “Management Situation One,” grizzly habitat maintenance and improvement and grizzly bear/human conflict minimization received the highest management priority. In areas governed by “Management Situation Two,” grizzly bear use was important, but not the primary use of the area. In areas governed by “Management Situation Three,” grizzly habitat maintenance and improvement were not management considerations.

Accordingly, the National Forests and National Parks delineated 18 different bear management units within the Recovery Zone to aid in managing habitat and monitoring population trends. Each bear management unit was further subdivided into subunits, resulting in a total of 40 subunits contained within the 18 bear management units (see map at

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

). The bear management units are analysis areas that approximate the lifetime size of a female's home range, while subunits are analysis areas that approximate the annual home range size of adult females. Subunits provide the optimal scale for evaluation of seasonal feeding opportunities and landscape patterns of food availability for grizzly bears (Weaver

et al.

1986, p. 236). The bear management units and subunits were identified to provide enough quality habitat and to ensure that grizzly bears were well distributed across the recovery zone as per the Recovery Plan (U.S. Fish and Wildlife Service 2007, pp. 20, 41, 44-46). Management improvements made as a result of these Guidelines are discussed under Factor A below.

Another tool employed to monitor habitat quality and assist in habitat management is the Yellowstone Grizzly Bear Cumulative Effects Model. The model was designed to assess the inherent productivity of grizzly bear habitat and the cumulative effects of human activities on bear use of that habitat (Weaver

et al.

1986, p. 234; Dixon 1997, pp. 4-5; Mattson

et al.

2002, p. 5). The model uses Geographic Information System (GIS) databases and relative value coefficients associated with human activities, vegetation, and key grizzly bear foods to calculate habitat value and habitat effectiveness (Weaver

et al.

1986, p. 237; Mattson

et al.

2002, p. 5). Habitat value is a relative measure of the average net digestible energy potentially available to bears in a subunit during each season. Habitat value is primarily a function of vegetation and major foods (Weaver

et al.

1986, p. 236; Dixon 1997, pp. 62-64). Habitat effectiveness is that part of the energy potentially derived from the area that is available to bears given their response to humans (Weaver

et al.

1986, pp. 238-239; Dixon 1997, pp. 4-5; Mattson

et al.

2002, p. 5). More specifically, habitat effectiveness is a function of relative value coefficients of human activities, such as location, duration, and intensity of use for motorized access routes, non-motorized access routes, developed sites, and front- and back-country dispersed uses (Mattson

et al.

2002, p. 5). The Cumulative Effects Model, which represents the best available scientific information in providing managers with a comparative index of how much habitat values have changed through time, is updated annually to reflect changes in vegetation, major foods, and the number and capacity of human activities.

As per the court settlement (

Fund for Animals

v.

Babbitt

) and as recommended by the 1993 Grizzly Bear Recovery Plan's Task Y423, we have worked to “establish a threshold of minimal habitat values to be maintained within each Cumulative Effects Analysis Unit in order to ensure that sufficient habitat is available to support a viable population” (U.S. Fish and Wildlife Service 1993, p. 55). On June 17, 1997, we held a public workshop in Bozeman, Montana, to develop and refine habitat-based recovery criteria for the grizzly bear. A

Federal Register

notice notified the public of this workshop and provided interested parties an opportunity to participate and submit comments (62 FR 19777, April 23, 1997). After considering 1,167 written comments, we developed biologically-based habitat recovery criteria with the overall goal of maintaining or improving habitat conditions at levels that existed in 1998.

There is no published method to deductively calculate minimum habitat values required for a healthy and recovered population. Recognizing that grizzly bears are opportunistic omnivores and that a landscape's ability to support grizzly bears is a function of overall habitat productivity, the distribution and abundance of major food sources, the levels and type of human activities, grizzly bear social systems, bear densities, and stochasticity, we selected 1998 levels as our baseline level. We chose this year because it was known that these habitat values had adequately supported an increasing Yellowstone grizzly bear population throughout the 1990s (Eberhardt

et al.

1994, p. 362; Knight and Blanchard 1995, pp. 5, 9; Knight

et al.

1995, p. 247; Boyce

et al.

2001, pp. 10-11) and that levels of secure habitat (defined as areas more than 500 meters (m) (1650 feet (ft)) from a motorized access route and greater than or equal to 4 hectares (ha) (10 acres (ac)) in size (U.S. Fish and Wildlife Service 2007, pp. 41)) and the number and capacity of developed sites had changed little from 1988 to 1998 (USDA Forest Service 2004, pp. 140-141, 159-162).

The habitat-based recovery criteria lay out detailed management objectives and approaches to manage motorized access, maintain or increase secure habitat, limit increases in site development, and assure no increase in livestock allotments. As each of these management objectives are central to potential present or threatened destruction, modification, or curtailment of habitat or range, each of these criteria are discussed in detail

under Factor A below. These habitat-based recovery criteria have been met.

Additionally, we developed four general habitat-based parameters that will be monitored and related to demographic and population monitoring results—(1) Productivity of the four major foods; (2) habitat effectiveness as measured by the Cumulative Effects Model; (3) grizzly bear mortality numbers, locations, and causes; grizzly bear/human conflicts; nuisance bear management actions; bear/hunter conflicts; and bear/livestock conflicts; and (4) development on private lands (U.S. Fish and Wildlife Service 2007, pp. 25-60). The agencies will monitor, and the Study Team will annually analyze and report on the relationships between grizzly bear population and demographic data, and the availability and distribution of the four most important bear foods, habitat effectiveness, nuisance bear control actions, numbers and distribution of bear/human and bear/livestock conflicts, hunter numbers, and development on private lands. This information will be used to calculate an index of habitat sufficiency and to monitor relationships between decreases in foods or increases in human activity, and increasing bear mortality or changes in bear distribution that might impact the Yellowstone grizzly bear population. These analyses will use the demographic values of a stable to increasing population as a benchmark to be maintained. The current habitat-based recovery criteria have been appended to the Recovery Plan and are included in the Strategy.

Population and Demographic Management

—In 2000, we began a process to reevaluate the methods used to measure the status of the bear population, the methods used to estimate population size, and the sustainable level of mortality in the GYA. This process was initiated both in response to the 1995 court order (

Fund for Animals

v.

Babbitt

) and Task Y11 of the 1993 Grizzly Bear Recovery Plan (U.S. Fish and Wildlife Service 1993, p. 44), which suggested that we “Reevaluate and refine population criteria as new information becomes available.” The Wildlife Monograph: Temporal, Spatial, and Environmental Influences on the Demographics of Grizzly Bears in the Greater Yellowstone Ecosystem, and the report entitled Reassessing Methods To Estimate Population Size and Sustainable Mortality Limits for the Yellowstone Grizzly Bear (hereafter referred to as the Reassessing Methods Document) (Interagency Grizzly Bear Study Team 2005; Interagency Grizzly Bear Study Team 2006) were produced to respond to the need to reevaluate and refine the population criteria. The Wildlife Monograph is divided into separate chapters (Haroldson

et al.

2006b, pp. 33-42; Harris

et al.

2006, pp. 44-55; Schwartz

et al.

2006a, pp. 18-23; Schwartz

et al.

2006c, pp. 25-31; Schwartz

et al.

2006d, pp. 9-16; Schwartz

et al.

2006e, pp. 57-63), and we reference these chapters individually as applicable. Relevant portions of the authors' analyses are summarized below, as well as relevant findings on the likelihood of population persistence (as defined in a population viability analysis (PVA)) into the foreseeable future for the Yellowstone grizzly bear population.

Harris

et al.

(2006, pp. 44-45) used the survival rates calculated by Haroldson

et al.

(2006b, p. 35) and Schwartz

et al.

(2006c, p. 27), and the reproductive rates calculated by Schwartz

et al.

(2006a, p. 19) to model population trajectory for the Yellowstone grizzly bear population between 1983 and 2002. Because the fates of some radio-collared bears were unknown, Harris

et al.

(2006, p. 48) calculated two separate estimates of population growth rate (see our response to Issue 5 under subheading B in the Responses to Public Comments section for additional detail on this methodology). They found that the Yellowstone grizzly bear population increased at a rate between 4.2 and 7.6 percent per year between 1983 and 2002 (Harris

et al.

2006, p. 48).

Schwartz

et al.

(2006c, p. 29) concluded that grizzly bears are probably approaching carrying capacity inside Yellowstone National Park. Their conclusion resulted from the analysis of survivorship of cubs and yearlings, and of independent bears, inside Yellowstone National Park, outside the Park but inside the Primary Conservation Area (PCA), and outside the PCA, as well as the analysis of bear distribution in those three zones of residency.

Population viability analyses are often used to describe a population's likelihood of persistence in the future. We consider the findings of Boyce

et al.

(2001, pp. 1-11) in the following paragraphs because they reviewed the existing published PVAs for Yellowstone grizzly bears, and updated these previous analyses using data collected since the original analyses were completed. They also conducted new PVAs using two software packages that had not been available to previous investigators. They found that the Yellowstone grizzly bear population had a 1 percent chance of going extinct within the next 100 years and a 4 percent chance of going extinct in the next 500 years (Boyce

et al.

2001, pp. 1, 10-11). However, these analyses did not consider changes in habitat that may occur, so Boyce

et al.

(2001, pp. 33-34) did not consider any of the PVAs to be sufficient. Instead, they recommended that a habitat-based PVA be developed that would link a grizzly bear population model with a resource selection function rigorously derived from the existing GIS databases compiled for the Cumulative Effects Model. However, given the uncertainty in parameterizing the habitat databases and the relationships between food availability and grizzly bear vital rates, we do not believe such an exercise, if it is ever possible to complete, is necessary to make informed management decisions and maintain a recovered grizzly bear population in the GYA in the foreseeable future. Such uncertainty could result in a model that is even less indicative or representative of potential responses of bears to habitat variation than what is available now. This rule relies upon the best scientific and commercial information available, which we view as more than adequate to support this action.

Mortality control is a key part of any successful management effort; however, some mortality, including human-caused mortality, is unavoidable in a dynamic system where hundreds of bears inhabit large areas of diverse habitat with several million human visitors and residents. In 1977, Eberhardt documented that adult female survival was the most important vital rate influencing population trajectory (Eberhardt 1977, p. 210). Low adult female survival was the critical factor causing decline in the GYA population prior to the mid-1980s (Knight and Eberhardt 1985, p. 331). In the early 1980s, with the development of the first Recovery Plan (U.S. Fish and Wildlife Service 1982, pp. 21-24), agencies began to control mortality and increase adult female survivorship (USDA Forest Service 1986, pp. 1-2; Knight

et al.

1999, pp. 56-57). The 1982 and 1993 Revised Recovery Plan (U.S. Fish and Wildlife Service 1982, pp. 33-34, U.S. Fish and Wildlife Service 1993, pp. 20-21) established three demographic (population) goals to objectively measure and monitor recovery of the Yellowstone grizzly bear population:

Demographic Recovery Criterion 1

—Maintain a minimum of 15 unduplicated (only counted once) females with cubs-of-the-year over a running 6-year average both inside the Recovery Zone and within a 16-km (10-mi) area immediately surrounding the

Recovery Zone.

Status:

This recovery criterion has been met (Haroldson 2006b, p. 12).

Demographic Recovery Criterion 2

—Sixteen of 18 bear management units within the Recovery Zone (see map at

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

) must be occupied by females with young, with no 2 adjacent bear management units unoccupied, during a 6-year sum of observations.

Status:

This criterion is important as it ensures that reproductive females occupy the majority of the Recovery Zone and are not concentrated in one portion of the ecosystem. This recovery criterion has been met (Podruzny 2006, p. 17).

1993 Demographic Recovery Criterion 3

—The running 6-year average for total known, human-caused mortality should not exceed 4 percent of the minimum population estimate in any 2 consecutive years; and human-caused female grizzly bear mortality should not exceed 1.2 percent of the minimum population estimate in any 2 consecutive years.

Status:

The 4 percent limit on total human-caused mortality has not been exceeded since 1995. Because female mortality averaged 7.5 female bears per year for the time period from 2001 to 2004 (Haroldson and Frey 2006, p. 30), even though there were only 2 female mortalities in 2005 and 3 female mortalities in 2006, the high mortality in the preceding years made the 6-year average exceed the 1.2 percent limit in 2004, 2005, and 2006. This means that this component of 1993 Demographic Recovery Criterion 3 was not met in the last consecutive 2-year period of 2005 to 2006.

2007 Demographic Recovery Criterion 3

—For independent females (at least 2 years old), the current annual mortality limit, not to be exceeded in 2 consecutive years and including all sources of mortality, is 9 percent of the total number of independent females. For independent males (at least 2 years old), the current annual mortality limit not to be exceeded in 3 consecutive years and including all sources of mortality, is 15 percent of the total number of independent males. For dependent young (less than 2 years old), the current annual mortality limit, not to be exceeded in 3 consecutive years and including known and probable human-caused mortalities only, is 9 percent of the total number of dependent young (Interagency Grizzly Bear Study Team 2005, pp. 36-38).

