# Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment and To Revise the List of Endangered and Threatened Wildlife

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## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 2, 2009
- **Citation:** 74 FR 15070

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R3-ES-2008-0120; 92220-1113-000; ABC Code: C6]
RIN 1018-AW41
Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment and To Revise the List of Endangered and Threatened Wildlife

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service or USFWS) identify the Western Great Lakes (WGL) Distinct Population Segment (DPS) of the gray wolf (
Canis lupus
). The geographic extent of this DPS includes all of Minnesota, Wisconsin, and Michigan; the eastern half of North Dakota and South Dakota; the northern half of Iowa; the northern portions of Illinois and Indiana; and the northwestern portion of Ohio. We also revise the List of Endangered and Threatened Wildlife established under the Endangered Species Act of 1973, as amended (Act) by removing gray wolves within the WGL DPS. We are taking these actions because available data indicate that this DPS no longer meets the definitions of threatened or endangered under the Act. The threats have been reduced or eliminated, as evidenced by a population that is stable or increasing in Minnesota, Wisconsin, and Michigan, and greatly exceeds the numerical recovery criteria established in its recovery plan. Completed State wolf management plans will provide adequate protection and management of the WGL DPS after this revision of the listing. This final rule removes this DPS from the lists of Threatened and Endangered Wildlife, removes the currently designated critical habitat for the gray wolf in Minnesota and Michigan, and removes the current special regulations for gray wolves in Minnesota.

On April 16, 2007, three parties filed a lawsuit against the U.S. Department of the Interior (Department) and the Service, challenging the Service's February 8, 2007 (72 FR 6052), identification and delisting of the WGL DPS. On September 29, 2008, the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs (
Humane Society of the United States
v.
Kempthorne,
No. 1:07-CV-00677 (D.D.C.). In that ruling the court vacated and remanded the Service's application of the February 8, 2007 (72 FR 6052), final delisting rule for the WGL DPS of the gray wolf. On remand, the Service was directed to provide an explanation as to how simultaneously identifying and delisting a DPS is consistent with the Act's text, structure, policy objectives, legislative history, and any relevant judicial interpretations. This final rule addresses the September 29, 2008, court ruling.

DATES:

This rule becomes effective on May 4, 2009.

ADDRESSES:

The complete file for this rule is available for inspection, by appointment, during normal business hours at our Midwest Regional Office: U.S. Fish and Wildlife Service, Federal Building, 1 Federal Drive, Ft. Snelling, Minnesota 55111-4056. Call 612-713-5350 to make arrangements. The comments and materials we received during the comment period on the proposed rule also are available for public inspection and by appointment during normal business hours at this Regional Office and at our Ecological Services Field Offices in Bloomington, Minnesota (612-725-3548); New Frankin, Wisconsin (920-866-1717); and East Lansing, Michigan (517-351-2555). Call those offices to make arrangements.

FOR FURTHER INFORMATION CONTACT:

Laura Ragan, 612-713-5350. Direct all questions or requests for additional information to: GRAY WOLF QUESTIONS, U.S. Fish and Wildlife Service, Federal Building, 1 Federal Drive, Ft. Snelling, Minnesota 55111-4056. Additional information is also available on our World Wide Web site at
http://www.fws.gov/midwest/wolf
. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 1-800-877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION:

Background

Biology and Ecology of Gray Wolves

For a discussion of the biology and ecology of gray wolves and general recovery planning efforts, see the proposed WGL wolf rule published on March 27, 2006, (71 FR 15266-15305) and available on our World Wide Web site.

Recovery Criteria

The 1978 Recovery Plan for the Eastern Timber Wolf (Recovery Plan) and the 1992 revised Recovery Plan (Revised Plan) contain the same two delisting criteria. The first delisting criterion states that the survival of the wolf in Minnesota must be assured. We, and the Eastern Timber Wolf Recovery Team (Peterson in litt. 1997, 1998, 1999a, 1999b), have concluded that this first delisting criterion remains valid. It addresses a need for reasonable assurances that future State, Tribal, and Federal wolf management and protection will maintain a viable recovered population of gray wolves within the borders of Minnesota for the foreseeable future.

Although the Recovery Plan's recovery criteria predate the scientific field of conservation biology, the conservation principles of representation (conserving the genetic diversity of a taxon), resilience (the ability to withstand demographic and environmental variation), and redundancy (sufficient populations to provide a margin of safety) were incorporated into these criteria. Maintenance of the Minnesota wolf population is vital because the remaining genetic diversity of gray wolves in the eastern United States was carried by the several hundred wolves that survived in the State into the early 1970s. The Recovery Team insisted that the remnant Minnesota wolf population be maintained and protected to achieve wolf recovery in the eastern United States. The successful growth of that remnant population has maintained and maximized the representation of that genetic diversity among gray wolves in the WGL DPS. Furthermore, the Recovery Plan established a planning goal of 1,250-1,400 animals for the Minnesota wolf population (USFWS 1992, p. 28), which would increase the likelihood of maintaining its genetic diversity over the long term. This large Minnesota wolf population also provides resiliency to reduce the adverse impacts of unpredictable demographic and environmental events. Furthermore, the Recovery Plan specifies a wolf population that is spread across about 40 percent of the State (Zones 1 through 4) (USFWS 1992, p. 28), adding a geographic component to the resiliency of the Minnesota wolf population.

The second delisting criterion in the Recovery Plan states that at least one viable wolf population should be reestablished within the historical range of the eastern timber wolf outside of Minnesota and Isle Royale, Michigan. The second population enhances both the resiliency and redundancy of the recovery program. The Recovery Plan provides two options for reestablishing this second population. If it is an isolated population, that is, located

more than 100 miles (160 km) from the Minnesota wolf population, the second population should consist of at least 200 wolves for at least 5 years (based upon late-winter population estimates) to be considered viable. Alternatively, if the second population is located within 100 miles (160 km) of a self-sustaining wolf population (for example, the Minnesota wolf population), it would be considered viable if it maintained a minimum of 100 wolves for at least 5 years. Such a nearby second population would be viable at a smaller size, because it would exchange wolves with the Minnesota population (that is, they would function as a metapopulation), thereby bolstering the smaller second population genetically and numerically.

The Recovery Plan does not specify where in the eastern United States the second population should be reestablished. Therefore, the second population could be located anywhere within the triangular Minnesota-Maine-Florida area covered by the 1978 Recovery Plan and the 1992 Revised Recovery Plan, except on Isle Royale (Michigan) or within Minnesota. The 1992 Revised Recovery Plan retained potential gray wolf re-establishment areas in northern Wisconsin, the upper peninsula (UP) of Michigan, the Adirondack Forest Preserve of New York, a small area in eastern Maine, and a larger area of northwestern Maine and adjacent northern New Hampshire (USFWS 1992, pp. 56-58). Neither the 1978 nor the 1992 recovery criteria suggest that the restoration of the gray wolf throughout all or most of its historical range in the eastern United States, or to all of these potential re-establishment areas, is necessary to achieve recovery under the Act.

In 1998, the Eastern Timber Wolf Recovery Team clarified the application of the delisting criterion for the second population to the wolf population that had developed in northern Wisconsin and the adjacent UP. The Recovery Team recommended that the numerical delisting criterion for the Wisconsin-Michigan population will be achieved when 6 consecutive late-winter wolf surveys document that the population equals or exceeds 100 wolves (excluding Isle Royale wolves) for the 5 consecutive years between the 6 surveys (Peterson in litt. 1998). This second population is less than 200 miles from the Minnesota wolf population.

Recovery of the Gray Wolf in the Western Great Lakes Area

Minnesota Recovery

During the pre-1965 period of wolf bounties and legal public trapping, wolves persisted in the remote northeastern portion of Minnesota, but were eliminated from the rest of the State. Estimated numbers of Minnesota wolves before their listing under the Act in 1974 include 450 to 700 in 1950-53 (Fuller
et al.
1992, p. 43, based on data in Stenlund 1955, p. 19), 350 to 700 in 1963 (Cahalane 1964, p. 10), 750 in 1970 (Leirfallom 1970, p. 11), 736 to 950 in 1971-72 (Fuller
et al.
1992, p. 44), and 500 to 1,000 in 1973 (Mech and Rausch 1975, p 85). Although these estimates were based upon different methodologies and are not directly comparable, each puts the pre-listing abundance of wolves in Minnesota at 1,000 or less. This was the only significant wolf population in the United States outside Alaska during those time-periods.

After the wolf was listed as endangered under the Act, the Minnesota population estimates increased (see Table 1 below). Mech estimated the population to be 1,000 to 1,200 in 1976 (USFWS 1978, pp. 4, 50-52), and Berg and Kuehn (1982, p. 11) estimated that there were 1,235 wolves in 138 packs in the winter of 1978-79. In 1988-89, the Minnesota Department of Natural Resources (MN DNR) repeated the 1978-79 survey and also used a second method to estimate wolf numbers in the State. The resulting independent estimates were 1,500 and 1,750 wolves in at least 233 packs; the lower number was derived by a method comparable to the 1978-79 survey (Fuller
et al.
1992, pp. 50-51).

During the winter of 1997-98, a statewide wolf population and distribution survey was repeated by MN DNR, using methods similar to those of the two previous surveys. Field staff of Federal, State, Tribal, and county land management agencies and wood products companies were queried to identify occupied wolf range in Minnesota. Data from 5 concurrent radio telemetry studies tracking 36 packs, representative of the entire Minnesota wolf range, were used to determine average pack size and territory area. Those figures were then used to calculate a statewide estimate of wolf and pack numbers in the occupied range, with single (non-pack) wolves factored into the estimate (Berg and Benson 1999, pp. 1-2).

Table 1—Gray Wolf Winter Populations in Minnesota, Wisconsin, and Michigan (Excluding Isle Royale) From 1976 Through 2006
[Note that there are several years between the first three estimates]

Year
Minnesota
Wisconsin
Michigan
WI & MI Total

1976
1,000-1,200

1978-79
1,235

1988-89
1,500-1,750
31
3
34

1989-90

34
10
44

1990-91

40
17
57

1991-92

45
21
66

1992-93

40
30
70

1993-94

57
57
114

1994-95

83
80
163

1995-96

99
116
215

1996-97

148
113
261

1997-98
2,445
180
139
319

1998-99

205
169
374

1999-2000

248
216
464

2000-01

257
249
506

2001-02

327
278
604

2002-03

335
321
656

2003-04
3,020
373
360
733

2004-05

*435
405
840

2005-06

465
434
899

* Previous estimate of 425 has been corrected, based on subsequent location of 5 packs missed during survey period (Wydeven
et al.
2006, pp. 9-10).

The 1997-98 survey concluded that approximately 2,445 wolves existed in about 385 packs in Minnesota during that winter period (90 percent confidence interval from 1,995 to 2,905 wolves) (Berg and Benson 1999, p. 4). This figure indicated the continued growth of the Minnesota wolf population at an average rate of about 3.7 percent annually from 1970 through 1997-98. Between 1979 and 1989 the annual growth rate was about 3 percent, and it increased to between 4 and 5 percent in the next decade (Berg and Benson 1999, 5, Fuller
et al
. 1992, p. 51). As of the 1998 survey, the number of Minnesota wolves was approximately twice the planning goal for Minnesota, as specified in the Eastern Recovery Plan (USFWS 1992, p. 28).

Minnesota DNR conducted another survey of the State's wolf population and range during the winter of 2003-04, again using similar methodology. That survey concluded that an estimated 3,020 wolves in 485 packs occurred in Minnesota at that time (90 percent confidence interval for this estimate is 2,301 to 3,708 wolves). Due to the wide overlap in the confidence intervals for the 1997-98 and 2003-04 surveys, the authors conclude that, although the population point estimate increased by about 24 percent over the 6 years between the surveys (about 3.5 percent annually), there was no statistically significant change in the State's wolf population during that period (Erb and Benson 2004, pp. 7 and 9).

