# Endangered and Threatened Wildlife and Plants; Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-00436

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 16, 2015
- **Citation:** 80 FR 2512

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0056; FXES11130900000-156-FF09E42000]
RIN 1018-AY46
Endangered and Threatened Wildlife and Plants; Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), revise the regulations for the nonessential experimental population of the Mexican wolf (
Canis lupus baileyi
) under section 10(j) of the Endangered Species Act of 1973, as amended. This action is being taken in coordination with our final rule in this
Federal Register
to list the Mexican wolf as an endangered subspecies. The regulatory revisions in this rule will improve the project to reintroduce a nonessential experimental population, thereby increasing potential for recovery of this species.

DATES:

This rule becomes effective February 17, 2015.

ADDRESSES:

This final rule, along with the public comments, environmental impact statement (EIS), and record of decision, are available on the Internet at
http://www.regulations.gov,
Docket No. FWS-R2-ES-2013-0056 or from the office listed in
FOR FURTHER INFORMATION CONTACT
.

FOR FURTHER INFORMATION CONTACT:

Sherry Barrett, Mexican Wolf Recovery Coordinator, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; by telephone 505-761-4704; or by facsimile 505-346-2542. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. Further contact information can be found on the Mexican Wolf Recovery Program's Web site at
http://www.fws.gov/southwest/es/mexicanwolf/.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.
We are revising the regulations under the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.
) (Act or ESA) that established the experimental population of the Mexican wolf (
Canis lupus baileyi
) to further its conservation by improving the effectiveness of the reintroduction project in managing the experimental population. We intend to do this by: (1) Modifying the geographic boundaries in which Mexican wolves are managed south of Interstate-40 in Arizona and New Mexico under section 10(j) of the Act; (2) modifying the management regulations that govern the initial release, translocation, removal and take of Mexican wolves; and (3) issuing a permit under section 10(a)(1)(A) of the Act for management of Mexican wolves both inside and outside of the Mexican Wolf Experimental Population Area (MWEPA). Revisions to the regulations, which were promulgated in 1998, and the section 10(a)(1)(A) permit are needed because: (1) Under the current regulations we will not be able to achieve the necessary population growth, distribution, and recruitment that would contribute to the persistence of, and improve the genetic variation within, the experimental population; (2) there is a potential for Mexican wolves to disperse into southern Arizona and New Mexico from reintroduction areas in the States of Sonora and Chihuahua in northern Mexico; and (3) certain provisions lack clarity, are inadequate, or limit the efficacy and flexibility of our management of the experimental population of Mexican wolves.

Also, this final rule is necessitated by a related action we are taking to classify the Mexican wolf as an endangered subspecies. The Mexican wolf has been listed under the Act in the Code of Federal Regulations (CFR) at 50 CFR 17.11(h) as part of the gray wolf (
Canis lupus
) listing since 1978. Therefore, when we designated the Mexican wolf experimental population in 1998 (1998 Final Rule; 63 FR 1752, January 12, 1998), it corresponded to the gray wolf listing in even though it was specific to our Mexican wolf recovery effort. With this publication of the final rule to list the Mexican wolf as an endangered subspecies, we need to revise 50 CFR 17.11(h) such that the experimental population will be associated with the Mexican wolf subspecies listing rather than with the gray wolf species.

The basis for our action.
The 1982 amendments to the Act included the addition of section 10(j), which allows for reintroduced populations of listed species to be designated as “experimental populations.” Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate as an experimental population a population of endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range (but within its probable historical range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed). With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species' designation elsewhere in its range. Treating the experimental population as threatened allows us the discretion to devise management programs and special regulations for such a population. Section 4(d) of the Act allows us to adopt any regulations that are necessary and advisable to provide for the conservation of a threatened species. When designating an experimental population, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the section 10(j) rule contains the prohibitions and exemptions necessary and advisable to conserve that species.

We prepared an EIS.
We prepared a final Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.
) to ensure that we considered the environmental impacts of the designation of the proposed nonessential experimental population of Mexican wolves. From October through December 2007, we conducted a public scoping process under NEPA based on our intent to modify the 1998 Final Rule. We developed a scoping report in April 2008, but we did not propose or finalize any modifications to the 1998 Final Rule at that time. We again initiated scoping on August 5, 2013 (78 FR 47268). We utilized all information collected since the 2007 scoping process began in the development of the draft EIS published in the
Federal Register
on July 25, 2014 (79 FR 43358). We used information from the analyses in the final EIS published in the
Federal Register
on November 25, 2014 (79 FR 70154), to inform our final decision on the revision to the regulations for the experimental population of the Mexican wolf.

We conducted peer review.
In accordance with our joint policy published in the
Federal Register
on July 1, 1994 (59 FR 34270), we conducted peer review on our June 13, 2013 (78 FR 35719), and our July 25, 2014 (79 FR 43358), proposed rules. The purpose of such review is to ensure that our final rule for this species is based on scientifically sound data, assumptions, and analyses. We invited six peer reviewers to comment, during the open public comment period, on our use and interpretation of the science used in developing our proposed rule. We considered all comments and information we received during the comment periods on the proposed rules during preparation of this final rulemaking.

Previous Federal Actions

The Mexican wolf was listed under the Act as an endangered subspecies in 1976 (41 FR 17736, April 28, 1976). In 1978, the Service listed the entire gray wolf species in North America south of Canada as endangered, except in Minnesota where it was listed as threatened (43 FR 9607, March 9, 1978). This 1978 listing at the species level subsumed the previous Mexican wolf subspecies listing. However, the 1978 listing rule (43 FR 9607, March 9, 1978) stated that we would continue to recognize the Mexican wolf as a valid biological subspecies for purposes of research and conservation.

After the 1978 listing, the Service initiated recovery programs for the gray wolf in three broad geographical regions of the country: The Northern Rocky Mountains, the Western Great Lakes, and the Southwest. In the Southwest, a recovery plan was developed specifically for the Mexican wolf, acknowledging and implementing the regional gray wolf recovery focus on the conservation of the Mexican wolf as a subspecies (Service 1982). The 1982 Mexican Wolf Recovery Plan did not provide recovery criteria, but recommended an initial two-pronged approach to recovery to establish a captive-breeding program and reintroduce captive Mexican wolves to the wild (Service 1982, p. 28).

In 1996, we completed a final Environmental Impact Statement (EIS), “Reintroduction of the Mexican Wolf Within Its Historic Range in the Southwestern United States,” after assessing potential locations for reintroduction of the Mexican wolf (Service 1996). On April 3, 1997, the Department of the Interior issued its Record of Decision on the final EIS (62 FR 15915), and on January 12, 1998, we published a final rule in the
Federal Register
to establish the Mexican Wolf Experimental Population Area (MWEPA) in central Arizona and New Mexico (63 FR 1752; hereafter referred to as the 1998 Final Rule).

On August 4, 2010, the Service published a 90-day finding in the
Federal Register
on two petitions to list the Mexican wolf as an endangered subspecies with critical habitat (75 FR 46894). In the 90-day finding, we determined that the petitions presented substantial scientific information that the Mexican wolf may warrant reclassification as a subspecies or distinct population segment (DPS). As a result of this finding, we initiated a status review. On October 9, 2012, we published our 12-month finding (77 FR 61375) stating that the listing of the Mexican wolf as a subspecies or DPS was not warranted at that time because Mexican wolves already receive the protections of the Act under the species-level gray wolf listing of 1978.

On February 29, 2012, we completed a 5-year review of the gray wolf listed entity, recommending that the entity currently described on the List of Endangered and Threatened Wildlife should be revised to reflect the distribution and status of gray wolf populations in the lower 48 States and Mexico by removing all areas currently included in its range, as described in the CFR, except where there is a valid species, subspecies, or DPS that is threatened or endangered (Service 2012).

On June 13, 2013 (78 FR 35664), we concurrently proposed a rule in the
Federal Register
to delist the gray wolf and list the Mexican wolf subspecies as endangered. The proposal to list the Mexican wolf as an endangered subspecies necessitated that we propose a revision to the regulations for the experimental population of the Mexican wolf in Arizona and New Mexico in order to correctly document this population as an experimental population of the Mexican wolf subspecies rather than the gray wolf species found in the current CFR. We also proposed several changes to the

section 10(j) rule and management regulations of Mexican wolves to improve the effectiveness of the reintroduction project in managing the experimental population. Therefore, on June 13, 2013 (78 FR 35719), we published a proposed rule to revise the regulations for the experimental population designation of the Mexican wolf. That proposal had a 90-day comment period ending September 11, 2013.

On August 5, 2013 (78 FR 47268), we published a notice of intent to prepare an EIS in conjunction with the proposed rule to revise the regulations for the experimental population designation of the Mexican wolf. That notice of intent to prepare an EIS had a 45-day comment period ending September 19, 2013. On September 5, 2013 (78 FR 54613), we extended the public comment period on the proposed rule to revise the regulations for the experimental population designation of the Mexican wolf to end on October 28, 2013, and announced public hearings. On October 28, 2013 (78 FR 64192), we once again extended the public comment period on the proposed rule to revise the regulations for the experimental population designation of the Mexican wolf to end on December 17, 2013, and announced public hearings.

On July 25, 2014 (79 FR 43358), we proposed a new revision to the regulations for the experimental population of the Mexican wolf, and announced the availability of a draft EIS on the proposal. That proposal had a 60-day comment period ending September 23, 2014.

In a July 29, 2013, stipulated settlement agreement between the Service and the Center for Biological Diversity, the Service agreed to submit to the
Federal Register
for publication, on or before January 12, 2015, a final determination concerning the proposed section 10(j) rule modification. This final rule revising the regulations for the existing experimental population of the Mexican wolf meets that agreement.

Background

Species Information

The Mexican wolf is the smallest extant gray wolf subspecies in North America. Adults weigh 50 to 90 pounds (lb) (23 to 41 kilograms (kg)) with a length of 5 to 6 ft (1.5 to 1.8 m) and height at shoulder of 25 to 32 in (63 to 81 cm) (Brown 1988, p. 119). Mexican wolves are typically a patchy black, brown to cinnamon, and cream color, with primarily light underparts (Brown 1988, p. 118). Solid black or white coloration, as seen in other North American gray wolves, does not exist in Mexican wolves. The basic life history for the Mexican wolf is similar to that of other gray wolves (Mech 1970, entire; Service 1982, p. 11; Service 2010, pp. 32-41).

Historically, Mexican wolves were distributed across portions of the southwestern United States and northern and central Mexico. In the United States, this range included eastern, central, and southern Arizona; southern New Mexico; and western Texas (Brown 1983, pp. 10-11; Parsons 1996, pp. 102-104). Maps of Mexican wolf historical range are available in the scientific literature (Young and Goldman 1944, p. 414; Hall and Kelson, 1959, p. 849; Hall 1981, p. 932; Bogan and Mehlhop 1983, p. 17; Nowak 1995, p. 395; Parsons 1996, p. 106). The southernmost extent of the Mexican wolf's range in Mexico is consistently portrayed as ending near Oaxaca (Hall 1981, p. 932; Nowak 1995, p. 395). Depiction of the northern extent of the Mexican wolf's pre-settlement range among the available descriptions varies depending on the authors' taxonomic treatment of several subspecies and their interpretation of where reproductive interaction between neighboring wolf populations occurred (see this
Federal Register
publication of the final rule determining endangered status for the Mexican wolf (
Canis lupus baileyi
)).

