Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and To Revise the List of Endangered and Threatened Wildlife

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-0008; 92220-1113-0000; ABC Code: C6]

RIN 1018-AW37

Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf 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:

Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), identify a distinct population segment (DPS) of the gray wolf (

Canis lupus

) in the Northern Rocky Mountains (NRM) of the United States and revise the List of Endangered and Threatened Wildlife by removing gray wolves within NRM DPS boundaries, except in Wyoming. The NRM gray wolf DPS encompasses the eastern one-third of Washington and Oregon, a small part of north-central Utah, and all of Montana, Idaho, and Wyoming. Our current estimate for 2008 indicates the NRM DPS contains approximately 1,639 wolves (491 in Montana; 846 in Idaho; 302 in Wyoming) in 95 breeding pairs (34 in Montana; 39 in Idaho; 22 in Wyoming). These numbers are about 5 times higher than the minimum population recovery goal and 3 times higher than the minimum breeding pair recovery goal. The end of 2008 will mark the ninth consecutive year the population has exceeded our numeric and distributional recovery goals.

The States of Montana and Idaho have adopted State laws, management plans, and regulations that meet the requirements of the Act and will conserve a recovered wolf population into the foreseeable future. In our proposed rule (72 FR 6106, February 8, 2007), we noted that removing the Act's protections in Wyoming was dependant upon the State's wolf law (W.S. 11-6-302

et seq.

and 23-1-101,

et seq.

in House Bill 0213) and wolf management plan adequately conserving Wyoming's portion of a recovered NRM wolf population. In light of the July 18, 2008, U.S. District Court order, we reexamined Wyoming law, its management plans and implementing regulations, and now determine they are not adequate regulatory mechanisms for the purposes of the Act.

We determine that the best scientific and commercial data available demonstrates that (1) the NRM DPS is not threatened or endangered throughout “all” of its range (i.e., not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represents a significant portion of range where the species remains in danger of extinction because of inadequate regulatory mechanisms. Thus, this final rule removes the Act's protections throughout the NRM DPS except for Wyoming. Wolves in Wyoming will continue to be regulated as a non-essential, experimental population per 50 CFR 17.84(i) and (n).

DATES:

This rule becomes effective on May 4, 2009.

ADDRESSES:

This final rule is available on the Internet at

http://www.regulations.gov

. Comments and materials received, as well as supporting documentation used in preparation of this final rule, are available for inspection, by appointment, during normal business hours, at our Montana office, 585 Shepard Way, Helena, Montana 59601. Call (406) 449-5225, extension 204 to make arrangements.

FOR FURTHER INFORMATION CONTACT:

Edward E. Bangs, Western Gray Wolf Recovery Coordinator, U.S. Fish and Wildlife Service, at our Helena office (see

ADDRESSES

) or telephone (406) 449-5225, extension 204. 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

Gray wolves (

C. lupus

) are the largest wild members of the dog family (Canidae). Adult gray wolves range from 18-80 kilograms (kg) (40-175 pounds (lb)) depending upon sex and region (Mech 1974, p. 1). In the NRM, adult male gray wolves average over 45 kg (100 lb), but may weigh up to 60 kg (130 lb). Females weigh slightly less than males. Wolves' fur color is frequently a grizzled gray, but it can vary from pure white to coal black (Gipson

et al.

2002, p. 821).

Gray wolves have a circumpolar range including North America, Europe, and Asia. As Europeans began settling the United States, they poisoned, trapped, and shot wolves, causing this once widespread species to be eradicated from most of its range in the 48 conterminous States (Mech 1970, pp. 31-34; McIntyre 1995). Gray wolf populations were eliminated from Montana, Idaho, and Wyoming, as well as adjacent southwestern Canada by the 1930s (Young and Goldman 1944, p. 414).

Wolves primarily prey on medium and large mammals. Wolves normally live in packs of 2 to 12 animals. In the NRM, pack sizes average about 10 wolves in protected areas, but a few complex packs have been substantially bigger in some areas of Yellowstone National Park (YNP) (Smith

et al.

2006, p. 243; Service

et al.

2008, Tables 1-3). Packs typically occupy large distinct territories from 518 to 1,295 square kilometers (km

2

) (200 to 500 square miles (mi

2

)) and defend these areas from other wolves or packs. Once a given area is occupied by resident wolf packs, it becomes saturated and wolf numbers become regulated by the amount of available prey, intra-species conflict, other forms of mortality, and dispersal. Dispersing wolves may cover large areas (

See

Defining the Boundaries of the NRM DPS) as they try to join other packs or attempt to form their own pack in unoccupied habitat (Mech and Boitani 2003, pp. 11-17).

Typically, only the top-ranking (“alpha”) male and female in each pack breed and produce pups (Packard 2003, p. 38; Smith

et al.

2006, pp. 243-4; Service

et al.

2008, Tables 1-3). Females and males typically begin breeding as 2-year olds and may annually produce young until they are over 10 years old. Litters are typically born in April and range from 1 to 11 pups, but average around 5 pups (Service

et al.

1989-2007, Tables 1-3). Most years, four of these five pups survive until winter (Service

et al.

1989-2008, Tables 1-3). Wolves can live 13 years (Holyan

et al.

2005, p. 446), but the average lifespan in the NRM is less than 4 years (Smith

et al.

2006, p. 245). Pup production and survival can increase when wolf density is lower and food availability per wolf increases (Fuller

et al.

2003, p. 186). Pack social structure is very adaptable and resilient. Breeding members can be

quickly replaced either from within or outside the pack and pups can be reared by another pack member should their parents die (Packard 2003, p. 38; Brainerd

et al.

2008; Mech 2006, p. 1482). Consequently, wolf populations can rapidly recover from severe disruptions, such as very high levels of human-caused mortality or disease. After severe declines, wolf populations can more than double in just 2 years if mortality is reduced; increases of nearly 100 percent per year have been documented in low-density suitable habitat (Fuller

et al.

2003, pp. 181-183; Service

et al.

2008, Table 4).

For detailed information on the biology of this species see the “Biology and Ecology of Gray Wolves” section of the April 1, 2003, final rule to reclassify and remove the gray wolf from the list of endangered and threatened wildlife in portions of the conterminous U.S. (2003 Reclassification Rule) (68 FR 15804).

Previous Federal Actions

In 1974, we listed two subspecies of gray wolf as endangered: The NRM gray wolf (

C. l. irremotus

) and the eastern timber wolf (

C. l. lycaon

) in the Great Lakes region (39 FR 1171, January 4, 1974). We listed a third gray wolf subspecies, the Mexican wolf (

C. l. baileyi

) as endangered on April 28, 1976, (41 FR 17740) in Mexico and the southwestern U.S. On June 14, 1976 (41 FR 24064), we listed the Texas gray wolf subspecies (

C. l. monstrabilis

) as endangered in Texas and Mexico.

In 1978, we published a rule (43 FR 9607, March 9, 1978) relisting the gray wolf as endangered at the species level (

C. lupus

) throughout the conterminous 48 States and Mexico, except for Minnesota, where the gray wolf was reclassified to threatened. At that time, we designated critical habitat in Minnesota and Isle Royale, Michigan. In the NRM, we completed a recovery plan in 1980 and revised in 1987. In the Great Lakes Region, we completed a recovery plan in 1978 and revised in 1992. In the Southwest, we completed a recovery plan in 1982.

On November 22, 1994, we designated portions of Idaho, Montana, and Wyoming as two nonessential experimental population areas for the gray wolf under section 10(j) of the Act, including the Yellowstone Experimental Population Area (59 FR 60252, November 22, 1994) and the Central Idaho Experimental Population Area (59 FR 60266, November 22, 1994). These designations assisted us in initiating gray wolf reintroduction projects in central Idaho and in the Greater Yellowstone Area (GYA). In 2005 and 2008, we revised these regulations to provide increased management flexibility for this recovered wolf population in States with Service-approved post-delisting wolf management plans (70 FR 1286, January 6, 2005; 73 FR 4720, January 28, 2008; 50 CFR 17.84(n)).

The NRM wolf population achieved its numerical and distributional recovery goals at the end of 2000 (Service

et al.

2008, Table 4). The temporal portion of the recovery goal was achieved in 2002 when the numerical and distributional recovery goals were exceeded for the 3rd successive year (Service

et al.

2008, Table 4). To meet the Act's requirements Idaho, Montana, and Wyoming needed to develop post-delisting wolf management plans to ensure that adequate regulatory mechanisms would exist should the Act's protections be removed. In 2004, we determined that Montana's and Idaho's laws and wolf management plans were adequate to assure that their shares of the NRM wolf population would be maintained above recovery levels. However, we found the 2003 Wyoming legislation and plan inadequate to conserve Wyoming's share of a recovered NRM gray wolf population (Williams 2004). Wyoming challenged this determination but the Federal district court in Wyoming dismissed the case (360 F. Supp 2nd 1214, D. Wyoming 2005). Wyoming appealed that decision and on April 3, 2006, the Tenth Circuit Court of Appeals upheld the district court ruling (442 F. 3rd 1262).

On July 19, 2005, we received a petition from the Office of the Governor, State of Wyoming and the Wyoming Game and Fish Commission (WGFC) to revise the listing status for the gray wolf by recognizing a NRM DPS and to remove it from the Federal List of Endangered and Threatened Species (Freudenthal 2005). On August 1, 2006, we announced a 12-month finding that the petitioned action (delisting in all of Montana, Idaho, and Wyoming) was not warranted because the 2003 Wyoming State law and wolf management plan did not provide the necessary regulatory mechanisms to ensure that Wyoming's numerical and distributional share of a recovered NRM wolf population would be conserved (71 FR 43410). Wyoming challenged this finding in Federal District Court. On February 27, 2008, Federal District Judge issued an order dismissing the case (Wyoming U.S. District Court Case Number 2:06-CV-00245).