As wolves increased in abundance in Minnesota, they also expanded their distribution. During 1948-53, the major wolf range was estimated to be about 11,954 sq mi (31,080 sq km) (Stenlund 1955, p. 19). A 1970 questionnaire survey resulted in an estimated wolf range of 14,769 sq mi (38,400 sq km) (calculated by Fuller
et al.
1992, p. 43, from Leirfallom 1970). Fuller
et al.
(1992, p. 44), using data from Berg and Kuehn (1982), estimated that Minnesota primary wolf range included 14,038 sq mi (36,500 sq km) during winter 1978-79. By 1982-83, pairs or breeding packs of wolves were estimated to occupy an area of 22,000 sq mi (57,050 sq km) in northern Minnesota (Mech
et al.
1988, p. 86). That study also identified an additional 15,577 sq mi (40,500 sq km) of peripheral range, where habitat appeared suitable but no wolves or only lone wolves existed. The 1988-89 study produced an estimate of 23,165 sq mi (60,200 sq km) as the contiguous wolf range at that time in Minnesota (Fuller
et al.
1992, pp. 48-49; Berg and Benson 1999, p. 3, 5), an increase of 65 percent over the primary range calculated for 1978-79. The 1997-98 study concluded that the contiguous wolf range had expanded to 33,971 sq mi (88,325 sq km), a 47 percent increase in 9 years (Berg and Benson 1999, p. 5). By that time the Minnesota wolf population was using most of the occupied and peripheral range identified by Mech
et al
. (1988, p. 86). The wolf population in Minnesota had recovered to the point that its contiguous range covered approximately 40 percent of the State during 1997-98. In contrast, the 2003-04 survey failed to show a continuing expansion of wolf range in Minnesota, and any actual increase in wolf numbers since 1997-98 was attributed to increased wolf density within a stabilized range (Erb and Benson 2004, p. 7).

Although Minnesota DNR does not conduct a formal wolf population survey annually, it includes the species in its annual carnivore track survey. This survey, standardized and operational since 1994, provides an annual index of abundance for several species of large carnivores by counting their tracks along 51 standardized survey routes in the northern portion of Minnesota. Based on these surveys, the wolf track indices for winter 2004-05 showed little change from the previous winter, and no statistically significant trends are apparent since 1994. However, the data show some indication of an increase in wolf density (Erb 2005, p. 2, 5). Thus, the winter track survey results are consistent with a stable or slowly increasing wolf population in northern Minnesota over this 11-year period.

Wisconsin Recovery

Wolves were considered to have been extirpated from Wisconsin by 1960. No formal attempts were made to monitor the State's wolf population from 1960 until 1979. From 1960 through 1975, individual wolves and an occasional wolf pair were reported. There is no documentation, however, of any wolf reproduction occurring in Wisconsin, and the wolves that were reported may have been dispersing animals from Minnesota.

Wolves are believed to have returned to Wisconsin in more substantial numbers around 1975, and the Wisconsin Department of Natural Resources (WI DNR) began wolf population monitoring in 1979-80 and estimated a statewide population of 25 wolves at that time (Wydeven and Wiedenhoeft 2000, pp. 151, 159). This population remained relatively stable for several years, then declined slightly to approximately 15 to 19 wolves in the mid-1980s. In the late 1980s, the Wisconsin wolf population began an increase that has continued into 2006 (Wydeven
et al.
2006, p. 35).

Wisconsin DNR intensively surveys its wolf population annually using a combination of aerial, ground, and satellite radio telemetry, complemented by snow tracking and wolf sign surveys (Wydeven
et al.
2006, pp. 4-5). Wolves are trapped from May through September and fitted with radio collars, with a goal of having at least one radio-collared wolf in about half of the wolf packs in Wisconsin. Aerial locations are obtained from each functioning radio-collar about once per week, and pack territories are estimated and mapped from the movements of the individuals who exhibit localized patterns. From December through March, the pilots make special efforts to visually locate and count the individual wolves in each radio-tracked pack. Snow tracking is used to supplement the information gained from aerial sightings and to provide pack size estimates for packs lacking a radio-collared wolf. Tracking is done by assigning survey blocks to trained trackers who then drive snow-covered roads in their blocks and follow all wolf tracks they encounter. Snowmobiles are used to locate wolf tracks in more remote areas with few roads. The results of the aerial and

ground surveys are carefully compared to properly separate packs and to avoid over-counting (Wydeven
et al.
2006a, pp. 4-5). The number of wolves in each pack is estimated based on the aerial and ground observations made of the individual wolves in each pack over the winter.

Because the monitoring methods focus on wolf packs, lone wolves are likely undercounted in Wisconsin. As a result, the annual population estimates are probably slight underestimates of the actual wolf population within the State during the late-winter period. Fuller (1989, p. 19) noted that lone wolves are estimated to compose from 2 to 29 percent of the total population in the area. Also, these estimates are made at the low point of the annual wolf population cycle; the late-winter surveys produce an estimate of the wolf population at a time when most winter mortality has already occurred and before the birth of pups. Thus, Wisconsin wolf population estimates are conservative in two respects: They undercount lone wolves and the count is made at the annual low point of the population. This methodology is consistent with the recovery criteria established in the 1992 Recovery Plan, which established numerical criteria to be measured with data obtained by late-winter surveys.

From mid-September 2005 through mid-April 2006, 43 radio collars were active on Wisconsin wolves, including 38 packs. An estimated 465 to 502 wolves in 115 packs, including 16 to 17 wolves on Native American reservations, were in the State in early 2006, representing a 7 percent increase from 2005 (Wydeven
et al.
2006, pp. 1, 6).

Wisconsin population estimates for 1985 through 2006 increased from 15 to 465-502 wolves (see Table 1 above) and from 4 to 115 packs (Wydeven
et al.
2006, pp. 1, 35). This represents an annual increase of 21 percent through 2000, and an average annual increase of 11 percent for the most recent 6 years.

In 1995, wolves were first documented in Jackson County, Wisconsin, well to the south of the northern Wisconsin area occupied by other Wisconsin wolf packs. The number of wolves in this central Wisconsin area has dramatically increased since that time. During the winter of 2004-05, there were 53-56 wolves in 14 packs in the central forest wolf range (Zone 2 in the Wisconsin Wolf Management Plan; WI DNR 1999, p. 18) and an additional 17-19 wolves in 7 packs in the marginal habitat in Zone 3, located between Zone 1 (northern forest wolf range) and Zones 2 and 4 (Wydeven
et al.
2006, pp. 6, 33).

During the winter of 2002-03, 7 wolves were believed to be primarily occupying Native American reservation lands in Wisconsin (Wydeven
et al.
2003, p. 9); this increased to 11 to 13 wolves in the winter of 2004-05 (Wydeven in litt. 2005) and 16-17 in 2005-06. The 2005-06 animals consisted of 2 packs totaling 7 to 8 wolves on the Bad River Chippewa Reservation and a pack of 4 wolves on the Lac Courtes Oreilles Chippewa Reservation, both in northwestern Wisconsin. There also was a single pack of three wolves on the Lac du Flambeau Reservation and a two-wolf pack on the Menominee Reservation, in north-central and northeastern Wisconsin, respectively (Wydeven
et al.
2006, pp. 27, 28, 33). Additional wolves have spent some time on the Red Cliff Chippewa Reservation, the St. Croix Chippewa Reservation, and the Ho Chunk Reservation in the last few years. It is likely that the Potowatomi Reservation lands will also host wolves in the near future (Wydeven in litt. 2005). Of these reservations the Ho-Chunk, St. Croix Chippewa, and Potowatomi are composed mostly of scattered parcels of land, and are not likely to provide significant amounts of wolf habitat.

In 2002, wolf numbers in Wisconsin alone surpassed the Federal criterion for a second population, as identified in the 1992 Recovery Plan (i.e., 100 wolves for a minimum of 5 consecutive years, as measured by 6 consecutive late-winter counts). Furthermore, in 2004 Wisconsin wolf numbers exceeded the Recovery Plan criterion of 200 animals for 6 successive late-winter surveys for an isolated wolf population. The Wisconsin wolf population continues to increase, although the slower rates of increase seen since 2000 may be the first indications that the State's wolf population growth and geographic expansion are beginning to level off. Mladenoff
et al.
(1997, p. 47) and Wydeven
et al.
(1999, p. 49) estimated that occupancy of primary wolf habitat in Wisconsin would produce a wolf population of about 380 animals in the northern forest area of the State plus an additional 20-40 wolves in the central forest area. If wolves occupy secondary habitat (areas with a 10-50 percent probability of supporting a wolf pack) in the State, their estimated population could be 50 percent higher or more (Wydeven
et al.
1999, p. 49) resulting in a statewide population of 600 or more wolves.

Michigan Recovery

Wolves were extirpated from Michigan as a reproducing species long before they were listed as endangered in 1974. Prior to 1991, and excluding Isle Royale, the last known breeding population of wild Michigan wolves occurred in the mid-1950s. However, as wolves began to reoccupy northern Wisconsin, the Michigan Department of Natural Resources (MI DNR) began noting single wolves at various locations in the UP of Michigan. In 1989, a wolf pair was verified in the central UP, and it produced pups in 1991. Since that time, wolf packs have spread throughout the UP, with immigration occurring from Wisconsin on the west and possibly from Ontario on the east. They now are found in every county of the UP, with the possible exception of Keweenaw County (Huntzinger
et al.
2005, p. 6).

The MI DNR annually monitors the wolf population in the UP by intensive late-winter tracking surveys that focus on each pack. The UP is divided into seven monitoring zones, and specific surveyors are assigned to each zone. Pack locations are derived from previous surveys, citizen reports, and extensive ground and aerial tracking of radio-collared wolves. During the winter of 2004-05 at least 87 wolf packs were resident in the UP (Huntzinger
et al.
2005, p. 6). A minimum of 40 percent of these packs had members with active radio-tracking collars during the winter of 2004-05 (Huntzinger
et al.
2005, p. 6-7). Care is taken to avoid double-counting packs and individual wolves, and a variety of evidence is used to distinguish adjacent packs and accurately count their members. Surveys along the border of adjacent monitoring zones are coordinated to avoid double-counting of wolves and packs occupying those border areas. In areas with a high density of wolves, ground surveys by 4 to 6 surveyors with concurrent aerial tracking are used to accurately delineate territories of adjacent packs and count their members (Beyer
et al.
2004, pp. 2-3, Huntzinger
et al.
2005, pp. 3-6; Potvin
et al.
2005, p. 1661). As with Wisconsin, the Michigan surveys likely miss many lone wolves, thus underestimating the actual population.

Annual surveys have documented minimum late-winter estimates of wolves occurring in the UP as increasing from 57 wolves in 1994 to 434 in 91 packs in 2006 (see Table 1 above). Over the last 10 years the annualized rate of increase has been about 18 percent (Beyer
et al.
2006, p. 35; Huntzinger
et al.
2005, p. 6; MI DNR

2006a; Roell in litt. 2006a). The rate of annual increase has varied from year to year during this period, but there appears to be two distinct phases of population growth, with relatively rapid growth (24.3 to 25.9 percent per year) from 1997 through 2000 and slower growth (11.6 to 15.5 percent from 2000 through 2005 and 7.2 percent in 2006) since then. As with the Wisconsin wolves, the number of wolves in the Michigan UP wolf population by itself has surpassed the recovery criterion for a second population in the eastern United States (i.e., 100 wolves for a minimum of 5 consecutive years, based on 6 late-winter estimates), as specified in the Federal Recovery Plan, since 2001. In addition, the UP numbers have now surpassed the Federal criterion for an isolated wolf population of 200 animals for 6 successive late-winter surveys (USFWS 1992, pp. 24-26).

To date, no wolf packs are known to be primarily using tribal-owned lands in Michigan (Roell in litt. 2006b). Native American tribes in the UP of Michigan own small, scattered parcels of land. As such, no one tribal property would likely support a wolf pack. However, as wolves occur in all counties in the UP and range widely, tribal land is likely utilized periodically by wolves.

The wolf population of Isle Royale National Park, Michigan, is not considered to be an important factor in the recovery or long-term survival of wolves in the WGL DPS. This is a small and isolated wolf population that probably has not had any contact with mainland wolf populations since its founding pair crossed the Lake Superior ice in the late 1940s (Peterson
et al.
1998, p. 828). This wolf population lacks sufficient genetic uniqueness (Wayne
et al.
1991, pp. 47-49), and due to the island's small size, cannot satisfy the discreteness criterion for a separate DPS. For these same reasons it will not make a significant numerical contribution to gray wolf recovery, although long-term research on this wolf population has added a great deal to our knowledge of the species. The wolf population on Isle Royale has ranged from 12 to 50 wolves since 1959, and was 30 wolves in the winter of 2005-06 (Peterson and Vucetich 2006, p. 6).