Mexican wolves were associated with montane woodlands characterized by sparsely to densely forested mountainous terrain consisting of evergreen oaks (
Quercus
spp.) or pinyon (
Pinus edulus
) and juniper (
Juniperus
spp.) to higher elevation pine (
Pinus
spp.), mixed-conifer forests, and adjacent grasslands at elevations of 4,000 to 5,000 ft (1,219 to 1,524 m) where ungulate prey were abundant. Mexican wolves were believed to have preyed upon white-tailed deer (
Odocoileus virginianus
), mule deer (
O. hemionus
), elk (
Cervus elaphus
), collared peccaries (javelina) (
Tayassu tajacu
), pronghorn (
Antilocapra americana
), bighorn sheep (
Ovis canadensis
), jackrabbits (
Lepus
spp.), cottontails (
Sylvilagus
spp.), and small rodents (Parsons and Nicholopoulos 1995, pp. 141-142); white-tailed deer and mule deer were believed to be the primary sources of prey (Brown 1988, p. 132; Bednarz 1988, p. 29).

Today, Mexican wolves in Arizona and New Mexico inhabit evergreen pine-oak woodlands (
i.e.,
Madrean woodlands), pinyon-juniper woodlands (
i.e.,
Great Basin conifer forests), and mixed-conifer montane forests (
i.e.,
Rocky Mountain, or petran, forests) that are inhabited by elk, mule deer, and white-tailed deer (Service 1996, pp. 3-5; AMOC and IFT 2005, p. TC-3). Mexican wolves in the Blue Range Wolf Recovery Area (BRWRA) show a strong preference for elk compared to other ungulates (Adaptive Management Oversight Committee (AMOC) and Interagency Field Team (IFT) 2005, p. TC-14, Reed
et al.
2006, pp. 56, 61; Merkle
et al.
2009, p. 482). Other documented sources of prey include deer and occasionally small mammals and birds (Reed
et al.
2006, p. 55). Mexican wolves are also known to prey and scavenge on livestock (Merkle
et al.
2009, p. 482; Breck
et al.
2011, entire; Reed
et al.
2006, p. 1129; AMOC and IFT 2005, p. TC-15)).

Recovery Efforts

By the early 1970s, the Mexican wolf was extirpated in the United States, and by the 1980s, it was also considered extirpated in Mexico. The United States and Mexico signed the Mexican Wolf Recovery Plan in 1982 (Service 1982). The recovery plan did not contain objective and measurable recovery criteria for delisting as required by section 4(f)(1) of the Act because the status of the Mexican wolf was so dire that the recovery team could not foresee full recovery and eventual delisting (Service 1982, p. 23). Instead, the recovery plan contained a “prime objective” to ensure the immediate survival of the Mexican wolf. The prime objective of the 1982 recovery plan was: “To conserve and ensure the survival of
Canis lupus baileyi
by maintaining a captive breeding program and reestablishing a viable, self-sustaining population of at least 100 Mexican wolves in the middle to high elevations of a 5,000-square-mi area (12,950-square-km) within the Mexican wolf's historic range” (Service 1982, p. 23).

In the June 2013 proposed revision (78 FR 35719), we stated that the purpose of the experimental population is to accomplish the prime objective of the 1982 Mexican Wolf Recovery Plan to establish a viable, self-sustaining population of at least 100 Mexican wolves in the wild. That number was derived solely to prevent the Mexican wolf from going extinct, not to recover the species. We acknowledge that a scientifically based population goal is needed as part of the measurable recovery criteria in order to determine when removing the Mexican wolf from the endangered species list is appropriate. We intend to establish a population goal as part of the recovery criteria for delisting in a future revision to the Mexican Wolf Recovery Plan as soon as feasible. The population

objective of 300 to 325 Mexican wolves in the MWEPA established in this final rule would provide for the persistence of this population and enable it to contribute to the next phase of working toward full recovery of the Mexican wolf and its removal from the endangered species list. In other words, the Mexican wolves in the MWEPA population will contribute to the delisting criteria, in addition to other populations, as necessary.

A binational captive-breeding program between the United States and Mexico, referred to as the Mexican Wolf Species Survival Plan (SSP), was initiated in 1977 to 1980 with the capture of the last remaining Mexican wolves in the wild in Mexico and subsequent addition of wolves from captivity in Mexico and the United States. Through the breeding of the 7 founding Mexican wolves and generations of their offspring, the captive population has expanded to approximately 248 wolves in 55 facilities, including 37 facilities in the United States and 18 facilities in Mexico (Siminski and Spevak 2014, p. 2).

The primary purpose of the SSP is to maintain a healthy captive population of Mexican wolves for the Service and the Dirección General del Vida Silvestre (in Mexico) for reintroduction into the wild. This program is an essential component of Mexican wolf recovery. Specifically, the purpose of the SSP is to reestablish the Mexican wolf in the wild through captive breeding, public education, and research. This captive population is the sole source of Mexican wolves available to reestablish the species in the wild and is imperative to the success of reintroduction efforts in the United States and Mexico.

Reintroduction efforts to reestablish the Mexican wolf in the wild have taken place in both the United States and Mexico. Mexico initiated a reintroduction program with the release of five captive-bred Mexican wolves into the San Luis Mountains just south of the United States-Mexico border in October 2011. Through August 2014, Mexico released a total of 14 adult Mexican wolves, of which 11 died or are believed dead, and 1 was removed for veterinary care. The remaining two adult Mexican wolves were documented with five pups in 2014, marking the first successful reproductive event in Mexico since their extirpation in the 1980s. We expect the number of Mexican wolves in Mexico to fluctuate from zero to several wolves or packs of wolves during 2015 and into the future in or around Sonora and Chihuahua or other Mexican States.

In the United States, we have focused our recovery efforts on the reestablishment of Mexican wolves as an experimental population under section 10(j) of the Act in Arizona and New Mexico. We established the experimental population of Mexican wolves in 1998 to pursue the prime objective of the 1982 Mexican Wolf Recovery Plan.

(Figure 1). The reintroduction project is a collaborative effort conducted by the Service, Forest Service, Arizona Game and Fish Department, White Mountain Apache Tribe, and U.S. Department of Agriculture's Animal and Plant Health Inspection Service.

ER16JA15.015

In the years 1998 through 2002, we conducted a high number of initial releases and translocations (n = 110) and a moderate number of removals (n = 58), which contributed to a net gain of 38 wolves in the overall population and the highest average population growth rate (1.003) (
e.g.,
the average population growth was approximately 100 percent per year: Calculated as the population count at year two minus the population count at year one divided by the population at year one) experienced by the population. From 2003 through 2007, we conducted a moderate number of initial releases and translocations (n = 68) and a high number of removals (n = 84), resulting in a net gain of 10 wolves in the overall population and an average population growth rate that was relatively flat (0.069). Between 2008 and 2013, which was characterized by a low number of releases and translocations (n = 19), but also a low number of removals (n = 17), we observed a net gain of 31 wolves and a higher average population growth rate (0.095) than the previous phase (Service 2014, Appendix D, p. 1).

We expect to pursue additional recovery efforts for the Mexican wolf outside of the MWEPA in the future. In the meantime, we expect that managing this experimental population in accordance with this revised rule will contribute to future recovery. We initiated the revision of the 1982 Mexican Wolf Recovery Plan in 2010. The revised plan will provide information about suitable habitat and population sizes for Mexican wolf recovery in the United States and Mexico. A draft plan will be provided for public and peer review before being finalized.

More information about the life history, decline, and current status of the Mexican wolf in the southwestern United States can be found in the final rule determining endangered status for the Mexican wolf (
Canis lupus baileyi
) (published elsewhere in this
Federal Register
), the 1982 Mexican Wolf Recovery Plan (Service 1982, pp. 5-8, 11-12), the 1996 final EIS (Service 1996, pp. 1-7), the 1998 Final Rule (63 FR 1752, January 12, 1998), the Mexican Gray Wolf Blue Range Reintroduction Project 5-Year Review (Mexican Wolf Blue Range Adaptive Management Oversight Committee and Interagency Field Team 2005, pp. TC-1 to TC-2), the Mexican Wolf Conservation Assessment (Service 2010, pp. 7-15, 20-42), the Mexican Wolf Recovery Program Progress reports from 2001 to 2013, and the 2014 final EIS (Service 2014). These documents are available on-line at
http://www.fws.gov/southwest/es/mexicanwolf/.

Population Objective for Mexican Wolves in the MWEPA

As noted above, this experimental population represents just one component of Mexican wolf recovery based on our understanding that multiple Mexican wolf populations may be necessary for recovery. However, for purposes of this final rule, we are

establishing a population objective for the experimental population throughout the MWEPA in both Arizona and New Mexico based on the best available information until future recovery planning efforts are able to determine a population goal for range-wide recovery. We intend for the experimental population objective for this population to contribute to the future population goal established for the range-wide recovery of the Mexican wolf.

Several studies in the scientific literature helped inform our establishment of a population objective for the MWEPA. For instance, Wayne and Hedrick (2010, p. 3) recommend Mexican wolf recovery criteria to include 3 connecting populations of at least 250 Mexican wolves in each population. Their recommendation was based on the genetic aspects (effective population size) of the Mexican wolf relative to that of the gray wolf in the Northern Rocky Mountains and the recovery goals established for the Northern Rocky Mountains population. They suggest that the recovery goals of the Northern Rocky Mountains population (300 wolves, 30 breeding pairs, in 3 populations, with some level of connectivity) should serve as a starting point for Mexican wolf recovery goals because of the degree of inbreeding, higher level of human-caused mortality, and lower likelihood of persistence of Mexican wolves compared with wolves in the Northern Rocky Mountains. They conclude that 3 connected populations of 250 wolves in each population would likely be necessary to achieve recovery rangewide, suggesting that if natural gene flow does not occur between these populations then artificial movement may be necessary (Wayne and Hedrick 2010, p. 3).

Carroll
et al.
(2014) performed more sophisticated analyses of potential recovery scenarios for the Mexican wolf using a population viability model, pedigree analyses of Mexican wolves currently in the BRWRA or captivity, and habitat models related to connectivity. Carroll
et al.
(2014, entire) analyzed the variation of mortality and dispersal metrics relative to probabilities for extinction and quasi-extinction (
i.e.,
the probability of being relisted to threatened) in a metapopulation structure consisting of three populations that were connected via dispersal. Because two of these populations were assumed to have been founded using a more genetically diverse group of animals than is currently present in the experimental population in the BRWRA, the average viability of the populations was significantly higher than predicted for the experimental population.