On February 8, 2007, we proposed to identify the NRM DPS of the gray wolf and to delist all or most portions of the NRM DPS (72 FR 6106). Specifically, we proposed to delist wolves in Montana, Idaho, and Wyoming, and parts of Washington, Oregon, and Utah. The proposal noted that the Act's protections would be retained in significant portions of the range in Wyoming in the final rule if adequate regulatory mechanisms were not developed to conserve Wyoming's portion of a recovered wolf population into the foreseeable future. Under this scenario, wolves in portions of Wyoming would continue to be regulated under the Act as a non-essential, experimental population per 50 CFR 17.84(i) and (n).

On July 6, 2007, the Service extended the comment period in order to consider a 2007 revised Wyoming wolf management plan and State law that we believed, if implemented, could allow the wolves in all of Wyoming to be removed from the List of Endangered and Threatened Wildlife (72 FR 36939). On November 16, 2007, the WGFC unanimously approved the 2007 Wyoming Plan (Cleveland 2007, p. 1). We then determined this plan provided adequate regulatory protections to conserve Wyoming's portion of a recovered wolf population into the foreseeable future (Hall 2007, p. 2). On February 27, 2008, we issued a final rule recognizing the NRM DPS and removing all of this DPS from the List of Endangered and Threatened Wildlife (73 FR 10514). This rule determined that Wyoming's regulatory mechanisms were adequate.

On April 28, 2008, 12 parties filed a lawsuit challenging the identification and delisting of the NRM DPS. The plaintiffs also moved to preliminarily enjoin the delisting. On July 18, 2008, the U.S. District Court for the District of Montana granted the plaintiffs' motion for a preliminary injunction and enjoined the Service's implementation of the final delisting rule for the NRM DPS of the gray wolf. The court stated that we acted arbitrarily in delisting a wolf population that lacked evidence of genetic exchange between subpopulations. The court also stated that we acted arbitrarily and capriciously when we approved Wyoming's 2007 statute and wolf management plan because the State failed to commit to managing for at least 15 breeding pairs and Wyoming's 2007 statute allowed the WGFC to diminish the trophy game area if it “determines the diminution does not impede the delisting of gray wolves and will facilitate Wyoming's management of wolves.” The court's preliminary injunction order concluded that the Plaintiffs were likely to prevail on the

merits of their claims. In light of the district court order, on September 22, 2008, we asked the court to vacate the final rule and remand it to us. On October 14, 2008, the court vacated the final delisting rule and remanded it back to the Service for further consideration.

Similarly, on February 8, 2007, we recognized a Western Great Lakes (WGL) DPS and removed it from the list of the List of Endangered and Threatened Wildlife (72 FR 6052). Several groups challenged this rule in court, arguing that the Service may not identify a DPS within a broader pre-existing listed entity for the purpose of delisting the DPS (

Humane Society of the United States

v.

Kempthorne

, Civil Action No. 07-0677 (PLF) (D.D.C.)). On September 29, 2008, the court vacated the WGL DPS final rule and remanded it to the Service. The court found that the Service had made that decision based on its interpretation that the plain meaning of the Act authorizes the Service to create 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.

Given the above court rulings, on October 28, 2008 (73 FR 63926), we reopened the comment period on our February 8, 2007, proposed rule (72 FR 6106). Specifically, we sought information, data, and comments from the public regarding the 2007 proposal with an emphasis on new information relevant to this action, the issues raised by the Montana District Court, and the issues raised by the September 29, 2008, ruling of the U.S. District Court for the District of Columbia with respect to the WGL gray wolf DPS. The notice also asked for public comment on what portions of Wyoming need to be managed as a trophy game area and what portions of Wyoming constitute a significant portion of the NRM DPS's range. After further analysis, we determined that Wyoming's regulatory framework did not meet the requirements of the Act. On January 15, 2009 Wyoming's Governor was notified that Wyoming no longer had a Service-approved wolf management plan (Gould 2009). Wolf management in all of Wyoming (except the Wind River Tribal Lands because the tribe had a Service-approved plan) again became immediately under the less flexible provisions of the 1994 experimental population rules [17.84 (i)].

We are required to rely upon the best scientific information currently available. Therefore, this final rule reflects new data and information primarily concerning wolf population numbers, livestock depredations and wolf control, and genetic exchange that were received after the 2008 public comment period. This new data and information are consistent with and did not change our conclusions stated in the preamble to the proposed rule and in the notice for the reopened comment period.

For detailed information on previous Federal actions also see the 2003 Reclassification Rule (68 FR 15804, April 1, 2003), the Advanced Notice of Proposed Rulemaking (ANPR) (71 FR 6634, February 8, 2006), the 12-month finding on Wyoming's petition to delist (71 FR 43410, August 1, 2006), and the February 8, 2007, proposed rule to designate the NRM population of gray wolf as a DPS and remove this DPS from the List of Endangered and Threatened Wildlife (72 FR 6106).

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 published a policy regarding the recognition of distinct vertebrate population segments under the Act (61 FR 4722, February 7, 1996). Under this policy, the Service considers two factors to 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 is a DPS, and the Service then evaluates the population segment's conservation status according to the standards in section 4 of the Act for listing, delisting, or reclassification (i.e., is the DPS endangered or threatened).

Defining the Boundaries of the NRM DPS

We defined the geographic boundaries for the area to be evaluated for DPS status based on discreteness and significance as defined by our DPS policy. The DPS policy allows an artificial (e.g., State line) or manmade (e.g., road or highway) boundary to be used as a boundary of convenience for clearly identifying the geographic area for a DPS. The NRM DPS includes all of Montana, Idaho, and Wyoming, the eastern third of Washington and Oregon, and a small part of north central Utah. Specifically, the DPS includes that portion of Washington east of Highway 97 and Highway 17 north of Mesa and that portion of Washington east of Highway 395 south of Mesa. It includes that portion of Oregon east of Highway 395 and Highway 78 north of Burns Junction and that portion of Oregon east of Highway 95 south of Burns Junction. Finally, the DPS includes that portion of Utah east of Highway 84 and north of Highway 80. The centers of these roads are deemed the boundary of the DPS (See Figure 1).

This DPS is consistent with over 30 years of recovery efforts in the NRMs in that: (1) The DPS approximates the U.S. historic range of the NRM gray wolf subspecies (

C. l. irremotus

) (Service 1980, p. 3; Service 1987, p. 2) which was the originally listed entity in 1974 (39 FR 1171, January 4, 1974); (2) the DPS boundaries are inclusive of the areas focused on by both NRM recovery plans (Service 1980, pp. 7-8; Service 1987, p. 23) and the 1994 environmental impact statement (EIS) (Service 1994, Ch. 1 p. 3); and (3) the DPS is inclusive of the entire Central-Idaho and Yellowstone Non-essential Experimental Population areas (59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 50 CFR 17.84 (i) & (n)).

BILLING CODE 4310-55-P

ER02AP09.003

One factor we considered in defining the boundaries of the NRM DPS was the current distribution of known wolf packs in 2007 (Service

et al.

2008, Figure 1) (except four packs in northwestern Wyoming that did not persist). We also examined the annual distribution of wolf packs from 2002 (the first year the population exceeded the recovery goal) through 2008 (Service

et al.

2003-2009, Figure 1; Bangs

et al.

in press). Because outer distribution changed little in these years, we used the 2004 data because it had already been analyzed in the February 8, 2006 ANPR (71 FR 6634).

Dispersal distances also played a key role in determining the boundaries for the DPS. We examined the known dispersal distances of over 200 marked dispersing wolves from the NRM from 1993 through 2005 (Boyd

et al.

2007; Jimenez

et al.

2008d). These data indicate that the average dispersal distance of wolves from the NRM was about 97 km (60 mi) (Boyd and Pletscher 1999, p. 1094; Boyd

et al.

2007; Thiessen 2007, p. 33; Jimenez

et al.

2008d). We determined that 290 km (180 mi), three times the average dispersal distance, was a breakpoint in our data for unusually long-distance dispersal out from existing wolf pack territories (Jimenez

et al.

2008, Figures 2 and 3). Only 11 wolves (none of which subsequently bred) have dispersed

farther outside the core population areas and remained in the U.S. None of these wolves returned to the core population in Montana, Idaho, or Wyoming. Only dispersal from the NRM packs to areas within the U.S. was considered in these calculations because we were trying to determine the appropriate DPS boundaries within the U.S. Dispersers to Canada were not considered in our calculation of average dispersal difference because the distribution of suitable habitat and level of human persecution in Canada is significantly different than in the U.S., potentially affecting wolf dispersal patterns. We plotted average dispersal distance and three times the average dispersal distance from existing wolf pack territories in the NRM. The resulting map indicated a wide area where wolf dispersal was common enough to support intermittent additional pack establishment from the core wolf population given the availability of patches of nearby suitable habitat. Our specific data on wolf dispersal in the NRM may not be applicable to other areas of North America (Mech and Boitani 2003, pp. 13-16).

We also examined suitable wolf habitat in Montana, Idaho, and Wyoming (Oakleaf

et al.

2005, pp. 555-558) and throughout the western U.S. (Carroll

et al.

2003, p. 538; Carroll

et al.

2006, pp. 27-30) by comparing the biological and physical characteristics of areas currently occupied by wolf packs with the characteristics of adjacent areas that remain unoccupied by wolf packs. The basic findings and predictions of those models (Oakleaf

et al.

2005, p. 559; Carroll

et al.

2003, p. 541; Carroll

et al.

2006, p. 32) were similar in many respects. Suitable wolf habitat in the NRM DPS is typically characterized by public land, mountainous forested habitat, abundant year-round wild ungulate populations, lower road density, lower numbers of domestic livestock that were only present seasonally, few domestic sheep (

Ovis

sp.

), low agricultural use, and low human populations (

see

Factor A). The models indicate that a large block of suitable wolf habitat exists in central Idaho and the GYA, and to a smaller extent in northwestern Montana. These findings support the recommendations of the 1987 wolf recovery plan (Service 1987) that identified those three areas as the most likely locations to support a recovered wolf population and are consistent with the actual distribution of all wolf breeding pairs in the NRM since 1986 (Bangs

et al.