Status:

Applying the current methodology to the 1999 to 2006 data, mortality limits have not been exceeded for consecutive years for any bear class and, therefore, this criterion has been met (Schwartz, in press).

We no longer consider

1993 Demographic Recovery Criterion 3

to represent the best scientific and commercial data available, nor the best technique to assess recovery of the Yellowstone grizzly bear population because—(1) There is now a method to calculate the total number of independent females from sightings and resightings of females with cubs (Keating

et al.

2002, p. 173), and this method allows calculation of total population size (Interagency Grizzly Bear Study Team 2005, pp. 12-26) instead of minimum population size as used in the old method (U.S. Fish and Wildlife Service 1993, pp. 41-44); (2) There is now a method to calculate the unknown and unreported mortalities (Cherry

et al.

2002, pp. 176-181), and this method allows more conservative mortality management based on annually updated information rather than the estimate of unknown and unreported mortality used in the Recovery Plan (U.S. Fish and Wildlife Service 1993, p. 20, 43); and (3) There are now improved and updated data on reproductive performance of Yellowstone grizzly bears (Schwartz

et al.

2006a, pp. 19-23), updated data on survival of cub and yearling Yellowstone grizzly bears (Schwartz

et al.

2006c, pp. 25-28), updated data on survival of independent Yellowstone grizzly bears (Haroldson

et al.

2006b, pp. 33-35), updated data on the trajectory of the Yellowstone grizzly bear population under alternate survival rates (Harris

et al.

2006, pp. 44-54), and new data on the impacts of spatial and environmental heterogeneity on Yellowstone grizzly bear demographics (Schwartz

et al.

2006e, pp. 58-61). These improved data and analyses, since the development of the

1993 Demographic Recovery Criterion 3

(U.S. Fish and Wildlife Service 1993, pp. 41-44), allow improved mortality management based on more accurate calculations of total population size, and the establishment of sustainable mortality for independent females, independent males, and dependent young.

As stated above, the update to

1993 Demographic Recovery Criterion 3

began in 2000, as per Task Y11 of the 1993 Recovery Plan (U.S. Fish and Wildlife Service 1993, p. 44) and the court remand to the Service for further study and clarification (

Fund for Animals

v.

Babbitt

). When this review began in 2000, the

1993 Demographic Recovery Criterion 3

had been achieved since 1998 (Haroldson and Frey 2006, p. 35). It was only since 2004, 4 years after the reassessment work began, that the 1993 criterion was not met (Haroldson and Frey 2006, p. 35).

Although the 1993 Recovery Plan suggested calculating sustainable mortality as a percentage of the minimum population estimate (as outlined in Demographic Recovery Criterion 3), this method no longer represents the best scientific and commercial data available (Interagency Grizzly Bear Study Team 2005, pp. 8-9). The Study Team conducted a critical review of both current and alternative methods for calculating population size, estimating the known to unknown mortality ratio, and establishing sustainable mortality levels for the Yellowstone grizzly population (Interagency Grizzly Bear Study Team 2005, pp. 13-41). The product of this work is the aforementioned Reassessing Methods Document, which evaluates current methods, reviews recent scientific literature, examines alternative methods, and recommends the most scientifically valid techniques based on these reviews (Interagency Grizzly Bear Study Team 2005, pp. 41-45). This Reassessing Methods Document was sent out to three peer reviewers, and the comments of the reviewers were incorporated into the final document that was released to the public in November of 2005 (70 FR 70632, November 22, 2005). These peer reviews are available in the administrative record for this final rule. We requested public comment on the Reassessing Methods Document (70 FR 70632-70633, Nov. 22, 2005). In response to the comments received, the Study Team prepared a Supplement to the Reassessing Methods Document, which addresses many of the concerns raised during the public comment period (Interagency Grizzly Bear Study Team 2006). This Supplement also underwent peer review. Both the Reassessing Methods Document and its Supplement are accessible at

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm.

The end result of this critical review and analysis are revised methods for calculating population size, estimating the known to unknown mortality ratio, and establishing sustainable mortality levels for the Yellowstone grizzly population based on the best available science. These methods and the

2007 Demographic Recovery Criterion 3

were appended to the Recovery Plan as a supplement and included in the Strategy (72 FR 11376; 72 FR 11376-11377).

The current method is a much more comprehensive mortality management approach. Between 1980 and 2002,

approximately 21 percent of all known grizzly bear deaths were from undetermined causes (Servheen

et al.

2004, p. 15). These deaths could not be counted against the 4 percent human-caused mortality limit using the previous method because the cause of death could not be confirmed. The previous method also assumed a 2-to-1 “known-to-unknown” mortality ratio. Many researchers hypothesize that unknown mortality is much higher than that suggested by a ratio of “known-to-unknown” of 2-to-1 (Knight and Eberhardt 1985, pp. 332-333; McLellan

et al.

1999, p. 916). After careful consideration and using the best available science, the Study Team adopted a new more conservative “known-to-unknown” mortality ratio of approximately 1-to-2 that is recalculated each year based on the number of known, reported deaths (Cherry

et al.

2002, p. 179; Interagency Grizzly Bear Study Team 2005, pp. 39-41).

Annual allowable mortality limits for each bear class (independent female, independent male, and dependent young) are calculated annually based on total population estimates of each bear class for the current year (Interagency Grizzly Bear Study Team 2005, pp. 5-9). The Study Team calculates both the total population size and the mortality limits within an area designated by the Strategy (see The Conservation Strategy section of the rule below) that overlaps and extends beyond suitable habitat (see Figure 1 below). For independent females, a 9 percent limit was considered sustainable because simulations have shown that this level of adult female mortality rate allows a stable to increasing population 95 percent of the time (Harris

et al.

2006, p. 50). For independent males, a 15 percent limit was considered sustainable because it approximates the level of male mortality in the GYA from 1983 to 2001 (Haroldson

et al.

2006b, p. 38), a period when the mean growth rate of the population was estimated at 4 to 7 percent per year (Harris

et al.

2006, p. 48). Independent males can endure a higher rate of mortality compared to females without affecting the overall stability or trajectory of the population because they contribute little to overall population growth (Mace and Waller 1998, pp. 1009-1013; Interagency Grizzly Bear Study Team 2005, p. 39). Similarly, the 9 percent limit on human-caused mortality for dependent young was chosen because this level of mortality is less than the 15 percent human-caused mortality documented for each sex of this age group from 1983 to 2001, a period of population growth and expansion (Interagency Grizzly Bear Study Team 2005, pp. 9, 36-38). Although it is known that dependent bears experience far higher natural mortality rates than independent bears (Schwartz

et al.

2006c, p. 30), there is no known way to sample these mortalities directly in the field. Instead, these rates are calculated from consecutive years of observing radio-collared females with cubs-of-the-year.

These mortality limits can be reduced by individual management agencies of the multi-agency Yellowstone Grizzly Coordinating Committee (hereafter referred to as the Coordinating Committee and further described in Factor D below) within their jurisdictions, as part of the Coordinating Committee management process to meet the Strategy and the State plans' management objectives. These mortality limits, as described above in the Conservation Strategy Management Area (Figure 1), cannot be increased above the limits of 9 percent for independent females, 15 percent for independent males, and 9 percent for dependent young, unless such an increase is justified or supported by new scientific findings using the best available science, and the basis for this increase is documented by the Study Team in a report to the Coordinating Committee. Any such recommendation to increase mortality limits would be considered an amendment to the Strategy open for public comment, and requiring a majority vote by the Coordinating Committee before finalization (U.S. Fish and Wildlife Service 2007, p. 63).

The Study Team will reevaluate mortality limits every 8 to 10 years, or as new scientific information becomes available (Interagency Grizzly Bear Study Team 2005, p. 45), or at the request of the Coordinating Committee. Allocation of mortality limits within the Conservation Strategy Management Area (see Figure 1 below) among management jurisdictions is the responsibility of the Coordinating Committee, but total mortality for independent females, independent males, and dependent young within the Conservation Strategy Management Area (see Figure 1 below) must remain at or below the sustainable mortality limits established by the Study Team. This allocation process may be used to adjust mortality numbers among jurisdictions to achieve management objectives while staying within the overall mortality limits.

The Conservation Strategy

—In order to provide adequate regulatory mechanisms after delisting and ensure the long-term maintenance of a recovered population, the Recovery Plan calls for the development of “a conservation strategy to outline habitat and population monitoring that will continue in force after recovery” (Recovery Plan Task Y426) (U.S. Fish and Wildlife Service 1993, p. 55). To accomplish this goal, in 1993, we created the Interagency Conservation Strategy Team. This team included biologists from the Service, the National Park Service, the USDA Forest Service, the IDFG, the WGFD, and the MTFWP.

In March 2000, a draft Conservation Strategy for the GYA was released for public review and comment (65 FR 11340, March 2, 2000). Also in 2000, a Governors' Roundtable was organized to provide recommendations from the perspectives of the three States that would be involved with grizzly bear management after delisting. In 2003, the draft Final Conservation Strategy for the Grizzly Bear in the GYA was released, along with drafts of State grizzly bear management plans (all accessible at

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

). We have responded to all public comments received on the Strategy and finalized the Strategy (72 FR 11376). The Strategy will become effective once this final rule takes effect.

The purpose of the Strategy and associated State and Federal implementation plans is to—(1) Describe, summarize, and implement the coordinated efforts to manage the grizzly bear population and its habitat to ensure continued conservation of the Yellowstone grizzly bear population; (2) specify and implement the population, habitat, and nuisance bear standards to maintain a recovered grizzly bear population for the foreseeable future; (3) document the regulatory mechanisms and legal authorities, policies, management, and monitoring programs that exist to maintain the recovered grizzly bear population; and (4) document the actions which the participating agencies have agreed to implement (U.S. Fish and Wildlife Service 2007, pp. 5-6).

The Strategy identifies and provides a framework for managing two areas, the PCA and adjacent areas of suitable habitat where occupancy by grizzly bears is anticipated as per the State plans. The PCA boundaries (containing 23,853 sq km (9,210 sq mi)) correspond to those of the Yellowstone Recovery Zone (U.S. Fish and Wildlife Service 1993, p. 41) and will replace the Recovery Zone boundary (see Figure 1 below). The PCA contains adequate seasonal habitat components needed to support the recovered Yellowstone grizzly bear population for the foreseeable future and to allow bears to continue to expand outside the PCA.

The PCA includes approximately 51 percent of the suitable habitat within the DPS and approximately 84 to 90 percent of the population of female grizzly bears with cubs (Schwartz

et al.

2006b, pp. 64-66).

The Strategy will be implemented and funded by both Federal and State agencies within the Yellowstone DPS. The USDA Forest Service, National Park Service, and BLM will cooperate with the State wildlife agencies (MTFWP, IDFG, and WGFD) to implement the Strategy and its protective habitat and population standards. The USDA Forest Service and National Park Service (which collectively own and manage approximately 98 percent of the PCA) are responsible for maintaining or improving habitat standards inside the PCA and monitoring population criteria. Specifically, Yellowstone National Park, Grand Teton National Park, and the Shoshone, Beaverhead-Deerlodge, Bridger-Teton, Caribou-Targhee, Custer, and Gallatin National Forests are the primary areas with Federal responsibility for implementing the Strategy. Affected National Forests and National Parks have incorporated the habitat standards and criteria into their Forest Plans and National Park management plans via appropriate amendment processes so that they are legally applied to these public lands within the Yellowstone DPS boundaries (Grand Teton National Park 2006, p. 1; USDA Forest Service 2006b, p. 4; Yellowstone National Park 2006, p. 12).

Outside of the PCA, grizzly bears will be allowed to expand into suitable habitat as per direction in the State management plans. Here, the objective is to maintain existing resource management and recreational uses, and to allow agencies to respond to demonstrated problems with appropriate management actions. The key to successful management of grizzly bears outside of the PCA lies in their successfully utilizing lands not managed solely for bears, but in which their needs are considered along with other uses. Currently, approximately 10 to 16 percent of female grizzly bears with cubs occupy habitat outside of the PCA (Schwartz

et al.

2006b, pp. 64-66). The area of suitable habitat outside of the PCA is roughly 83 percent Federally owned; 6.0 percent Tribally owned; 1.6 percent State-owned; and 9.5 percent privately owned. State grizzly bear management plans (Idaho's Yellowstone Grizzly Bear Delisting Advisory Team 2002; MTFWP 2002; WGFD 2005), the Forest Plan Amendment (USDA Forest Service 2006a), and other appropriate planning documents provide specific management direction for areas outside of the PCA.