The population extinction threshold was established as a 5 percent population extinction risk, as is commonly used in recovery plans (Carroll
et al.
2014, p. 81). The risk of extinction varied by both population size and the number of effective migrants per generation (an effective migrant is an animal that comes from outside a population and successfully reproduces within the population). The risk of extinction for population sizes below 200 was affected by the number of migrants exchanging genetic information with the population. When located within a metapopulation of three equally sized populations, populations of 100 had a greater than 5 percent extinction risk, even with 3 effective migrants per generation per population. Populations of 125 were more resilient with 2.5 to 3.0 effective migrants per generation. Populations of 150 with greater than 0.5 effective migrants per generation showed extinction risk below the 5% threshold (Carroll
et al.
2014, p. 81). This effect occurred in part because the migrants provided genetic exchange between the populations, which reduced the relatedness within each population and, therefore, increased persistence for each population.

Carroll
et al.
(2014, entire) also examined a quasi-extinction threshold. Quasi-extinction represents the likelihood that a population, once it exceeds a certain population size, will again drop below that size in the future (
e.g.,
due to the effects of accumulation of genetic inbreeding). In this analysis, they demonstrated that certain population sizes with higher levels of effective migration reduced the probability of quasi-extinction (Carroll
et al.
2014, p. 82). A population comprising between 175 and 200 wolves had a less than 50 percent probability of quasi-extinction depending on whether the population had 0.5 to 1.0 effective migrants per generation. Population sizes of 300 to 325 achieved closer to a 10 percent probability of quasi-extinction regardless of whether the population had 0.5 or 1.0 effective migrants per generation, suggesting that at larger population sizes (above 300) increasing migration beyond 0.5 effective migrants per generation is a less important factor, when each population is present within a larger metapopulation (Carroll
et al.
2014, p. 82).

Based on Carroll
et al.
(2014 entire), a population objective of at least 300 Mexican wolves with some number of effective migrants would be appropriate for a single population objective, recognizing that the number of effective migrants per generation greatly affects population persistence at various population sizes. We recommend a population objective of 300 to 325 Mexican wolves within the MWEPA throughout both Arizona and New Mexico with a minimum of 1 to 2 effective migrants per generation entering the population, depending on its size, over the long term. Further information on the minimum number of effective migrants per generation needed per population size is discussed in Section 1.2.2 of the final EIS (Service 2014). In the more immediate future, we may conduct additional releases in excess of 1-2 effective migrants per generation to address the high degree of relatedness of wolves in the current BRWRA. We will continue to refine this information through a revised recovery plan. It will be important to ensure that a specific number of effective migrants are incorporated into the population, in this case from captivity, until such time as other wild populations are established within the context of a metapopulation as defined in a Service-approved recovery plan (Carroll
et al.
2014, entire). Prior to the establishment of other wild Mexican wolf populations outside of the MWEPA and documentation of effective migrants between wild populations, we will need to use the captive population as a source of migrants for the experimental population.

Why We Need To Revise the 1998 Final Rule

We are revising the regulations to the experimental population to further the conservation of the Mexican wolf by improving the effectiveness of the reintroduction project in managing the experimental population. We intend to do this by: (1) Modifying the geographic boundaries in which Mexican wolves are managed south of Interstate-40 in Arizona and New Mexico under section 10(j) of the Act; (2) modifying the management regulations that govern the initial release, translocation, removal, and take of Mexican wolves; and (3) issuing a section 10(a)(1)(A) permit for management of Mexican wolves both inside and outside of the MWEPA. Revisions to the 1998 Final Rule and the section 10(a)(1)(A) permit are needed because: (1) Under the current regulations we will not be able to achieve the necessary population growth, distribution, and recruitment that would contribute to the persistence of, and improve the genetic variation within, the experimental population; (2) there is a potential for Mexican wolves

to disperse into southern Arizona and New Mexico from reintroduction areas in the States of Sonora and Chihuahua in northern Mexico; and (3) certain provisions lack clarity, are inadequate, or limit the efficacy and flexibility of our management of the experimental population of Mexican wolves.

Over time and through project reviews, annual reports, monitoring, and communication with our partners and the public, we recognize that elements of the 1998 Final Rule designation need to be revised to help us enhance the growth, stability, and success of the experimental population. Specifically, the 1998 Final Rule currently restricts initial releases of Mexican wolves to the Primary Recovery Zone, which constitutes only 16 percent of the BRWRA. This provision has constrained the number and location of Mexican wolves that can be released from captivity into the wild, which limits our ability to improve the genetic status of the population. Also, the 1998 Final Rule has a requirement that Mexican wolves stay within the BRWRA, which does not allow for natural dispersal movements from the BRWRA or occupation of the MWEPA. This requirement constrains the growth of the wild population. Under the 1998 Final Rule, we are required to implement management actions that disrupt social structure or lead to removal of wolves from the wild when a Mexican wolf naturally disperses from the BRWRA into the MWEPA. Therefore, we are revising a number of provisions that were established in the 1998 Final Rule to further the conservation of the Mexican wolf by improving the effectiveness of the reintroduction project in managing the experimental population.

Statutory and Regulatory Framework

The Act provides that species listed as endangered are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act, among other things, prohibits the take of endangered wildlife. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. It also states that Federal agencies must, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

The 1982 amendments to the Act included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate as an experimental population a population of endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range, but within its probable historical range. With the experimental population designation, the relevant population is treated as threatened, regardless of the species' designation elsewhere in its range. Threatened status allows us discretion in devising management programs and special regulations for such a population through the use of section 4(d) of the Act. Section 4(d) allows us to adopt any regulations that are necessary and advisable to provide for the conservation of a threatened species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the rule issued under section 10(j) of the Act (hereafter referred to as a 10(j) rule) contains the prohibitions and exemptions necessary and appropriate to conserve that species.

Before authorizing the release as an experimental population of any population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere; (2) the likelihood that any such experimental population will become established and survive in the foreseeable future; (3) the relative effects that establishment of an experimental population will have on the recovery of the species; and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area.

Furthermore, as set forth in 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s); (2) a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild; (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and contain the experimental population designated in the regulation from natural populations; and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.

Under 50 CFR 17.81(d), the Service must consult with appropriate State game and fish agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land that may be affected by the establishment of an experimental population.

Based on the best scientific and commercial data available, we must determine whether the experimental population is essential or nonessential to the continued existence of the species. The regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential.

For the purposes of section 7 of the Act, we treat a nonessential experimental population as a threatened species when it is located within a National Wildlife Refuge or unit of the National Park Service, and Federal agency conservation requirements under section 7(a)(1) and the Federal agency

consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When a nonessential experimental population is located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) apply.

In these instances, a nonessential experimental population provides additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. Because the nonessential experimental population is, by definition, not essential to the continued existence of the species, the effects of proposed actions affecting the nonessential experimental population will generally not rise to the level of jeopardizing the continued existence of the species. As a result, a formal conference will likely never be required for Mexican wolves established within the experimental population area. Nonetheless, some agencies voluntarily confer with the Service on actions that may affect a proposed species. Activities that are not carried out, funded, or authorized by Federal agencies are not subject to provisions or requirements in section 7.

Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish a nonessential experimental population.

Revisions to the Geographic Area of the Mexican Wolf Experimental Population

We are expanding the MWEPA by moving the southern boundary from Interstate Highway 10 to the United States-Mexico international border across Arizona and New Mexico (Figure 2). Expanding the MWEPA was a recommendation in the Mexican Wolf Blue Range Reintroduction Project 5-Year Review (AMOC and IFT 2005, p. ARC-3). We are making this modification because the reintroduction effort for Mexican wolves now being undertaken by the Mexican Government has established a need to manage Mexican wolves that may disperse into southern Arizona and New Mexico from reestablished Mexican wolf populations in Mexico. An expansion of the MWEPA south to the international border with Mexico would allow us to manage all Mexican wolves in this area, regardless of origin, under the experimental population 10(j) rule. The regulatory flexibility provided by our revisions to the 1998 Final Rule would allow us to take management actions within the MWEPA that further the conservation of the Mexican wolf while being responsive to needs of the local community in cases of problem wolf behavior.

Figure 2—Revised geographic boundaries for the Mexican wolf experimental population area (MWEPA).

BILLING CODE 4310-55-P

ER16JA15.016

Also, we are identifying Zones 1, 2, and 3 as different management areas within the MWEPA and discontinuing the use of the term BRWRA. Zone 1 is where Mexican wolves may be initially released or translocated, and includes all of the Apache, Gila, and Sitgreaves National Forests; the Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the Tonto National Forest; and the Magdalena Ranger District of the Cibola National Forest. Zone 2 is where Mexican wolves will be allowed to naturally disperse into and occupy, and where Mexican wolves may be translocated. On Federal land in Zone 2, initial releases of Mexican wolves are limited to pups less than 5 months old, which allows for the cross-fostering of pups from the captive population into the wild, and it enables translocation-eligible adults to be re-released with pups born in captivity. On private and tribal land in Zone 2, Mexican wolves of any age, including adults, can also be initially released under a Service- and State-approved management agreement with private landowners or a Service-approved management agreement with tribal agencies. Translocations in Zone 2 will be focused on suitable Mexican wolf habitat that is contiguous to occupied Mexican wolf range. Zone 3 is where neither initial releases nor translocations will occur, but Mexican wolves will be allowed to disperse into and occupy. Zone 3 is an area of less suitable Mexican wolf habitat where Mexican wolves will be more actively managed under the authorities of this rule to reduce conflict with the potentially affected public.

Further, we have included a phased approach to translocations, initial releases, and occupancy of Mexican wolves west of Highway 87. In consultations with officials of the Arizona Game and Fish Department, they expressed concern that elk populations west of Highway 87 are generally smaller in number and isolated from each other compared to elk populations east of Highway 87. Also, areas west of Highway 87 tend to be drier, and, therefore, elk herds have greater fluctuations in population size than herds in more mesic areas to the east. As such, Arizona's most dense and productive elk populations are found in the eastern part of the State, generally east of Highway 87. Therefore, we have included a phased approach to translocations, initial releases, and occupancy of Mexican wolves west of Highway 87.

As part of the phased-approach, Phase 1 will be implemented for the first 5 years following the effective date of this rule (see DATES). During this phase, initial releases and translocation of Mexican wolves can occur throughout Zone 1 with the exception of the area west of State Highway 87 in Arizona (Figure 3). No translocations can be conducted west of State Highway 87 in Arizona in Zone 2. Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3). However, during Phase 1, dispersal and occupancy in Zone 2 west of State Highway 87 will be limited to the area north of State Highway 260 and west to Interstate 17.

Figure 3—Phase 1 management boundaries for the Mexican wolf experimental population in Arizona.

ER16JA15.017

BILLING CODE 4310-55-C
If determined to be necessary by the 5-year evaluation, we will initiate Phase 2 (Figure 4). In Phase 2, initial releases and translocation of Mexican wolves can occur throughout Zone 1 including the area west of State Highway 87 in Arizona. No translocations can be conducted west of Interstate Highway 17 in Arizona. Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3) with the exception of those areas west of State Highway 89 in Arizona.

Figure 4—Phase 2 management boundaries for the Mexican wolf experimental population in Arizona.

ER16JA15.018

If determined to be necessary by the 8-year evaluation and Phase 2 has already been implemented, Phase 3 will be initiated (Figure 5). In Phase 3, initial release and translocation of Mexican wolves can occur throughout Zone 1; Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3). However, no translocations can be conducted west of State Highway 89 in Arizona.