1998, Figure 1; Service

et al.

1999-2009, Figures 1-4, Tables 1-3). The models indicate little habitat is suitable for pack persistence within the portion of the NRM DPS in eastern Montana, southern Idaho, eastern Wyoming, Washington, Oregon, or northcentral Utah although dispersing wolves may utilize these areas (See Factor A).

Unsuitable habitat also was important in determining the boundaries of our DPS. Model predictions by Oakleaf

et al.

(2006, p. 559) and Carroll

et al.

(2003, pp. 540-541; 2006, p. 27) and our observations during the past 20 years (Bangs

et al.

2004, p. 93; Service

et al.

2008, Figures 1-4, Table 4) indicate that non-forested rangeland and croplands associated with intensive agricultural use (prairie and high desert) preclude wolf pack establishment and persistence. This unsuitability is due to high rates of wolf mortality, high densities of livestock compared to wild ungulates, chronic conflict with livestock and pets, local cultural intolerance of large predators, and wolf behavioral characteristics that make them vulnerable to human-caused mortality in open landscapes (See Factor A). We looked at the distribution of large expanses of unsuitable habitat that would form a broad boundary separating the NRM population from both the southwestern and Midwestern wolf populations and from the core of any other possible wolf population that might develop in the foreseeable future in the western U.S.

We included the eastern parts of Washington and Oregon and a small portion of north central Utah within the NRM DPS, because—(1) these areas are within 97 to 300 km (60 to 190 mi) from the core wolf population where dispersal is likely; (2) lone dispersing wolves have been documented in these areas more than once in recent times (Boyd

et al.

2007; Jimenez

et al.

2008d); (3) these areas contain some suitable habitat (

see

Factor A); (4) the potential for connectivity exists between the relatively small and fragmented patches of suitable habitat in these areas with larger blocks of suitable habitat in the NRM DPS; and (5) most of the area lies within the historic range of the NRM gray wolf subspecies (

C. l. irremotus

) (Service 1980, p. 3; Service 1987, p. 2) originally listed under the Act in 1974 (39 FR 1171, January 4, 1974). If wolf breeding pairs establish in these areas, habitat suitability models indicate these nearby areas would likely be more connected to the core populations in central Idaho and northwestern Wyoming than to any future wolf populations that might become established in other large blocks of potentially suitable habitat farther beyond the NRM DPS boundary. As noted earlier, large swaths of unsuitable habitat would isolate any wolf breeding pairs within the DPS from other large patches of suitable habitat to the west or south (Carroll

et al.

2003, p. 541).

Although we have received reports of individual and wolf packs in the North Cascades of Washington (Almack and Fitkin 1998, pp. 7-13), agency efforts to confirm them have been unsuccessful and to date no individual wolves or packs have been confirmed there (Boyd and Pletscher 1999, p. 1096; Boyd

et al.

2007). However, a wolf pack (2 adults and 6 pups) was discovered near Twisp, Washington (just east of the North Cascades), in July 2008. Their territory is west of the NRM DPS boundary. Genetic analysis indicated the two adults did not come from the wolf population in the NRM DPS. Instead, they likely originated from southcentral British Columbia (Allen 2008). This confirms the appropriateness of our western DPS boundary and our conclusion that intervening unsuitable habitat makes it unlikely that wolves have or will disperse between the North Cascades and the NRM population. However, if additional wolves disperse into the North Cascades, they will remain protected by the Act as endangered because it is outside of the NRM DPS.

We include all of Wyoming, Montana, and Idaho in the NRM DPS because (1) their State regulatory frameworks apply Statewide; and (2) expanding the DPS beyond a 300 km (190 mi) band of likely dispersal distances to include extreme eastern Montana and Wyoming adds only areas unsuitable habitat for pack persistence and does not effect the distinctness of the NRM DPS. DPS boundaries that include all of Wyoming, Montana, and Idaho are also consistent with the 1994 designations of the Central-Idaho and Yellowstone Non-essential Experimental Population areas (59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 50 CFR 17.84 (i) & (n)). Although including all of Wyoming in the NRM DPS results in including portions of the Sierra Madre, the Snowy, and the Laramie Ranges, we do not consider these areas to be suitable wolf habitat for pack persistence because of their size, shape, and distance from a strong source of dispersing wolves. Oakleaf

et al.

(2006, pp. 558-559; Oakleaf 2006) chose not to analyze these areas of southeast Wyoming because they are fairly intensively used by livestock and are surrounded with, and interspersed by, private land, making pack establishment and persistence unlikely. While Carroll

et al.

(2003, p. 541; 2006, p. 32) optimistically predicted these areas

were suitable habitat, the model predicted that under current conditions these areas were largely sink habitat (i.e., a habitat in which the species' mortality exceeds reproductive success) and that by 2025 (within the foreseeable future) they were likely to be ranked as low occupancy because of human population growth and road development.

We chose not to extend the NRM DPS boundary east beyond Montana and Wyoming, because those adjacent portions of North Dakota, South Dakota, and Nebraska are far outside the predicted routine dispersal range of NRM wolves. Given the available information on potentially suitable habitat, expansion of the DPS to include Colorado or larger portions of Utah to the south and west would have included large areas of potentially suitable but unoccupied habitat in those States (Carroll

et al.

2003, p. 541). Given the current distribution of the NRM wolf population to suitable habitat, we concluded that a smaller DPS containing occupied suitable habitat, the adjacent areas of largely unsuitable habitat where routine wolf dispersal could be expected, and that was distinct from other large contiguous blocks of potentially suitable habitat to the west and south was more biologically appropriate. This DPS is also reflective of areas of recovery focus over the last 30 years (39 FR 1171, January 4, 1974; Service 1980; Service 1987; Service 1994; 59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 50 CFR 17.84 (i) & (n)).

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 one of the following conditions—(1) 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) 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 eastern edge of the NRM DPS (Figure 1) is about 644 km (400 mi) from the western edge of the area currently occupied by the WGL wolf population (eastern Minnesota) and is separated from it by hundreds of miles of unsuitable habitat (see Factor A). The southern edge of the NRM DPS boundary is about 724 km (450 mi) from the nonessential experimental populations of wolves in the southwestern U.S. with vast amounts of unoccupied marginal or unsuitable habitat separating them. While one dispersing wolf was confirmed east and two south of the DPS boundary, no wolf packs have ever been found there. No wolves from other U.S. wolf populations are known to have dispersed as far as the NRM DPS.

Until recently, no wild wolves had been confirmed west of the DPS boundary (although we occasionally got unconfirmed reports and 2 wolves were killed close to that boundary). Then, in July 2008, a wolf pack (2 adults and 6 pups) was discovered near Twisp, Washington (just east of the North Cascades and west of the DPS boundaries). These wolves did not originate from the NRM DPS; instead they likely originated from southcentral British Columbia (Allen 2008). The pack's territory is outside the NRM DPS and remains discrete from the NRM gray wolf population. The pack is being monitored via radio telemetry by Washington Department of Fish and Wildlife. Should this pack persist and other wolves follow, they would remain separated from the NRM DPS by unsuitable wolf habitat.

Although wolves can disperse over 1,092 km (680 mi) (with actual travel distances exceeding 10,000 km (6,000 mi)) (Fritts 1983, pp. 166-167; Missouri Department of Conservation 2001, pp. 1-2; Ream

et al.

1991, pp. 351-352; Boyd and Pletscher 1999, p. 1094; Boyd

et al.

2007; Wabakken

et al.

2007, p. 1631), the average dispersal of NRM wolves is about 97 km (60 mi) (Boyd and Pletscher 1999, p. 1100; Boyd

et al.

2007; Jimenez 2008d; Thiessen 2007, p. 72). Only 11 of over 200 confirmed NRM wolf dispersal events from 1992 through 2005 have been over 300 km (190 mi) and outside the core population (Boyd and Pletscher. 1999, p. 1094; Boyd

et al.

2007). Undoubtedly many other dispersal events have occurred but not been detected because only 30 percent of the NRM wolf population has been radio-collared. All but three of these known U.S. long-distance dispersers remained within the proposed DPS. None of them found mates or survived long enough to form packs or breed in the U.S. (Boyd

et al.

2007; Jimenez 2008d).

The first wolf confirmed to have dispersed (within the U.S.) beyond the boundary of the NRM DPS was killed by a vehicle collision along Interstate 70 in north-central Colorado in spring 2004. Although not confirmed, in early 2006, video footage of a black wolf-like canid was taken near Walden in northern Colorado, suggesting another dispersing wolf had traveled into Colorado. The subsequent status or location of that animal is unknown. On March 7, 2009, a dispersing wolf from the Yellowstone area was located by GPS radio-telemetry near Vail, Colorado. Finally, in spring 2006, the carcass of a male black wolf was found along Interstate 90 in western South Dakota. Genetic testing confirmed it was a wolf that had dispersed from the Yellowstone area.

No other unusual wolf dispersal events were documented in the NRM DPS in 2008. A radio-collared wolf from central Idaho continues to live in the GYA. It formed a new pack and bred in 2009. A report of a pack of wolves in northeastern Utah east of Flaming Gorge Reservoir (outside the NRM DPS) was investigated in spring 2008. The existence of this pack was not confirmed. A report of a wolf pack with pups in northeastern Oregon (inside the NRM DPS) was investigated in August 2008. The existence of this pack was not confirmed. A photograph of a black wolf-like canid taken in late 2008 in the central Cascade Range in Oregon (outside the NRM DPS) but its origin and fate remain unknown.

We expect that occasional lone wolves will continue to disperse between and beyond the currently occupied wolf habitat areas in Montana, Idaho, and Wyoming, as well as into States adjacent to the NRM DPS. However, pack development and persistence outside the NRM DPS is unlikely because wolves disperse as individuals that typically have low survival (Pletscher

et al.

1997, p. 459) and suitable habitat is limited and distant (Carroll

et al.

2003, p. 541) from the NRM wolf population.