This differential management standard (one standard inside the PCA and another standard for suitable habitat outside the PCA) has been successful in the past (USDA Forest Service 2004, p. 19). Lands within the PCA/Recovery Zone are currently managed primarily to maintain grizzly bear habitat, whereas lands outside of the PCA/Recovery Zone boundaries are managed with more consideration for human uses (U.S. Fish and Wildlife Service 1993, pp. 17-18). Such flexible management promotes communication and tolerance for grizzly bear recovery.

As the grizzly bear population within the Recovery Zone has rebounded in response to recovery efforts, there has been a gradual natural recolonization of suitable habitat outside of the PCA/Recovery Zone (Pyare et al. 2004, p. 6). Today, most suitable habitat within the DPS boundaries is occupied by grizzly bears (68 percent) but approximately 14,500 sq km (5,600 sq mi) are still available for recolonization (see suitable habitat analysis in Factor A of this final rule below).

The Strategy is an adaptive, dynamic document that establishes a framework to incorporate new and better scientific information as it becomes available or as necessary in response to environmental changes. Ongoing review and evaluation of the effectiveness of the Strategy is the responsibility of the State and Federal managers and will be updated by the management agencies every 5 years, or more frequently as necessary. Public comments will be sought on all updates to the Strategy (U.S. Fish and Wildlife Service 2007, p. 14).

Previous Federal Actions

On July 28, 1975, the grizzly bear was designated as threatened in the conterminous (lower 48) United States (40 FR 31734-31736). On November 17, 2005, we proposed to designate the GYA population of grizzly bears as a DPS and to remove this DPS from the Federal List of Endangered and Threatened Wildlife. This notice was followed by a 120-day comment period (70 FR 69854, November 17, 2005; 71 FR 8251, February 16, 2006), during which we held two public hearings and four open houses (70 FR 69854, November 17, 2005; 71 FR 4097-4098, January 25, 2006). Included in the public comments was a petition to uplist the Yellowstone DPS to endangered status. All assertions of this petition are addressed either in the Summary of Public Comments section below, in the 5-factor analysis that follows, or in the Reassessing Methods Document's issues and responses summary. A 90-day finding on whether the petition presented substantial information indicating whether the petitioned action may be warranted is included below. Similarly, this final rule addresses the 2004 Administrative Procedure Act petition from the Wyoming Farm Bureau Federation to designate the grizzly bear in the GYA as a DPS (Hamilton et al. 2004). Finally, between 1991 and 1999, we issued warranted-but-precluded findings to reclassify grizzly bears in the North Cascades (56 FR 33892-33894, July 24, 1991; 63 FR 30453-30454, June 4, 1998), the Cabinet-Yaak (58 FR 8250-8251, February 12, 1993; 64 FR 26725-26733, May 17, 1999), and the Selkirk Ecosystems (64 FR 26725-26733, May 17, 1999) from threatened to endangered. These uplisting actions remain precluded by higher priority actions. We hope to further evaluate each of these ecosystems during our upcoming 5-year review. Please refer to the proposed rule for more detailed information on previous Federal actions (70 FR 69861, November 17, 2005).

Distinct Vertebrate Population Segment Policy Overview

Pursuant to the Act, we shall consider for listing or delisting any species, subspecies, or, for vertebrates, any DPS of these taxa if there is sufficient information to indicate that such action may be warranted. To interpret and implement the DPS provision of the Act and congressional guidance, the Service and the National Marine Fisheries Service published, on December 21, 1994, a draft Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Act (DPS Policy) and invited public comments on it (59 FR 65884-65885). After review of comments and further consideration, the Services adopted the interagency policy as issued in draft form, and published it in the

Federal Register

on February 7, 1996 (61 FR 4722-4725). This policy addresses the establishment of DPSs for potential listing and delisting actions.

Under our DPS policy, three factors are considered when determining whether or not a population can be considered a DPS. These are applied similarly for additions to the list of endangered and threatened species, reclassification, and removal from the list. They are—(1) discreteness of the population segment in relation to the remainder of the taxon (i.e.,

Ursus arctos horribilis

); (2) the significance of the population segment to the taxon to which it belongs (i.e.,

Ursus arctos horribilis

); and (3) the population segment's conservation status in relation

to the Act's standards for listing (i.e., is the population segment endangered or threatened).

Application of the Distinct Population Segment Policy

Although the DPS Policy does not allow State or other intra-national governmental boundaries to be used as the basis for determining the discreteness of a potential DPS, an artificial or manmade boundary may be used to clearly identify the geographic area included within a DPS designation. Easily identifiable manmade projects, such as the center line of interstate highways, Federal highways, and State highways are useful for delimiting DPS boundaries. Thus, the Yellowstone DPS consists of—that portion of Idaho that is east of Interstate Highway 15 and north of U.S. Highway 30; that portion of Montana that is east of Interstate Highway 15 and south of Interstate Highway 90; and that portion of Wyoming south of Interstate Highway 90, west of Interstate Highway 25, Wyoming State Highway 220, and U.S. Highway 287 south of Three Forks (at the 220 and 287 intersection), and north of Interstate Highway 80 and U.S. Highway 30 (see Figure 1 below). Due to the use of highways as easily described boundaries, large areas of unsuitable habitat were included in the DPS.

The core of the Yellowstone DPS is the Yellowstone Recovery Zone (24,000 sq km (9,200 sq mi)) (U.S. Fish and Wildlife Service 1993, p. 39). The Yellowstone Recovery Zone includes Yellowstone National Park; a portion of Grand Teton National Park; John D. Rockefeller Memorial Parkway; sizable contiguous portions of the Shoshone, Bridger-Teton, Targhee, Gallatin, Beaverhead-Deerlodge, and Custer National Forests; BLM lands; and surrounding State and private lands (U.S. Fish and Wildlife Service 1993, p. 39). As grizzly bear populations have rebounded and densities have increased, bears have expanded their range beyond the Recovery Zone, into other suitable habitat. Grizzly bears in this area now occupy about 36,940 sq km (14,260 sq mi) in and around the Yellowstone Recovery Zone (Schwartz

et al.

2002, p. 207; Schwartz

et al.

2006b, pp. 64-66). No grizzly bears originating from the Yellowstone Recovery Zone have been suspected or confirmed beyond the borders of the Yellowstone DPS.

BILLING CODE 4310-55-P

ER29MR07.030

Analysis for Discreteness

Under our DPS Policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions—(1) It is markedly separated from other populations of the same taxon (i.e.,

Ursus arctos horribilis

) as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) (“the inadequacy of existing regulatory mechanisms”) of the Act. Our DPS policy does not require complete reproductive isolation among populations in order to determine that a population is markedly separated from other populations, and allows for some limited interchange among population segments considered to be discrete (61 FR 4722).

The Yellowstone grizzly bear population is the southernmost population remaining in the conterminous States and has been physically separated from other areas where grizzly bears occur for at least 100 years (Merriam 1922, pp. 1-2; Miller and Waits 2003, p. 4334). The nearest population of grizzly bears is found in the NCDE. These populations are separated by land ownership, vegetation, and topographic patterns unsuitable for grizzly bears. The end result is a functional barrier to grizzly bear movement across the landscape and connectivity between the GYA and the NCDE. Grizzly bears from the GYA have not migrated north of the current location of Interstate 90 (the northern boundary of the DPS), probably for at least the last century (Miller and Waits 2003, p. 4334). Meanwhile, during the last decade, there have been periodic reports of grizzly bears from the NCDE as far south as Highway 12 near Helena, Montana. In the last 25 years, two male grizzly bears have been killed near Anaconda, Montana, and the Flint Creek mountains southwest of the NCDE. Both of these reports are approximately 120 km (75 mi) northwest of the most northerly Yellowstone grizzly bears. This distance is too far for normal grizzly bear dispersal distances of roughly 10 to 40 km (6 to 25 mi) (McLellan and Hovey 2001, pp. 841-842; Proctor

et al.

2004, p. 1108) to effectively connect the NCDE population or other neighboring populations with the Yellowstone DPS. There is currently no connectivity, nor are there any known resident grizzly bears in this area between these two grizzly bear populations.

Because the Yellowstone Ecosystem represents the most southerly population of grizzly bears, connectivity further south is not an issue. Connectivity to the east also is irrelevant to this action as grizzly bears in the lower 48 States no longer exist east of the GYA, and most of the habitat is unsuitable for grizzly bears. Finally, connectivity west into the Bitterroot Mountains is irrelevant to this action because no bears have been documented in this ecosystem in the past 25 years (U.S. Fish and Wildlife Service 1993, p. 12; 65 FR 69624, November 17, 2000; U.S. Fish and Wildlife Service 2000, p. viii).

Genetic data also support the conclusion that grizzly bears from the GYA are demographically markedly separated from other grizzly bears. Genetic studies involving heterozygosity (which provides a measure of genetic variation in either a population or individual) estimates at 8 microsatellite loci show 55 percent heterozygosity in the GYA grizzly bears compared to 69 percent in the NCDE bears (Paetkau

et al.

1998, pp. 421-424). Heterozygosity is a useful measure of genetic diversity, with higher values indicative of greater genetic variation and evolutionary potential. High levels of genetic variation are indicative of high levels of connectivity among populations or high numbers of breeding animals. By comparing heterozygosity of extant bears to samples from Yellowstone grizzlies of the early 1900s, Miller and Waits (2003, p. 4338) concluded that gene flow and, therefore, population connectivity between the GYA grizzly population and populations to the north was very low historically, even prior to the arrival of settlers. The reasons for this historic limitation of gene flow are unclear. Increasing levels of human activity and settlement in this intervening area over the last century further limited grizzly bear movements into and out of the GYA, resulting in the current lack of connectivity.

Based on our analysis of the best available scientific data, we find that the GYA grizzly population and other remaining grizzly bear populations are markedly separated from each other. This contention is supported by evidence of physical separation between populations (both current and historical) and evidence of genetic discontinuity. Therefore, the Yellowstone DPS meets the criterion of discreteness under our DPS Policy.

Analysis for Significance

If we determine a population segment is discrete, its biological and ecological significance will then be considered in light of congressional guidance that the authority to list DPS's be used sparingly while encouraging the conservation of genetic diversity. In carrying out this examination, we consider available scientific evidence of the population's importance to the taxon (i.e.,

Ursus arctos horribilis

) to which it belongs. Our DPS policy states that this consideration may include, but is not limited to, the following—(1) Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) Evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and/or (4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. Below we address Factors 1, 2, and 4. Factor 3 does not apply to the Yellowstone grizzly bear population.

Unusual or Unique Ecological Setting

—Grizzly bears in the GYA exist in an unusual and unique ecosystem that has greater access to large-bodied ungulates such as bison (

Bison bison

), elk (

Cervus elaphus

), and moose (

Alces alces

), and less access to fall berries than any other interior North American, European, or Asian grizzly bear populations (Stroganov 1969, p. 128; Mattson

et al.

1991a, p. 1623; Jacoby

et al.

1999, p. 925; Schwartz

et al.

2003b, pp. 568-569). The GYA ecosystem contains extensive populations of ungulates with an estimated 100,000 elk, 29,500 mule deer (

Odocoileus hemionus

) and white-tailed deer (

O. virginianus

), 5,800 moose, 4,000 bison and, relative to other ungulate populations in the area, a small population of pronghorn antelope (

Antilocapra americana

) (U.S. Fish and Wildlife Service 1994, p. ix; Toman

et al.

1997, p. 56; Smith

et al.

2003, pp. 337-338). Although grizzly bears are successful omnivores, grizzlies in the rest of the conterminous States (Jacoby

et al.

1999, p. 925), most of Europe (Berducou

et al.

1983, pp. 154-155; Clevenger

et al.

1992, pp. 416-417; Dahle

et al.

1998, pp. 152-153), and Siberia (Stroganov 1969, p. 128) rely on plant and insect materials for the majority of their diet. In contrast, grizzlies in the GYA rely on terrestrial mammals as their primary source of nutrition, as indicated by bear scat (Mattson 1997, p. 162), feed site analysis (Mattson 1997, p. 167), and bear hair isotope analysis (Jacoby

et al.

1999, p. 925). Concentration of isotopic nitrogen (

15

N) in grizzly bear hair from Yellowstone grizzly bears suggests that meat constitutes 45 percent and 79 percent of the annual diet for females and males, respectively (Jacoby

et al.

1999, p. 925). These high percentages of meat in Yellowstone grizzly bears' diet are in contrast to the 0 to 33 percent of meat in the diet of bears in the NCDE and 0 to 17 percent of meat in the diet of bears from the Cabinet-Yaak Ecosystem (Jacoby

et al.