The phasing may be expedited with the concurrence of participating State game and fish agencies. Regardless of the phase implemented, by the beginning of year 12 from the effective date of this rule (see DATES), we will move to full implementation of this rule throughout the MWEPA, and the phased management approach will no longer apply (Figure 2). Full implementation means that initial release and translocation of Mexican wolves can occur throughout entire Zone 1; Mexican wolves can disperse naturally from Zone 1 into and within the MWEPA (Zones 2 and 3) and occupy the MWEPA (Zones 1, 2 and 3); and translocations can be conducted at selected translocation sites on Federal land within Zones 1 and 2 of the MWEPA.

Figure 5—Phase 3 management boundaries for the Mexican wolf experimental population in Arizona.

ER16JA15.019

Additionally, we are eliminating the BRWRA designation along with the primary and secondary recovery zones provided for in the 1998 Final Rule in accordance with recommendations in the Mexican Wolf Blue Range Reintroduction Project 5-Year Review (AMOC and IFT 2005, p. ARC-4). We are designating Zone 1 as the area where initial releases can occur, which includes the entire Apache and Sitgreaves National Forests and the Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the Tonto National Forest in Arizona; and the Gila National Forest and the Magdalena Ranger District of the Cibola National Forest in New Mexico (Figure 2). This revision will provide additional area and locations for initial releases of Mexican wolves to the wild from captivity beyond that currently allowed by the 1998 Final Rule.

With this final rule, we have removed the small portion of the MWEPA in Texas. This area is not likely to contribute substantially to our population objective and is not suitable for the conservation of Mexican wolves because of the lack of a sufficient amount of suitable habitat for the Mexican wolf. We do not expect Mexican wolves to occupy the small portion of Texas that was previously in the MWEPA because ungulate populations are inadequate to support Mexican wolves there.

Lastly, we are removing the White Sands Wolf Recovery Area as a possible reintroduction site for Mexican wolves (Figure 2), although Mexican wolves will still be able to disperse to and occupy this area. Under the 1998 Final Rule, initial releases and reintroduction

of Mexican wolves into the White Sands Wolf Recovery Area was authorized if the Service found it necessary and feasible in order to achieve the recovery goal of at least 100 Mexican wolves occupying 5,000 square mi (12,950 square km) (Service 1998). While this recovery area lies within the probable historical range of the Mexican wolf, and could be an important reestablishment site if prey densities increased substantially, it is now considered a marginally suitable area for Mexican wolf release and reestablishment primarily due to the low density of prey. For this reason the Mexican Wolf Blue Range Reintroduction Project 5-Year Review recommended that an amended or new experimental population rule not include White Sands Missile Range as a Mexican Wolf Recovery Area or as a reintroduction zone (AMOC and IFT 2005, p. ARC-3).

Reintroduction Procedures

In our 1998 Final Rule, we stated that we would release 14 family groups of Mexican wolves into the BRWRA over a period of 5 years to achieve our objective of establishing a population of at least 100 wild Mexican wolves. Selection criteria for Mexican wolves that are released include genetics, reproductive performance, behavioral compatibility, response to the adaptive process, and other factors (63 FR 1754, January 12, 1998). Since the end of that initial 5-year period in 2003, we have continued to conduct initial releases of Mexican wolves from captivity into the BRWRA and to translocate wolves with previous wild experience back into the BRWRA.

We have considerable experience conducting initial releases and resulting data upon which to guide our actions. We consider a successful initial release to be any Mexican wolf that ultimately breeds and produces pups in the wild. Between 1998 and 2013, our initial release success rate has been about 21 percent (Service 2014, Appendix D, p. 4). In other words, for every 100 wolves we release, only 21 of them survive, breed, and produce pups, therefore becoming effective migrants. Based on this success rate, and during the first 20 years of management under this final rule, we expect that each time we initially release wolves we will need to release 10 wolves to achieve 2 effective migrants, one component of our population objective for the MWEPA. Migrants are important to the conservation of the species to help alleviate genetic threats to the population including reducing kinship (the relatedness of animals to one another) and reducing loss of genetic variation. Based on assessment of the initial release success of various historical release strategies (single wolves, pairs, packs, etc.), we would expect to achieve this target by releasing 2 packs, each with an adult pair and several pups, during years 1 to 4 and 4 to 8, and 1 or 2 packs during the next three successive generations until year 20, or for 5 generations. We may conduct several additional releases in the immediate future in excess of 2 effective migrants per generation to specifically address the high degree of relatedness of wolves in the current BRWRA. The number of effective migrants needed to alleviate genetic threats to the population could decrease in the third and subsequent generations, assuming the population is above 250, as a population of that size is more robust. We may also conduct infrequent initial releases over time for other management purposes such as replacing wolves that have been removed from the wild. This number of effective migrants (7 to 10 wolves over 5 generations) is negligible from a population size standpoint, but should be significant from a genetic standpoint assuming animals selected for initial release are genetically desirable contributions to the population (Carroll
et al.
2014, p. 81).

We expect to have adequate availability of initial release sites for the initial releases during future generations. That is, we would need 7 to 10 sites available (unoccupied by established wolf packs) for the release of packs. Zone 1 of the MWEPA provides for at least 7 release sites (see Figure D-2, Service 2014, Appendix D, p. 9). However, the ability to conduct initial releases of packs in these areas will also depend on the natural recolonization of the area. Coordination with State and Federal agencies, counties, Tribes, and the public would be needed prior to identifying specific release sites in Zone 1.

Management of the Experimental Population of Mexican Wolves

The prime objective of the 1982 recovery plan was to conserve and ensure the survival of the Mexican wolf by maintaining a captive-breeding program and reestablishing a viable, self-sustaining population of at least 100 Mexican wolves in the wild (Service 1982, p. 23). Based on the 1982 recovery plan, we established a captive-breeding population, starting with 7 founding wolves, of 240 to 300 Mexican wolves in 55 breeding facilities in the United States and Mexico. The 1998 Final Rule enabled us to release Mexican wolves from this captive population into the wild to determine if it was possible to establish a wild population following the extirpation of the species in the early 1970s. Since 1998, we have demonstrated success in establishing a wild population (
e.g.,
a minimum of 83 Mexican wolves in the wild, all of which are wildborn as of December 2013). However, we are now revising the 1998 Final Rule so that we can improve the effectiveness of the reintroduction project to achieve the necessary population growth, distribution, and recruitment, as well as genetic variation within the Mexican wolf experimental population so that it can contribute to recovery in the future. Following this phase of improving the existing experimental population regulation, we intend to revise the Mexican wolf recovery plan so that it provides a recovery goal and objective and measurable recovery criteria, which may require further revision to this regulation for the experimental population in the future including any necessary analysis pursuant to NEPA.

We are implementing this rule to further the conservation of the Mexican wolf by improving the effectiveness of the reintroduction project in managing the experimental population. The experimental designation enables the Service to develop measures for management of the population that are less restrictive than the mandatory prohibitions that protect species with endangered status. This includes allowing limited take of individual Mexican wolves under narrowly defined circumstances (50 CFR 17.84(k)(6)). Management flexibility is needed to make reintroduction compatible with current and planned human activities, such as livestock grazing and hunting. It is also critical to obtaining needed State, tribal, local, and private landowner cooperation. The Service believes this flexibility has and will continue to improve the likelihood of success of this reestablishment effort. Management of the experimental population may include any of the provisions herein or provided for in Service-approved management plans, protocols, and permits.

Upon the effective date of this rule and as described under paragraph (k)(9)(iv) in the regulations at the end of this document and in accordance with management phasing in Arizona, we are allowing initial release of Mexican wolves throughout the entire Zone 1; allowing Mexican wolves to disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3). We are allowing translocation of Mexican wolves at selected

translocation sites on Federal land within Zones 1 and 2 of the MWEPA, and we can develop management agreements with private landowners, with the concurrence of State game and fish agencies, and with tribal governments, for management of Mexican wolves in Zone 2. Under this rule, we are allowing Mexican wolves to occupy Federal and non-Federal land in the MWEPA, except in the case of depredation, other nuisance behavior, or an unacceptable impact to a wild ungulate herd that cannot be effectively managed through non-removal techniques. In addition, Mexican wolves will be captured and removed from tribal trust land if requested by the tribal government.

In order to maximize our management flexibility, we have revised the regulations for the take of Mexican wolves on Federal and non-Federal land within the entire MWEPA (Zones 1, 2, and 3) by:

(1) Modifying the conditions that determine when we would issue a permit to allow livestock owners or their agents to take (including intentional harassment or kill), in conjunction with a control action, any Mexican wolf that is in the act of biting, wounding, or killing livestock on Federal land, where specified in the permit; allowing domestic animal owners or their agents to take (including kill or injure) any Mexican wolf that is in the act of biting, wounding or killing domestic animals on non-Federal land anywhere within the MWEPA;

(2) Providing that the Service or a designated agency may, in conjunction with a removal action authorized by the Service, issue permits to allow domestic animal owners or their agents (
e.g.,
employees, land manager, local officials) to take (including intentional harassment or kill) any Mexican wolf that is present on non-Federal land where specified in the permit; and

(3) Revising the conditions under which take will be authorized in response to an unacceptable impact of Mexican wolf predation on a wild ungulate herd.

Additionally, subject to Service and State approved management agreements, the Service or a designated agency may develop and implement management actions on private land in management Zones 1 and 2 within the MWEPA in voluntary cooperation with private landowners, including but not limited to initial release and translocation of wolves onto such lands if requested by the landowner.

Subject to agreements with tribal governments, the Service may develop and implement management actions on tribal trust land in management Zones 1, 2, and 3 within the MWEPA in voluntary cooperation with tribal governments including but not limited to initial release and translocation. No agreement with a Tribe is necessary for the capture and removal of Mexican wolves from tribal trust land if requested by the tribal government.

Further, we have included a phased approach to translocations, initial releases, and occupancy of Mexican wolves west of Highway 87. As part of the phased-approach, Phase 1 will be implemented for the first 5 years following the effective date of this rule (see
DATES
). During this phase, we will conduct initial releases of Mexican wolves throughout Zone 1 with the exception of the area west of State Highway 87 in Arizona (Figure 3). No translocations can be conducted west of State Highway 87 in Arizona in Zone 2. Mexican wolves can disperse naturally from Zones 1 and 2 into and occupy the MWEPA (Zones 1, 2 and 3). However, during Phase 1, dispersal and occupancy in Zone 2 west of State Highway 87 will be limited to the area north of State Highway 260 and west to Interstate 17.

If determined to be necessary by the 5-year evaluation, we will initiate Phase 2 (Figure 4). In Phase 2 initial releases of Mexican wolves can occur throughout Zone 1 including the area west of State Highway 87 in Arizona. No translocations can be conducted west of Interstate Highway 17 in Arizona. Mexican wolves can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3) with the exception of those areas west of State Highway 89 in Arizona.