No connectivity currently exists between the NRM wolf population and any other U.S. wolf packs or populations. While it is theoretically possible that a lone wolf might travel between the NRM wolf population and other U.S. packs or populations, such movement has never been documented and is likely to be rare because of both the distance and the intervening areas of unsuitable habitat.

Furthermore, the DPS policy does not require complete separation of one DPS from other U.S. packs or populations, but instead requires “marked separation.” Thus, if occasional individual wolves or packs disperse among populations, the NRM DPS could still display the required discreteness. Based on the information presented

above, we have determined that NRM gray wolves are markedly separated from all other gray wolf populations in the U.S.

Differences Among U.S. and Canadian Wolf Populations

—The DPS policy allows us to use international borders to delineate the boundaries of a DPS if there are differences in control of exploitation, conservation status, or regulatory mechanisms between the countries. Significant differences exist in management between U.S. and Canadian wolf populations. About 52,000 to 60,000 wolves occur in Canada, where suitable habitat is abundant (Boitani 2003, p. 322). Because of this abundance, wolves in Canada are not protected by Federal laws and are only minimally protected in most Canadian provinces (Pletscher

et al.

1991, p. 546). In the U.S., unlike Canada, Federal protection and intensive management has been necessary to recover the wolf (Carbyn 1983). If delisted, States in the NRM would carefully monitor and manage to retain populations at or above the recovery goal (

see

Factor D). Therefore, we will continue to use the U.S.-Canada border to mark the northern boundary of the DPS due to the difference in control of exploitation, conservation status, and regulatory mechanisms between the two countries.

Analysis for Significance

If we determine 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 factors: (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 NRM DPS and thus are not included in our analysis for significance.

Unusual or Unique Ecological Setting

—Within the range of holarctic species, the NRM has amongst the highest diversity of large predators and native ungulate prey species, resulting in complex ecological interaction between the ungulate prey, predator and scavenger groups, and vegetation (Smith

et al.

2003, p. 331). In the NRM DPS, gray wolves share habitats with black bears (

Ursus americanus

), grizzly bears (

U. arctos horribilis

), cougars (

Felis concolor

), lynx (

Lynx canadensis

), wolverine (

Gulo gulo

), coyotes (

Canis latrans

), foxes (

Vulpes vulpes

), badgers (

Taxidea taxus

), bobcats (

Felis rufus

), fisher (

Martes pennanti

), and marten (

Martes americana

). The unique and diverse assemblage of native prey include elk (

Cervus

canadensis

), mule deer (

Odocoileus hemionus

), white-tailed deer (

Odocoileus virginianus

), moose (

Alces alces

), woodland caribou (

Rangifer caribou

), bighorn sheep (

Ovis

canadensis

), mountain goats (

Oreamnos americanus

), pronghorn antelope (

Antilocapra americana

), bison (

Bison bison

) (only in the GYA), and beaver (

Castor canadensis

). This complexity leads to dramatic and unique ecological cascades in pristine areas, such as in YNP. While these effects likely still occur at varying degrees elsewhere they are increasingly modified and subtle the more an area is affected by humans (Smith

et al.

2003, pp. 334-338; Robbins 2004, pp. 80-81; Campbell

et al.

2006, pp. 747-753; Hebblewhite

et al.

2005, p. 2135; Garrott

et al.

2005, p. 1245). For example, wolves appear to be changing elk behavior and elk relationships and competition with other native ungulates in YNP. These complex interactions may increase streamside willow production and survival (Ripple and Beschta 2004, p. 755), that in turn can affect beaver and nesting by riparian birds (Nievelt 2001, p. 1). This suspected pattern of wolf-caused changes also may be occurring with scavengers, whereby wolf predation is providing a year-round source of food for a diverse variety of carrion feeders (Wilmers

et al.

2003, p. 996; Wilmers and Getz 2005, p. 571). The wolf population in the NRM has extended the southern range of the contiguous gray wolf population in western North America nearly 400 miles (640 km) into a much more diverse, ecologically complex, and unique assemblage of species than is found elsewhere within occupied wolf habitat in most of the northern hemisphere.

Significant Gap in the Range of the Taxon

—Wolves once lived throughout most of North America. Wolves have been extirpated from most of the southern portions of their historic North American range. The loss of the NRM wolf population would represent a significant gap in the species' holarctic range in that this loss would create a 15-degree latitudinal or over 1,600 km (1,000 mi) gap across the Rocky Mountains between the Mexican wolf and wolves in Canada. If this potential gap were realized, substantial cascading ecological impacts would occur in the NRM, most noticeably in the most pristine and wildest areas (Smith

et al.

2003, pp. 334-338; Robbins 2004, pp. 80-81; Campbell

et al.

2006, pp. 747-753; Hebblewhite and Smith in press, pp. 1-6).

Given the wolf's historic occupancy of the conterminous U.S. and the portion of the historic range the conterminous U.S. represents, recovery in portions of the lower 48 States has long been viewed as important to the taxon (39 FR 1171, January 4, 1974; 43 FR 9607, March 9, 1978). The NRM DPS is significant in achieving this objective, as it is 1 of only 3 populations of wolves in the lower 48 States and currently constitutes nearly 25 percent of all wolves in the lower 48 States.

We conclude, based on our analysis of the best available scientific information, that the NRM DPS is significant to the taxon in that NRM wolves exist in a unique ecological setting and their loss would represent a significant gap in the range of the taxon. Therefore, the NRM DPS meets the criterion of significance under our DPS policy. Because the NRM gray wolf population is both discrete and significant, it is a valid DPS.

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.

Recovery

Recovery Planning and the Selection of Recovery Criteria

—Shortly after listing we formed the interagency wolf recovery team to complete a recovery plan for the NRM population (Service 1980, p. i; Fritts

et al.

1995, p. 111). The NRM Wolf Recovery Plan (recovery plan) was approved in 1980 (Service 1980, p. i) and revised in 1987 (Service 1987, p. i). Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species and recovery may be achieved without all criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. In that instance, the Service may judge that the threats have been minimized sufficiently, and the species is robust enough to reclassify from endangered to threatened or to delist. In other cases, recovery opportunities may have been recognized that were not known at the time the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

The 1980 recovery plan's objective was to re-establish and maintain viable populations of the NRM wolf (

C. l. irremotus

) in its former range where feasible (Service 1980, p. iii) but there were no recovery goals. The 1980 plan covered an area similar to the NRM DPS, as it was once believed to be the range of the NRM wolf subspecies. It recommended that recovery actions be focused on the large areas of public land in northwestern Montana, central Idaho, and the GYA. The revised recovery plan (Service 1987, p. 57) concluded that the subspecies designations may no longer be valid and simply referred to gray wolves in the NRMs. Consistent with the 1980 plan it also recommended focusing recovery actions on the large blocks on public land in the NRM. The 1987 plan specified a recovery criterion of a minimum of 10 breeding pairs of wolves (defined as 2 wolves of opposite sex and adequate age, capable of producing offspring) for a minimum of 3 successive years in each of 3 distinct recovery areas including: (1) Northwestern Montana (Glacier National Park; the Great Bear, Bob Marshall, and Lincoln Scapegoat Wilderness Areas; and adjacent public and private lands); (2) central Idaho (Selway-Bitterroot, Gospel Hump, Frank Church River of No Return, and Sawtooth Wilderness Areas; and adjacent, mostly Federal, lands); and (3) the YNP area (including the Absaroka-Beartooth, North Absaroka, Washakie, and Teton Wilderness Areas; and adjacent public and private lands). That plan recommended that wolf establishment not be promoted outside these distinct recovery areas, but that connectivity between them be somehow encouraged. However, no attempts were made to prevent wolf pack establishment outside of the recovery areas unless chronic conflict required resolution (Service 1994, p. 1-15, 16; Service 1999, p. 2).

The 1994 EIS on wolf reintroduction reviewed wolf recovery in the NRM and the adequacy of the recovery goals because we were concerned that the 1987 goals might be insufficient (Service 1994, pp. 6:68-78). We were particularly concerned about the 1987 definition of a breeding pair, since any male and female wolf are `capable' of producing offspring and lone wolves may not have territories. We also believed the relatively small `hard' recovery areas greatly reduced the amount of area that could be used by wolves and would almost certainly eliminate the opportunity for meaningful natural demographic and genetic connectivity. The Service conducted a thorough literature review of wolf population viability analysis and minimum viable populations, reviewed the recovery goals for other wolf populations, surveyed the opinions of the top 43 wolf experts in North America, of which 25 responded, and incorporated our own expertise into a review of the NRM wolf recovery goal. We published our analysis in the Service's EIS and in a peer-reviewed paper (Service 1994, Appendix 8 & 9; Fritts and Carbyn 1995, pp. 26-38). Our analysis concluded that the 1987 recovery goal was, at best, a minimum recovery goal, and that modifications were warranted on the basis of more recent information about wolf distribution, connectivity, and numbers. We also concluded “Data on survival of actual wolf populations suggest greater resiliency than indicated by theory” and theoretical treatments of population viability “have created unnecessary dilemmas for wolf recovery programs by overstating the required population size” (Fritts and Carbyn 1995, p. 26). Based on our analysis, we redefined a breeding pair as an adult male and an adult female wolf that have produced at least 2 pups that survived until December 31 of the year of their birth, during the previous breeding season. We also concluded that “Thirty or more breeding pair comprising some 300+ wolves in a metapopulation (a population that exists as partially

isolated sets of subpopulations) with genetic exchange between subpopulations should have a high probability of long-term persistence” because it would contain enough individuals in successfully reproducing packs that were distributed over distinct but somewhat connected large areas, to be viable for the long-term (Service 1994, p. 6:75). We explicitly stated the required genetic exchange could occur by natural means or by human-assisted migration management and that dispersal of wolves between recovery areas was evidence of that genetic exchange (Service

et al.