1999, p. 925). Furthermore, the source of this animal meat is primarily large-bodied ungulates, not fish, as in other populations of brown bears in Alaska and Siberia (Stroganov 1969, p. 128; Hilderbrand

et al.

1996, pp. 2086-2087). Of particular relevance is the Yellowstone grizzly bears' use of wild bison, a species endemic to North America, but eradicated in most of the lower 48 States except the GYA by the

end of the 19th century (Steelquist 1998, pp. 16, 30). Although bison numbers have increased since this time, the vast majority of today's bison are found in managed or ranched herds (Steelquist 1998, pp. 33-37). Their habitat, bunchgrass prairie (tallgrass, mixed-grass, and shortgrass prairie), has been almost entirely converted to agricultural lands (Steelquist 1998, p. 11), leaving little opportunity for existence in areas outside of the isolated refuges and ranches where they are commonly found today. Mattson (1997, p. 167) found that wild bison comprised the second largest source of ungulate meat (24 percent) consumed by Yellowstone grizzly bears, second only to elk (53 percent).

The Yellowstone grizzly population also exists in a unique ecological setting because it is able to use whitebark pine seeds as a major food source. Whitebark pine, a tree species found only in North America (Schmidt 1994, p. 1), exhibits annual variation in seed crops, with high seed production in some years and very low seed production in other years (Weaver and Forcella 1986, p. 70; Morgan and Bunting 1992, p. 71). During these years of high seed production, Yellowstone grizzly bears derive as much as 51 percent of their protein from pine nuts (Felicetti

et al.

2003, p. 767). In fact, grizzly bear consumption of ungulates decreases during years of high whitebark pine seed production (Mattson 1997, p. 169). In most areas of North America where whitebark pine distribution overlaps with grizzly bear populations, bears do not consistently use this potential food source (Mattson and Reinhart 1994, pp. 212-214). This may be due to different climatic regimes that sustain berry-producing shrubs or simply the scarcity of whitebark pines in some areas of the bear's range (Mattson and Reinhart 1994, p. 214). Dependence of Yellowstone grizzly bears on whitebark pine is unique because in most areas of its range, whitebark pine has been significantly reduced in numbers and distribution due to the introduced pathogen white pine blister rust (

Cronartium ribicola

) (Kendall and Keane 2001, pp. 228-232). While there is evidence of blister rust in whitebark pines in the GYA, the pathogen has been present for more than 50 years (McDonald and Hoff 2001, p. 210) and relatively few trees have been severely impacted (see Factor E below). Also, although several berry-producing shrubs occur in the area, these are relatively limited by climatic factors and most grizzly bears in the GYA do not rely on berries as a significant portion of their diets.

Significant Gap in the Range of the Taxon

—Loss of the Yellowstone DPS would represent a significant gap in the range of the taxon. As noted above, grizzly bears once lived throughout the North American Rockies from Alaska and Canada, and south into central Mexico. Grizzly bears have been extirpated from most of the southern portions of their historic range. Today, the Yellowstone DPS represents the southernmost reach of the grizzly bear. The loss of this population would be significant because it would substantially curtail the range of the grizzly bear by moving the range approximately 4 degrees of latitude to the north. Thus, the loss of this population would result in a significant gap in the current range of the taxon.

Given the grizzly bear's historic occupancy of the conterminous States and the portion of the historic range the conterminous States represent, recovery in the lower 48 States where the grizzly bear existed in 1975 when it was listed has long been viewed as important to the taxon (40 FR 31734-31736, July 28, 1975). The Yellowstone DPS is significant in achieving this objective, as it is 1 of only 5 known occupied areas and constitutes approximately half of the remaining grizzly bears in the conterminous 48 States. Finally, the Yellowstone DPS represents the only grizzly bear population not connected to bears in Canada.

Marked Genetic Differences

—Several genetics studies have confirmed the uniqueness of grizzly bears in the GYA. The GYA population has been isolated from other grizzly bear populations for approximately 100 years or more (Miller and Waits 2003, p. 4334). Yellowstone grizzly bears have the lowest relative heterozygosity of any continental grizzly population yet investigated (Paetkau

et al.

1998, pp. 421-424; Waits

et al.

1998a, p. 310). Only Kodiak Island grizzly bears, a different subspecies (

Ursus arctos middendorfi

), have lower heterozygosity scores (26.5 percent), reflecting as much as 12,000 years of separation from mainland populations (Paetkau

et al.

1998, p. 421; Waits

et al.

1998b, pp. 412-413). Miller and Waits (2003, p. 4338) conclude that gene flow between the GYA and the closest remaining population was limited prior to the arrival of European settlers but could only speculate as to the reasons behind this historical separation. The apparent long-term difference in heterozygosity between Yellowstone and other Montana populations indicates a unique set of circumstances in which limited movement between these areas has resulted in a markedly different genetic situation for the Yellowstone population.

We conclude that the Yellowstone grizzly population is significant because it exists in an unusual and unique ecological setting; the loss of this population would result in a significant gap in the range of the taxon; and this population's genetic characteristics differ markedly from other grizzly bear populations.

Conclusion of Distinct Population Segment Review

Based on the best scientific and commercial data available, as described above, we find that the Yellowstone grizzly bear population is discrete from other grizzly populations and significant to the remainder of the taxon (i.e.,

Ursus arctos horribilis

). Because the Yellowstone grizzly bear population is discrete and significant, it warrants recognition as a DPS under the Act.

It is important to note that the DPS Policy does not require complete separation of one DPS from other populations, but instead requires “marked separation.” Thus, if occasional individual grizzly bears disperse among populations, the Yellowstone grizzly bear DPS would still display the required level of discreteness per the DPS Policy. And, as stated in the 1993 Recovery Plan, we recognize that natural connectivity is important to long-term grizzly bear conservation and we will continue efforts to work toward this goal independent of the delisting of the Yellowstone DPS (U.S. Fish and Wildlife Service 1993, p. 53). This issue is discussed further under Factor E below. In addition, the conclusion regarding the conservation status (step 3 of the DPS analysis) of the Yellowstone DPS follows the 5-factor analysis discussion below.

Summary of Public Comments

In our proposed rule, we requested that all interested parties submit information, data, and comments concerning the status of grizzly bears in the GYA, their habitat, and their management (70 FR 69882, November 17, 2005). The comment period was open from November 17, 2005, through March 20, 2006 (70 FR 69854, November 17, 2005; 71 FR 8251, February 16, 2006). During this time, we held two formal public hearings and four informational meetings (70 FR 69854, November 17, 2005; 71 FR 4097-4098, January 25, 2006). In addition, there were numerous press releases, a press conference with the Secretary of the Interior, and a conference call with

numerous environmental groups and non-government organizations discussing the proposed rule. Comments could be hand delivered to us or submitted to us via e-mail, mail, or public hearing testimony.

During the 120-day comment period, we received comments from 164,486 individuals, organizations, and government agencies. Those comments arrived in 193,578 letters, form letters, public hearing testimonies, and email messages. Numerous respondents submitted multiple comments, so the total number of comments received (193,578) is greater than the total number of people/groups responding (164,486). Twelve of these letters were signed as “petitions” with 974 signatures. Finally, one of the above comment letters also formally petitioned the Service to list the Yellowstone grizzly bear DPS as endangered under the Act and designate critical habitat. All assertions of this petition are addressed either in this section, in the 5-factor analysis that follows, or the Reassessing Methods Document's issues and responses summary.

We have read and considered all comments received. A content analysis of these comments is available upon request (see

ADDRESSES

section above) or online at:

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm.

We updated the proposed rule where it was appropriate, and we respond to all substantive issues received, below. We have grouped similar comments together in “Issues,” each of which is followed by our “Response.”

A. General Comments

Issue 1

—Numerous comments suggesting corrections to facts and data in the proposed rule such as correcting typographical errors, including omitted cooperators, and modifying the presentation of statistical results. One commenter noted our reference to the DPS as both a “population” and an “area.” This commenter also noted inconsistencies in our use of the words “population” and “populations” in the proposed rule and asked if there is one population or multiple populations within the DPS boundaries.

Response

—There is one population within the DPS boundaries and the appropriate changes have been made in the text of the final rule to clarify this, as well as the other matters raised in Issue 1.

Issue 2

—A few commenters disputed the Service's claim that the nearest grizzly bear population to the Yellowstone DPS is 130 km (80 mi) away. According to these commenters, grizzly bears originating from the NCDE have been documented near Anaconda, Montana, and one grizzly bear originating from the Yellowstone DPS was sighted north of Bozeman, Montana, in the Bridger Mountains. Furthermore, one commenter noted that the Tobacco Root Vegetation Management Plan Final Environmental Impact Statement (USDA Forest Service 2001, p. 44) describes the Tobacco Roots as habitat occupied by grizzlies on both a resident and transient basis. This puts the two populations only 72 km (45 mi) apart.

Response

—We know of two records of grizzly bears near Anaconda, Montana. In one case, the carcass of a subadult male grizzly bear was discovered by a hunter in 1980. The other report notes a 2005 incident in which a hunter mistakenly shot a grizzly bear 11 km (7 mi) west of Anaconda that was determined to be from the NCDE with DNA analysis. There are no other verified reports of grizzly bears within 76 km (45 mi) of Anaconda. The Study Team has no record of any grizzly bears in the Bridger Mountains or in the Tobacco Root Mountains. Despite what the Final Environmental Impact Statement for the Tobacco Root Vegetation Management Plan may identify as occupied habitat, a study conducted in the Tobacco Roots in 1999 and 2000 failed to document grizzly bear presence (Lukins

et al.

2004, p. 171). In the final rule, we corrected the distance between the Yellowstone grizzly bear population and the nearest bears to account for these two records near Anaconda, Montana. This resulted in the closest possible distance between the Yellowstone population and the nearest record of a grizzly bear as 120 km (75 mi) instead of 130 km (80 mi) as reported in the proposed rule.

Issue 3

—One commenter disputed our claim that 30 percent of suitable habitat outside the PCA within the DPS is protected by official Wilderness Area designation, instead suggesting only 15 percent of occupied habitat outside the PCA within the DPS is protected as Wilderness.

Response

—This numeric disparity centers around a difference in our frame of reference. Our calculation is the percentage of “suitable habitat” outside the PCA within the DPS (6,799 sq km (2,625 sq mi)) that is protected by Wilderness Area designation (22,783 sq km (8,797 sq mi)). In contrast, this comment is referring to “occupied habitat” outside the PCA within the DPS protected by Wilderness Area designation. We considered suitable habitat because we expect grizzly bears to naturally recolonize much of the remaining unoccupied suitable habitat in the next few decades.

Issue 4

—Several commenters noted that our definition of suitable habitat does not consider Wyoming's habitat criteria of “socially acceptable.” They request that this inconsistency in definitions be remedied.

Response

—Our definition of suitable habitat is based on biological criteria. Some considerations of social acceptance entered into the considerations of suitable habitat in the Wyoming plan. The Wyoming plan does not restrict grizzly bears from areas outside their definition of suitable habitat. Instead, it establishes management objectives in these areas to minimize conflicts between bears and human activities. Because most grizzly bears do not come into conflict with humans, the impact of this difference in designation of suitable habitat between the Service and Wyoming will have little functional impact on grizzly bear occupancy or mortality.

B. Population Concerns

Issue 1

—Several commenters noted their concern about the occurrence of high levels of female mortality since 2000 and requested that the impact of this trend be analyzed. It was noted that the allowable adult female mortality was exceeded in 2004 and 2005; therefore, the recovery goal that adult female mortality cannot be exceeded in 2 consecutive years has not been met. These commenters asked that we explain why delisting is being proposed when one of the recovery goals has not been met.

Response

—Recovery plans are intended to provide guidance and are subject to revision as new data are reported. They are not regulatory documents. Recovery of species requires adaptive management that may, or may not, fully follow the guidance provided in a recovery plan. That said, we no longer consider 1993 Demographic Recovery Criterion 3 to represent the best scientific and commercial data available nor the best technique to assess recovery of the Yellowstone grizzly bear population. Therefore, the 1993 mortality management system for the Yellowstone grizzly bear population has been reevaluated and revised using a recent and more accurate model (Harris

et al.

2006, pp. 51-55). This approach was consistent with a 1995 court order to reevaluate this issue (

Fund for Animals

v.

Babbitt

) and Recovery Plan Task Y11, which suggested we work to “determine population conditions at which the species is viable and self sustaining,” and to “reevaluate and refine

population criteria as new information becomes available” (U.S. Fish and Wildlife Service 1993, p. 44). Under the revised methods for calculating sustainable mortality, female mortality was not exceeded in either 2004 or 2005. These changes have been appended to the Recovery Plan and the Strategy.