If determined to be necessary by the 8-year evaluation and Phase 2 has already been implemented, Phase 3 will be initiated (Figure 5). In Phase 3, initial release of Mexican wolves can occur throughout Zone 1. No translocations can be conducted west of State Highway 89 in Arizona. Mexican wolves can disperse naturally from Zones 1 and 2 into and occupy the MWEPA (Zones 1, 2, and 3).

While implementing this phased approach, two evaluations will be conducted: (1) Covering the first 5 years and (2) covering the first 8 years after the effective date of this rule in order to determine if we will move forward with the next phase. Each phase evaluation will consider adverse human interactions with Mexican wolves, impacts to wild ungulate herds, and whether or not the Mexican wolf population in the MWEPA is achieving a population number consistent with a 10 percent annual growth rate based on end-of-year counts, such that 5 years after the effective date of this rule the population of Mexican wolves in the wild is at least 150, and 8 years after the effective date of this rule the population of Mexican wolves in the wild is at least 200. If we have not achieved this population growth, we will move forward to the next phase. Regardless of the outcome of the two evaluations, by the beginning of year 12 from the effective date of this rule, we will move to full implementation of this rule throughout the MWEPA, and the phased management approach will no longer apply. The phasing may be expedited with the concurrence of participating State game and fish agencies.

Also, we are revising and reissuing the Mexican Wolf Recovery Program's section 10(a)(1)(A) research and recovery permit (TE-091551-8 dated 04/04/2013) so that it applies to management of Mexican wolves both within and outside of the MWEPA. Under this permit we will authorize removal of Mexican wolves that can be identified as coming from the experimental population that disperse and establish territories in areas outside of the MWEPA. We will make a determination, based in part on their genetic value relative to the Mexican wolf population, to maintain these wolves in captivity, translocate them to areas of suitable habitat within the MWEPA, or transfer them to Mexico.

Identification and Monitoring

Prior to release from captivity into the wild, Mexican wolves will receive permanent identification marks and radio collars, as appropriate. While not all Mexican wolves are radio-collared, we attempt to maintain at least two radio collars per pack in the wild. Radio collars allow the Service to monitor reproduction, dispersal, survival, pack formation, depredations, predation, and a variety of other important biological metrics. We do not foresee a scenario where we would not continue an active monitoring strategy for Mexican wolves while they are listed under the Act. However, we also recognize that a majority of wild Mexican wolves may not have radio collars as the population grows.

The Service will measure the success or failure of releases, translocations, and other management actions by monitoring, researching, and evaluating the status of Mexican wolves and their offspring. Using adaptive management principles, the Service will continue to modify subsequent management actions depending on what is learned. We will prepare periodic progress reports, annual reports, and publications, as

appropriate, to evaluate release strategies and other management actions.

The 1998 Final Rule contained requirements to conduct full evaluations of the status of the experimental population after 3 and 5 years. As part of the evaluations, a recommendation was made for continuation, modification, or termination of the reintroduction project. Both evaluations were conducted and recommendations were made to continue the experimental population with modifications. These reviews were intensive efforts that included Service staff, other Federal, State, and tribal agencies, independent experts, and public involvement. We will conduct a one-time full evaluation of this final rule 5 years after it becomes effective; the evaluation will focus on modifications needed to improve the efficacy of reestablishing Mexican wolves in the wild and the contribution the experimental population is making toward the recovery of the Mexican wolf. We do not consider a 3-year review to be necessary, as we included this provision in the 1998 Final Rule to address the substantial uncertainties we had with reestablishing captive Mexican wolves to the wild. Therefore, a one-time program review conducted 5 years after our final determination will provide an appropriate interval to assess the effectiveness of the project. This one-time program review is separate from the status review of the listed species that we will conduct once every 5 years as required by section 4(c)(2) of the Act.

Summary of Comments and Recommendations

From October through December 2007, we conducted a public scoping process under NEPA based on our intent to modify the 1998 Final Rule. We developed a scoping report in April 2008, but we did not propose or finalize any modifications to the 1998 Final Rule at that time. We again initiated scoping on August 5, 2013 (78 FR 47268), when we published a notice of intent to prepare an EIS in conjunction with the proposed rule to revise the regulations for the experimental population designation of the Mexican wolf. That notice of intent to prepare an EIS had a 45-day comment period ending September 19, 2013. We requested written comments from the public on the proposed revision to the regulations for the experimental population of the Mexican wolf during two comment periods: June 13, 2013, to December 17, 2013, and July 25, 2014, to September 23, 2014. Additionally four public hearings were held: November 20, 2013, in Albuquerque, New Mexico; December 3, 2013, in Pinetop, Arizona; August 11, 2014, in Pinetop, Arizona; and August 13, 2014, in Truth or Consequences, New Mexico. We also contacted appropriate Federal, tribal, State, county, and local agencies, scientific organizations, and other interested parties and invited them to comment on the proposed rule during these comment periods.

Over the course of the two comment periods, we received approximately 48,131 comment submissions. All substantive information provided during these comment periods, including the public hearings, has either been incorporated directly into this final determination or addressed below. Comments from peer reviewers and State game and fish agencies are grouped separately. In addition to the comments, some commenters submitted for our consideration additional reports and references, which were reviewed and incorporated into this final rule as appropriate.

Peer Reviewer Comments

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from six knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from four of the six peer reviewers we contacted during the first comment period. During the second comment period, we received responses from one of the six peer reviewers.

We reviewed all comments received from the peer reviewers regarding the proposed revision to the regulations for the experimental population designation of the Mexican wolf. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule, as appropriate.

(1)
Comment:
The wording “based on established ungulate management goals” and “unacceptable impact” in the take provision for unacceptable impacts to wild ungulates is problematic in being so loosely worded and unqualified as to allow a wide variety of interpretations.

Our response:
Based on information that we received from the Arizona Game and Fish Department and agreed upon by the New Mexico Department of Game and Fish, an unacceptable impact to a wild ungulate herd will be determined by a State game and fish agency based upon ungulate management goals, or a 15 percent decline in an ungulate herd as documented by a State game and fish agency, using their preferred methodology, based on the preponderance of evidence from bull to cow ratios, cow to calf ratios, hunter days, and/or elk population estimates. The rule also includes the process that the State game and fish agencies must follow to demonstrate that the decline in the ungulate population was influenced by Mexican wolves.

(2)
Comment:
There needs to be some justification presented why 100 Mexican wolves was once determined to be biologically warranted or why that number rather than 50 or 200 is not the goal for Mexican wolf restoration in its historical range of the purported subspecies in Arizona and New Mexico. There needs to be some link to how 100 Mexican wolves will help achieve recovery for the subspecies as defined under the Act.

Our response:
As of the early 1970s, the Mexican wolf was extirpated in the United States. The prime objective of the 1982 recovery plan was to conserve and ensure the survival of the Mexican wolf by maintaining a captive-breeding program and reestablishing a viable, self-sustaining population of at least 100 Mexican wolves in the wild (Service 1982, p. 23). This number was not intended to be a recovery goal. It was a starting point to determine whether or not we could successfully establish a population of Mexican wolves in the wild that would conserve the species and lead to its recovery. Based on the 1982 recovery plan, we have now established a captive-breeding program and a wild population; however, we recognize the need to revise the 1998 Final Rule so that we can improve the effectiveness of the reintroduction project to achieve the necessary population growth, distribution, and recruitment, as well as genetic variation within the Mexican wolf experimental population so that it can contribute to recovery in the future. We acknowledge that a scientifically based population goal, as a component of future objective and measurable recovery criteria, is needed in order to help determine when removing the Mexican wolf from the endangered species list is appropriate. Following this phase of improving the existing experimental population regulation, we intend to revise the Mexican wolf recovery plan so that it provides a recovery goal and objective and measurable recovery criteria, which may require further revision to this regulation for the experimental

population in the future including any necessary analysis pursuant to NEPA.

In the meantime, this experimental population represents just one phase of Mexican wolf recovery. Based on Carroll
et al.
(Carroll
et al.
2014, pp. 81-82)), a population objective of at least 300 Mexican wolves with some number of effective migrants would be appropriate for a single population objective, recognizing that the number of effective migrants per generation greatly affects population persistence at various population sizes. We have established a population objective of 300-325 wolves for the MWEPA.

(3)
Comment:
The June 2013 proposed rule suggests that any landowner can request translocation and the Service will attempt to do that. I believe this concept would be a huge mistake and will lead to the very problems that have occurred, to the detriment of Mexican wolf recovery, with the agency removal of non-problem Mexican wolves outside the primary recovery area. If Mexican wolves cause a problem, then deal with them. If not, leave them alone and let them assist with achieving population objectives. That type of provision invites conflict, public demands that cannot be satisfied, bad public relations, and waste of agency resources. The rule should be crystal clear for the public to understand.

Our response:
We clarified many of the provisions in our revised proposed rule that published in the
Federal Register
on July 25, 2014. We will not remove a Mexican wolf if a landowner (other than tribes on tribal trust lands) requests removal and the wolf is not engaging in activities that fit the definition of a “problem wolf.” We have clarified the language to allow the initial release and translocation of Mexican wolves onto private lands if there is an agreement with the landowner and concurrence with the State game and fish agency.

(4)
Comment:
Take of a Mexican wolf by a pet owner is not an issue and should be allowed. It is not going to be a significant issue either way, as very few Mexican wolves will ever be taken, but might give pet owners some recourse and peace of mind.

Our response:
We have included a provision in this final rule to allow for take of Mexican wolves by owners of domestic animals, which include pet dogs and dogs working livestock or being lawfully used to trail or locate wildlife on non-Federal lands. Domestic animal means livestock as defined in the regulations at the end of this final rule and non-feral dogs. On non-Federal lands, domestic animal owners or their agents may take (including kill or injure) any Mexican wolf that is in the act of biting, killing, or wounding a domestic animal, as defined in the regulations, provided that evidence of freshly wounded or killed domestic animals by Mexican wolves is present. In addition, anyone may use opportunistic harassment of any Mexican wolf at any time provided that Mexican wolves are not purposefully attracted, tracked, searched out, or chased and then harassed.

Comments From Other Federal Agencies

(5)
Comment:
The potential expansion of the BRWRA to include the Lakeside and Black Mesa Districts of the Sitgreaves National Forest and the Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the Tonto National Forest will bring additional issues that must be considered and addressed by the Service. Of particular concern is the heavy interspersion of inholdings of private lands, towns and numerous unincorporated areas, and the adjacency of the Black Mesa, Tonto, Payson, and Pleasant Valley Ranger Districts to the Phoenix metropolitan area. These Districts also have extensive open road and motorized trail networks with extremely high recreational use.

Our response:
We acknowledge that there are areas within the MWEPA that are of less suitable Mexican wolf habitat and where Mexican wolves will be more actively managed under the authorities of this rule to reduce human conflict. Initial releases of Mexican wolves will be well away from towns and dwellings. We expect Mexican wolves to occupy areas of suitable habitat where ungulate populations are adequate to support them and conflict with humans and their livestock would be low. If Mexican wolves move outside areas of suitable habitat, such as the areas described by the commenter, they will be more actively managed.