1994, Appendix 8, 9). In defining a “Recovered Wolf Population” we found “in the northern Rockies a recovered wolf population is 10 breeding pairs of wolves in each of 3 areas for 3 successive years with some level of movement between areas” (Service 1994, p. 6-7). We further determined that a metapopulation of this size and distribution among the three areas of core suitable habitat in the NRM DPS would result in a wolf population that would fully achieve our recovery objectives.

Since 1994, we have believed movement of individuals between the metapopulation segements could occur either naturally or by human-assisted migration management (Service 1994, p. 7-67). Specifically, we stated “The importance of movement of individuals between sub-populations cannot be overemphasized. The dispersal ability of wolves makes such movement likely, unless wolves were heavily exploited between recovery areas, as could happen in the more developed corridor between central Idaho and YNP. Intensive migration management might become necessary if 1 of the 3 sub-populations should develop genetic or demographic problems. (We saw) no reason why migration management should be viewed negatively. It will be a necessity in other wolf recovery programs. Some, however, may view such management intervention as `unnatural' ” (Service 1994, p. 7-67). Furthermore, we found “that the 1987 wolf recovery plan's population goal of 10 breeding pairs of wolves in 3 separate recovery areas for 3 consecutive years (was) reasonably sound and would maintain a viable wolf population into the foreseeable future. The goal is somewhat conservative, however, and should be considered minimal. The addition of a few extra pairs would add security to the population and should be considered in the post-EIS management planning. That could always be done as a periodic infusion if deemed necessary” (Service 1994, p. 6-75).

We conducted another review of what constitutes a recovered wolf population in late 2001 and early 2002 to reevaluate and update our 1994 analysis and conclusions (Service 1994, Appendix 9). We attempted to survey the same 43 experts we had contacted in 1994 as well as 43 other biologists from North America and Europe who were recognized experts about wolves and/or conservation biology. In total 53 people provided their expert opinion regarding a wide range of issues related to the NRM recovery goal. We also reviewed a wide range of literature, including wolf population viability analysis from other areas (Bangs 2002, pp. 1-9). Despite varied professional opinions and a great diversity of suggestions, experts overwhelmingly thought the recovery goal derived in our 1994 analysis was more biologically appropriate than the 1987 recovery plan's criteria for recovery and represented a viable and recovered wolf population. Reviewers also thought genetic exchange, either natural or human-facilitated, was important to maintaining the metapopulation configuration and wolf population viability. Reviewers also thought the proven ability of a breeding pair to show successful reproduction was a necessary component of a biologically meaningful breeding pair definition. Reviewers recommended other concepts/numbers for recovery goals, but most were slight modifications to those we recommended in our 1994 analysis. While experts strongly (78 percent) supported that our 1994 conclusions represented a viable wolf population, they also tended to believe that wolf population viability was enhanced by higher rather than lower population levels and longer than shorter demonstrated time frames. Five hundred wolves and five years were common minority recommendations. A slight majority indicated that even the 1987 recovery goal of only 10 breeding pairs (defined as a male and female capable of breeding) in each of three distinct recovery areas may be viable, given the persistent of other small wolf populations in other parts of the world. The results of previous population viability analysis for other wolf populations varied widely, and as we had concluded in our 1994 analysis, reviewers in 2002 concluded theoretical results were strongly dependent on the variables and assumptions used in such models and conclusions often predicted different outcomes than actual empirical data had conclusively demonstrated. Based on that review, we reaffirmed our more relevant and stringent 1994 definition of wolf breeding pairs, population viability, and recovery (Service 1994, p. 6:75; Bangs 2002, p. 1-9).

The 2002 reevaluation of the 1994 wolf recovery goal by a broader spectrum of experts in wolf conservation also repeatedly recognized connectivity among the core recovery areas as critical, but this connectivity could be achieved through naturally dispersing wolves and/or by human-assisted migration management. Specifically, we stated “Connectivity was the single issue brought up most often by reviewers. Many commented that wolves are unusually good dispersers and movement between core recovery areas was probably not going to be a significant wolf conservation issue in the NRM. Several believed that wolves would soon colonize neighboring states. Nearly everyone commented that the interchange of individuals between the sections of the metapopulation and more importantly maintenance of connection to the Canadian population. Several comments emphasized the importance of maintaining some minimum number of wolves in northwestern Montana to maintain the connection to the Canadian population. Other reviewers noted that such connectivity could be easily maintained by management actions (such as translocation) rather than natural dispersal. Movement into the GYA was mentioned as a specific concern by some because that was the only recovery area where wolf movement from other recovery areas appeared it could be a concern, and it was the southern-most tip of a much larger connected North American wolf population. A majority believed the Service's proposal defined a viable wolf population but others believed it needed to be improved by providing a measurable definition of connectivity. Others believed that documenting successful reproduction was an important measure of population viability and liked the concept used in the 1994 EIS definition. The importance of future wolf management (state or tribal management), primarily in maintaining human-caused mortality below a level that would cause extirpation and management that would foster some connectivity (either natural or man-induced) were the most critical components of determining long-term population viability * * * The true test of wolf population viability will be determined by subsequent management practices. Past management practices—such as (1) reintroduction of wolves

from two Canadian sources (Alberta and British Columbia) and from numerous packs in each area, (2) subsequent management relocations between all three recovery areas, (3) the natural dispersal capabilities of wolves and proximity of core recovery areas to one another, (4) documented routine interchange with Canadian wolf populations and between Idaho and northwestern Montana, (5) a young population age structure with successful pup production and survival, and (6) the establishment of wolf populations in and around core refugia (central Idaho Wilderness, YNP, Glacier National Park and associated public lands to these areas) have produced a robust and viable wolf population that currently has very high genetic and demographic diversity that occupies core refugia in the highest quality wolf habitat in the NRM of Montana, Idaho, and Wyoming. Maintenance of those conditions in the wolf population will depend solely on long-term future management to (1) regulate human-caused mortality and (2) maintain genetic connectivity among population segments, including Canada, either through deliberate relocation of wolves and/or encouraging sufficient natural dispersal” (Bangs 2002, pp. 3-4, 8-9).

Development of the Service's recovery goal clearly recognized that the key to wolf recovery was establishing a viable demographically and genetically diverse wolf population in the core recovery areas of the NRM. We would ensure its future connectivity by promoting natural dispersal and genetic connectivity between the core recovery segments and/or by human-assist migration management in the unlikely event it was ever required (Fritts and Carbyn 1995; Groen

et al.

2008).

We measure the wolf recovery goal by the number of breeding pairs as well as by the number of wolves because wolf populations are maintained by packs that successfully raise pups. We use `breeding pairs' (packs that have at least an adult male and an adult female and that raised at least 2 pups until December 31) to describe successfully reproducing packs (Service 1994, p. 6:67; Bangs 2002, pp. 7-8; Mitchell

et al.

2008). The breeding pair metric includes most of the important biological concepts in wolf conservation. Specifically, we thought it was important for breeding pairs to have: Both male and female member together going into the February breeding season; successful occupation of a distinct territory (generally 500-1,300 km

2

(200-500 mi

2

) and almost always in suitable habitat); enough pups to replace two adults; off-spring that become yearling dispersers; at least 4 wolves following the point in the year with the highest mortality rates (summer and fall); all social structures and age classes represented within a wolf population; and adults that can raise and mentor younger wolves.

Often we do not know if a specific pack actually contains an adult male, adult female, and two pups in winter; however, group size has proven to have a strong correlation with breeding pair status (Mitchell

et al.

2008). Research indicates a pack size of around 9 equates to one breeding pair (large packs have complex age classes—pups, yearlings and older adults). In the future, the States may be able to use pack size in winter as a surrogate to help reliably identify each pack's contribution toward meeting our breeding pair recovery criteria and to better predict the effect of managing for certain pack sizes on wolf population recovery.

We also have determined that an essential part of achieving recovery is an equitable distribution of wolf breeding pairs and individual wolves among the three States and the three recovery zones. Like peer reviewers in 1994 and 2002, we concluded that NRM wolf recovery and long-term wolf population viability is dependent on its distribution as well as maintaining the minimum numbers of breeding pairs and wolves. While uniform distribution is not necessary, a well-distributed population with no one State/recovery area maintaining a disproportionately low number of packs or number of individual wolves is needed to maintain wolf distribution in and adjacent to core recovery areas and other suitable habitat throughout the NRM and to facilitate natural connectivity.

Following the 2002 review of our recovery criteria, we began to use States, in addition to recovery areas, to measure progress toward recovery goals (Service

et al.

2003-2009, Table 4). Because Montana, Idaho, and Wyoming each contain the vast majority of one of the original three core recovery areas, we determined the metapopulation structure would be best conserved by equally dividing the overall recovery goal between the three States. This approach made each State's responsibility for wolf conservation fair, consistent, and clear. It avoided any possible confusion that one State might assume the responsibility for maintaining the required number of wolves and wolf breeding pairs in a shared recovery area that was the responsibility of the adjacent State. State regulatory authorities and traditional management of resident game populations occur on a State-by-State basis. Management by State would still maintain a robust wolf population in each core recovery area because they each contain manmade or natural refugia from human-caused mortality (e.g., National Parks, wilderness areas, and remote Federal lands) that guarantee those areas remain the stronghold for wolf breeding pairs and source of dispersing wolves in each State. Recovery targets by State promote connectivity and genetic exchange between the metapopulation segments by avoiding management that focuses solely on wolf breeding pairs in relatively distinct core recovery areas and promote a minimum level of potential natural dispersal to and from each population segment. This approach also will increase the numbers of potential wolf breeding pairs in the GYA because it is shared by all three States. A large and well-distributed population within the GYA is especially important because it is the most isolated recovery segment within the NRM DPS (Oakleaf

et al.

2005, p. 554; vonHoldt

et al.

2007, p. 19).