Issue 2

—Some commenters felt that delisting was premature without a PVA based on future habitat conditions and that PVAs based simply on past population trends are inadequate. A habitat-based PVA could determine how future habitat conditions such as the availability of major food sources, climate change, increasing human populations, and resource extraction may affect the long-term persistence of the Yellowstone DPS. One commenter referred to a similar PVA conducted by “Boyce

et al.

(2005)” on grizzly bears in Alberta, Canada, and suggested that Boyce be contracted to do this analysis for the Yellowstone DPS.

Response

—When we contacted the commenter who suggested we consider employing a technique similar to “Boyce

et al.

(2005)”, we were told that the correct citation for that article was Nielsen

et al.

2006. Nielsen

et al.

(2006, pp. 219-221) predicted adult female grizzly bear occupancy and mortality across the landscape. Their exercise did not make any attempt to predict the long-term viability of the grizzly bear population in Alberta and, in this sense, was not a habitat-based PVA. Instead, Nielson

et al.

(2006, pp. 226-227) attempted to provide a useful tool to managers that linked not only occupancy, but also survival, to habitat conditions.

In our view, a PVA based on possible future habitat conditions relies upon too many speculative variables to be relied upon to determine long-term persistence. Given the compound uncertainties associated with projections of possible future habitat changes, and the grizzly bear's corresponding responses to those changes, it is unlikely that a habitat-based PVA would provide an accurate representation of future population viability for Yellowstone grizzly bears. The management system outlined in the Strategy depends on monitoring of multiple indices including production and availability of all major foods; and monitoring of grizzly bear vital rates including survival, age at first reproduction, reproductive rate, mortality cause and location, dispersal, and human/bear conflicts. These data will be used in an adaptive management system to monitor the real-time status of the population and its relationship with major foods and environmental variables, allowing managers to implement actions that respond to changes in ecological conditions and/or vital rates. The continued monitoring of these multiple indices will allow rapid feedback on the success of management actions in maintaining a viable population. In addition, please see our response to Issue 12 under subheading F in the Summary of Peer Review Comments section below for more information on the models the Study Team is pursuing.

Issue 3

—One commenter stated that the Yellowstone DPS range has not expanded as much as we claim according to the 1980 Study Team report of verified sightings near Ketchum, Idaho, and Cody, Wyoming.

Response

—Because the cited 1980 Study Team report provides no information regarding the verification of the reported sighting near Ketchum, Idaho, it is impossible to make any conclusions on the sighting's credibility. There is no reason to connect this supposed sighting to the Yellowstone ecosystem or to indicate that a bear sighted there might have come from Yellowstone. We did not rely solely on sightings of grizzly bears to make the statement that the population's range had expanded. Instead, we used peer-reviewed literature that documented this range expansion through multiple data sources, including initial observations of unduplicated females with young, locations of radio-collared bears, and locations of grizzly bear/human conflicts (Schwartz

et al.

2002, p. 204; Schwartz

et al.

2006b, p. 63). We are confident that the Yellowstone grizzly bear population's range has expanded significantly since 1980 and the sightings from this time do not contradict the conclusions established by Schwartz

et al.

(2002, p. 207) and Schwartz

et al.

(2006b, p. 66).

Issue 4

—One commenter noted that because “persistence time depends strongly on the magnitude of the variance in population growth rate” and the Yellowstone population size estimates are extremely variable, we should consider this and other sources of stochasticity in our decision.

Response

—These variations have been considered in detail. The considerations of the variation of results is thoroughly evaluated and discussed in Harris

et al.

(2006, p. 46), Schwartz

et al.

(2006d, p. 14), Schwartz

et al.

(2006e, pp. 62-63), the Reassessing Methods Document (Interagency Grizzly Bear Study Team 2005, pp. 25, 35-36), and its Supplement (Interagency Grizzly Bear Study Team 2006, pp. 2-10). Throughout the rulemaking process we also carefully considered the matter of uncertainty and its implications to management decisions. For additional discussion about sources of stochasticity and their effects on population persistence, see our response to Issue 5 under subheading R below.

Issue 5

—One commenter noted that the Service presents the estimated annual population growth rate as between 4 and 7 percent per year. This presentation deceptively makes it seem that these are the upper and lower bounds of a confidence interval, not merely two point estimates based on different assumptions; and, the Service claims that the total population size in 2004 was 588 individuals but does not disclose the confidence intervals around this estimate.

Response

—The 4 to 7 percent annual population growth rate is based on analyses conducted by Harris

et al.

(2006, p. 48) using survival estimates of grizzly bears determined by Haroldson

et al.

(2006b, p. 36). Haroldson

et al.

(2006b, p. 34-35) used a data set of 323 independent (greater than 2 years old) radio-collared bears, but analyzed the data two different ways to address the bears with unknown fates. Specifically, they estimated the survival rate for each of those data sets, assuming bears whose fates were unknown either all lived or all died, to establish the most conservative and most optimistic survival rates. The true estimate must be bracketed by those two bounds. The resulting annual survival rates of independent female bears were either 92.2 percent or 95.0 percent depending on which interpretation of unknown fate is used.

Harris

et al.

(2006, p. 48) then used the two survival estimates produced by Haroldson

et al.

(2006b, p. 35) to estimate the growth rate of the GYA grizzly population from 1983 to 2002. For the estimate of population growth rate based on the assumption that all females with unknown fates died at last contact, the mean value of lambda is 1.042, with an approximate 95 percent confidence interval of 0.969-1.093. For the estimate of population growth rate when adult survival was estimated assuming females with unknown fates survived, the mean value is 1.076, with an approximate 95 percent confidence interval of 1.003-1.113.

These population growth rates mean that the Yellowstone grizzly bear population was increasing at a rate of 4.2 percent or 7.6 percent per year between 1983 and 2002 (Harris

et al.

2006, p. 48). Those estimates are often reported as “a growth rate between 4 percent and 7 percent.” That does not refer to a 95 percent confidence interval.

Instead, it refers to an estimate based on the assumption that all bears whose fates were unknown died at the time their radio transmissions stopped (4.2 percent), and an estimate based on the assumption that all bears whose fates were unknown were alive at the time their radio transmissions stopped (7.6 percent). Those assumptions result in conservative bounds, because some bears assumed to have died in the 4 percent growth rate data set were probably still alive, and because some bears assumed to be alive in the 7 percent growth rate data set were probably dead. The true population growth rate from 1983 to 2002 was probably between 4 and 7 percent.

Regarding the confidence interval around the total population estimate, the index of total population size is produced using the total number, an estimate of the total number of females with cubs-of-the-year (Interagency Grizzly Bear Study Team 2005, pp. 24-26), and the proportions of females in the population applied to the proportions of sex and age classes in the population. The Chao2 estimator, a statistical tool used to correct sighting variability, was chosen by the Study Team to estimate the number of females with cubs-of-the-year (Keating

et al.

2002, p. 170; Interagency Grizzly Bear Study Team 2005, pp. 25-26) because it consistently returns results that are correct or biased low (Interagency Grizzly Bear Study Team 2005, p. 20). Confidence intervals for the total population index from years 1983 to 2005 are reported in the Supplement to the Reassessing Methods Document (Interagency Grizzly Bear Study Team 2006, p. 15). For 2005, the total population index is 546 bears with a 95 percent confidence interval between 491 and 602 (Interagency Grizzly Bear Study Team 2006, p. 15).

Issue 6

—Several commenters questioned why we were not using deoxyribonucleic acid (DNA) based methods, like the survey conducted in the NCDE during the summer of 2004, to get an accurate estimate of total population size. They considered DNA to be the best available method and wondered why this method was not employed before proposing to delist this population.

Response

—The methods developed for producing a population index in the Yellowstone ecosystem are based on the best available science and built on intensive sampling of this population for almost 26 years. These methods produce annually updated population size indices and continuously updated population trend estimates. Although the use of DNA to estimate population size has become more common in recent years (Mowat and Strobeck 2000, p. 183; Bellemain

et al.

2005, p. 150; Solberg

et al.

2006, p. 158), the method used to make a one-time total population estimate for the NCDE would be less useful in the GYA than current methods. DNA was chosen as the population estimate system in the NCDE because this ecosystem did not have the long-term consistent sampling data that exists in Yellowstone. The final point estimate for population size in the NCDE will be available in early 2007 and will be a one-time estimate for 2004—the year the sampling was done. Once completed, this DNA-based system will have taken 4 years and cost $4.5 million, to produce a 2004 population estimate. Given that the long-term intensive data were available in Yellowstone, population size estimates based upon peer-reviewed, published methods existed, and because the methods used in Yellowstone allow continuously updated population indices rather than a one-time estimate, the application of a DNA-based system was unnecessary for the Yellowstone ecosystem.

Issue 7

—One commenter noted that we violated the Administrative Procedure Act and the Endangered Species Act by not disclosing the apparent “population crash” that occurred in 2005 using the revised methods described in the Reassessing Methods Document (2004 = 588, 2005 = 350) and discussing its implications for the population.

Response

—No population crash occurred in 2005. In 2004, a large number of females had cubs. Because female grizzly bears usually produce litters once every 3 years, high cub production years are typically followed by years with fewer cubs because less of the adult female population is available for breeding. The index of total population size described in the Reassessing Methods Document (Interagency Grizzly Bear Study Team 2005, pp. 5-9) is not equivalent to an exact number of animals in the population due to this natural biological variation associated with cub production in grizzly bear populations (Interagency Grizzly Bear Study Team 2006, pp. 1-2). Fluctuations in the estimate of population size are expected and addressed through the use of a modeling average technique to estimate the total number of females with cubs-of-the-year (Interagency Grizzly Bear Study Team 2006, pp. 2-7).

Issue 8

—One commenter stated that we claim that the Act only mandates that a species be “viable,” rather than “recovered.” They believed that this perceived interpretation has led us to focus on reducing mortality within occupied habitat rather than restoring formerly wide-ranging species to historically occupied habitat. This commenter noted that the courts have repeatedly rejected this interpretation and that true recovery requires connectivity or linkage, protection and enhancement of existing populations, meaningful habitat protections, adequate regulatory mechanisms, and recolonization of historic suitable habitat such that ecological effectiveness (Trombulak 2006) is restored.

Response

—We disagree with the assertion that we have focused on viability instead of recovery. The principal goal of the Act is to return listed species to a point at which protection under the Act is no longer required (50 CFR 424.11(d)(2)). A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened within all or a significant portion of its range (50 CFR 424.11(d)). As described later in this rule, we believe the Yellowstone DPS meets neither of these definitions for listing, thereby justifying delisting due to recovery.

We also disagree with the claim that we have over-emphasized mortality control at the expense of other recovery goals. To date, recovery efforts have focused on sufficient mortality control, habitat monitoring, population levels, distribution, management of habitat effectiveness and habitat security, monitoring of all grizzly bear/human conflicts, genetic analyses, and linkage zone maintenance. This comprehensive approach to recovery has led to reduced mortality, increasing population numbers, and significant increases in range, allowing grizzly bears to reoccupy habitat they have been absent from for decades, as well as demographic and habitat security into the foreseeable future. Grizzly bears now occupy 68 percent of suitable habitat within the DPS and will likely occupy the remainder within the foreseeable future. However, the Service does not believe that restoration of grizzly bears to all historic habitats (particularly those no longer capable of supporting grizzly bear populations) within the DPS boundaries is necessary or possible.

While some have suggested recolonization of historically suitable habitat to achieve “ecological effectiveness” (Trombulak 2006), the Act neither requires us to consider ecological effectiveness, nor do we have any objective way of measuring this

type of success currently. We do not believe the restoration of the grizzly bear as a top predator and scavenger throughout all historically occupied habitat is feasible or required. Instead, we have restored grizzly bears to most of their suitable habitat within the DPS and anticipate the State management plans will lead to re-occupancy of the remaining suitable habitat in the near future. Other issues such as linkage are only relevant to this rulemaking to the extent that they impact the Yellowstone DPS. For example, connectivity or a lack thereof, has the potential to impact this population's genetic fitness. As such, this issue is discussed and addressed in our five factor analysis (see Factor E below) and in the Strategy.

C. Public Involvement

Issue 1

—Several commenters believe that the Service did not provide meaningful ways for the public in areas other than Bozeman, Montana, Cody and Jackson, Wyoming, and Idaho Falls, Idaho, to participate in a dialogue about this national issue, except via Web sites and mail. Numerous commenters at public hearings, in letters, and in emails encouraged the Service to give greater consideration to opinions of people that live in grizzly bear country than opinions of those that do not have to deal with grizzlies in their daily lives. Conversely, many argued that the grizzly bear is a national and international treasure and that all Americans should have an equal voice in how they are to be managed.