(6)
Comment:
One Federal agency suggested that expanding the MWEPA boundary to include areas south of Interstate 10 to the United States-Mexico international border is problematic because there are few deer or elk in this area and this expansion would likely lead to increased livestock predation. Because the area contains more people than remote forested areas of Arizona and New Mexico, there would likely be more interaction and conflict with both people and pets.

Our response:
The area of Arizona and New Mexico south of Interstate 10 may provide stepping stone habitat and dispersal corridors for wolves dispersing north from Mexico and south from the experimental population. Management of all Mexican wolves in this area under this final rule will improve the effectiveness of the reintroduction project in minimizing and mitigating wolf-human conflict by providing more management flexibility. Without the experimental population designation, wolves that disperse north from Mexico would currently be considered fully endangered, which allows for only limited management and runs counter to the management allowed by the nonessential experimental population designation.

(7)
Comment:
One Federal agency recommended clarifying whether the revised 10(j) rule constituted a change in the way depredation losses have been counted in the past. It was recommended that the Service gather information on the total number of livestock killed by wolves, not just the number of incidents, because the actual number of livestock involved is still important and needs to be accounted for and reported.

Our response:
In this final rule, we do not change the way depredation losses have been counted in the past. We do not use the term depredation incident and only use the term depredation in our definition of problem wolves. We define depredation as the confirmed killing or wounding of lawfully present domestic animals by one or more Mexican wolves. Also, we define problem wolves as Mexican wolves that are individuals or members of a group or pack (including adults, yearlings, and pups greater than 4 months of age) that were involved in a depredation on lawfully present domestic animals; or habituated to humans, human residences, or other facilities regularly occupied by humans.

(8)
Comment:
The proposed rule provides for unintentional take coverage for Federal, State, or tribal agency employees or their contractors while engaging in the course of their official duties, such as military training and testing. Some military bases support a robust recreation program as part of its mission in accordance with the Sikes Act. Unintentional take should cover users of Federal lands that are not agency employees or their contractors, such as recreational users and hunters.

Our response:
The provision for unintentional take allows for the take of a Mexican wolf by any person if the take is unintentional and occurs while engaging in an otherwise lawful activity. Such take must be reported as specified in accordance with paragraph (k)(6) of the regulations. Hunters and other shooters have the responsibility to identify their quarry or target before shooting, thus shooting a wolf as a result of mistaking it for another species

will not be considered unintentional take. Take by poisoning will not be considered unintentional take.

(9)
Comment:
The Marine Corps conducts military and associated activities adjacent to and within restricted airspace overlying the Cabeza Prieta National Wildlife Refuge. As such activities may affect Mexican wolves that may be present on the refuge, the Federal agency recommended that the rule clarify how exclusions, specifically use of lands within the National Wildlife Refuge System as safety buffer zones for military activities, apply to military activities adjacent to and over the refuge.

Our response:
The Cabeza Prieta National Wildlife Refuge occurs within Zone 3 of the MWEPA, which is an area of less suitable Mexican wolf habitat. We expect very few Mexican wolves to occupy these areas of less suitable habitat because ungulate populations are inadequate to support them. In any case, Federal, State, or tribal agency employees or their contractors may take a Mexican wolf or wolf-like animal if the take is unintentional and occurs while engaging in the course of their official duties. This includes, but is not limited to, military training and testing and Department of Homeland Security border security activities. Further, the use of lands within the National Park or National Wildlife Refuge Systems as safety buffer zones for military activities and Department of Homeland Security border security activities are specifically excluded from the definition of “disturbance-causing land-use activity.”

Comments From States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from the States regarding the proposal to revise the regulations to the experimental population of the Mexican wolf are addressed below.

(10)
Comment:
The June 2013 proposed revision classifies State Game Commission-owned lands as public without any discussions with the States. Because the proposed classification would limit Mexican wolf management flexibility on Commission-owned properties, the Service should exclude State Game Commission-owned lands.

Our response:
In this final rule, we have separate provisions for take of Mexican wolves based on whether they occur on Federal or non-Federal lands. Non-Federal land means any private, State-owned, or tribal trust land. In this final rule, State Game Commission-owned lands are considered non-Federal lands.

(11)
Comment:
One State agency requested that the Service explain how increased impacts to ranchers, rural families, property owners, recreational users, and local communities will be mitigated under the proposed rule change to allow direct release throughout the BRWRA.

Our response:
We have included several provisions in the final rule that will mitigate the potential impacts of Mexican wolves on landowners, recreational users, and local communities. Under the final rule, on non-Federal lands, domestic animal owners or their agents may take (including kill or injure) any Mexican wolf that is in the act of biting, killing, or wounding a domestic animal, as defined in the regulations, provided that evidence of freshly wounded or killed domestic animals by Mexican wolves is present; on Federal land, livestock owners may be permitted to take a wolf that is in the act of biting, killing, or wounding livestock. We have also included a provision for issuance of take permits on non-Federal land for domestic animal owners to assist the Service or its designated agency in completing wolf control actions. In addition, after the Service or its designated agency has confirmed Mexican wolf presence on any land within the MWEPA, the Service or its designated agency may issue permits valid for not longer than 1 year, with appropriate stipulations or conditions, to allow intentional harassment of Mexican wolves.

(12)
Comment:
Clarify how depredation compensation, incentive, and mitigation programs will be funded and administered.

Our response:
This rule does not fund or administer depredation compensation and mitigation programs. However, the Service, in cooperation with the National Fish and Wildlife Foundation, established the Mexican Wolf/Livestock Interdiction Trust Fund (Trust Fund), in 2009. The objective of the Trust Fund is to generate long-term funding for prolonged financial support to livestock operators within the framework of cooperative conservation and recovery of Mexican wolf populations in the Southwest. The Trust Fund is overseen by the Mexican Wolf/Livestock Coexistence Council, an 11-member group of ranchers, Tribes, county coalitions, and environmental groups that may identify, recommend, and approve conservation activities, identify recipients, and approve the amount of the direct disbursement of Trust Funds to qualified recipients. The Coexistence Council completed the Mexican Wolf/Livestock Coexistence Plan in March 2014. It is the current policy of the Coexistence Council to pay 100 percent of the market value of confirmed depredated cattle and 50 percent market value for probable kills. In addition, the Coexistence Council distributed $85,500 for a pay-for-presence program to ranchers in the BRWRA in 2014. The Payment for Presence program mitigated other uncompensated costs (
i.e.,
unconfirmed wolf kills that are never found) that ranchers experience with the presence of wolves. The Payment for Presence program uses a formula, based on wolf utilization of allotments, the number of pups that are alive at the end of the year from a wolf pack utilizing an allotment, the ranchers' implementation of conflict avoidance methods, and the number of livestock exposed to wolves, to equitably distribute available funds among ranchers applying to the program. Continued funding under the Coexistence Plan will depend on obtaining funding from private and public sources.

(13)
Comment:
The Mexican Wolf/Livestock Coexistence Council is underfunded and significantly challenged to fund losses and conflict-avoidance measures by currently participating livestock producers within the BRWRA and MWEPA. Under its current financial limitations, it has no ability to provide significant (if any) financial support for broad-scale conservation actions rather than compensation for local losses. Neither the proposed rule nor the draft EIS shed adequate light on anticipated costs of interdiction, incentives, etc.

Our response:
Start-up funding for the Coexistence Council has been provided by the Fish and Wildlife Service and Non-Governmental Organizations. It is our understanding that the Coexistence Council will continue to seek private and public funding into the future.

(14)
Comment:
The Service must identify and analyze methods and means of avoiding, reducing, or mitigating Mexican wolf depredation on livestock and pets, including identification of realistic methods by which to fund and implement such programs over the long term, preferably over a 20-year planning horizon.

Our response:
As the total number of Mexican wolves in the experimental population increases, the Service will increasingly manage problem wolves by means authorized in this final rule in a way that furthers the conservation of the Mexican wolf while being responsive to the needs of the local community in cases of depredation or nuisance

behavior by wolves. This final rule includes several provisions by which depredation on livestock and pets can be avoided and reduced. For instance, anyone may conduct opportunistic harassment of any Mexican wolf at any time provided that Mexican wolves are not purposefully attracted, tracked, searched out, or chased and then harassed. Also, after the Service or its designated agency has confirmed Mexican wolf presence on any land within the MWEPA, the Service or its designated agency may issue permits valid for not longer than 1 year, with appropriate stipulations or conditions, to allow intentional harassment of Mexican wolves.

(15)
Comment:
The proposed amendments to the experimental population rules are unnecessary to achieve the population objective for the Mexican wolf. The purpose and need for the original 1998 Mexican wolf section 10(j) rule was to establish a population of at least 100 Mexican wolves in the BRWRA. Currently, 75 wolves occupy this area, and the 100 individual population objective will be met in the near future. Based on population growth over the past several years, the proposed amendments are not necessary for the population objective to be achieved.

Our response:
Section 2 of the Act requires the Service to conserve endangered and threatened species and utilize its authorities in furtherance of the purposes of the Act. According to Section 3 of the Act, conserve means to use and the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. The 1982 Mexican Wolf Recovery Plan contained a “prime objective” to ensure the immediate survival of the Mexican wolf—that “prime objective” to ensure immediate survival was 100 wolves. That number, 100 wolves, was not enough, and still is not enough, to delist the Mexican wolf. The purpose of our action is to improve the effectiveness of the reintroduction project in managing the experimental population in order to ensure conservation of the Mexican wolf. Conservation of this species certainly requires more than 100 wolves in the wild. It is our expectation that the new population objective for the MWEPA will help to ensure a stable population of Mexican wolves in the MWEPA in the future. This stable population will then contribute to the range-wide recovery of the species, the goal of which will be determined in a future revision to the Mexican wolf recovery plan.

(16)
Comment:
One State agency requested that the Service add language to the rule that explicitly requires State review and approval prior to any release on private lands or non-trust tribally owned lands under the jurisdiction of the State. Further, they requested that we establish a minimum set of factors that must be considered in this review. These factors include:

• The presence of sufficient native prey within a 10- to 15-mile (16- to 24-kilometer) radius of proposed release site (as determined by the State);

• the State's evaluation of probable impacts to State trust species both on the private property where the release is being proposed as well as adjoining lands;

• zones of potential dispersal;

• both spatial and temporal density and distribution of livestock in the adjoining area;

• livestock depredation removal thresholds; and

• pre-release confirmation from the Service of the timely availability of sufficiently trained and competent Service personnel and the associated fiscal resources and equipment needed to effectively monitor, manage, and remove released Mexican wolves should the removal threshold be met.

Our response:
In this final rule, we have included provisions for management on private land within Zones 1 and 2 of the MWEPA, so that the Service or designated agency may develop and implement management actions to benefit Mexican wolf recovery in cooperation with willing private landowners, and with the concurrence of the State game and fish agency. These actions include: Occupancy by natural dispersal; initial release; and translocation of Mexican wolves onto private lands in Zones 1 or 2 if requested by the landowner and with the concurrence of the State game and fish agency. We have also included provisions for management on tribal trust land within Zones 1 and 2 in the MWEPA, where the Service or a designated agency may develop and implement management actions in cooperation with willing tribal governments, including: Occupancy by natural dispersal; initial release; translocation onto tribal trust land; and capture and removal of Mexican wolves from tribal trust land if requested by the tribal government.