Although there have been verified reports of wolf sightings in the Lower Peninsula of Michigan, resident breeding packs have not been confirmed there. In October 2004 the first gray wolf since 1910 was documented in the Lower Peninsula (LP). This wolf had been trapped and radio-collared by the MI DNR while it was a member of a central UP pack in late 2003. At some point it had moved to the LP and ultimately was killed by a trapper who believed it was a coyote (MI DNR 2004). Shortly after that, MI DNR biologists and conservation officers confirmed that two additional wolves were traveling together in Presque Isle County in the northern Lower Peninsula (NLP). A subsequent two-week survey was conducted in that area, but no additional evidence of wolf presence was found (Huntzinger
et al.
2005, p. 35). Recognizing the likelihood that small numbers of gray wolves will eventually move into the Lower Peninsula and form persistent packs (Potvin 2003, pp. 29-30, Gehring and Potter 2005, p. 1242; Beyer
et at.
2006, p. 35), MI DNR has begun a revision of its Wolf Management Plan in part to incorporate provisions for wolf management there.

Summary for Wisconsin and Michigan

The two-State wolf population, excluding Isle Royale wolves, has exceeded 100 wolves since late-winter 1993-94 and has exceeded 200 wolves since late-winter 1995-96. Therefore, the combined wolf population for Wisconsin and Michigan has exceeded the second population recovery goal of the 1992 Recovery Plan for a non-isolated wolf population since 1999. Furthermore, the two-State population has exceeded the recovery goal for an isolated second population since 2001.

Other Areas in and Near the Western Great Lakes DPS

As described earlier, the increasing wolf population in Minnesota and the accompanying expansion of wolf range westward and southwestward in the State have led to an increase in dispersing wolves that have been documented in North and South Dakota in recent years. No surveys have been conducted to document the number of wolves present in North Dakota or South Dakota. However, biologists who are familiar with wolves there generally agree that there are only occasional lone dispersers that appear primarily in the eastern portion of these States. There were reports of pups being seen in the Turtle Mountains of North Dakota, in 1994 (Collins in litt. 1998), an adult male wolf was shot near Devil's Lake, North Dakota in 2002, another adult male shot in Richland County in extreme southeastern North Dakota in 2003 (Fain in litt. 2006), and a vehicle-killed adult male found near Sturgis, South Dakota, in 2006 (Larson in litt. 2006a). In contrast to the other South Dakota wolves of the last twenty-five years, this animal has been genetically identified as having come from the Greater Yellowstone area (Fain in litt. 2006). See the Delineating the WGL Gray Wolf DPS for a detailed discussion of movement of wolves.

Wolf dispersal is expected to continue as wolves travel away from the more saturated habitats in the core recovery areas into areas where wolves are extremely sparse or absent. Unless they return to a core recovery population and join or start a pack there, they are unlikely to contribute to long-term maintenance of recovered wolf populations. Although it is possible for them to encounter a mature wolf of the opposite sex, to mate, and to reproduce outside the core wolf areas, the lack of large expanses of unfragmented public land make it unlikely that any wolf packs will persist in these areas, and this is a bottleneck that seriously impedes further expansion. The only exception is the NLP of Michigan, where several studies indicate that a persistent wolf population may develop (Gehring and Potter 2005, p. 1242; Potvin 2003, 29-30), perhaps dependent on occasional to frequent immigration of UP wolves. However, currently existing wolf populations in Minnesota, Wisconsin, and the UP of Michigan have already greatly exceeded the Federal recovery criteria and are not dependent on wolves or wolf populations from other areas of the WGL DPS to maintain these recovered numbers.

Previous Federal Action

On April 1, 2003, we published a final rule revising the listing status of the gray wolf across most of the conterminous United States (68 FR 15804). Within that rule, we identified three distinct population segments (DPS) for the gray wolf. Gray wolves in the Western DPS and the Eastern DPS were reclassified from endangered to threatened, except where already classified as threatened or as an experimental population. Gray wolves in the Southwestern DPS retained their previous endangered or experimental population status. Three existing gray wolf experimental population designations were not affected by the April 1, 2003, final rule. We removed gray wolves from the lists of threatened and endangered wildlife in all or parts of 16 southern and eastern States where the species historically did not occur. We also established a new special rule under section 4(d) of the Act for the threatened Western DPS to increase our ability to effectively manage wolf-human conflicts outside the two experimental population areas in the Western DPS. In addition, we established a second section 4(d) rule that applied provisions similar to those

previously in effect in Minnesota to most of the Eastern DPS. These two special rules were codified in 50 CFR 17.40(n) and (o), respectively.

On January 31, 2005, and August 19, 2005, U.S. District Courts in Oregon and Vermont, respectively, ruled that the April 1, 2003, final rule violated the Act (
Defenders of Wildlife
v.
Norton
, 03-1348-JO, D. OR 2005;
National Wildlife Federation
v.
Norton
, 1:03-CV-340, D. VT. 2005). The Courts' rulings invalidated the revisions to the gray wolf listing. Therefore, the status of gray wolves outside of Minnesota and outside of areas designated as nonessential experimental populations reverted back to endangered (as had been the case prior to the 2003 reclassification). The courts also invalidated the three DPSs identified in the April 1, 2003, rule as well as the associated special regulations.

On March 27, 2006, we published a proposal (71 FR 15266-15305) to identify a WGL DPS of the gray wolf, to remove the WGL DPS from the protections of the Act, to remove designated critical habitat for the gray wolf in Minnesota and Michigan, and to remove special regulations for the gray wolf in Minnesota. The proposal was followed by a 90-day comment period, during which we held four public hearings on the proposal.

On February 8, 2007, we published a final rule identifying a WGL DPS of the gray wolf, removing the WGL DPS from the protections of the Act, removing designated critical habitat for the gray wolf in Minnesota and Michigan, and removing special regulations for the gray wolf in Minnesota (72 FR 6052).

On April 16, 2007, three parties filed a lawsuit against the U.S. Department of the Interior (Department) and the Service, challenging the Service's February 8, 2007 (72 FR 6052), identification and delisting of the WGL DPS. The plaintiffs argued that the Service may not identify a DPS within a broader pre-existing listed entity for the purpose of delisting the DPS. Based on this argument, the U.S. District Court for the District of Columbia remanded and vacated the February 7, 2008, WGL DPS final rule (72 FR 6052). The court found that the Service had made that decision based on its interpretation that the plain meaning of the ESA authorizes the Service to identify and delist a DPS within an already-listed entity. The court disagreed, and concluded that the Act is ambiguous as to whether the Service has this authority. The court accordingly remanded the final rule so that the Service can provide a reasoned explanation of how its interpretation is consistent with the text, structure, legislative history, judicial interpretations, and policy objectives of the Act (
Humane Society of the United States
v.
Kempthorne
, Civ. No. 07-0677, 2008 U.S. Dist. LEXIS 74495 (D.D.C. Sept. 29, 2008) (J. Friedman).

On December 11, 2008, we published a notice reinstating protections for the gray wolf in the western Great Lakes and northern Rocky Mountains pursuant to court-orders (73 FR 75356).

Please refer to the March 27, 2006, (71 FR 15266-15305) proposed rule for further information on previous Federal actions.

Issues on Remand

In an Opinion dated September 29, 2008, the United States District Court for the District of Columbia vacated the final rule (72 FR 6052) (Feb. 8, 2007) identifying the Western Great Lakes Distinct Population Segment of gray wolf and delisting that DPS.
The Humane Society of the United States
v.
Kempthorne
, Civ. No. 07-0677, 2008 U.S. Dist. LEXIS 74495 (D.D.C. Sept. 29, 2008) (J. Friedman). Judge Friedman remanded the matter to the Secretary to allow the agency to “bring its expertise and experience to bear on the question of whether the Act permits it to use the DPS tool in the fashion it has proposed.”
Id.
at *40. Judge Friedman instructed that the agency must explain how the agency's interpretation of the statute conforms to the text, structure, and legislative history of the ESA; how the agency's interpretation is consistent with judicial interpretations of the Act, if any; and how the agency's interpretation serves the Act's policy objectives.
Id.
In so doing, Judge Friedman did not find that the Service could not utilize the DPS tool to simultaneously identify and delist a DPS. Instead, Judge Friedman found that the record lacked an explanation on this point to which he could defer under
Chevron U.S.A., Inc.
v.
Natural Resources Defense Council, Inc.
, 467 U.S. 837 (1984), and afforded the agency an opportunity to respond.

While the Service acknowledges that the ESA is arguably ambiguous on the “precise question” posed by the court, it notes that the court's question does not accurately describe what we did in the Final Rule. What we actually did, under the precise language of the Act, was to determine, pursuant to section 4(a)(1), that gray wolves in the Western Great Lakes area constituted a DPS and that the DPS was neither endangered nor threatened, and then revised the List of Endangered and Threatened Wildlife, pursuant to section 4(c)(1), to reflect those determinations. Our conclusion is that we had clear authority to make the determinations and the revisions. We did not delist a previously unlisted species; rather, we revised the existing listing of a species (the gray wolf in the lower 48 States) to reflect a determination that a sub-part of that species (the Western Great Lakes DPS) was healthy enough that it no longer needed the ESA's protections. Our authority to make these determinations and to revise the list accordingly is found in the precise language of the ESA. Moreover, even if that authority was not clear, our interpretation of this authority to make determinations under section 4(a)(1) and to revise the endangered and threatened species list to reflect those determinations under section 4(c)(1) is reasonable and fully consistent with the ESA's text structure, legislative history, relevant judicial interpretations, and policy objectives.

By vacating the previous final rule and remanding the rulemaking to the Service, the court required the Service to make a new final determination on the March 27, 2006 proposed rule (71 FR 15266) on which the vacated final rule was based. In that proposed rule, the Service provided public notice of its consideration of identifying the Western Great Lakes Distinct Population Segment of gray wolves and to remove that DPS from the List of Endangered and Threatened Wildlife. At that time, the Service requested public comments on the proposal and received 360 comments addressing a wide range of issues, including but not limited to the Service's use of the DPS tool in the manner proposed. Comments were received from 40 identifiable states, 5 foreign countries, 19 preservation and conservation organizations, 16 agricultural and livestock organizations, 249 private individuals, and 6 Native American governments or organizations. All of these comments were given meaningful consideration in the course of the Secretary promulgating this final rule.

This final rule constitutes a new final determination on the March 27, 2006 proposed rule. It is also substantially similar to the vacated final rule in form and substance, including the biological and ecological basis for its conclusions. This final rule differs in that it contains a section entitled “Issues on Remand” that represents the Secretary's response to the issues raised by the Court, in consultation with the Department of the Interior's Solicitor's Office. This section of the final rule merely addresses the narrow legal issue within the agency's expertise and experience—namely, whether the Secretary may simultaneously identify and delist a currently listed species. The section

entitled Distinct Vertebrate Population Segment Policy Overview responds to the court's question regarding the agency's past practice and use of DPSs.

Before issuing this final rule, we verified that no new scientific data exist that would alter our previous analysis of the relevant facts that serve as the basis for the Secretary's decision to identify the Western Great Lakes DPS and the Secretary's conclusion that the Western Great Lakes DPS should be removed from the list of threatened and endangered species because it has recovered and no longer meets the criteria for remaining on the list. Note that we did examine updated monitoring data and the final Michigan plan and determined that this new data merely supplements our existing record. The Service is simply responding to the narrow legal issues raised by the Court. Consequently, Section 553(b)(3)(B) of the Administrative Procedure Act (APA) does not require an additional period of public notice and comment.

We consulted with the Solicitor of the Department of the Interior to address the issue in Judge Friedman's opinion that the agency must explain how our interpretation of the statute conforms to the text, structure, and legislative history of the ESA; is consistent with judicial interpretations of the Act, if any; and serves the Act's policy objectives. On December 12, 2008, a formal opinion was issued by the Solicitor, “U.S. Fish and Wildlife Service Authority Under Section 4(c)(1) of the Endangered Species Act to Revise Lists of Endangered and Threatened Species to ‘Reflect Recent Determinations’ ” (U.S. DOI 2008), which fully addresses these issues. The Service fully agrees with the analysis and conclusions set out in the Solicitor's opinion. This action is consistent with the opinion. The complete text of the Solicitor's opinion can be found at
http://www.fws.gov/midwest/wolf/.