Response

—The public comment process considers all comments equally and gives no preference based on where commenters live or what format commenters use to comment. We believe that providing multiple formats for commenting on the proposed rule, including hand delivery, e-mail, and U.S. mail lessened the need for formal hearings throughout the country. Because all comments are considered equally, it does not matter whether comments were submitted via hand delivery, e-mail, mail, or public hearing. In fact, commenting via e-mail, hand delivery, or letter allowed unlimited space to express comments, as opposed to the public hearing format, which limited comments to three minutes in order to provide an opportunity for all attending to speak.

Issue 2

—Several commenters stated that asking the public to comment on the proposed rule when none of the supporting documents (Reassessing Methods Document, Habitat-Based Recovery Criteria, the Strategy, and the Forest Plan Amendment for Grizzly Bear Habitat Conservation for the GYA National Forests) have been finalized does not allow the public to know what they are commenting on; furthermore, the Act requires an analysis of existing regulatory mechanisms, not those that will be added in the future.

Response

—The Strategy and the Habitat-Based Recovery Criteria supplement to the Recovery Plan have been finalized (72 FR 11376; 72 FR 11376-11377). There have been no significant changes from the drafts of Habitat-Based Recovery Criteria, the Strategy, and the Forest Plan Amendment for Grizzly Bear Habitat Conservation for the GYA National Forests. All the supporting documents have been available for full public review, in accordance with the Administrative Procedure Act (62 FR 47677, September 10, 1997; 64 FR 38464, July 16, 1999; 64 FR 38465, July 16, 1999; 70 FR 70632, November 22, 2005). The proposed rule also noted that these draft documents were available online at—

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

. As envisioned by the Administrative Procedure Act, changes to the Reassessing Methods Document were made in response to public comments. These changes did not affect our final determination from that described in the draft rule. We responded to comments in the final documents. The Strategy and the Forest Plan Amendment are existing regulatory mechanisms that are currently in existence and take effect upon implementation of this final rule. Therefore, we considered these mechanisms when determining if the regulatory mechanisms were sufficient to protect the Yellowstone DPS’ recovered status.

Issue 3

—Some commenters stated that the Service violated the Endangered Species Act and Administrative Procedure Act by not providing the raw data upon which it relied, thereby hindering the public's ability to comment on the proposed rule; “[T]he Administrative Procedure Act requires the agency to make available to the public, in a form that allows for meaningful comment, the data the agency used to develop the proposed rule.”

Response

—We have a responsibility to rely upon the best scientific and commercial data available. In this case, we relied upon numerous peer reviewed and published documents that we made available upon request. Much of this information was publicly available when we published our proposed rule and during our public comment period. For example, mortality information, including date of death, sex, age, certainty of death, if the bear was marked or not, and location are published annually in the Study Team's annual reports, available at:

http://www.nrmsc.usgs.gov/research/igbst-home.htm

. However, requests received for exact locations of grizzly bears obtained via radio-telemetry and GPS radio-collars (i.e., “raw data”) could not be honored because this information was not in our possession. Additionally, without the permission of the Secretary of the Interior, the Omnibus Parks and Public Lands Act of 1998 (16 U.S.C. 5937) prohibits the release of specific locations of threatened species that spend any part of their lives within National Parks.

D. Compliance With Court Settlements

Issue 1

—Some commenters claimed that the Service violated the Fund for Animals court settlement (

Fund for Animals

v.

Babbitt

), by publishing the proposed rule to delist before finalizing the Habitat Based Recovery Criteria. They noted that the Fund for Animals settlement stated that “Prior to publishing any proposed rule to delist any grizzly bear population, the Service will establish habitat-based recovery criteria for that population's ecosystem * * * . In any such rulemaking to delist a grizzly bear population, the Service will utilize the Habitat Based Recovery Criteria, as well as all other pertinent recovery criteria that have been established, when addressing the 5 factors set forth in section 4(a)(1) of the Act.”

Response

—In 1994, The Fund for Animals, Inc., and 42 other organizations and individuals filed suit over the adequacy of the 1993 Recovery Plan (

Fund for Animals

v.

Babbitt

). The court remanded the Recovery Plan to us for further study, and in 1996 the parties reached a settlement agreement. As part of the settlement we agreed to hold a workshop on the habitat-based recovery criteria and to append habitat-based recovery criteria to the Recovery Plan. On June 17, 1997, we held a public workshop in Bozeman, Montana, to develop and refine habitat-based recovery criteria for the grizzly bear. A

Federal Register

notice notified the public of this workshop and provided interested parties an opportunity to participate and submit comments (62 FR 19777, April 23, 1997).

After considering 1,167 written comments, we developed biologically-based habitat criteria with the goal of maintaining or improving habitat conditions at 1998 levels. These draft criteria were published in the

Federal Register

on July 16, 1999 (64 FR 38464-38465), and a copy of the habitat-based

criteria also is available at—

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

. These revised habitat-based recovery criteria were relied upon in the proposed rule and have since been appended to the Recovery Plan and incorporated into the Strategy (U.S. Fish and Wildlife Service 2007, p. 39-43). Importantly, these habitat-based recovery criteria have not changed significantly since being drafted and being made available for public comment in 1999. The Strategy ensures they will continue to be met in the foreseeable future. Our proposed rule and this final rule utilized the habitat-based recovery criteria, as well as all other pertinent recovery criteria, when addressing the 5 factors set forth in section 4(a)(1) of the Act.

Issue 2

—Some commenters noted that we cannot claim that the demographic recovery goals have been met because the goals cited have been found inadequate by the courts.

Response

—The demographic recovery goals have not been found inadequate by the courts. The court opinion (

Fund for Animals

v.

Babbitt

, p. 30) stated, “Based on the record the court does not find that the defendant's designation of population targets is arbitrary and capricious.” The court directed us to “reconsider the available evidence and its decision to adopt the population monitoring methodology that it has incorporated into the Grizzly Bear Recovery Plan.” We did so in a formal response to public comments regarding the supplemental information (accessible at

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

) and found these methods were the best available methods when the Recovery Plan was written in 1993. In order to apply the best available methods at the time of proposing delisting, we worked with the U.S. Geological Survey and the Study Team to begin the process detailed in the Reassessing Methods Document (Interagency Grizzly Bear Study Team 2005, pp. 12-41) to consider and apply newer science to the issues of population monitoring and the establishment of sustainable mortality. This effort has resulted in the improved methods appended to the Recovery Plan and incorporated into the Strategy.

E. Significant Portion of Range

Issue 1

—Many commenters expressed dissenting views and interpretations of the Act's phrase “significant portion of its range” as it is used to define a threatened species, or in this case, a recovered species. Some stated that range does or should mean historical range, thereby obligating us to recover species across a significant portion of their historical range to be considered recovered. Some commenters disagreed with our definition of range and said that it was the same as the court-invalidated wolf rule (68 FR 15804, April 1, 2003), which stated that range, when defined as “the area within the DPS boundaries where viable populations of the species now exist,” was circular because if we define range as where grizzlies currently are and then conclude that they are therefore recovered within a significant portion of that range, this would have meant they were recovered in 1975. Several commenters noted that we must explain why the Yellowstone grizzly bear is no longer threatened by the loss of its historical range.

Response

—A species may be delisted according to 50 CFR 424.11(d) if the best scientific and commercial data available demonstrate that the threats to that species, as described in section 4(a)(1), have been removed such that it is neither endangered nor threatened. The Act defines an “endangered species” as one that “is in danger of extinction throughout all or a significant portion of its range.” A “threatened species” is one that “is likely to become endangered in the foreseeable future throughout all or a significant portion of its range.” One consideration in deciding whether a species meets either of these definitions is the interpretation of “significant portion of its range.”

For a detailed discussion of “range” under the Act, see the Summary of Factors Affecting the Species portion of this rule below. That said, historical range is only relevant to the discussion of “significant portion of the range” to the extent that it may offer evidence whether a species in its current range is likely to become endangered in the foreseeable future. In such situations, historical range is considered in the listing factor section 4(a)(1) analysis.

Our 5-factor analysis was conducted over the entire current and foreseeable range of the grizzly bear including all “suitable habitat” within the DPS (defined and discussed under Factor A below). While grizzly bears once occurred throughout the area of the Yellowstone DPS (Stebler 1972, pp. 297-299), records indicate that even in the early 19th century, grizzly bears were less common in these eastern prairie habitats than in mountainous areas to the west and south (Rollins 1935, p. 191; Wade 1947, p. 444). Today, these habitats are no longer biologically suitable for grizzly bears as they lack adequate food resources (i.e., bison). These unsuitable areas are not relevant to the current or foreseeable status of the Yellowstone DPS. The current range of the DPS supports a population of adequate quantity and distribution to ensure a recovered population into the foreseeable future. And, additional unoccupied suitable habitat will provide opportunities for continued population growth. Finally, as discussed below, a lack of occupancy of all historic habitat within the DPS will not impact whether this population is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.

Issue 2

—One commenter noted that because grizzly bears experience negative growth rates outside the PCA, they are in danger in this portion of their range. The commenter believes that the area outside the PCA constitutes a significant portion of their range because we include all grizzly bears and the lands they currently occupy to make the statement that they are recovered within a significant portion of their range.

Response

—We agree that the suitable habitat outside the PCA represents a significant portion of the range, albeit less significant than suitable habitat within the PCA. See the Significant Portion of Range discussion under Factor A below for a more detailed discussion of this issue. That said, grizzly bears are not in “danger” in areas outside the PCA. The Yellowstone grizzly population is a single population with mortalities counted in all areas inside the Conservation Strategy Management Area (Figure 1) and sustainable mortality limits established for the entire population. The overall population growth rate will be managed for a stable to increasing population as per the methods and direction in the Reassessing Methods Document (Interagency Grizzly Bear Study Team 2005, pp. 5-11). Although the population may experience negative growth rates in some areas, this is not biologically significant. It would be inappropriate to suggest one “segment” is declining, while another “segment” is increasing because the population is contiguous and is considered as a whole entity per our DPS analysis above. The overall trajectory of the population will remain stable to increasing.

F. DPS Policy

Issue 1

—Some commenters believe that the DPS policy is to be used only in listing decisions and that using it in a delisting decision violates Congressional intent and the legislative and statutory structure of the Act.

Response

—We disagree with this interpretation of the DPS policy. The

Act, its implementing regulations, and our DPS policy provide no support for this interpretation. Section 4(a)(1) of the Act directs the Secretary of the Interior to determine whether “any species” is endangered or threatened. Numerous sections of the Act refer to adding and removing “species” from the list of threatened or endangered plants and animals. Section 3(15) defines “species” to include any subspecies “and any distinct population segment of any species of vertebrate fish or wildlife * * * .” The Act directs us to list, reclassify, and delist species, subspecies, and DPSs of vertebrate species. It contains no provisions requiring, or even allowing, DPSs to be treated in a different manner than species or subspecies when carrying out the listing, recovery, and delisting functions mandated by section 4. Furthermore, our DPS Policy states that the policy is intended for “the purposes of listing, delisting, and reclassifying species under the Act” (61 FR 4722, February 7, 1996), and that it “guides the evaluation of distinct vertebrate population segments for the purposes of listing, delisting, and reclassifying under the Act” (61 FR 4725, February 7, 1996).

The comment also overlooks the untenable situation that would arise if DPSs could be listed but could never be delisted after they have been successfully recovered. Clearly Congress did not envision such an outcome when amending the definition of species to include vertebrate DPSs.

Issue 2

—A commenter noted that the DPS analysis in the proposed rule created a remnant population, contrary to a court decision. They stated that the Act allows us to “consider listing only an

entire

species, subspecies, or DPS” (

Alsea Valley Alliance

v.

Evans

, 161 F. Supp. 2d 1154, 1162 (D. Or. 2001)); therefore, we cannot declare part of a listed subspecies a DPS without also designating the remaining listed subspecies as DPS(s). This commenter suggests that we reconsider the status of all other lower 48 grizzly bear populations simultaneously and should not delist the GYA population until we uplist all other populations in the Lower 48 States.

Response

—While in some situations it may be appropriate to designate multiple DPSs simultaneously, the lack of such a requirement provides useful flexibility, allowing the Service to subsequently list or delist additional DPSs when additional information becomes available or as the conservation status of the taxon changes. Importantly, courts have upheld this flexibility. In

National Wildlife Federation

v.

Norton

(1:03-CV-340, D. VT. 2005, p. 20), the court found that “Nowhere in the Act is the Secretary prevented from creating a ‘non-DPS remnant’ designation, especially when the remnant area was already listed” * * *. Our current designation of a Yellowstone DPS, while retaining the remaining lower 48 State grizzly bear listing intact as threatened, is consistent with this aspect of the District Court's ruling.