(17)
Comment:
The specifications for releases of Mexican wolves on private land should be included in the proposed rule. Releases on private lands require Federal action and will have direct impacts on other surrounding private landowners, wildlife, livestock, and Federal and State public land. Also, surrounding landowners should be consulted prior to any such release being made. Livestock producers adjacent to private land release sites must be made aware of these releases in order to implement measures to avoid depredation. The Service should develop a set of specific criteria for private land releases prior to any revision to the final 10(j) rule or EIS.

Our response:
On private land within Zones 1 and 2 of the MWEPA, the Service or designated agency may develop and implement management actions to benefit Mexican wolf recovery in cooperation with willing private landowners, including: Occupancy by natural dispersal; initial release; and translocation of Mexican wolves onto such lands in Zones 1 or 2 if requested by the landowner and with the concurrence of the State game and fish agency. Specifications for releases may be different for different landowners, so these specifications will be developed as part of the management actions rather than in the final rule, and with the concurrence of State game and fish agencies.

(18)
Comment:
As they relate to allowable take, the differences between what is allowed on public land and what is allowed on private land have been a continuing source of confusion under the 1998 Final Rule and will continue to be a source of confusion under the proposed rule. The problem is best remedied by making take provisions for individuals the same on public land as on private land. It was suggested that the language in the proposed rule be modified to allow for owners of livestock on public lands allotted for livestock grazing the same ability that livestock owners or their agents have on private or tribal lands to take any Mexican wolf in the act of killing, wounding, or biting livestock, regardless of the number of breeding pairs or the most recent population count.

Our response:
This final rule has been modified to clarify take provisions on Federal and non-Federal land. It is our intent that the regulatory burden of Mexican wolf recovery rest on Federal land; therefore, we have provided additional take provisions on non-Federal land to allow for more flexibility in the management of problem wolves. The differences in allowable take on Federal and non-Federal land will help us effectively manage Mexican wolves within the MWEPA in a manner that furthers its conservation while being responsive to the needs of the local community in cases of depredation or nuisance

behavior by wolves on non-Federal lands. We expect that modifying the provisions governing the take of Mexican wolves to provide clarity and consistency will contribute to our efforts to find the appropriate balance between enabling wolf population growth and minimizing nuisance and depredation impacts on local stakeholders.

(19)
Comment:
It was suggested that the Service develop and publish for review a set of criteria for removal of Mexican wolves based on certain situational elements such as the number of livestock killed or injured, the frequency of wolf depredation, and the individual economic impacts to the livestock producer.

Our response:
We did not include a set of specific criteria for removal of problem wolves in this final rule in order to maximize our flexibility in effectively managing Mexican wolves in a manner that furthers the conservation of the Mexican wolf while being responsive to the needs of local communities. These criteria will be developed in a management plan, which will provide for adaptive management as we gain more information on Mexican wolf management and techniques to minimize conflicts between Mexican wolves and livestock.

(20)
Comment:
Several State agencies suggested that allowable take by authorized personnel would be subject to Service approval, presumably on a case-by-case basis, which has often been highly problematic when cooperating agencies have tried to take aggressive, timely action to address problem wolf incidents. In addition, the Service has not been willing, since 2007, to use lethal take as a tool in managing problem wolves. The Service must enable agencies and stakeholders to directly and effectively address problem-wolf issues while they are occurring. Maintaining effective Mexican wolf management tools is critical to building agency and stakeholder confidence in the process of reintroducing Mexican wolves to historical range. Limitations that prevent timely deployment of available tools undermine State agency and stakeholder confidence in the reintroduction project.

Our response:
The final rule authorizes the Service or designated agency to carry out intentional or opportunistic harassment, nonlethal control measures, translocation, placement in captivity, or lethal control of problem wolves. The Service or a designated agency may take any Mexican wolf in the experimental population in a manner consistent with a Service-approved management plan, special management measure, biological opinion pursuant to section 7(a)(2) of the Act, conference opinion pursuant to section 7(a)(4) of the Act, section 6 of the Act as described in 50 CFR 17.31 for State game and fish agencies with authority to manage Mexican wolves, or a valid permit issued by the Service through 50 CFR 17.32.

(21)
Comment:
The revised 10(j) rule and associated EIS should analyze an alternative that allows issuing permits on a case-by-case basis, to enable consideration of geographic variation in depredation activity or breeding status of Mexican wolves. Situation-specific approaches to managing chronic depredation behavior by specific Mexican wolves that generate adverse economic and social impacts should not be superseded by general thresholds working independently of the undesirable Mexican wolf behaviors that cause such conflict.

Our response:
The final rule authorizes the issuance of permits to domestic animal owners or their agents on non-Federal lands to assist the Service or designated agency in completing a control action. The final rule also authorizes the issuance of permits to livestock owners or their agents to take any Mexican wolf that is in the act of biting, killing, or wounding livestock on Federal land where specified in the permit, to assist the Service or designated agency in completing control actions. Issuance of these permits will be at the Service's discretion and thus analyzed on a case-by-case basis. Also, we realize that geographic variation throughout the MWEPA requires different management approaches. That is why we have identified Zones 1, 2, and 3 as different management areas within the MWEPA. We identified these Zones in order to improve the effectiveness of our reintroduction project while minimizing and mitigating Mexican wolf-human conflict.

(22)
Comment:
One State agency suggested modifying the language to set the minimum population size to at least 100 Mexican wolves within the MWEPA as documented by the most recent end-of-year count, and strike any reference to other established populations. The new provision would require that the minimum population level of 100 wolves within the BRWRA must be met before the Service would issue take permits to producers on public lands to address wolves that are in the act of killing their livestock.

Our response:
The suggested modification will not allow us to improve the effectiveness of the reintroduction project to achieve the necessary population growth, distribution, and recruitment, as well as genetic variation within the Mexican wolf experimental population so that it can contribute to recovery in the future. In recognition that the MWEPA will include a variety of land ownership types, our provision to issue a permit for take of a Mexican wolf in the act of wounding, biting, or killing livestock on Federal land will allow us to better consider the site specific circumstances associated with the event compared to establishing a minimum population level of 100 wolves prior to being able to issue such permits; this flexibility will also contribute to our ability to conserve the Mexican wolf by allowing us to integrate information about the current population, including genetic issues, into our permit decisions.

(23)
Comment:
Several State agencies suggested that the language in the rule be modified to allow pet owners, regardless of where they are, to take Mexican wolves that are in the act of attacking or killing pets. Pets, like livestock, are considered by most owners to be private property, and restricting a person's ability to protect their private property, regardless of where, may be contrary to their constitutional rights.

Our response:
We have included a provision in this final rule to allow for take of Mexican wolves by domestic animal owners, which includes pet dog owners, on non-Federal lands. Specifically, on non-Federal lands, domestic animal owners or their agents may take (including kill or injure) any Mexican wolf that is in the act of biting, killing, or wounding a domestic animal, as defined in the regulations, provided that evidence of freshly wounded or killed domestic animals by Mexican wolves is present. Domestic animal means livestock as defined in the regulations and non-feral dogs. In addition, anyone may conduct opportunistic harassment of any Mexican wolf at any time provided that Mexican wolves are not purposefully attracted, tracked, searched out, or chased and then harassed. Pet owners on Federal lands can protect their pets via opportunistic harassment.

(24)
Comment:
One State agency suggested clarifying whether working dogs and tracking hounds, etc., are considered pets or protected in some similar manner. The rule revision should appropriately address protecting working and tracking dogs on public as well as private land.

Our response:
Take of Mexican wolves by livestock guarding dogs, when used in the traditional manner to protect livestock on Federal and non-

Federal lands, is allowed. Dogs that are working livestock or being lawfully used to trail or locate wildlife are excluded from the definition of feral dogs, and are thus included as domestic animals. See comment above where we discuss allowable forms of take for domestic animal owners on non-Federal lands.

(25)
Comment:
One State agency requested that they not be required to develop a Service-approved Mexican Wolf Management Plan or become party to any wolf-related memorandum of agreement or understanding to lawfully take Mexican wolves by any means the State agency deems necessary when it has been determined by the State that Mexican wolf impacts on State trust species are unsustainable and jeopardizing an ungulate population, or when a Mexican wolf has dispersed outside of the MWEPA and the Service is unable to capture the disperser in a timely manner.

Our response:
Participation in the conservation of Mexican wolves by States is voluntary. Pursuant to this final rule, no State will be required to develop a Service-approved Mexican Wolf Management Plan or become party to any wolf-related memorandum of agreement or understanding. In this final rule, we have provided a definition of unacceptable impact to a wild ungulate herd and process for State game and fish agencies to follow to demonstrate that any decline in an ungulate herd was influenced by Mexican wolf predation. The final rule provides that the Service or a designated agency may take any Mexican wolf in the experimental population in a manner consistent with a Service-approved management plan, special management measure, biological opinion pursuant to section 7(a)(2) of the Act, conference opinion pursuant to section 7(a)(4) of the Act, as described in 50 CFR 17.31 for State game and fish agencies with authority to manage Mexican wolves, or a valid permit issued by the Service through 50 CFR 17.32 If a Mexican wolf or wolves disperse outside the MWEPA, the Act (16 U.S.C. 1531
et seq.
) prohibits activities with endangered and threatened species unless a Federal permit allows such activities. As part of this rulemaking process, we have issued a section 10(a)(1)(A) permit to allow for certain activities with Mexican wolves that occur outside the MWEPA. Under this permit we will authorize removal of Mexican wolves that can be identified as coming from the experimental population that disperse and establish territories in areas outside of the MWEPA. Also, in compliance with NEPA (42 U.S.C. 4321
et seq.
), we have included analysis of the environmental effects of the permit as part of our EIS.

(26)
Comment:
One State agency requested that we clarify, by an affirmative statement, that State regulators and other officials cannot be held liable for causing a take of a Mexican wolf simply by their regulation of trapping, or lack thereof.

Our response:
Whether or not any person or entity will be held liable for the take of Mexican wolves in the future will be made on a case-by-case basis. Therefore, the Service cannot give the commenter the clarification requested. However, the final rule provides for unintentional take within the MWEPA. Unintentional take means take that occurs despite the use of due care, is coincidental to an otherwise lawful activity, and is not done on purpose. Take of a Mexican wolf by any person is allowed if the take is unintentional and occurs while engaging in an otherwise lawful activity. In addition, taking a Mexican wolf with a trap, snare, or other type of capture device within occupied Mexican wolf range is prohibited and will not be considered unintentional take, unless due care was exercised to avoid injury or death to a wolf. With regard to trapping activities, due care is further defined in the final rule.

(27)
Comment:
The Service should allow State game and fish agencies to issue “Incidental Take Permits” (section 10(a)(1)(B) of the Act) to individuals involved in lawful activities where Mexican wolves might be adversely affected by those activities.