Geographical Area of the Western Great Lakes Distinct Population Segment

The geographical area of the WGL DPS is shown in Figure 1, below, and is described as all of Minnesota, Wisconsin, and Michigan; the portion of North Dakota north and east of the Missouri River upstream to Lake Sakakawea and east of the centerline of Highway 83 from Lake Sakakawea to the Canadian border; the portion of South Dakota north and east of the Missouri River; the portions of Iowa, Illinois, and Indiana north of the centerline of Interstate Highway 80; and the portion of Ohio north of the centerline of Interstate Highway 80 and west of the Maumee River at Toledo.

BILLING CODE 4310-55-P

ER02AP09.000

BILLING CODE 4310-55-C
Distinct Vertebrate Population Segment Policy Overview

Pursuant to the Act, we consider if information is sufficient to indicate that listing, reclassifying, or delisting any species, subspecies, or, for vertebrates, any DPS of these taxa may be warranted. To interpret and implement the DPS provision of the Act and congressional guidance, the Service and the National Marine Fisheries Service (NMFS) published a policy regarding the identification of distinct vertebrate population segments under the Act (61 FR 4722, February 7, 1996). Under this policy, two factors are considered in a decision regarding the potential identification of a DPS and then a final factor is considered regarding the listing, reclassification, or delisting of the DPS. The first two factors determine whether the population segment is a valid DPS—(1) discreteness of the population segment in relation to the remainder of the taxon, and (2) the significance of the population segment to the taxon to which it belongs. If a population meets both tests, it can be identified as a DPS. Then the third factor, the population segment's conservation status, is evaluated in relation to the Act's standards for listing, delisting, or reclassification (i.e., is the DPS endangered or threatened).

Agency's Past Practice and History of Using DPSs

Of the over 370 native vertebrate “species” listed under the Act, 77 are listed as less than an entire taxonomic species or subspecies (henceforth referred to as populations) under one of several authorities including the DPS language in the definition of “species”. Of these 77 listed populations, 32 predate the 1996 DPS policy (61 FR 4722); therefore, the final listing determinations for these populations did not include formal DPS analyses per the 1996 DPS policy. Specifically, the 77 populations encompass 51 different species or subspecies. During the history of the Act, the Service and NMFS have taken actions with respect

to populations in 98 listing, reclassification, and delisting actions. The majority of those actions identified a classification other than a taxonomically recognized species or subspecies at the time of listing. In several instances, however, the agencies have identified a DPS and, as appropriate, revised the list of Threatened and Endangered Wildlife in a single action. For example, we (1) established a DPS of the grizzly bear (
Ursus arctos horribilis
) for the Greater Yellowstone Area and surrounding area, within the existing listing of the grizzly bear in the lower 48 States, and removed this DPS from the List of Threatened and Endangered Wildlife (March 29, 2007; 72 FR 14865); (2) established two DPSs of the Columbian white-tailed deer (
Odocoileus virginianus leucurus
): the Douglas County DPS and the Columbia River DPS; and removed the Douglas County DPS from the List of Threatened and Endangered Wildlife (July 24, 2003; 68 FR 43647); (3) removed the brown pelican (
Pelecanus occidentalis
) in the Southeastern United States from the List of Endangered and Threatened Wildlife and continued to identify the brown pelican as endangered throughout the remainder of its range (February 4, 1985; 50 FR 4938); (4) identified the American crocodile (Crocodylus acutus) in Florida as a DPS within the existing endangered listing of the American crocodile in the United States and reclassified the Florida DPS from endangered to threatened (March 20, 2007; 71 FR 13027); and (5) amended the List of Endangered and Threatened Wildlife and Plants by revising the entry for the gray whale (Eschrichtius robustus) to remove the eastern North Pacific population from the List while retaining the western North Pacific population as endangered (June 16, 1994; 59 FR 31094)). We also proposed in 2000 to identify four DPSs within the existing listing of the gray wolf in the lower 48 States and to reclassify three of the DPSs from endangered to threatened (July 13, 2000; 65 FR 43450). As described above under “Previous Federal Action,” the final rule we issued in 2003 identified three gray wolf DPSs and reclassified two of the DPSs from endangered to threatened (April 1, 2003; 68 FR 15804). Although courts subsequently invalidated these DPSs, they did not question the Service's authority to identify and reclassify DPSs within a larger pre-existing listing. Identifying and delisting the Western Great Lakes DPS of gray wolves is consistent with the Service's past practice and does not represent a change in agency position.

Analysis for Discreteness

Under our Policy Regarding the Recognition of Distinct Vertebrate Population Segments, a population segment of a vertebrate taxon may be considered discrete if it satisfies either of the following conditions—(1) it is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

Markedly Separated From Other Populations of the Taxon
—The western boundary of the WGL DPS is approximately 400 mi (644 km) from the nearest known wolf packs in Wyoming and Montana. The distance between those western packs and the nearest packs within the WGL DPS is nearly 600 miles (966 km). The area between Minnesota packs and Northern Rocky Mountain packs largely consists of unsuitable habitat, with only scattered islands of possibly suitable habitat, such as the Black Hills of eastern Wyoming and western South Dakota. There are no known gray wolf populations to the south or east of the WGL DPS.

As discussed in the previous section, gray wolves are known to disperse over vast distances, but straight line documented dispersals of 400 mi (644 km) or more are very rare. While we cannot rule out the possibility of a Midwest wolf traveling 600 miles or more and joining or establishing a pack in the Northern Rockies, such a movement has not been documented and is expected to happen very infrequently, if at all. Similar movements from the NRM wolf population into the WGL DPS are unknown and are expected to happen infrequently. The 2006 Sturgis, South Dakota, wolf is the closest that an NRM wolf has come to entering the WGL DPS (Fain in litt. 2006). However, the Sturgis wolf still had over 300 mi (500 km) to travel before it would encounter the nearest WGL DPS wolf pack. As the discreteness criterion requires that the DPS be “markedly separated” from other populations of the taxon rather than requiring complete isolation, this high degree of physical separation between the Western Great Lakes and the Northern Rocky Mountains satisfies the discreteness criterion. Similarly, we feel it is unlikely for wolves to cross the eastern boundary into the Laurentian Mixed Habitat Province of New York, Pennsylvania, and New England due to inhospitable conditions.

Delimited by International Boundaries with Significant Management Differences Between the U.S. and Canada
—This border has been used as the northern boundary of the listed entity since gray wolves were reclassified in the 48 States and Mexico in 1978. There remain significant cross-border differences in exploitation, management, conservation status, and regulatory mechanisms. More than 50,000 wolves exist in Canada, where suitable habitat is abundant, human harvest of wolves is common, Federal protection is absent, and provincial regulations provide widely varying levels of protection. In general, Canadian wolf populations are sufficiently large and healthy so that harvest and population regulation, rather than protection and close monitoring, is the management focus. There are an estimated 4,000 wolves in Manitoba (Manitoba Conservation undated). Hunting is allowed nearly province-wide, including in those provincial hunting zones adjoining northwestern Minnesota, with a current season that runs from August 28, 2006, through March 31, 2007 (Manitoba Conservation 2006a). Trapping wolves is allowed province-wide except in and immediately around Riding Mountain National Park (southwestern Manitoba), with a current season running from October 14, 2006, through February 28 or March 31, 2007 (varies with trapping zone) (Manitoba Conservation 2006b). The Ontario Ministry of Natural Resources estimates there are 8,850 wolves in the province, based on prey composition and abundance, topography, and climate. Wolf numbers in most parts of the province are believed to be stable or increasing since about 1993 (Ontario MNR 2005a, pp. 7-9). In 2005 Ontario limited hunting and trapping of wolves by closing the season from April 1 through September 14 in central and northern Ontario (Ontario MNR 2005b). In southern Ontario (the portion of the province that is adjacent to the WGL DPS), wolf hunting and trapping is permitted year around except within, and immediately around, Algonquin Provincial Park in southeastern Ontario (north of Lake Ontario) where seasons are closed all year (Ontario MNR 2005c).

We, therefore, conclude that the above-described WGL DPS boundary satisfies both conditions that can be used to demonstrate discreteness of a potential DPS.

Analysis for Significance

If we determine that a population segment is discrete, we next consider available scientific evidence of its significance to the taxon to which it belongs. Our DPS policy states that this consideration may include, but is not limited to, the following—(1) persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and/or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. Below we address Factors 1 and 2. Factors 3 and 4 do not apply to the WGL wolf DPS and thus are not included in our analysis for significance.

Unusual or Unique Ecological Setting
—Wolves within the WGL DPS occupy the Laurentian Mixed Forest Province, a biotic province that is transitional between the boreal forest and the broadleaf deciduous forest. Laurentian Mixed Forest consists of mixed conifer-deciduous stands, pure deciduous forest on favorable sites, and pure coniferous forest on less favorable sites. Within the United States this biotic province occurs across northeastern Minnesota, northern Wisconsin, the UP, and the NLP, as well as the eastern half of Maine, and portions of New York and Pennsylvania (Bailey 1995). In the Midwest, current wolf distribution closely matches this province, except for the NLP and the Door Peninsula of Wisconsin, where wolf packs currently are absent. To the best of our knowledge, wolf packs currently do not inhabit the New England portions of the Laurentian Mixed Forest Province, nor do we expect wolves from the WGL DPS to move into them due to the vast distance between these two areas and inhospitable terrain they would need to traverse. Therefore, WGL wolves represent the only wolf packs in the United States occupying this province. Furthermore, WGL wolves represent the only use by gray wolf packs of any form of eastern coniferous or eastern mixed coniferous-broadleaf forest in the United States.

Significant Gap in the Range of the Taxon
—This factor may be primarily of value when considering the initial listing of a taxon under the Act to prevent the development of a major gap in a taxon's range (“the loss of the discrete population segment would result in a significant gap in the range of the taxon” (61 FR 4725)). However, this successful restoration of a viable wolf metapopulation to large parts of Minnesota, Wisconsin, and Michigan has filled a significant gap in the historical range of the wolf in the United States, and it provides an important extension of the range of the North American gray wolf population. The recovered Western Great Lakes wolf metapopulation is the only wolf population in the conterminous States east of the Rocky Mountains except for the red wolves being restored along the Atlantic Coast and currently holds about 80 percent of North American gray wolves that occur south of Canada.

Discrete Vertebrate Population Segment Conclusion

We conclude, based on our review of the best available scientific data, that the WGL DPS is discrete from other wolf populations as a result of physical separation and the international border with Canada. The DPS is significant to the taxon to which it belongs because it contains the only populations of the species in the Laurentian Mixed Forest Biotic Province in the United States, it contains a wolf metapopulation that fills a large gap in the historical range of the taxon; and it contains the majority of gray wolves in the conterminous States. Therefore, we have determined that this population segment of wolves satisfies the discreteness and significance criteria required to identify it as a DPS. The evaluation of the appropriate conservation status for the WGL DPS is found below.

Delineating the WGL Gray Wolf DPS

In contrast to a species or a subspecies, a DPS is a biological population that is delineated by a boundary that is based on something other than established taxonomic distinctions. Therefore, the starting point for delineating a DPS is the biological population or metapopulation, and a geographical delineation of the DPS must reasonably represent the population/metapopulation and its biological characteristics.

To delineate the boundary of the WGL DPS, we considered the current distribution of wolves in the Midwest and the characteristic movements of those wolves and of gray wolves elsewhere. We examined the available scientific data on long-distance movements, including long-distance movements followed by return movements to the vicinity of the natal pack. We concluded that wolf behavior and the nature of wolf populations require that we include within the area of the DPS some subset of known long-distance movement locations. However, as described below, wolf biology and common sense argue against the inclusion within the DPS boundary of all known or potential long-distance movements.

This analysis resulted in a WGL DPS boundary that is shown in Figure 1. As discussed below, this DPS has been delineated to include the core recovered wolf population plus a wolf movement zone around the core wolf populations. This geographic delineation is not intended to include all areas to which wolves have moved from the Great Lakes population. Rather, it includes the area currently occupied by wolf packs in Minnesota, Wisconsin, and Michigan; the nearby areas in these States, including the Northern Lower Peninsula of Michigan, in which wolf packs may become established in the foreseeable future; and a surrounding area into which Minnesota, Wisconsin, and Michigan wolves occasionally move but where persistent packs are not expected to be established because suitable habitat is rare and exists only as small patches. The area surrounding the core wolf populations includes the locations of most known dispersers from the core populations, especially the shorter and medium-distance movements from which wolves are most likely to return to the core areas and contribute to the recovered wolf population.