Furthermore, just as the Yellowstone DPS is discrete from the remaining populations in the lower 48 States, the remaining populations are discrete from the Yellowstone DPS. The amended lower 48 State listing is discrete from Canadian populations of

Ursus arctos horribilis

as delineated by the United States/Canadian international boundary with significant differences in control of exploitation, management of habitat, conservation status, and regulatory mechanisms. The amended lower 48 State listing is significant in that the loss of the lower 48 State population would result in a significant gap in the range of the taxon (

U. a. horribilis

). Therefore, the amended lower 48 State listing is discrete and significant.

Additional analysis is required to determine if the amended lower 48 State listing warrants further splitting into additional DPSs. For now, the warranted-but-precluded findings for uplisting (from threatened to endangered) the Selkirk, the North Cascades, and the Cabinet-Yaak populations remain precluded by higher priority actions (71 FR 53755, 53835, September 12, 2006). While these warranted-but-precluded findings are reviewed annually, we intend to review the status of the entire amended lower 48 State listing that results from this final rule in an upcoming 5-year review, as per section 4(c)(2)(A) of the Act.

Issue 3

—One commenter recommended that the Service use evolutionary divergence (Hall's subspecies) to designate DPSs across their historical range and that these should replace or supplement the current recovery zones.

Response

—The subspecies approach identified by Hall (1984, pp. 2-11) suggested seven different North American grizzly bear subspecies and is not in accordance with accepted scientific taxonomic literature and approaches. We accept the holarctic species concept and North American subspecies designations established by the works of Couterier (1954, p. 5), Rausch (1953, pp. 95-107; 1963, p. 43), and Kurten (1968, p. 127-128). This literature establishes one single holarctic species (

Ursus arctos

) and two North American subspecies,

U. a. horribilis

and

U. a. middendorfi

.

U. a. horribilis

is the subspecies that occurs in North America outside of Kodiak Island, Alaska. Therefore, the current recovery zones consider recovery in light of this taxonomy.

Issue 4

—Some commenters noted that we violated the DPS policy because we failed to consider the effect of delisting the Yellowstone DPS on rangewide recovery of the species, especially in the Bitterroot Ecosystem, which is currently unoccupied by grizzly bears but considered vital to the metapopulation dynamics of grizzlies in the Lower 48 States.

Response

—The DPS policy was carefully followed in designating the Yellowstone DPS. The delisting of the Yellowstone DPS will not have detrimental impacts on grizzly bear recovery actions in other recovery zones, as the grizzly bears in these areas remain threatened under the Act. As such, coordinated recovery efforts will continue in these areas.

Issue 5

—Several commenters disagreed with the delineation of the boundaries for the Yellowstone DPS. Some believe that because the boundaries were mainly highways, they were arbitrary and not based on sound biological principles. Others believe that the DPS should be expanded to the north to allow for more dispersal because, currently, suitable habitat on the northern edge extends nearly to the DPS boundary. Others believe that the DPS boundaries should include the entire State of Wyoming to lessen confusion and allow for management by the State of Wyoming if bears disperse south of Interstate 80.

Response

—As noted in the proposed rule, an artificial or manmade boundary (such as Interstate, Federal, and State highways) may be used as a boundary of convenience in order to clearly identify the geographic area included within a DPS designation. The Yellowstone DPS boundaries were defined along easily identifiable boundaries and included the entire recovery zone, the primary conservation area, the conservation strategy management area, all suitable habitat within the GYA based on biological information, and all occupied habitat. We believe this represents the most appropriate DPS for this population. Expansion of the DPS boundaries is not necessary to maintain a recovered grizzly bear population and is not justified biologically, given the limited dispersal capabilities of grizzly bears.

Issue 6

—Some commenters pointed out that it would be confusing for State and Federal managers to have a grizzly bear roam outside of the boundaries, for

instance west of Interstate 15, and then be considered a threatened species. To address this confusion, some commenters believe that any grizzly bear originating from the Yellowstone DPS should be considered part of that DPS, regardless of where they are geographically.

Response

—A DPS is a geographic designation determining the listed status for all individuals of said species in that area. Bears outside the DPS area, no matter their origin, are listed as threatened under the Act. The State and Federal agencies are aware of and understand the management implications of the DPS boundaries. We used easily identifiable boundaries such as the center line of major highways to minimize management confusion. If a grizzly bear goes beyond the Yellowstone DPS boundaries, it would become a threatened grizzly bear. Similarly, if a grizzly bear from another population enters the Yellowstone DPS boundaries, it would be managed according to the Strategy and State management plans.

Issue 7

—One commenter stated that the DPS designation would preclude augmentation because it would destroy the genetic uniqueness of the DPS.

Response

—Designation of the DPS would not preclude future augmentation, if we determine augmentation to be necessary to maintain genetic fitness. The DPS Policy does not require complete separation of one DPS from other populations, but instead requires “marked separation.” As stated in the 1993 Grizzly Bear Recovery Plan, natural connectivity is important to long-term grizzly bear conservation, and we will continue efforts to work toward this goal (whether accomplished naturally or through augmentation) independent of the delisting of the Yellowstone DPS (U.S. Fish and Wildlife Service 1993, p. 53). Thus, if occasional individual grizzly bears disperse among populations or are moved intentionally, the Yellowstone grizzly bear DPS would still display the required level of discreteness, per the DPS Policy. Gene flow through either linkage or augmentation is discussed further under Factor E below.

Issue 8

—One commenter stated that he could not find the “genetic monitoring information” to be appended to the Recovery Plan.

Response

—This document was made available for public review and comment in 1997 (62 FR 47677, September 10, 1997) and noticed again in 1999 (64 FR 38465, July 16, 1999). As noted in the proposed rule, the document also was posted on our website for the Yellowstone grizzly bear population (

http://mountain-prairie.fws.gov/species/mammals/grizzly/yellowstone.htm

). This document does not describe recovery criteria, as current levels of genetic diversity are consistent with known historic levels and do not threaten the long-term viability of the species, and instead proposes a post-delisting monitoring strategy to ensure that necessary levels of gene flow occur so that this population retains its recovered status for the foreseeable future. This 1999 information was never formally appended to the 1993 Recovery Plan. Due to the continuous and rapid evolution of the genetics field, this information no longer reflects the most up-to-date and scientifically sound approach. Therefore, we have determined that it is no longer appropriate to append the 1999 genetic monitoring methods and management responses to the Recovery Plan. Instead, a new genetic monitoring approach which reflects the most recent, best available science will be applied to the future management of the Yellowstone grizzly bear DPS as described in the Strategy's updating process (U.S. Fish and Wildlife Service 2007, p. 63). The Coordinating Committee will commence this genetic monitoring information updating process, which will include a public comment process, within 6 months of this final rule becoming effective.

G. Definition of Suitable Habitat

Issue 1

—Several commenters requested that we explain why lands excluded from our definition of suitable habitat or the State's definitions do not constitute a significant portion of the grizzly bears' range.

Response

—None of these unsuitable areas, either individually or collectively, are capable of contributing, in a meaningful way, to the overall status of the Yellowstone DPS. Therefore, these unsuitable areas do not represent a significant portion of the Yellowstone DPS range because their exclusion will not influence population trajectory or population health. Suitable habitat inside the PCA, which contains 84 to 90 percent of the population of females with cubs (Schwartz

et al.

2006b, p. 64), the most important age and sex group to population trajectory, will be protected by the habitat standards in the Strategy. Grizzly bears also will be allowed to expand into currently unoccupied suitable habitat as per the State plans. Outside the PCA, 60 percent of suitable habitat is protected by its status as Designated Wilderness, Wilderness Study Area, or Inventoried Roadless Area. Areas outside of suitable habitat will not affect the trajectory or health of the Yellowstone population now or in the future. A lack of occupancy of historic habitat will not impact whether this population is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.

Issue 2

—Several commenters believe that the decision to exclude sheep allotments as suitable habitat was based upon social considerations rather than biology. Instead, they stated that “* * * mortality rates in these areas are not a function of the habitat itself, but of land-use decisions” and that the habitat could be made suitable by regulatory mechanisms. One commenter suggested that the Service be upfront and clear that the definition of suitable habitat “* * * is not based solely on an evaluation of the grizzly bear's resource needs.” Another commenter requested that we prepare an analysis of what proportions of their lives individual grizzlies spend in “suitable” versus “unsuitable” habitat.

Response

—Our determination that sheep allotments were not suitable for grizzly bears was based on mortality rates, which is a biological issue. In areas of high conflict potential such as campgrounds, management actions are taken to limit grizzly bear presence or use. The sheep allotments outside suitable habitat are not necessary to ensure that this population avoids becoming threatened within all or a significant portion of its range in the foreseeable future. Because of the habitat protections inside the PCA and the large percentage of suitable habitat outside the PCA (60 percent) that is currently a Designated Wilderness Area (6,799 sq km/4,225 sq mi), Wilderness Study Area (708 sq km/440 sq mi), or Inventoried Roadless Area (6,179 sq km/3,839 sq mi), the long-term persistence of the Yellowstone grizzly bear population is assured without the sheep allotments.

Our definition of suitable habitat reflects the best available science and is adequate to ensure that the Yellowstone grizzly bear population is not likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The three criteria we used to define suitable habitat in the proposed rule are—(1) being of adequate habitat quality and quantity to support grizzly bear reproduction and survival (i.e., within the Middle Rockies ecoregion—please see discussion below in Suitable Habitat section under Factor A); (2) contiguous with the current distribution of Yellowstone grizzly bears such that

natural re-colonization is possible; and (3) having low mortality risk as indicated through reasonable and manageable levels of grizzly bear mortality. Upon the request of one peer reviewer and in response to this issue, we undertook additional analyses to examine how much suitable habitat would exist in the GYA under different definitions of suitable habitat.

If grizzly bears were given priority over all other land uses, we found that an additional 13,837 sq km (5,342 sq mi) of habitat exists that meets the first two criteria for our definition of suitable habitat (found within the Middle Rockies ecoregion and contiguous with the current population distribution). Of that “potentially” suitable habitat, nearly 16 percent (2,184 sq km (843 sq mi)) is privately owned. The remaining habitat is 70 percent National Forest (9,637 sq km (3,720 sq mi)), 8.5 percent BLM (1,171 sq km (452 sq mi)), 4 percent State-owned (545 sq km (211 sq mi)), and less than 2 percent in other Federal ownerships (200 sq km/77 sq mi).

Although management direction could change on these Federal and State-owned lands to favor grizzly bears by eliminating all other uses (e.g., livestock grazing allotments, oil and gas development), this action is not biologically necessary to maintain the recovered status of the Yellowstone grizzly bear. These areas do not constitute a significant portion of the range. If this habitat became biologically necessary in the future due to decreases in habitat quality or excessive mortality, the adaptive management approach described in the Strategy would allow managers to modify the management within what is currently “potentially” suitable habitat on public lands.

When we examine all areas found within the DPS boundaries that are within the Middle Rockies ecoregion and do not consider whether these areas are contiguous with the current grizzly bear population, an additional 7,178 sq km (2,771 sq mi) of habitat meets this sole criterion. Of this “potentially suitable” habitat that is not contiguous with the current distribution of grizzly bears, 6,341 sq km (2,448 sq mi) is contained within the Bighorn Mountains and 837 sq km (323 sq mi) within the Pryor Mountains on the Wyoming and Montana border. Distances between these mountain ranges, the current distribution of grizzly bears, and land uses in the intervening habitat will preclude dispersal of most males and most, if not all, females. Without constant emigrants from suitable habitat, it is highly unlikely that the Bighorns or the Pryor Mountains can support a self-sustaining grizzly bear population. Again, this “potentially suitable” habitat is not biologically necessary to maintain the recovered status of the Yellowstone grizzly bear DPS.

We have determined that an analysis examining the proportion of time grizzly bears spend in suitable and unsuitable habitats is unnecessary. Although this information may be useful when modeling source-sink dynamics, the sustainable mortality limits that have been established for the entire population ensure that mortality will not exceed recruitment. The Study Team will continue to monitor habitat use by radio-collared grizzly bears post-delisting and attempt to quantify why and where grizzly bears experience different mortality rates.

Issue 3

—Some commenters noted that we considered more than strictly biological criteria in the recovery process when we introduced the term “socially acceptable” in the Strategy.

Response

—The presence of grizzly bears in places with high levels of human activity and human occupancy results in biological impacts to grizzly bears in terms of increased mortality risk and displacement. The level of this impact is directly related to the location and numbers of humans, their activities, and their attitudes and beliefs about grizzly bears. The consideration of human activities is fundamental to the management of grizzly bears and their habitat.