Our response:
The Act prohibits the “take” of listed species through direct harm or habitat destruction. In the 1982 amendments to the Act, Congress authorized the Service, not State wildlife agencies, to issue permits for the “incidental take” of endangered and threatened wildlife species in section 10(a)(1)(B) of the Act. Thus, permit holders can proceed with an activity that is legal in all other respects, but results in the “incidental” taking of a listed species. These incidental take permits could be issued to address the incidental take of Mexican wolves associated with otherwise legal activities. However, the Service has not been granted legal authority to allow State game and fish agencies to issue Federal permits in accordance with the Act. States have the ability to apply for section 10(a)(1)(B) incidental take permits and issue certificates of inclusion to individuals who comply with the provisions of the State's conservation plan and permit.

(28)
Comment:
One State agency requested that the rule be modified to indicate that Mexican wolves will be allowed to disperse outside Zone 1, but will only be allowed to remain and occupy those areas within Zone 2 that provide sufficient and sustainable prey populations as determined by the State. The same rationale used by the Service in justifying the proposal to remove a small portion of Texas from the MWEPA can also be applied to areas in New Mexico within the MWEPA that also support marginal habitat for Mexican wolves and native prey.

Our response:
Criteria for initial releases of Mexican wolves will include adequate prey abundance (
e.g.,
elk, deer, and other native ungulates), based on the best available information from the State or tribal game and fish agency. Dispersal of Mexican wolves is likely to include areas within the MWEPA that have less suitable habitat, such as in Zone 3. However, Mexican wolves will be more actively managed under the authorities of this rule to reduce human conflicts in these areas. Furthermore, in this final rule, we have defined unacceptable impact to a wild ungulate herd and provide the States with the ability to manage Mexican wolves if they demonstrate predation by Mexican wolves is influencing a decline in the wild ungulate herd.

(29)
Comment:
The proposed revision to allow Mexican wolves to disperse outside the BRWRA and occupy new areas within the MWEPA is improper at this time because a primary consideration regarding suitable wolf habitat is presence of adequate prey densities. The proposed change would allow Mexican wolves to travel to and use areas within the extended MWEPA that might not support adequate levels of native ungulate populations. Primary examples would include State trust lands north of the Apache Sitgreaves National Forests and other portions of National Forests supporting low-productivity elk and deer populations. If Mexican wolves were allowed to occupy these areas, native ungulate populations would be at risk of significant reduction, causing wolves to prey more predominantly on livestock and creating other adverse economic impacts.

Our response:
The Service has analyzed the habitat within the MWEPA, and although there are patches of poor-quality habitat, we expect Mexican wolves to occupy areas of suitable habitat where ungulate populations are adequate to support them and conflict with humans and livestock will be low. The final rule provides States the authority to take Mexican wolves in response to

unacceptable impacts to wild ungulate herds, as we recognize that localized reduction in ungulate herds due to wolf predation could occur.

(30)
Comment:
Many areas within the MWEPA are not appropriate for Mexican wolf colonization or occupancy, due to high levels of human occupancy, high road densities, high levels of public activity (including recreation), high potential for interaction with domestic dogs (
i.e.,
depredation and hybridization), and increased potential for human-caused mortality. The EIS and rule revision should use these types of predictable conflicts to identify areas within the MWEPA and recognized subunits in which Mexican wolf dispersal and reestablishment are not appropriate or necessary for sustaining a Mexican wolf population and outline practical mechanisms for managing wolves that disperse to these conflict zones.

Our response:
We recognize that there are areas within the MWEPA where there is limited suitable habitat for Mexican wolves and increased potential for human-related conflict. Thus, we identified Zones 1, 2, and 3 as different management areas within the MWEPA in order to improve the effectiveness of our reintroduction project while minimizing and mitigating Mexican wolf-human conflict. We have included a phased approach to Mexican wolf management in western Arizona, where elk populations west of Highway 87 are generally smaller in number and isolated from each other compared to elk populations east of Highway 87. Also, we have increased take provisions on non-Federal lands to allow domestic animal owners or their agents to take any Mexican wolf that is in the act of biting, killing, or wounding a domestic animal, as defined in the rule.

(31)
Comment:
The proposed revision to remove Texas from the MWEPA is biologically appropriate based on Service review of existing habitat, prey base, historical range and metapopulation connectivity within Arizona and New Mexico. However, the same rationale used by the Service to justify that proposal could also be applied in Arizona, west of the Mohave and La Paz Counties from Interstate 40 south to Interstate 10; and in New Mexico, east of Interstate 25 and Interstate 10 from Interstate 40 south to the United States-Mexico international border. Our point in noting this disparity is not to advocate such changes at this time but to emphasize that the Service proposals are not logically consistent.

Our response:
Texas was removed from the MWEPA because this area is not likely to contribute substantially to our purpose and need, and it is very unlikely that Mexican wolves will disperse into Texas because of the lack of suitable habitat. However, we have identified portions of western Arizona and eastern New Mexico that do not have substantial amounts of suitable habitat as Zone 3 of the MWEPA so that we can actively manage Mexican wolves that disperse there to reduce human conflict under the authorities of this rule. In any case, we do not expect Mexican wolves to occupy these areas of less-suitable habitat because ungulate populations are inadequate to support them.

(32)
Comment:
The Service must include a provision that Mexican wolves that disperse outside the MWEPA will be captured. The proposed rule affirms that commitment in prefatory text, but does not include it in the proposed regulations.

Our response:
We can only include language in the regulations for management of Mexican wolves within the MWEPA. However, we intend to capture Mexican wolves that establish territories outside the MWEPA under a section 10(a)(1)(A) permit. We are issuing a section 10(a)(1)(A) permit to allow for certain Mexican wolf management activities that occur outside the MWEPA. Under this permit we have the ability to authorize removal of Mexican wolves that can be identified as coming from the experimental population that disperse and establish territories in areas outside of the MWEPA. Also, in compliance with NEPA (42 U.S.C. 4321
et seq.
), we have included analysis of the environmental effects of the permit as part of our EIS.

(33)
Comment:
The Service needs to consider delegating management authority of Mexican wolves within the MWEPA through this revised rule or a State and/or Tribal Cooperative Agreement with the Service and/or Memorandum of Agreement (MOA) with the Secretary of the Interior. The revised rule needs to enable willing State game and fish agencies and Tribes to assume lead roles in wolf management within their respective areas of lawful jurisdiction.

Our response:
Neither the Act nor its implementing regulations allow the Service to delegate its management authority over Mexican wolves to a State. However, in accordance with this final rule, a State game and fish agency can become a designated agency, which is a Federal, State, or tribal agency designated by the Service to assist in implementing this rule, all or in part, consistent with a Service-approved management plan, special management measure, conference opinion pursuant to section 7(a)(4) of the Act, section 6 of the Act, as described in 50 CFR 17.31 for State game and fish agencies with authority to manage Mexican wolves, or a valid permit issued by the Service through 50 CFR 17.32.

(34)
Comment:
The Service needs to consider delegating management authority to Wildlife Services (a division of the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (USDA-APHIS)) for such things as investigating reported depredations on livestock or other domestic animals and reports of nuisance or problem wolves; determining whether and which wolf or wolves depredated on livestock or other domestic animals; and capturing, translocating, and removing Mexican wolves.

Our response:
Neither the Act nor its implementing regulations allow the Service to delegate its management authority over Mexican wolves to a State or another Federal agency, in this case, USDA-APHIS. In this final rule, Wildlife Services is one of the lead agencies that will confirm cases of wolf depredation on lawfully present domestic animals. Also, Wildlife Services can become a designated agency to assist in implementing this rule (see response to comment above).

(35)
Comment:
The Service needs to clarify who verifies legal presence of grazing livestock and how they verify it (relative to confirming depredation). Also, the Service needs to clarify which agency or agencies would conduct investigations to confirm or refute claims of livestock depredation.

Our response:
It is the responsibility of the land management agency to verify the legal presence of grazing livestock on their land. In regard to investigating livestock depredation, the Service, Wildlife Services, or other Service-designated agencies will confirm cases of wolf depredation on lawfully present livestock or domestic animals.

(36)
Comment:
Define thresholds and methods for temporary and permanent removal of depredating and nuisance Mexican wolves; clearly describe how Mexican wolf mortalities and livestock or domestic animal depredation will be investigated and documented while ensuring that State, Federal, and tribal law enforcement interests are not compromised by non-commissioned employees of the Service and its designated agents; and clearly delineate the laws and regulations pertaining to ownership and removal or destruction of livestock carcasses on public, State, tribal, and private lands.

Our response:
Immediately following publication of this final rule, the Service will begin working with partner agencies on an interagency management plan that will include standard operating procedures for management of Mexican wolves, discuss flexible thresholds for removal of problem Mexican wolves, and describe how Mexican wolf mortalities and livestock depredations will be investigated. This process of following a Mexican wolf 10(j) rule with an interagency management plan that includes standard operating procedures was done with the 1998 rule and the 1998 Interagency Management Plan. The laws and regulations pertaining to ownership and removal or destruction of livestock carcasses on public, State, tribal, and private lands are outside the purview of the Mexican wolf management plan.

(37)
Comment:
The Service must propose a modification to give the States and Tribes authority to control Mexican wolves when the population reaches a predetermined objective, before Mexican wolves have an unacceptable impact on wild ungulate populations.

Our response:
Neither the Act nor its implementing regulations allow the Service to delegate its management authority over Mexican wolves to a State or Tribe. In this final rule, we have included a population objective of 300 to 325 Mexican wolves. We have also included provisions for take in response to unacceptable impacts to wild ungulates. The final rule allows Tribes to request the removal of Mexican wolves from their tribal trust lands.

(38)
Comment:
One State agency requested that the definition of occupied Mexican wolf range be changed to tie occupied range to the presence of breeding populations of Mexican wolves only.

Our response:
We have changed the definition of occupied Mexican wolf range to mean an area of confirmed presence of Mexican wolves based on the most recent map of occupied range posted on the Service's Mexican Wolf Recovery Program Web site at
http://www.fws.gov/southwest/es/mexicanwolf/.
Specific to the prohibitions in paragraph (k)(5)(iii) of this rule, Zone 3 and tribal trust lands are not considered occupied range.

(39)
Comment:
Mexican wolves are highly mobile (especially young males) and will move great distances crossing unsuitable habitat in order to expand their range. The presence of a single Mexican wolf over the period of 1 month does not denote occupied range. Implicit in the term “occupied” is to possess or hold a place or to take up residence. A single Mexican wolf by nature is transient. Mexican wolves are pack animals. In order to occupy or take up residence in a home range, a family group must be established through breeding and successful production of offspring. The definition of occupied Mexican gray wolf range should be changed to tie occupied range to the presence of breeding populations of Mexican wolves only.

Our response:
See response to comment above.

(40)
Comment:
One State agency recommended that Mexican wolves involved in depredations on private land be classified as problem wolves. Failure of the Service to include private lands in this definition demonstrates the lack of consideration given to private landowners and livestock producers.

Our response:
In this final rule, problem wolves are defined as Mexican wolves that, for purposes of management and control by the Service or its designated agent(s), are individuals or members of a group or pack (including adults, yearlings, and pups greater than 4 months of age) that were involved in a depredation

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-00436. Public record. Not legal advice.