The WGL areas that are regularly occupied by wolf packs are well documented in Minnesota (Erb and Benson 2004, p. 12, fig. 3), Wisconsin (Wydeven
et al.
2006, p. 33, fig. 1), and the UP of Michigan (Huntzinger
et al.
2005, pp. 25-27, figs. 4-6). Wolves have successfully colonized most, perhaps all, suitable habitat in Minnesota. Minnesota data from the winter of 2003-04 indicate that wolf numbers and density either have continued to increase slowly or have stabilized since 1997-98, and there was no expansion of occupied range in the State (Erb and Benson 2004, p. 7). Wisconsin wolves now occupy most habitat areas believed to have a high probability of wolf occurrence except for some areas of northeastern Wisconsin, and the State's wolf population continues to annually increase in numbers and, to a lesser degree, in area (Wydeven
et al.
2006, p. 33). The UP of Michigan has wolf packs throughout, although the current population remains well below the estimated biological carrying capacity (Mladenoff
et al.
1997, pp. 25-27, and

figs. 5 & 7) and will likely continue to increase in numbers in the UP for at least several more years.

When delineating the WGL DPS, we had to consider the high degree of mobility shown by wolves. The dispersal of wolves from their natal packs and territories is a normal and important behavioral attribute of the species that facilitates the formation of new packs, the occupancy of vacant territories, and the expansion of occupied range by the “colonization” of vacant habitat. Data on wolf dispersal rates from numerous North American studies (summarized in Fuller
et al.
2003, p. 179, Table. 6.6; Boyd and Pletscher 1999, p. 1102, Table 6) show dispersal rates of 13 to 48 percent of the individuals in a pack. Sometimes the movements are temporary, and the wolf returns to a location in or near its natal territory. In some cases a wolf may continue its movement for scores or even hundreds of miles until it locates suitable habitat, where it may establish a territory or join an existing pack. In other cases, a wolf is found dead at a distance from its original territory, leaving unanswered the questions of how far it would have gone and whether it eventually would have returned to its natal area or population.

Minnesota
—The current record for a documented extra-territorial movement by a gray wolf in North America is held by a Minnesota wolf that moved a minimum (that is, the straight line distance from known starting point to most distant point) of at least 550 mi (886 km) northwest into Saskatchewan (Fritts 1983, p. 166-167). Nineteen other primarily Minnesota movements summarized by Mech (in litt. 2005) averaged 154 mi (248 km). Their minimum distance of travel ranged from 32-532 mi (53-886 km) with the minimum dispersal distance shown by known returning wolves ranging from 54 mi (90 km) to 307 mi (494 km).

Wisconsin
—In 2004, a wolf tagged in Michigan was killed by a vehicle in Rusk County in northwestern Wisconsin, 295 miles (475 km) west of his original capture location in the eastern UP (Wydeven
et al.
2005b, p. 4). A similar distance (298 mi, 480 km) was traveled by a north-central Wisconsin yearling female wolf that moved to the Rainy Lake region of Ontario during 1988-89 (Wydeven
et al.
1995, p. 149).

Michigan
—Drummer
et al.
(2002, pp. 14-15) reported 10 long-distance dispersal events involving UP wolves. One of these wolves moved to north-central Missouri and another to southeastern Wisconsin, both beyond the core wolf areas in the WGL. The average straight-line distance traveled by those two wolves was 377 mi (608 km), while the average straight-line distance for all 10 of these wolves was 232 mi (373 km). Their straight-line distances ranged from 41 to 468 mi (66 to 753 km).

Illinois and Indiana
—The December 2002, Marshall County, Illinois, wolf likely dispersed from the Wisconsin wolf population, nearly 200 miles (322 km) to the north (Great Lakes Directory 2003). The Randolph County, Indiana wolf had traveled a minimum distance of at least 420 miles (676 km) to get around Lake Michigan from its central Wisconsin birthplace; it likely traveled much farther than that unless it went through the city or suburbs of Chicago (Wydeven
et al.
2004, pp. 10-11). The Pike County, Illinois, wolf that was shot in late 2005 was about 300 mi (180 km) from the nearest wolf packs in central Wisconsin.

North Dakota, South Dakota, and Nebraska
—Licht and Fritts (1994, p. 77) tabulated seven gray wolves found dead in North Dakota and South Dakota from 1981 through 1992 that are believed to have originated from Minnesota, based on skull morphometrics. Although none of these wolves were marked or radio-tracked, making it impossible to determine the point of initiation of their journey, a minimum travel distance for the seven of Minnesota origin can be determined from the nearest wolf breeding range in Minnesota. For the seven, the average distance to the nearest wolf breeding range was 160 mi (257 km) and ranged from 29 to 329 mi (46 to 530 km). One of these seven wolves moved west of the Missouri River before it died.

Genetic analysis of a wolf killed in Harding County, in extreme northwestern South Dakota, in 2001 indicated that it originated from the Minnesota—Wisconsin—Michigan wolf populations (Fain in litt. 2006). The straight-line travel distance to the nearest Minnesota wolf pack is nearly 400 miles (644 km).

The wolf from the Greater Yellowstone area that was killed by a vehicle on Interstate 90 near Sturgis, SD, in March of 2006 traveled a minimum straight-line distance of about 270 mi (435 km) from the nearest known Greater Yellowstone pack before it died (USFWS
et al
. 2006, in USFWS Program Report, Figure 1).

A large canid was shot by a Boyd County, Nebraska, rancher in late 1994 or early 1995, likely after crossing the frozen Missouri River from South Dakota (Anschutz in litt. 2006, Jobman in litt. 1995). It was determined to be a wolf that originated from the Great Lakes wolf populations (Fain in litt. 2006), whose nearest pack would have been about 300 mi (480 km) away. A wolf illegally killed near Spalding, Nebraska, in December of 2002 also originated from the Minnesota—Wisconsin—Michigan wolf population, as determined by genetic analysis (Anschutz in litt. 2003, Fain in litt. 2006). The nearest Minnesota wolf pack is nearly 350 miles (563 km) from this location.

Other notable extra-territorial movements
—Notable are several wolves whose extra-territorial movements were radio-tracked in sufficient detail to provide insight into their actual travel routes and total travel distances for each trek, rather than only documenting straight-line distance from beginning to end-point. Merrill and Mech (2000, pp. 429-431) reported on four such Minnesota wolves with documented travel distances ranging from 305 to 2,641 mi (490 to 4,251 km) and an average travel route length of 988 mi (1590 km). Wydeven (1994, pp. 20-22) described a Wisconsin wolf that moved from northwestern Wisconsin to the northern suburbs of St. Paul, Minnesota, for 2 weeks (apparently not seen or reported to authorities by the local residents), then moved back to north-central Wisconsin. The total travel distance was 278 mi (447km) from her natal pack into Minnesota and on to the north-central Wisconsin location where she settled down.

While investigating the origins of Scandinavian wolf populations, Linnell
et al
. (2005, p. 387) compiled gray wolf dispersal data from 21 published studies, including many cited separately here. Twenty-two of 298 compiled dispersals (7.4 percent) were over 300 km (186 mi). Eleven dispersals (3.7 percent) were over 500 km (311 mi). Because of the likelihood that many long-distance dispersers are never reported, they conclude that the proportion of long-distance dispersers is probably severely underestimated.

From these extra-territorial movement records we conclude that gray wolf movements of over 200 miles (320 km) straight-line distance have been documented on numerous occasions, while shorter distance movements are more frequent. Movements of 300 miles (480 km) straight-line distance or more are less common, but include one Minnesota wolf that journeyed a straight-line distance of 300 mi (480 km) and a known minimum travel distance of 2,550 mi (4,251 km) before it reversed direction, as determined by its satellite-tracked collar. This wolf returned to a spot only 24 mi (40 km) from its natal territory (Merrill and Mech 2000, p. 430). While much longer movements

have been documented, including some by midwestern wolves, return movements to the vicinity of natal territories have not been documented for extra-territorial movements beyond 300 mi (480 km).

Based on these extra-territorial movement data, we conclude that affiliation with the midwestern wolf population has diminished and is essentially lost when dispersal takes a Midwest wolf a distance of 250 to 300 miles (400 to 480 km) beyond the outer edge of the areas that are largely continuously occupied by wolf packs. Although some WGL wolves will move beyond this distance, available data indicate that longer distance dispersers are unlikely to return to their natal population. Therefore, they have lost their functional connection with and potential conservation value to, the WGL wolf population.

Wolves moving substantial distances outward from the core areas of Minnesota, Wisconsin, and Michigan will encounter landscape features that are at least partial barriers to further wolf movement, and that may—if crossed—impede attempts of wolves to return toward the WGL core areas. If such partial barriers are in a location that has separate utility in delineating the biological extent of a wolf population, they can and should be used to delineate the DPS boundary. Such landscape features are the Missouri River in North Dakota and downstream to Omaha, Nebraska, and Interstate Highway 80 from Omaha eastward through Illinois, Indiana, and into Ohio, ending where this highway crosses the Maumee River in Toledo, Ohio. We do not believe these are absolute barriers to wolf movement. There is evidence that several Minnesota-origin wolves have crossed the Missouri River (Licht and Fritts 1994, pp. 75 & 77, Fig. 1 and Table 1; Anschutz in litt. 2003, 2006) and some Midwest wolves have crossed interstate highways (Merrill and Mech 2000, p. 430). There is also evidence that some wolves are hesitant to cross highways, (Whittington
et al
. 2004, pp. 7, 9; Wydeven
et al
. 2005b, p. 5; but see Blanco
et al
. 2005, pp. 315-316, 319-320 and Kohn
et al.
2000, p. 22). Interstate highways and smaller roads are a known mortality factor for wolves and, therefore, are a partial barrier to wolf movements (Blanco
et al
. 2005, p. 320).

The recent death of a NRM wolf near Sturgis in western South Dakota (Fain in litt. 2006) suggests that the area of the Dakotas west of the Missouri River may be traversed by a small number of wolves coming from both the NRM and Great Lakes wolf populations, as well as wolves from Canada (Licht and Fritts 1994, pp. 75-77). Wolves in this area cannot be assumed to belong to the Great Lakes wolf population, supporting our belief that the DPS boundary should not be designed to include the locations of all known dispersers. As this record shows, an additional weakness of basing a DPS boundary on the location of the most distant dispersal is that it results in a boundary that is valid only until a more distant dispersal event is documented.

Peer Review

In accordance with the December 16, 2004, Office of Management and Budget's “Final Information Quality Bulletin for Peer Review”, we have obtained comments from at least three independent scientific reviewers regarding the scientific data and interpretations contained in the March 27, 2006, proposed rule (71 FR 15266). The purpose of such review is to ensure that our delisting proposal provided to the public and our delisting decision is based on scientifically sound data, assumptions, and analyses. Peer reviewer comments were received during the public comment period from ten individuals and were considered as we made our final decision on the proposal. Substantive peer reviewer comments are summarized in the remaining paragraphs of this section as well as discussed in greater detail in the appropriate Issue/Response sections which follow.

All ten peer reviewers have extensive biological experience with gray wolves. Most are currently involved in wolf research for the Federal Government (three individuals in two agencies), Canadian Government (one reviewer), or universities (two individuals). One reviewer is a biologist for a tribe with extensive involvement in wolf recovery and management, one leads a long-term Federal wolf depredation control program, another directs an endangered species conservation organization, and the tenth is a retired State wolf biologist. None of the peer reviewers are employed by the Service or by State agencies within the WGL DPS.

All eight peer reviewers who expressed a clear opinion supported the biological approach we used to identify the DPS and its boundaries, and they agreed that the delisting criteria have been achieved by the DPS. Three of these eight had previously opposed the proposed 2003 identification and 2004 delisting of the much larger Eastern DPS. None of the peer reviewers stated that the currently proposed DPS boundary or delisting was inappropriate. One peer reviewer's expertise is limited to wolf diseases and causes of wolf mortality. This reviewer limited her comments to those areas. The remaining peer reviewer was unclear regarding support for, or opposition to, our biological basis for the proposed boundary of the DPS, but agreed that wolves in the Great Lakes have met the federally established delisting criteria.