Issue 4

—Many commenters questioned whether the 1998 baseline applied exclusively inside the PCA was adequate to ensure the continued viability of the Yellowstone DPS. They noted that in 1998, the population was already occupying a large area outside of the recovery zone and, therefore, to conclude that habitat conditions inside the PCA are what contributed to the observed 4 to 7 percent population growth is to portray an incomplete picture of what occurred. Many commenters believed all currently occupied habitat should be protected since it has contributed to the growth of the population. Many commenters suggested that protections must be extended to all suitable habitat to ensure long-term viability of the Yellowstone DPS. One commenter recommended that we employ a reserve design approach with the PCA designated as the protected core of the GYA Reserve (with no hunting) and the rest of the GYA managed as a buffer zone (with all protections currently provided in the PCA being extended to the entire GYA). One commenter also noted that we must have data on habitat conditions outside of the PCA to draw a conclusion about future risks and habitat changes there.

Response

—The Service has applied a reserve design approach by designating the PCA. The PCA, which is a subset of the suitable habitat, contains between 84 to 90 percent of the females with cubs (the population's most important age and sex group) (Schwartz

et al.

2006b, p. 64). The population has been growing at 4 to 7 percent per year since the 1990s (Harris

et al.

2006, p. 48), with most of the growth occurring inside the PCA (Schwartz

et al.

2006b, p. 64). The best available information demonstrates that the PCA contains the habitat necessary for a healthy and viable grizzly bear population in the long-term. Strict habitat protection within the PCA is guaranteed to assure the future of the population. Sixty percent of suitable habitat outside the PCA is Designated Wilderness, Wilderness Study Area, or Inventoried Roadless Area. This amount of protected habitat combined with the GYA National Forests' commitment to manage habitat for a viable grizzly bear population, forest-wide food storage orders, and designation of the grizzly bear as a species-of-concern on GYA National Forests, gives the Service reasonable assurance that grizzly bears outside of the PCA will continue to be protected adequately. In addition, allowable hunting mortalities will be determined and limited by the total sustainable mortality limit.

H. Habitat Protections

Issue 1

—Some commenters questioned the adequacy of the habitat protections that we developed for the PCA and advocated more meaningful habitat protections including baseline values for major foods, restrictions on private land development, and limits on both motorized and non-motorized recreation.

Response

—Our habitat protection criteria are adequate and biologically sound. There is no biological way to define “baseline” levels for various foods because the natural foods for grizzly bears naturally fluctuate, annually and spatially, across the ecosystem. Instead of establishing artificial baseline values for major grizzly bear foods, the protocol in place for the monitoring of major foods will provide annual indices of the variation of these foods, and will compare changes in these foods to grizzly bear vital rates such as mortality causes and locations, cub production and survival, adult female survival, and numbers and distribution of bear/human conflicts. The results will guide adaptive management responses to changes in foods such as enhanced Information and

Education (I & E) efforts, limiting grizzly bear mortality, planting whitebark pine, controlling exotic species, and/or prescribed burning.

Private lands comprise 2.1 percent of the PCA. Limits on developing private lands to reduce conflicts with resident wildlife are the responsibility of the counties and the States. County representatives are members of the Coordinating Committee and will insure that efforts to limit conflicts on private lands will continue. Their cooperation with the State wildlife agencies to promote outreach, education and management of land development activities in grizzly habitat to reduce bear/human conflicts will continue upon delisting. These efforts to limit conflicts on private lands will continue under the Coordinating Committee's management.

Limiting motorized recreation is a fundamental component of the Strategy, hence the requirement for no net decrease in secure habitat inside the PCA. This measure directly limits the total area impacted by motorized recreation, so that grizzly bears have adequate secure habitat regardless of the number of people using motorized trails. Limitation of non-motorized recreation throughout the GYA is not currently necessary, as evidenced by the increasing grizzly bear population since the 1980's (Harris

et al.

2006, p. 48). The adaptive management approach in the Strategy will allow managers to respond to detrimental levels of non-motorized recreation on a case-by-case basis and also provide managers with the data necessary to determine if ecosystem-wide limitations may be necessary in the future.

Issue 2

—Numerous comments stated that grizzly bears must be allowed access to habitat in the Southern Wind Rivers, Palisades, and Wyoming Range so that they can find food in light of declining food sources. These areas are currently deemed as socially unacceptable habitat by the Idaho and Wyoming State management plans. Many commenters thought that the States should throw out their concept of “socially acceptable” areas and should, instead, encourage colonization of all biologically suitable habitat while improving efforts to manage conflicts in those areas.

Response

—The Idaho Plan does not limit or restrict bears in the Palisades. The Idaho Plan acknowledges this area as one of many outside the PCA where grizzly bear occupancy is anticipated in the next 5 to 10 years (Idaho's Yellowstone Grizzly Bear Delisting Advisory Team 2002, pp. 8-9). The Wyoming Plan calls for management emphasis to limit conflicts in the southern Wind River and the Wyoming Ranges by discouraging grizzly bear dispersal and occupancy of these areas. The Wyoming Grizzly Bear Management Plan (WGFD 2005, pp. 12-16) does not exclude grizzlies from the southern Wind Rivers; rather, it recognizes a higher potential for grizzly bear/human conflicts if they move into areas such as the southern Wind River or Wyoming Mountain ranges. The presence of grizzly bears in places where there are high levels of human activity and occupancy results in biological impacts to grizzly bears in terms of increased mortality risk and displacement. Consideration of these potential biological impacts was a critical element in the determination of suitable habitat. As the grizzly population increases in area and density, an emphasis will be placed on education, conflict prevention, relocation, or removal of bears to limit conflicts. Because there have been few if any bears in these areas for many decades and the population has continued to grow during this time, these areas are presently not necessary to include in the PCA.

Issue 3

—Commenters requested that we consider potential changes in management of Inventoried Roadless Areas resulting from the 2005 Roadless Areas Rule (70 FR 25654) under which management decisions will be made based on State Governor's petitions and individual Forest Plans. Some thought we should undertake a more detailed analysis of “* * * roadless areas that are specifically threatened [and] identify which formerly-protected areas are especially important to present and future grizzly bear conservation.”

Response

—The State Petitions for Inventoried Roadless Area Management Rule (70 FR 25654, May 13, 2005) that replaced the Roadless Area Conservation Rule (“Roadless Rule”) (66 FR 3244, January 12, 2001) was overturned September 19, 2006 (

People of the State of California ex rel. Bill Lockyer, et al.

v.

U.S. Department of Agriculture; Mike Johanns, Secretary of the Department of Agriculture, et al.

, C05-03508 EDL). The State Petitions for Inventoried Roadless Area Management Rule was set aside and the 2001 Roadless Rule was reinstated. The USDA Forest Service was enjoined from taking any further action contrary to the 2001 Roadless Rule without undertaking environmental analysis consistent with the court opinion. Because this court decision voided the State Petitions for Inventoried Roadless Area Management Rule, the 2005 Roadless Areas Rule has no impacts. Even if the State Petitions for Inventoried Roadless Area Management Rule is sustained in a possible appeal of the September 19, 2006, court decision, the majority of roadless areas are likely to remain undeveloped. The six GYA National Forests are committed to managing for a viable grizzly bear population. If any roads are proposed to be built in roadless areas, the USDA Forest Service must first complete a formal National Environmental Policy Act of 1969 (NEPA) process and specifically consider the project's impacts on species of concern, which the Yellowstone grizzly bear population will be classified as post-delisting (USDA Forest Service 2006b, p. 26). State Petitions for Inventoried Roadless Area Management only allow the Governors to comment on the Forest Service process of considering management of Inventoried Roadless Areas and do not provide the Governors any authority to make decisions on road building. Any comments from the Governors would be considered during the EIS process.

Issue 4

—Several commenters suggested that we provide habitat protections for identified linkage zones between the GYA and other occupied and unoccupied grizzly bear habitat to the north and west.

Response

—A process to identify, maintain, and improve wildlife movement areas between the large blocks of public land in the Northern Rocky Mountains is ongoing (Servheen

et al.

2003, p. 3). This interagency effort involves 13 State and Federal agencies working on linkage facilitation across private lands, public lands, and highways (Interagency Grizzly Bear Committee 2001, pp. 1-2). To date, this effort has included: (1) Development of a written protocol and guidance document on how to implement linkage zone management on public lands (Public Land Linkage Taskforce 2004, pp. 3-5); (2) production of several private land linkage management documents, including “Making Connections from the Perspective of Local People” (Parker and Parker 2002, p. 2), and the Swan Conservation Agreement (U.S. Fish and Wildlife Service 1997), which is a collaborative linkage zone management document; (3) analyses of linkage zone management in relation to highways, including identification of multiple linkage areas in southeast Idaho from Idaho Falls to Lost Trail Pass (Geodata Services Inc. 2005, p. 2) and the effects of highways on wildlife (Waller and Servheen 2005, p. 998); and (4) a workshop in the spring of 2006 on implementing management actions for wildlife linkage, the proceedings of which are available

online at:

www.cfc.umt.edu/linkage.

The objective of this work is to maintain and enhance movement opportunities for all wildlife species across the northern Rockies. This linkage work is not directly associated with the Yellowstone grizzly population and will continue to address ways to improve cooperation and affect management on public lands, private lands, and highways in linkage areas across the northern Rockies regardless of the listed status of the Yellowstone grizzly bear DPS.

Issue 5

—Numerous commenters believed that resource extraction industries would dominate the landscape if delisting occurred. Some stated that the overall trend for habitat quality has been declining, at least in part, due to high-density oil and gas development. Some commenters believe that we did not fully evaluate or acknowledge the potential impacts from oil and gas development or increased logging in the GYA on the grizzly bear population. One commenter noted that, although there are large areas of land in the GYA that are not open to surface occupancy, such stipulations are routinely waived upon request and do not adequately address concerns of “full field development” that may occur in grizzly bear habitat.

Response

—Service-defined suitable habitat inside or outside the PCA (see Figure 1 above) does not contain active oil or gas wells. Timber is the primary resource extracted in grizzly bear habitat. Habitat quality (as a function of road density and timber harvest) has improved as a result of declining timber harvest and road construction and increasing road decommissioning since the mid-1990s (USDA Forest Service 2006a, pp. 156, 200).

Inside the PCA, the potential for increased oil and gas development in the future is guided by the Strategy and its limitations on road density and development (U.S. Fish and Wildlife Service 2007, p. 41). We do not anticipate a dramatic increase in oil and gas development outside of the PCA due to moderate to low potentials for both occurrence and development throughout most of the six GYA National Forests, with the exception of the Bridger-Teton National Forest (USDA Forest Service 2006a, pp. 210-213). Even with the high potential for occurrence and development in the Bridger-Teton, only 14 active oil and gas wells are currently inside that National Forest and none are within Service-defined suitable grizzly habitat.

Issue 6

—Many commenters were concerned about the rapid human population growth in the GYA and the resulting increases in houses, recreationists, and grizzly bear/human conflicts. Some commenters suggested that overall habitat quality in the GYA had already declined, and would continue to do so, primarily due to houses and off-highway-vehicle (OHV) use. Commenters believe that we must ensure future human population growth does not affect the grizzly bear population and recommended that we quantify current levels of use in the GYA for consideration in a risk assessment. They also recommended we develop a comprehensive monitoring, management, and enforcement plan for OHV and snowmobile use in the GYA before considering delisting.

Response

—Human populations in the GYA, and the rest of the United States, are expected to increase (USDA Forest Service 2006a, p. 229). In the six Wyoming counties where grizzly bears are, or are expected to be, in the next few decades, the human population is projected to increase by roughly 15,000 residents between 2000 and 2020 (from 105,215 in 2000 to 120,771 by 2020) (Wyoming Department of Administration and Information Economic Analysis Division 2005). In the Montana counties of Gallatin, Madison, Beaverhead, Park, Sweet Grass, Stillwater, and Carbon, total populations are expected to increase by roughly 35,000 people during this same time (from 120,934 in 2000 to 154,800 by 2020) (NPA Data Services 2002). We anticipate similar levels of population growth in the Idaho counties of the GYA given that the West, as a region, is projected to increase at rates faster than any other region (U.S. Census Bureau Population Division 2005). Increasing human populations do not necessarily lead to declining predator populations, when adequate management programs are in place with policies that promote the conservation of the species (Linnell

et al.

2001, p. 348) such as mortality control, research and monitoring, and outreach and education about living with wildlife.

Recent reports (Gosnell

et al.

2006, pp. 749-750) demonstrate that the majority of land sales over 162 ha (400 ac) in size in the greater Yellowstone ecosystem from 1990 to 2001 were to amenity buyers (39 percent) (those who purchase for ambiance or recreation and who have little interest in the economic viability of the property), or to traditional ranchers (26 percent). Less than 6 percent of 605,814 ha (1.497 million ac) sold from 1990 to 2001 were to land developers, and 12 percent were to investors whose ultimate intention was unknown. This report suggests that ongoing changes in land ownership may result in reduced conflicts between livestock and predators, and a lowered level of land development sales than previously projected. While there

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