The numerical component of the recovery goal represents the minimum number of breeding pairs and individual wolves needed to achieve and maintain recovery. To ensure that the NRM wolf population always exceeds the recovery goal of 30 breeding pairs and 300 wolves, wolves in each State shall be managed for at least 15 breeding pairs and at least 150 wolves in mid-winter. This and other steps, including human-assisted migration management if required (discussed below), will maintain the NRM DPS's current metapopulation structure. Further buffering our minimum recovery goal is the fact that Service data since 1986 indicate that, within the NRM DPS, each breeding pair has corresponded to 14 wolves in the overall NRM wolf population in mid-winter (including many wolves that travel outside these recognized breeding pairs) (Service

et al.

2008, Table 4). Thus, managing for 15 breeding pairs per State will result in substantially more than 150 wolves in each State (>600 in the NRM). Additionally, because the recovery goal components are measured in mid-winter when the wolf population is near its annual low point, the average annual wolf population will be much higher than these minimal goals.

We further improved, provided additional safety margins, and assured that the minimum recovery criteria would always be exceeded in our 2009 post-delisting monitoring plan. Three scenarios could lead us to initiate a status review and analysis of threats to

determine if relisting is warranted including: (1) If the wolf population for any one State falls below the minimum NRM wolf population recovery level of 10 breeding pairs of wolves and 100 wolves in either Montana, Idaho, and Wyoming at the end of the year; (2) if the portion of the wolf population in Montana, Idaho, or Wyoming falls below 15 breeding pairs or 150 wolves at the end of the year in any one of those States for 3 consecutive years; or (3) if a change in State law or management objectives would significantly increase the threat to the wolf population. Overall, we believe the NRM wolf population will be managed for over 1,000 wolves including over 300 wolves and 30 breeding pairs in the GYA (in 2008 there were 35 breeding pairs and 449 wolves in the GYA). This far exceeds post-delisting management targets of at least 45 breeding pairs and more than 450 wolves in the NRM. The NRM wolf population: (1) Has at least this number of reproductively successful packs and this number of individual wolves each winter (near the low point in the annual cycle of a wolf population); (2) is equitably distributed within the 250,000 km

2

(100,000 mi

2

) area containing 3 areas of large core refugia (National Parks, wilderness areas, large blocks of remote secure public land) and at least 170,228 km

2

(65,725 mi

2

) of suitable wolf habitat; and (3) is genetically diverse and has demonstrated successful genetic exchange through natural dispersal and human-assisted migration management between all three core refugia. It therefore no longer needs the protections of the Act and is a viable and fully recovered wolf population.

Our recovery and post-delisting management goals were designed to provide the NRM gray wolf population with sufficient representation, resilience, and redundancy for their long-term conservation. We have expended considerable effort to develop, repeatedly reevaluate, and when necessary modify, the recovery goals (Service 1987, p. 12; Service 1994, Appendix 8 and 9; Fritts and Carbyn 1995, p. 26; Bangs 2002, p. 1; 73 FR 10514, February 27, 2008; and this final rule). After evaluating all available information, we conclude the best scientific and commercial information available continues to support the ability of these recovery goals to ensure the population does not again become in danger of extinction.

Genetic Diversity Relative to our Recovery Criteria

—Currently, genetic diversity throughout the NRM is very high (Forbes and Boyd 1996, p. 1084; Forbes and Boyd 1997, p. 226; vonHoldt

et al.

2007, p. 19). Wolves in northwestern Montana and both the reintroduced populations are as genetically diverse as their source populations in Canada; thus, inadequate genetic diversity is not a wolf conservation issue in the NRM at this time (Forbes and Boyd 1997, p. 1089; vonHoldt

et al.

2007, p. 19). Genetic connectivity resulting from natural dispersal alone, even in the GYA, appears adequate to prevent genetic drift and inbreeding depression that could threaten the wolf population. As a result, there is currently no need for management activities designed to further increase genetic diversity anywhere in the NRM DPS. However, should genetic problems ever materialize, an outcome we view as extremely unlikely, the States will utilize agency assisted genetic management to address the issue. Because genetic changes happen very slowly, the States would have many years, perhaps decades, to design and implement appropriate remedial actions. In short, the NRM wolf population is not now and will not ever be threatened by genetic diversity issues. This issue is discussed further in our response to comments and in Factor E below.

Recovery and Genetics issues raised by the July 18, 2008 federal court injunction

—The July 18, 2008, U.S. District Court for the District of Montana preliminary injunction order heavily cited vonHoldt

et al.

(2007). This study concluded “if the YNP wolf population remains relatively constant at 170 individuals (estimated to be YNP's carrying capacity), the population will demonstrate substantial inbreeding effects within 60 years,” resulting in an “increase in juvenile mortality from an average of 23 to 40%, an effect equivalent to losing an additional pup in each litter.” The court also cited previous Service statements that call for “genetic exchange” among recovery areas. The court further stated that dispersal of wolves between the GYA and the northwestern Montana and central Idaho core recovery areas was “a precondition to genetic exchange.” The preliminary injunction order cited our 1994 EIS (Service 1994) and vonHoldt

et al.

(2007) to support its conclusion that a metapopulation had not been demonstrated in the NRM.

The vonHoldt

et al.

(2007) paper did an excellent job of analyzing the empirical data regarding the pedigree for YNP wolves. That data proved the “almost complete” natural selection for outbreeding by wolves and the high genetic diversity of wolves in YNP. We appreciate their recognition of our deliberate efforts to conserve genetic diversity. Specifically vonHoldt

et al.

(2007) stated that “Overall, our findings demonstrate the effectiveness of the reintroduction in preserving genetic diversity over the first decade of wolf recovery in Yellowstone” (vonHoldt

et al.

2007, p. 19). Furthermore, we agree that any totally isolated wildlife population that is never higher than 170 individuals which randomly breeds will lose genetic diversity over time. It is also true that high levels of inbreeding can sometimes, but not always, result in demographic issues such as reduced survival or reduced fertility. Such outcomes sometimes, but not always, result in demographic problems that threaten population viability.

However, we question many of the assumptions that underpin the predictive modeling portion of vonHoldt

et al.

(2007) study's conclusions. First, while the study found no evidence of genetic exchange into YNP (8,987 km

2

(3,472 mi

2

)), the Park is only a small portion of the GYA (63,700 km

2

(24,600 mi

2

)). Further limiting the study's ability to detect genetic exchange among subpopulations is the fact that most wolves that disperse to the GYA tend to avoid areas with existing resident packs or areas with high wolf densities, such as YNP. Moreover, even among the YNP wolves the study was limited to a subsample of Park wolves from 1995-2004 (i.e., the radio collared wolves). Thus, not surprisingly, subsequent analysis of additional wolves across the GYA has demonstrated gene flow among the GYA and the other recovery areas (vonHoldt

et al.

2008; Wayne 2009, pers. comm.).

It is also important to consider that our ability to detect genetic exchange within the NRM population is further limited by the genetic similarity of the NRM subpopulations. Specifically, because both the central Idaho and GYA subpopulations originate from a common source, only first and possible second generation offspring of a dispersing wolf can be detected. Additional genetic analysis of wolves from throughout the NRM population, including a larger portion of the GYA than just YNP, is ongoing.

Second, the vonHoldt

et al.

(2007) prediction of eventual inbreeding in YNP relies upon several unrealistic assumptions. One such assumption limited the wolf population analysis to YNP's (8,987 km

2

(3,472 mi

2

)) carrying capacity of 170 wolves, instead of the more than 300 wolves likely to be managed for in the entire GYA (63,700 km

2

(24,600 mi

2

)) by Montana, Idaho, and Wyoming. The vonHoldt

et al.

, (2007) predictive model also capped the

population at the YNP population's winter low point, rather than at higher springtime levels when pups are born. Springtime levels are sometimes double the winter low. Most importantly, the vonHoldt

et al.

(2007) assumed no gene flow into the area; an assumption now proven incorrect. This issue is fully explained in Factor E below.

Conclusion of a reanalysis of the wolf recovery goals for the NRM DPS

—In its July 18, 2008 preliminary injunction order, the District Court concluded that the Plaintiffs were likely to succeed on their claim that the NRM had not achieved its recovery goal because genetic exchange was `promised' by the recovery criteria but had not occurred between wolves in the GYA area and the other recovery areas. The court cited a recent genetic study of wolves in YNP (vonHoldt

et al.

2007). The court also suggested that higher rates of mortality associated with State management would further reduce the future opportunity for genetic exchange and ultimately threatened the wolf population. As a result of the court ruling we have reevaluated our wolf recovery goal for the NRM DPS and determined it is still scientifically valid, represents the minimum wolf population that would not be threatened or endangered in the foreseeable future, and all the biological conditions associated with the recovery goal have been completely achieved. Our reasoning is detailed below and in our discussion of Factor E.

The wolf recovery goal for the NRM has been repeatedly reevaluated and improved as new scientific information warranted. Modifications of the 1987 recovery plan goals based on recent information, further analysis, and new scientific thinking were made in 1994 (Service 1994), 1999 (Service 1999), 2002 (Bangs 2002), 2008 (73 FR 10514, February 27, 2008), and in this rule. As a result of the court ruling, we have carefully reevaluated our recovery goal again and reaffirmed that “Thirty or more breeding pairs comprising some 300+ wolves in a metapopulation (a population that exists as partially isolated sets of subpopulations) with genetic exchange between subpopulations should have a high probability of long-term persistence” because it would contain enough individuals in successfully reproducing packs that were distributed over distinct but somewhat connected large areas of suitable habitat, to be viable for the long-term (Service 1994, p. 6:75). The vast majority of wolf experts throughout the world who were contacted believed the NRM wolf recovery goal represented the minimum criteria to describe a viable and recovered wolf population (Service 1994, p. 6-75; Bangs 2002).

Genetic studies in the NRM are continuing. While that work demonstrates that both human-assisted and natural genetic exchange has occurred in the GYA, the rate at which this exchange has naturally occurred in the GYA is being determined. However, vonHoldt

et al.