In general, the peer reviewers judged the delisting proposal to be well researched, thorough, and adequate to support delisting of the WGL DPS. Except for one reviewer who stated that the State plans need greater emphasis on educating and informing the public, all comments related to State plans and our analysis of the plans indicated that the reviewers believed the State population goals were adequate and the protection and management actions contained in the plans would ensure viable wolf populations following delisting.

None of the peer reviewers expressed concerns with the expanded use of wolf control measures by the States following delisting. Several specifically stated that they were confident that the States would not allow human-caused mortality to threaten the security of viable populations within the three States. One reviewer, who has several decades of experience with wolf depredation control measures, expressed a belief that wolf control or harvest by the public will not result in excessive take of wolves.

There were no criticisms of, or recommendations to improve, the current population monitoring done by the three States. One reviewer, while noting that the Minnesota population estimate “is probably much less accurate than [those developed by] MI or WI” and likely overestimates the State's wolf population, went on to state that this is not a critical point and may not matter, because the Minnesota wolf population is well over the minimum number needed to delist. He also stated that “managers have as good a dataset on wolves as just about any other species they manage, even white-tailed deer * * *.” Another reviewer stated that the three States are using “adequate and consistent techniques” to develop their wolf population estimates.

There were no suggestions that other States within the DPS should be developing wolf management plans or wolf monitoring programs. However, one reviewer recommended that all States in the DPS cooperate in the documenting and reporting of wolves dispersing from the northern Minnesota,

Wisconsin, and Michigan recovery areas.

Several reviewers pointed out that, while there currently is sufficient habitat that is likely to remain secure for the foreseeable future, this should be monitored by the States after delisting. The fragmentation of private industrial forests for second homes and other developments was identified as a potential future threat to occupied wolf habitat. Most reviewers pointed to the need for effective and timely monitoring of wolf numbers and wolf health following delisting.

None of the peer reviewers expressed concern that the Wisconsin and Michigan Plans—being updated and revised, respectively, at the time the delisting proposal was published—would be weakened and substantially reduce protections for the wolves in the State. However, one of the reviewers urged that the two plans be finalized prior to delisting. Two peer reviewers specifically recommended that the Service complete the post-delisting monitoring plan prior to delisting.

One reviewer supported the identification of the DPS and its delisting and said its boundaries “do not extend delisting beyond an area that is reasonably affected by the DPS.” However, this reviewer cautioned that in delineating a DPS the Service should avoid over-emphasizing “the importance of the biological (or population viability) aspect of `significant portion of the range' ” within the Act's definitions of endangered and threatened. He provided a recent co-authored scientific publication that seems to argue for a primarily quantitative approach to determining what part of a species' range is significant. This same reviewer objected to the Service's interpretation of “range” to mean current range, when used in the context of “significant portion of the range.”

Regarding the Northern Lower Peninsula of Michigan, one peer reviewer indicated his belief that wolves are likely to move into habitat there and the State should allow that to happen. Another reviewer agreed with the Service that the currently unoccupied habitat in the NLP is not a significant portion of their range in the WGL DPS.

One peer reviewer supported the delisting but criticized the “bizarre aspect” of it that would result in wolves in areas beyond the DPS retaining the Act's protection as endangered, when “[t]he area outside the proposed DPS is precisely the area that the Eastern Timber Wolf recovery Team believed should not harbor wolves * * *.” The reviewer recommends delisting gray wolves in the unsuitable habitat areas beyond the WGL DPS, as well.

Summary of Comments and Recommendations

We received 360 total comments, including 310 original letters and 50 form responses based on 2 form letters. These comments included 10 that we solicited from peer reviewers, as well as verbal and written comments received at public hearings. We received comments from 40 identifiable states and the District of Columbia, as well as 5 foreign countries. Private individuals submitted 249 of the comments. Nineteen came from preservation, conservation, or animal welfare organizations, and 16 were submitted by agriculture or livestock organizations. State agency representatives or elected officials provided 12 comments, and 6 were received from Native American government agencies or organizations.

Issue 1—One commenter requested the Service double the length of the public comment period and hold additional public hearings in all “recipient states.”

Response—The Act and implementing regulations for adding or removing species from the list of threatened and endangered species require a public comment period of at least 60 days and holding one public hearing if requested within 45 days of the publication of the proposal (50 CFR 424.16). We opened a 90-day public comment period and held four public hearings in the States that would be most affected by the proposed changes. Additionally, we facilitated public involvement in this process by providing a great deal of information on our web site regarding wolf biology and behavior; wolf identification and wolf-dog hybrids; threats to human safety; depredation control programs; and our summaries of State wolf management plans and copies of those plans. We mailed summaries of the proposal to approximately 1,600 individuals and organizations that had previously expressed interest in wolf recovery and delisting issues, and we provided ways to submit comments via the web, e-mail, fax, and mail, as well as at the four hearings. We provided ample opportunities for interested individuals and organizations to learn about the proposal and to provide comments within the 90-day comment period and at the four hearings; therefore, we did not extend the comment period nor schedule additional hearings.

Issue 2—A number of comments expressed opposition to delisting, making statements such as “wolves should always be protected” by the Act, the Service “should abandon its goal of delisting wolves in the US,” and wolves should not be delisted until “their numbers reach exorbitant levels,” they have reached biological carrying capacity, or wolves have overpopulated and are damaging the natural ecosystem. Other commenters wanted the critical habitat designations to remain in place after delisting to keep the Service involved in preserving habitat for a delisted species.

Response—The Act provides the Federal Government with authority to protect and recover threatened and endangered species. When a species has been recovered to the extent that it no longer meets the definition of “threatened” or “endangered” the Act provides that it be removed from the Federal List of Endangered and Threatened Wildlife and Plants and its management be returned to the appropriate States and tribes (in cases where treaties identify such authorities for tribes). The goal of the Act is to recover and delist species that have been listed as threatened or endangered.

The gray wolf WGL DPS no longer meets the definition of threatened or endangered, because it has achieved long-standing recovery criteria by greatly expanding in numbers and geographic range and threats to its long-term viability have been reduced or eliminated. Therefore, the Act authorizes delisting the taxon, but it also requires that we continue to monitor the status of the species for a minimum of five years after delisting, and we can list it again if the monitoring results show that to be necessary.

“Critical habitat” is a legal designation under the Act that is given to geographical areas that are essential to the conservation of a listed species. Critical habitat is designated only for endangered or threatened species, and any critical habitat designations must be removed if the taxon is removed from the Federal List of Endangered and Threatened Wildlife and Plants.

Issue 3—Numerous commenters indicated that our delisting proposal was based on unspecified political considerations, pressure from the livestock industry, exaggerated fears for human safety, pressure from deer hunters and furbearer trappers, and pressure from States. We were asked by other commenters to consider the value of wolves as an umbrella or keystone species, for keeping deer numbers in check, to maintaining healthy ungulate populations, in balancing nature, and providing a legal mechanism to protect habitat needed by other species. Others thought we should consider the economic benefits provided by a large

wolf population and recognize that protecting “the entire ecology of Minnesota” requires that we keep wolves listed under the Act.

Response—The Act requires that listing and delisting decisions be based entirely on whether a species is endangered or threatened due to one or more categories of threats (section 4(a)(1)) and that we make this determination “solely on the basis of the best scientific and commercial data available.” In compliance with the Act, the other considerations and factors described above have not been used in making this decision.

Issue 4—Several commenters stated that wolf recovery should include repopulating suitable habitat in the Lower Peninsula of Michigan, or that a larger geographical area needs to be reoccupied before recovery is achieved. One comment stated that population numbers alone cannot be used “as the sole proof of long-term recovery.” Other commenters pointed to scientific publications that advocate larger populations with more individuals to ensure long-term viability of species, in general.

Response—The Act states that the Service will develop recovery plans and, within these recovery plans, to the maximum extent practicable, establish “objective, measurable criteria which, when met, would result in a determination * * * that the species be removed from the list * * *.” (section 4(f)(1)(B)(ii)). Therefore, while a delisting decision must include an evaluation of the threats to a species, we must also establish and utilize measurable criteria to assess progress towards recovery. Our delisting decision is not based on population numbers alone, but also on population distribution and threats to that population and its habitat, as required by the Act.

Issue 5—We received several comments that stated that the recovery criteria have not been achieved because either the wolf population data are wrong, and/or because the Wisconsin-Upper Peninsula wolf population is not a second population as is required by the recovery criteria found in the 1992 Recovery Plan.

Response—We, and the peer reviewers of the delisting proposal, are fully satisfied that the wolf population estimates provided by the DNRs of Minnesota, Wisconsin, and Michigan demonstrate that the numerical recovery criteria have been achieved for far longer than the five years recommended in the Federal Recovery Plan. The methods used by WI and MI DNRs result in a conservative count of the wolves that are alive at the late-winter annual low point of the wolf population. The method used by the Minnesota DNR for its much larger wolf population is less precise, but even the lower bound of its 90 percent confidence interval (CI) exceeded the Federal Recovery Plan's Minnesota goal of 1,250-1,440 wolves back as far as the 1988-89 survey (Fuller
et al
. 1992, p. 50) and the CI lower bound has been well above that goal since then (Erb and Benson 2004, table 1). Therefore, we see no problem with using these Minnesota population estimates. The Recovery Team has also expressed confidence in the population estimates of all three States (Peterson in litt. 1999a, in litt. 1999b).

The 1992 Federal Recovery Plan describes two scenarios that would satisfy its requirement for a second viable wolf population. One scenario deals with the development of an isolated wolf population; such a population must be composed of at least 200 wolves over five successive years. The second scenario is a population that is located within 100 miles of another viable wolf population; such a population must consist of only 100 wolves for five consecutive years (USFWS 1992, pp 25-26). The Recovery Plan discusses the conservation tradeoffs of completely separate populations versus adjacent populations, and it specifically states that a wolf population larger than 100 wolves “closely tied to the Minnesota population” will be considered a viable population despite its small size, because of immigration of wolves from Minnesota (USFWS 1992, pp. 24-25). Although this Recovery Plan was written prior to the common acceptance and use of the conservation biology term “metapopulation,” this clearly was the concept being discussed and advocated in the Federal Recovery Plan. The second scenario describes what has occurred in the WGL DPS and therefore the wolves in Wisconsin and Michigan qualify as a second population.

Issue 6—Several comments stated that a DPS cannot be used for delisting a species; DPSs can only be identified for listing species as threatened or endangered.

Response—DPSs can be utilized for both listing and delisting species. Section 4(a)(1) of the Act directs the Secretary of the Interior to determine whether “any species” is endangered or threatened. Numerous sections of the Act refer to adding and removing “species” from the list of threatened or endangered plants and animals. Section 3(15) defines “species” to include any subspecies “and any distinct population segment of any species of vertebrate fish or wildlife * * *.” Therefore, the Act authorizes us to list, reclassify, and delist species, subspecies, and DPSs of vertebrate species. Furthermore, our “Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Endangered Species Act” states that the policy is intended for “the purposes of listing, delisting, and reclassifying species under the Endangered Species Act * * *.” (61 FR 4722, Feb. 7, 1996), and that it “guides the evaluation of distinct vertebrate population segments for the purposes of listing, delisting, and reclassifying under the Act.” (61 FR 4725).

Most recently, on December 12, 2008, the Solicitor of the Department of the Interior issued a formal opinion, “U.S. Fish and Wildlife Service Authority Under Section 4(c)(1) of the Endangered Species Act to Revise Lists of Endangered and Threatened Species to `Reflect Recent Determinations' ” (U.S. DOI 2008). This opinion represents the views of the Service and fully supports the Service's position that it is authorized in a single action to identify a DPS within a larger listed entity, determine that the DPS is neither endangered nor threatened, and then revise the List of Endangered and Threatened Wildlife to reflect those determinations. The opinion also notes that, although the term “delist” is not used in the Act, it is used extensively in the regulations implementing the section 4 listing provisions of the Act, such as 50 CFR 424.11(d). As explained in footnote 8 to the Solicitor's opinion, “As used by FWS, delisting applies broadly to
any
action that revises the lists either to remove an already-listed entity from the appropriate list in its entirety, or to reduce the geographic or taxonomic scope of a listing to exclude a group of organisms previously included as part of an already-listed entity (as was the case with the Western Great Lakes DPS of gray wolves).” The complete text of the Solicitor's formal opinion can be found at
http://www.fws.gov/midwest/wolf/
.

Issue 7—Several commenters, including State natural resource agencies, stated that the proposed DPS is too small and should be expanded to include all of their State (North Dakota, South Dakota, Iowa), and for Missouri, should include the northern two-thirds of the State. They expressed concerns that some gray wolves will disperse beyond the boundaries of the proposed WGL DPS, where they would have endangered status under the Act. If those wolves subsequently cause conflicts with livestock or other human activities, the States would be limited in

the management or control actions that they could undertake to address the conflict.

Response—We have delineated this DPS boundary to be based solely on the wolf population in the Western Great Lakes. Suggestions to enlarge the DPS to include the locations of all known dispersers from this recovered population are not practical for several reasons. It is not possible to predict where additional long-distance dispersers will turn up. Attempting to lay out the DPS boundary so that it circumscribes all future Midwest dispersers would require either an unacceptably large DPS, or making a series of future outward boundary adjustments to reflect new dispersal locations as they occur.

Upon request we will work with the States where the gray wolf retains endangered status to identify and pursue options to deal with wolf-human conflicts that may arise there. We also point out that the Act's implementing regulations for endangered wildlife specifically allow a person to take an endangered wolf “in defense of his own life or the lives of others” (50 CFR 17.21(c)(3)) and provide that employees or agents of the Service, other Federal land management agencies, and State conservation agencies may take an endangered wolf that is “a demonstrable but nonimmediate threat to human safety.” (50 CFR 17.21(c)(3)(iv)).

Issue 8—One comment stated that the DPS should not include small areas of northern Indiana and Ohio and instead the DPS should end at the southern border of Michigan.

Response—We believe the use of I-80 is preferable to the State line for several reasons. First, the interstate highway more clearly identifies the terminus of the DPS on the ground, making it easier for an individual or for law enforcement agents to determine the legal status of a wolf in the field. Second, this major interstate highway will serve as a partial barrier to wolf dispersal out of the DPS. Therefore, this boundary makes it less likely that these two States will have to deal with dispersing gray wolves that are protected as endangered within their state. Neither State has requested the proposed boundary be modified.

Issue 9—The DPS should not include areas of suitable habitat that lack wolf packs. The DPS should not include any areas that lack wolf packs.

Response—We have identified the DPS to be closely tied to the biological wolf population that has been recovered, and to be consistent with the two relevant court rulings (
Defenders of Wildlife
v.
Norton
, 03-1348-JO, D. OR. 2005;
National Wildlife Federation
v.
Norton
, 1:03-CV-340, D. VT. 2005). Wolf biology makes it unreasonable to define a wolf population, and hence a wolf DPS, solely as the area where wolf packs are present at viable levels. Any area that hosts wolf packs also is producing a substantial number of dispersing wolves, some of which return after short absences, while others travel farther and some never return. Delineation of a wolf population must recognize and account for this dispersal behavior to some degree. We believe our DPS delineation is appropriately based on the biological features of the species and the nature of a wolf population by being centered around the focal areas of the recovery program, but also including a reasonable portion of those wolves making longer distance movements from their natal areas.

We have included nearby areas that are likely to be visited by wolves that have dispersed from the core recovery areas because we believe these wolves should be considered part of that biological population while they are within a reasonable distance from the core areas. The areas of potentially suitable habitat that are currently unoccupied are relatively small, and even if occupied in the future, will not make a significant contribution to the long-term viability of the gray wolf population in the DPS or in the United States. Additionally, wolves that ultimately occupy the NLP will have dispersed from the UP, so we believe the NLP should be included within the WGL DPS.

Issue 10—One comment stated that other gray wolf DPSs should be proposed and identified simultaneously. Piecemeal identification of DPSs and de-listing thwarts the intent of both the vertebrate population policy and the Act.

Response—While in some situations it may be appropriate to identify multiple DPSs simultaneously, there is no requirement in the Act or the DPS Policy to do so. The Service lists or delists species when data are available that supports a decision that best serves the conservation of the taxon. As mentioned above, on December 12, 2008, a formal opinion was issued by the Solicitor for the Department of the Interior, “U.S. Fish and Wildlife Service Authority Under Section 4(c)(1) of the ESA to Revise Lists of Endangered and Threatened Species to `Reflect Recent Determinations' ” (U.S. DOI 2008) and fully supports the Secretary's actions in this final rule. The complete text of the Solicitor's formal opinion can be found at
http://www.fws.gov/midwest/wolf/
.

Issue 11—Several commenters expressed the concern that delisting the WGL DPS will eliminate the possibility of wolf recovery in the northeastern United States.

Response—Following this delisting, gray wolves in the northeastern states will retain their classification as endangered under the Act, thereby preserving the possibility of efforts to restore the gray wolf to that region. It also preserves the Federal protections of the Act that would aid gray wolf restoration actions in the northeastern United States if undertaken by State or tribal agencies, and it protects gray wolves immigrating from Canada.

Issue 12—The Service must consider gray wolf subspecies when constructing DPS boundaries, and a DPS cannot include portions of the historical range of two subspecies (
C. lupus lycaon
and
C. l. nubilus
) within its boundary.

Response—The gray wolf entity that has been protected by the Act since 1978 is the species
C. lupus
in the United States and Mexico, rather than a subspecies of the gray wolf. This DPS creates a subunit of the species listing, thereby indicating that the population of the species within this geographical boundary has been recovered. It makes no reference to any gray wolf subspecies. Because the listed entity is the gray wolf, creating a DPS from a portion of the listed entity does not create or require a nexus with subspecies taxonomy.

Issue 13—Several comments suggested that a separate species of wolf may be present in the Upper Peninsula and should be recognized and protected by the Service.

Response—There are several scientific hypotheses regarding the identity of large canids in the eastern United States and adjacent Canada. One of these hypotheses suggests that the wolves in southeastern Ontario are a separate wolf species being referred to as the “eastern wolf” and tentatively given the scientific name
Canis lycaon
. If southeastern Ontario wolves are this separate species, those wolves may have contributed their genetic material to the wolf population in the UP via movement westward across the St. Mary's River. However, we believe the UP wolf population primarily developed from Minnesota and Wisconsin wolves that made overland movements into the UP from the west, and that wolf immigration across the St. Mary's River from the east was of much smaller magnitude. At this point there have been no published or peer-reviewed studies of the genetic makeup of UP wolves. Therefore, we will continue to consider WGL wolves to be
C. lupus
.

Issue 14—One comment applied the meaning of significance (using examples of unique ecological setting and differences in genetic characteristics) as used in our 1996 DPS Policy (61 FR 4725, Feb. 7, 1996) to the usage of “significant” in “significant portion of its range” as the phrase is used in the definitions of endangered and threatened in paragraphs 3(6) and 3(19), respectively. As a result, the comment concludes that we have not applied the DPS Policy's examples of significance during our analysis of whether wolves have been recovered to a sufficient area of the DPS.

Response—These two uses of significant/significance are context-specific, do not have the same meaning, and should not be used interchangeably. When applying the DPS policy, we are required to evaluate whether the discrete group of animals under consideration is sufficiently important to the overall taxon so that it warrants a separate listing under the Act—that is, is the population
significant
to the overall taxon. In contrast, when applying the definitions of endangered and threatened to a taxon, we are considering whether a certain area is important to that same taxon. Another way of explaining the difference is that in one case we are evaluating the importance of a group of organisms; in the other case we are assessing the value of a portion of geographic range. The evaluations are not comparable and are dependent on different factors. Therefore, we believe we are correct in our usage of these terms in this rule.

Issue 15—Wolves remain extirpated in approximately 60 percent of the DPS. This is a significant portion of the range (SPR) within the DPS; therefore, wolves remain endangered in the DPS.

Response—The determination of whether a portion of a species' range is “significant” is based on the biological needs of the species and the threats to the species. In making this determination we consider the quality, quantity, and distribution of suitable habitat, the use, uniqueness, and importance of the habitat, and other biological factors appropriate to the species and area under consideration. We do not focus solely, or even primarily, on a quantitative assessment, because quantity of range might have no relationship to the biological needs of the species. In the case of the gray wolf, the portions of North Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio within the WGL DPS are not significant portions of the range even though they may be sizeable pieces of historical range. These areas contain wolf habitat that is severely degraded at best, and even if they remained listed as endangered, they would not be likely to develop viable wolf populations in the foreseeable future. These areas thus are not important to the gray wolf metapopulation in Minnesota, Wisconsin, and the Upper Peninsula of Michigan. Similarly, the areas of Minnesota, Wisconsin, and Michigan that currently are unoccupied by wolves contain only small areas of potentially suitable habitat, mostly in the NLP of Michigan, and eventual wolf pack occupancy of these areas will have minimal influence on the viability of the current recovered wolf populations in the three States. Consequently, these areas have minimal biological significance to the conservation status of gray wolves in the DPS, and they are not an SPR within the DPS.

Issue 16—The Service must consider the historical range of the gray wolf, rather than the currently occupied range, when assessing what is a “significant part of the range” as that phrase is used in the definitions of endangered and threatened species.

Response—For the purposes of this rule, and for determining the significant portion of the range of the gray wolf in the DPS, the Service considers the range of the gray wolf to be the entire geographical area delineated by the WGL DPS. We have clarified this in the final rule.

Issue 17—One comment stated that a rangewide recovery plan is required by the Act before any wolf delisting actions can occur.

Response—The Service has developed, implemented, and revised, as needed, three geographically based recovery plans for the gray wolf. The Act requires that we develop and implement recovery plans for listed species unless they “will not promote the conservation of the species * * *” (section 4(f)(1)). In its 2005 ruling, the Vermont District Court specifically commented on this issue, finding that the Service's use of “three recovery plans for the gray wolf rather than one comprehensive plan must be afforded
Chevron
deference, and is therefore an appropriate agency course of action” (
National Wildlife Federation
v.
Norton
, 1:03-CV-340, D. VT. 2005, p. 28).

Issue 18—A comment letter stated that the Act does not permit the creation of a WGL DPS (and Northern Rocky Mountain DPS) while maintaining the pre-existing species listing across the remaining 48 States.

Response—We believe this approach of creating a small DPS reflects the recovered status of wolves in the DPS and is consistent with the 2005 rulings (
Defenders of Wildlife
v.
Norton,
03-1348-JO, D. OR 2005;
National Wildlife Federation
v.
Norton,
1:03-CV-340, D. VT. 2005). The Vermont ruling stated “Nowhere in the ESA is the Secretary prevented from creating a ‘non-DPS remnant’, especially when the remnant area was already listed as endangered” (
National Wildlife Federation
v.
Norton,
1:03-CV-340, D. VT. 2005, p. 20). Our current identification of a WGL DPS, while retaining the remaining 48-state and Mexico gray wolf listing intact as endangered, is consistent with this aspect of the District Court's ruling.

Issue 19—The Service cannot delist the DPS because the gray wolf remains extirpated from 95 percent of its historical range.

Response—We have clarified in this final rule that we are only delisting the gray wolf in the WGL DPS; we are not delisting the gray wolf across its historical range in the 48 coterminous States and Mexico. We have considered only whether the gray wolf is threatened or endangered within this DPS.

Issue 20—The DPS can only delist wolves in the core recovery areas, rather than include and delist dispersing animals from those areas.

Response—A critical component of delineating the boundaries of a DPS is gaining an understanding of the population/metapopulation that is being identified as a DPS. Wolf biology clearly shows that temporary and permanent movements beyond the pack's territory are a key element of wolf population dynamics, and as such, these movements must be considered when delineating a boundary for a DPS. Furthermore, a biologically based DPS boundary cannot follow the edge of the fully occupied core areas, as this comment seems to advocate. Individual wolves would be constantly moving back and forth across such a boundary, and pack territories may form on both sides of the line in some years, and might disappear from one or both sides in subsequent years, depending on a number of physical, biological, and societal factors. We determined that the DPS boundary should recognize and accommodate the normal behavior of the population/metapopulation members.

Issue 21—The Service did not use wolf dispersal data as claimed, because wolves disperse outside of the proposed DPS boundary.