(2008) reported that “Based on migrant detection and assignment test our results suggest that adequate genetic connectivity exists between central Idaho and northwestern Montana populations, there is limited effective dispersal between central Idaho or northwestern Montana to GYA (although 15 unknown GYA individuals need to be resolved) and there have been no migrants genetically detected that have (naturally) dispersed into the YNP portion of the GYA.” They went on to state “Since this analysis only includes samples up to 2004, and due to sample size limitations in some areas (GYA outside of YNP), adding more samples and including samples up to 2008 may alter interpretation. Specifically, genetic connectivity may be higher between GYA and other recovery areas than currently believed.” We concurred with that determination. Indeed subsequent analysis confirmed offspring from some wolves that naturally dispersed into the GYA, as well as the wolf pups that were relocated into YNP in 1997, have been detected as additional samples were analyzed (Wayne 2009, pers. comm.). We will continue to collect and analyze genetic samples to monitor the genetic health of the NRM wolf population (Groen

et al.

2008).

Regardless of the outcome of those ongoing genetic studies—

(1) Ongoing or confirmed genetic exchange was never required by our recovery goal, although it has now been documented. The recovery goal assumed that the presence of dispersing wolves from other recovery areas alone was enough evidence of the likelihood of ‘genetic’ exchange among recovery areas (the reason wolves disperse is to find mates and breeding opportunities). Sixty-eight percent of relocated (human-assisted dispersal) wolves in the NRM became breeders (Bradley

et al.

2005). The presence of individual natural dispersing wolves in every recovery segment, including the GYA, indicates that the NRM has a metapopulation structure and that no segment is completely isolated from the others.

(2) Because GYA and central Idaho wolves share a recent common genetic history (siblings released in each area), it is very difficult to detect anything beyond first or second generation offspring from long range dispersing wolves. Significant changes in genetic health generally take place over many generations and decades not years.

(3) A metapopulation is one where no segment is totally isolated from the others. A metapopulation does not require a certain level of natural or human-assisted migration management during a specified time period to meet the definition of a metapopulation. We have proven human-assisted migration management is easy to do with wolves. However, at least for decades, there should be no genetic or demographic reasons to move more wolves or their genes between the subpopulations and/or Canada. However, it is also common sense that a wolf population in three equal subpopulations managed near the minimum levels of 500 wolves would be far more likely to require future human-assisted migration management than a wolf population managed at over 1,000 wolves in mid-winter.

(4) The assertion that successful recovery can only depend on solely natural processes is not accurate. If that were the case management of any wolf population, including the ongoing red wolf and Mexican wolf programs, as well as in any other potential wolf recovery programs in the U.S. (or in many parts of the world) could never lead to recovery. In addition, nearly all recovery programs under the Act and the subsequent management of those populations after delisting will require human intervention such as captive breeding, relocations, population augmentations, control of exotics or predators, maintenance or preservation of important habitat through prescribed fire, control of fire, flooding, and etc. In addition, most routine State and federal management programs for common wildlife species still require continued human management intervention by: Human control by agencies or by public hunts to raise management funding, limit property damage, and foster public tolerance; reintroductions, augmentation and captive breeding/rearing; habitat manipulation (fire and firefighting, logging, crops, water control structures, etc.); control of exotics, invasive species, or pests; and many other common wildlife management tools.

(5) The Service's recovery goal never required that offspring from long distance dispersing wolves and resident wolves be proven for the recovery goal to be met. Relocations or mere presence of dispersing wolves was believed to be adequate proof of connectivity. “Recovered Wolf Population—In the northern Rockies a recovered wolf population is 10 breeding pairs of

wolves in each of 3 areas for 3 successive years with some level of wolf movement between areas” (Service 1994, pp. 6-7). However, regardless of the 1994 definition, natural dispersal and human-assisted migration management has resulted in documented genetic exchange between dispersing and resident wolves among all three recovery areas, including the GYA.

(6) The level of natural dispersal that has been documented to date makes it highly unlikely that further human-assisted migration management would ever be required—even in the GYA, by far the most isolated recovery area in the NRM, especially if populations are managed at higher (>1,000 wolves) rather than lower (<500 wolves) numbers.

(7) There are currently absolutely no genetic or demographic problems in any of the core recovery segments, including the GYA. The proximity of the three NRM recovery segments and the natural dispersal abilities of wolves represent a classic wolf metapopulation structure that will be maintained into the foreseeable future. The States, except Wyoming, committed to initiate migration management, should it ever needed, and their commitment completely resolves a highly unlikely theoretical future genetic inbreeding problem (that would still not threaten or endanger the NRM wolf population) by a guaranteed proven solution to genetic inbreeding; namely human-assisted migration management (Groen

et al.

2008).

(8) The States (except Wyoming, which declined to sign the 2008 Genetics Memorandum of Understanding (MOU) (Groen

et al.

2008) and Service have committed to maintain that natural metapopulation structure of the NRM wolf population to the extent possible by encouraging natural dispersal and effective migrants and have implemented management practices that should foster both (maintaining the wolf population at higher rather than minimum levels, greater rather than more restricted pack distribution throughout suitable habitat, and reducing human-caused wolf mortality during key dispersing and reproductive time periods, and maintain the integrity of the core recovery areas/refugia (largely National Parks and wilderness areas)). In addition the States and Service and other federal agencies and have committed to monitor wolf genetics over time and should data suggest it is appropriate, conduct human-assisted migration management, which we believe is extremely unlikely to be necessary (Groen

et al.

2008).

Monitoring and Managing Recovery

—In 1989, we formed an Interagency Wolf Working Group (Working Group) composed of Federal, State, and Tribal agency personnel (Bangs 1991, p. 7; Fritts

et al.

1995, p. 109; Service

et al.

1989-2009, p. 1). The Working Group conducted four basic recovery tasks (Service

et al.

1989-2009, pp. 1-2), in addition to the standard enforcement functions associated with the take of a listed species. These tasks were: (1) Monitor wolf distribution and numbers; (2) control wolves that attacked livestock by moving them, conducting other non-lethal measures, or by killing them (Bangs

et al.

2006, p. 7); (3) conduct research and publish scientific publications on wolf relationships to ungulate prey, other carnivores and scavengers, livestock, and people; and (4) provide accurate science-based information to the public and mass media so that people could develop their opinions about wolves and wolf management from an informed perspective.

The size and distribution of the wolf population is estimated by the Working Group each year and, along with other information, is published in an interagency annual report (Service

et al.

1989-2009, Table 4, Figure 1). Since the early 1980s, the Service and our cooperating partners have radio-collared and monitored over 1,100 wolves in the NRM to assess population status, conduct research, and to reduce/resolve conflict with livestock. The Working Group's annual population estimates represent the best scientific and commercial data available regarding year-end NRM gray wolf population size and trends, as well as distributional and other information.

Recovery by State

—At the end of 2000, the NRM population first met its overall numerical and distributional recovery goal of a minimum of 30 breeding pairs and over 300 wolves well-distributed among Montana, Idaho, and Wyoming (68 FR 15804, April 1, 2003; Service

et al.

2001, Table 4). Because the recovery goal must be achieved for 3 consecutive years, the temporal element of recovery was not achieved until the end of 2002 when 663 wolves and 49 breeding pairs were present (Service

et al.

2003, Table 4). By the end of 2008, the NRM wolf population will have achieved its numerical and distributional recovery goal for 9 consecutive years (Service

et al.

2001-2009, Table 4; Service 2008; 68 FR 15804, April 1, 2003; 71 FR 6634, February 8, 2006).

By the end of 2008, the NRM gray wolf population included approximately 1,639 NRM wolves (491 in Montana; 846 in Idaho; 302 in Wyoming) in 95 breeding pairs (34 in Montana; 39 in Idaho; 22 in Wyoming). The wolf population estimate for 2008 is slightly higher than that for 2007, indicating a declining rate of increase as suitable habitat becomes increasingly saturated with resident wolf packs.

From 1995 to 2008, the NRM wolf population increased an average of about 22 percent annually with increases ranging from 8 to 50 percent (Service

et al.

2009, Table 4). In 2008 the overall population increased at the slowest rate since 1995. Figure 2 illustrates wolf population trends by State from 1979 to 2007.

ER02AP09.004

As discussed previously, after the 2002 peer review of the wolf recovery efforts, we began using States, in addition to recovery areas, to measure progress toward recovery goals (Service

et al.

2003-2009, Table 4). However, because the original recovery plan included goals for core recovery areas we have included the following discussion on the history of the recovery efforts and status of these core recovery areas, including how the wolf population's distribution and metapopulation structure is important to maintaining its viability and how the biological characteristics of each core recovery area differ (Service

et al.

2009, Table 4).

Recovery in the Northwestern Montana Recovery Area

—The Northwestern Montana Recovery Area's 84,800 km

2

(33,386 mi

2

) includes Glacier National Park; the Great Bear, Bob Marshall, and Lincoln Scapegoat Wilderness Areas; and adjacent public and private lands in northern Montana and the northern Idaho panhandle. Wolves in this recovery area were listed and managed an endangered species. Wolves naturally recolonized this area from Canada. Reproduction first occurred in northwestern Montana in 1986 (Ream

et al.

1989). The natural ability of wolves to find and quickly recolonize empty habitat (Mech and Boitani 2003, p. 17-19), the interim control plan (Service 1988, 1999), and the interagency recovery program combined to effectively promote an increase in wolf numbers (Bangs 1991, p. 7-13). By 1996, the number of wolves had grown to about 70 wolves in 7 known breeding pairs. However, since 1997, the estimated number of breeding pairs and wolves has fluctuated, partly due to actual population size and partly due to monitoring effort. It varied from 4 to 23 breeding pairs and from 49 to 276 wolves (Service

et al.

2009, Table 4), but generally increased. By the end of 2008, we estimated 276 wolves in 18 breeding pairs in the northwestern Montana recovery area (Service

et al.

2009, Table 4).

The Northwestern Montana Recovery Area has sustained fewer wolves than the other recovery areas because there is less suitable habitat and it is more fragmented (Oakleaf

et al.

2005, p. 560; Smith

et al.