Response—In the proposed rule we did not attempt to include the locations of all known dispersing MN/WI/MI wolves within the proposed DPS, or to use the maximum known gray wolf dispersal distance to delineate the DPS boundary. We have provided further

clarification in this final rule on the biological method we have used.

Issue 22—The DPS must contain a uniform biotype (the Laurentian Mixed Forest Province), or the DPS boundaries must be based on biotype or habitat boundaries, because this is what makes the WGL wolves “significant.”

Response—A number of factors contributed to our determination that the WGL DPS was significant, only one of which included occupancy of these in the Laurentian Mixed Forest Province. However, even if the only factor contributing to “significance” was the Laurentian Mixed Forest Province, the DPS boundaries would not use (nor is there a requirement to use) that habitat or biotype as the boundary. As discussed in the rule, many factors concerning wolf biology were considered in identifying the WGL DPS. Limiting the DPS to one habitat type would not make sense biologically for this species.

Issue 23—Highways I-80 and the Missouri River cannot be used for DPS boundaries, because wolves cross them, making them arbitrary choices.

Response—In our proposal we described Interstate 80 and the Missouri River as being “partial barriers,” and we cited data showing they have been crossed by a small number of wolves (p. 15277). We did not use these features to identify the discreteness of the wolf population within the WGL DPS. Rather, we use them as readily identifiable features on the landscape that are in a biologically appropriate location for use in delineating the DPS, and they are also partial barriers to wolf movements.

Issue 24—The 1992 Service Recovery Plan is outdated, and its recovery criteria cannot be used to justify delisting.

Response—When wolf numbers in the Midwest appeared to be approaching the recovery criteria specified in the 1992 Plan, we reconvened the Recovery Team in 1997 to query them regarding the appropriateness of those criteria. The Team expressed confidence that the recovery criteria remained “necessary and sufficient” (Peterson in litt. 1997, in litt. 1998). Furthermore, the peer reviewers overwhelmingly supported our conclusion that the WGL DPS wolves have recovered, and they expressed no concern with the 1992 recovery criteria that were used as part of our determination.

The population goals in the 1992 Recovery Plan are not the sole determinants of whether delisting is appropriate. While the Act states that recovery plans shall contain “objective, measurable criteria” (sec. 4(f)(1)(B)(ii)) when practicable, achieving these criteria alone cannot result in a delisting. Rather, recovery criteria are important indicators that identify the need for consideration of delisting. The consideration of delisting is a broad review of the past, current, and likely future threats to the species, as required by the Act. The delisting decision is made based on the threats assessment, and the resulting determination of whether the species meets the Act's definition of threatened or endangered.

Issue 25—One commenter stated that increasing use of off-highway vehicles (OHV) in Minnesota and growing human populations pose serious threats to wolves, especially in the core of Minnesota's wolf range. The commenter pointed out that most of primary wolf range (e.g., Management Zone A) (MN DNR 2001, Appendix III) is north of Highway 2 and that trails in these forests may be subject to few limitations to motorized use.

Response—As discussed in “Suitable Habitat in the Western Great Lakes Gray Wolf DPS” road density has largely been accepted as the best single predictor of habitat suitability in the Midwest due to the connection between roads and human-related wolf mortality. Off-highway vehicle trails introduce only a portion of the impacts and risk factors associated with roads, such as increased human access to areas occupied by wolves and increased likelihood of unauthorized shooting or trapping. Off-highway vehicle trails do not introduce significant levels of the other risk factors, such as more farms and residences, more domestic animals, a greater likelihood of mortality due to livestock-depredation control or vehicle collisions, and increased likelihood of disease transmission from domestic dogs. Therefore, we believe wolf populations are more sensitive to normal road infrastructure density than to OHV trail density.

MN DNR is developing recommendations for motorized use of State forest lands. In preparation for this analysis, it completed an inventory in 2004 of all State forest roads and access routes on State, county, and Federal lands within State forest boundaries—a total of 5.7 million acres. (MN DNR 2005). This inventory found an overall route density of 0.8 km per km
2
, but did not differentiate between motorized and non-motorized trails (routes). MN DNR is now conducting a forest-by-forest review and proposing which roads and trails will be available for motor vehicle use. As of September 2006, MN DNR had completed reviews on 16 State forests and had closed approximately 57 percent of routes to motorized use. If this trend continues, the density of routes open to motorized use in Minnesota State forests (State forest roads and OHV trails) may approximate 0.5 km per km
2
. Only 3 of the 16 forests reviewed thus far, however, are north of Highway 2 and all were either completely closed to motorized use or given a “Limited” use designation. As the department begins to evaluate larger, more remote northern forests, however, this trend (i.e., about 50 percent closure) may change and some forests may retain the “managed” classification (i.e., open unless posted closed,
OHV trail designation questions and answers,
MN DNR Division of Trails and Waterways, St. Paul, MN;
http://www.dnr.state.mn.us/input/mgmtplans/ohv/designation/index.html.

According to the commenter, registered ATVs in Minnesota increased from 32,501 in 1990 to 266,283 in 2004. Although this is a sharp increase, the wolf population in Minnesota grew and, more recently, may have stabilized at about 3,020 wolves (Erb and Benson 2004, Table 1) during this time. Therefore, there is no clear relationship between OHV use and wolf abundance statewide. Nevertheless, we agree that the combination of growing human populations and extensive use of OHV's warrants careful monitoring and regulation to ensure that wolf populations are not adversely affected. Minnesota's wolf management plan states that “in areas of sufficient size to sustain one or more wolf packs, land managers should be cautious about adding new road access that could exceed a density of one mile of road per square mile of land, without considering the potential effect on wolves” (MN DNR 2001, p. 29). We expect MN DNR to continue to also consider human densities when monitoring the extent and distribution of suitable wolf habitat in the State and to take necessary actions (e.g., decreasing road density in State forests) to maintain a population of at least 1,600 gray wolves if increases in human density erode the extent of suitable habitat such that the population falls below this level.

Issue 26—A commenter pointed out that increasing volume of automobile traffic in Minnesota's wolf range will fragment habitat, increase wolf mortality, destroy habitat, displace wolves, and contribute to urban sprawl. Four examples were provided.

Response—It is clear that automobiles kill wolves on roads and highways and that wolves tend to avoid these features relative to road-free areas (Whittington
et al.
2004, pp. 9-11; Whittington
et al.
2005, pp. 549-551), but highways are far from absolute barriers to dispersal. For

example, in a study of U.S. Highway 53 in northwest Wisconsin (4,700 vehicles per day) in the late 1990's, Kohn
et al.
(2000, p. 2) found that 12 of 13 radio-collared wolves that encountered the highway successfully crossed it, some of them multiple times, and that each of these dispersing wolves subsequently became dominant members of packs in newly established territories. In addition, the successful reestablishment of wolves in Wisconsin and Michigan depended on a sufficient number of Minnesota wolves crossing Interstate Highway 35 where current average traffic volumes are greater than 15,000 vehicles per day (
http://www.dot.state.mn.us/tda/maps/trunkhighway/2004/state_and_metro/stateflo.pdf
. Wolf crossing of roads, however, is dependent on adjacent human development and habitat fragmentation, and land managers can likely influence the ability of wolves to disperse across highways in Minnesota's wolf range by ensuring that sufficient road reaches occur in areas with high crossing potential (i.e., low fragmentation of adjacent habitat due to open or developed areas; Frair 1999, pp. 19-20).

Issue 27—Disease remains a serious threat and post-delisting disease monitoring is inadequate or unfunded. One comment states that the Michigan Plan only commits the DNR to monitor wolf health until the State wolf population reaches 200 wolves.

Response—The expectation in the 1997 Michigan Wolf Plan was that Federal wolf delisting would occur before the State reached its own minimum goal of 200 wolves. As a result, the plan states that wolf monitoring, including health and disease monitoring, would continue “at least until the minimum population sustainable population goal [of 200] is met.” (MI DNR 1997, p. 21.) However, the 1997 Michigan Plan also states that wolf health and disease monitoring will occur “for a minimum of five years after Federal delisting” (MI DNR 1997 p. 21-22, 45). In fact, wolf health and disease monitoring has continued well beyond the attainment of the 200-wolf threshold, which occurred in early 1996. We believe the commenters' fear that wolf health and disease monitoring will cease upon delisting is unwarranted by the facts or by the State Plan.

Issue 28 —The delisting should be delayed, or should be done in a manner to promote wolf expansion into the NLP.

Response—We believe the gray wolf has achieved recovery in the DPS and is no longer threatened or endangered. Therefore, it should be delisted with management returning to the States and tribes. Those governments and their constituents will determine if additional wolf recovery will be promoted. We will consider providing technical assistance to further State or tribal wolf recovery efforts if requested.

Issue 29 —Human predation poses too high a risk to delist the wolf. The wolf cannot be delisted “until this threat has been adequately controlled.”

Response—Our detailed review of the past, current, and likely future threats to wolves within the WGL DPS identified human-caused mortality of all forms to constitute the majority of documented wolf deaths. However, the wolf populations in Wisconsin and Michigan have continued to expand in numbers and the Minnesota wolf population is at least maintaining itself at well over the population goal recommended in the 1992 Recovery Plan and at about twice the minimum level established in the 2001 Minnesota Wolf Plan. Healthy wolf populations clearly can withstand a high level of mortality, from human and other causes, and remain viable. Although the commenters do not provide any clarification on what is meant by “adequately controlled” we believe that for purposes of this delisting decision, the numerical growth and range expansion shown by WGL DPS wolves indicates that “adequate control” already exists since the species is being maintained at healthy levels.

Issue 30—WGL DPS wolves should be reclassified to threatened instead of delisted. Another comment stated that only Minnesota wolves should be delisted now.

Response—Minnesota wolves were classified as threatened in 1978. The Act does not require endangered species to first be moved to threatened status before delisting, but for some species that intermediate step is appropriate. The WGL DPS wolf metapopulation has continued to increase to the extent that it greatly exceeds our recovery criteria, and it has exceeded our numerical delisting criteria since 1999. Therefore, we believe delisting is appropriate for this DPS.

Issue 31—It will be difficult to relist these wolves if it becomes necessary following delisting.

Response—The Act requires that we monitor the status of a delisted species for at least five years after delisting. Section 4(g) of the Act authorizes the Service to make prompt use of our emergency listing authority under section 4(b)(7) to prevent a significant risk to the well-being of any recovered species. Therefore, we believe the Act provides the authority and the requirement to relist midwestern gray wolves if necessary.

Issue 32—A large number of comments recommended that specific changes be made to the three State wolf management plans.

Response—We have reviewed the 2001 Minnesota Plan, the 1999 and 2006 Updated Wisconsin Plan, and the 1997 Michigan Plan. We reviewed these plans to determine if they will provide sufficient protection and reduce threats. We are primarily concerned with the outcome of the plan's implementation. Once a species is delisted, the details of its management are a State or tribal responsibility; the Federal responsibility is to monitor the plan's implementation and the species' response for at least five years to ensure that the plan's outcome is as expected. We have concluded that each plan provides adequate protection for wolves, and will keep threats at a sufficiently low level, so that the WGL DPS wolves will not become threatened or endangered in the foreseeable future. Suggestions for changes to the State wolf management plans should be directed to the respective State management agency for consideration.

Issue 33 —Wisconsin and Michigan DNR have not completed their wolf management plans, so delisting should be delayed until after those plans are completed and they are shown to be adequate.

Response—The Wisconsin DNR did not revise its 1997 Wolf Management Plan. Instead, the plan has had some portions of the text updated, and several appendices have been added to deal with new public opinion data and a 2004 DNR questionnaire. The Plan's management goal of 350 wolves and the vast majority of management practices remain unchanged. We received the updated Wisconsin Wolf Management Plan Addendum 2006 in time to evaluate it as part of our delisting decision.

The 1997 Michigan Wolf Management Plan is in the midst of revision. The process for its revision includes obtaining recommendations in the form of “guiding principles” from a roundtable group composed of diverse stakeholders, and it will not be completed until late in 2007. In the meantime, the 1997 Michigan Plan will remain in effect, as supplemented by additional guidance developed since 1997 to deal with aspects of wolf management and recovery not adequately covered in the 1997 Plan, such as “Guidelines for

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-5981. Public record. Not legal advice.