2008, p. 1). Some of the variation in our wolf population estimates for northwestern Montana is due to the difficulty of counting wolves in the area's thick forests. Wolves in northwestern Montana also prey mainly on white-tailed deer, resulting in smaller packs and territories, which lowers the chances of a pack being detected (Bangs

et al.

1998, p. 878). Increased monitoring efforts in northwestern Montana by Montana Fish, Wildlife and Parks (MFWP) since 2005 were likely responsible for some of the higher population estimates. Wolf numbers in 2003 and 2004 also likely exceeded 10 breeding pairs and 100 wolves, but were not documented simply due to less intensive monitoring those years (Service

et al.

2009, Table 4). By the end of 2009, this recovery area will contain over 10 breeding pair and 100 wolves for the fourth consecutive year (2005-2008), and probably has done so for the last seven years (2002-2008) (Service

et al.

2009, Table 4).

Routine dispersal of wolves has been documented among northwestern Montana, central Idaho and adjacent Canadian populations demonstrating that northwestern Montana's wolves are demographically and genetically linked to both the wolf population in Canada and in central Idaho (Pletscher

et al.

1991, pp. 547-8; Boyd and Pletscher 1999, pp. 1105-1106; Sime 2007, p. 4; Jimenez

et al.

2008d). Because of fairly contiguous, but fractured suitable habitat wolves dispersing into northwestern Montana from both directions will continue to join or form new packs and supplement this segment of the overall wolf population (Boyd

et al.

2007; Forbes and Boyd 1996, p. 1082; Forbes and Boyd 1997, p. 1226; Boyd

et al.

1995, p. 140; vonHoldt

et al.

2007, p. 19; vonHoldt

et al.

2008; Thiessen 2007, p. 50; Sime 2007, p. 4; Jimenez

et al.

2008d).

Unlike YNP or the central Idaho Wilderness complex, northwestern Montana lacks a large core refugium that contains large numbers of overwintering wild ungulates and few livestock. Therefore, wolf numbers may not ever be as high in northwestern Montana as they are in central Idaho or the GYA. However, that population segment has persisted for nearly 20 years, is robust today, and habitat there is capable of supporting over 200 wolves (Service

et al.

2008, Table 4). State management, pursuant to the Montana State wolf management plan (2003), will ensure this population segment continues to thrive (see Factor D).

Recovery in the Central Idaho Recovery Area

—The Central Idaho Recovery Area's 53,600 km

2

(20,700 mi

2

) includes the Selway Bitterroot, Gospel Hump, Frank Church River of No Return, and Sawtooth Wilderness Areas; adjacent, mostly Federal lands, in

central Idaho; and adjacent parts of southwest Montana (Service 1994, p. iv). In January 1995, 15 young adult wolves from Alberta, Canada were released in central Idaho (Bangs and Fritts 1996, p. 409; Fritts

et al.

1997, p. 7). In January 1996, an additional 20 wolves from British Columbia were released (Bangs

et al.

1998, p. 787). Central Idaho contains the greatest amount of highly suitable wolf habitat compared to either northwestern Montana or the GYA (Oakleaf

et al.

2005, p. 559). Consequently, the central Idaho area population has grown substantially and expanded its range since reintroduction. As in the Northwestern Montana Recovery Area, some of the Central Idaho Recovery Area's increase in its wolf population estimate was due to an increased monitoring effort by Idaho Department of Fish and Game (IDFG). At the end of 2008, we estimated 914 wolves in 42 breeding pairs in the central Idaho recovery area (Service

et al.

2009, Table 4). By the end of 2008, this recovery area will have contained at least 10 breeding pair and 100 wolves for 11 consecutive years (1998-2008) (Service

et al.

2009; Service 2008).

Recovery in the GYA

—The GYA recovery area (63,700 km

2

[24,600 mi

2

]) includes YNP; the Absaroka Beartooth, North Absaroka, Washakie, and Teton Wilderness Areas (the National Park/Wilderness units); adjacent public and private lands in Wyoming; and adjacent parts of Idaho and Montana (Service 1994, p. iv). The wilderness portions of the GYA are primarily used seasonally by wolves due to high elevation, deep snow, and low productivity in terms of sustaining year-round wild ungulate populations (Service

et al.

2008, Figure 3). In 1995, 14 wolves representing 3 family groups from Alberta were released in YNP (Bangs and Fritts 1996, p. 409; Fritts

et al.

1997, p. 7; Phillips and Smith 1996, pp. 33-43). In 1996, this procedure was repeated with 17 wolves representing 4 family groups from British Columbia. Finally, 10 5-month old pups removed from northwestern Montana in a wolf control action were released in YNP in the spring of 1997 (Bangs

et al.

1998, p. 787). Only 2 of these 10 pups survived past 9 months of their release, but both became breeding adults and their genetic signature is common both in YNP and the GYA (VonHoldt 2008). By the end of 2008, we estimated 449 wolves in 35 breeding pairs in the GYA (Service

et al.

2008). By the end of 2008, this recovery area had at least 10 breeding pair and 100 wolves for 9 consecutive years (2000-2008) (Service

et al.

2009; Service 2008).

Wolf numbers in the GYA were stable in 2005, but known breeding pairs dropped by 30 percent to only 20 pairs (Service

et al.

2006, Table 4). The population recovered in 2006, primarily because numbers outside YNP in Wyoming grew to about 174 wolves in 15 breeding pairs (Service

et al.

2008). Most of this decline occurred in YNP which declined from 171 wolves in 16 known breeding pairs in 2004 to 118 wolves in 7 breeding pairs in 2005 (Service

et al.

2005, 2006, Tables 1-4). This decline likely occurred because: (1) Highly suitable habitat in YNP was saturated with wolf packs; (2) conflict among packs appeared to limit population density; (3) fewer elk occur in YNP than when reintroduction took place (White and Garrott 2006, p. 942; Vucetich

et al.

2005, p. 259); and (4) a suspected 2005 outbreak of disease (canine parvovirus (CPV) or canine distemper (CD)) reduced that years' pup survival to 20 percent (Service

et al.

2006, Table 2; Smith

et al.

2006, p. 244; Smith and Almberg 2007, pp. 17-20). By the end of 2007, the YNP wolf population had rebounded and was estimated to contain 171 wolves in 10 breeding pairs (Service

et al.

2008). In 2008, we saw a relatively high number of wolves killing other wolves and a high mortality rate among pups (this may be due to a disease outbreak, but the NPS will not be sure until winter when park biologists capture wolves and test their blood for antibodies). At the current time the YNP wolf population may be 124 wolves in 12 packs and only 6 breeding pairs (Service

et al.

2009). Additional significant growth in the National Park/Wilderness portions of the Wyoming wolf population above 200 wolves is very unlikely because suitable wolf habitat is saturated with resident wolf packs. Maintaining wolf populations safely above recovery levels and promoting demographic and genetic exchange in the GYA segment of the NRM area will depend on wolf packs living outside the National Park/Wilderness portions of northwestern Wyoming and southwestern Montana.

For further information on the history of NRM wolf recovery, recovery planning (including defining appropriate recovery criteria), population monitoring (through the end of 2008), and cooperation and coordination with our partners in achieving recovery, see the “Recovery” section of the August 1, 2006, 12-month status review (71 FR 43410), Service weekly wolf reports (1995-2008), and the Rocky Mountain Wolf Recovery Interagency Annual Reports (Service

et al.

1989-2009) at

http://westerngraywolf.fws.gov

.

Summary of the demographic characteristics of the NRM wolf population

—In late 2008, the NRM wolf population was estimated to contain about 1,639 wolves in nearly 200 packs (two or more wolves with a territory); 95 of these packs also classified as breeding pairs (packs with an adult male, adult female, and at least 2 pups on December 31). After delisting it will be managed by the States, National Park Service, and Service to average over 1,100 wolves, fluctuating around 400 wolves in Montana, 500 in Idaho, and 200 to 300 in Wyoming. The NRM wolf population is a three part metapopulation, composed of core areas of suitable habitat and refugia in northwestern Montana, central Idaho and the GYA. The most isolated subpopulation in the NRM is the GYA. The territories of persistent breeding pairs in GYA and central Idaho are 160 km (100 mi) apart, but packs and occasionally breeding pairs are often within 100 km (60 mi) of each other. The GYA had 449 wolves as of Dec 31, 2008, but will likely be managed above 300 wolves in portions of Montana, Idaho, and Wyoming in the long term. Central Idaho and northwest Montana are connected by routine dispersal events to the contiguous western Canadian wolf population that contains 12,000 wolves in British Columbia and Alberta. Collectively, the NRM is distinct in the lower 48 United States because it is surrounded by large expanses of unsuitable habitat in Washington, Oregon, Nevada, Utah, Colorado, and the Dakotas.

Average dispersal distance by wolves in the NRM is 100 km (60 mi) and drops off sharply past 300 km (190 mi). Several individuals have gone >600km (>400 mi), but none of these long distant dispersers in the United States are known to have survived long enough to breed. Comparing a model of theoretical suitable wolf habitat in the NRM (Oakleaf

et al.

2005, p. 559) with the distribution of wolf packs since 2002 indicates most suitable habitat is filled with resident packs (Service

et al.

2003-2009, Figure 1). The outer boundary of the entire NRM wolf population has not changed much (a minimum convex polygon of 280,000 km

2

(~110,000 mi

2

) since 2002 (Figure 1)). Nearly all wolf population growth has occurred within the suitable habitat area within the past 6 years. Suitable habitat is typically forested, public land, seasonally grazed by livestock (mainly cattle), and has abundant wild ungulates (primarily elk, deer, and moose). Wolf packs have not persisted in unsuitable habitat (open

prairie and high desert, more human activity & access, abundant livestock throughout the year, fewer wild ungulates) even under the Act's most protective designation as “endangered”.

The two major causes of mortality are agency control of problem wolves and illegal killing—each one causing on average about a 10% mortality rate annually (3% unintentional human-caused and 3% natural). Average radio-collared wolf (n = ~940 wolves) annual survival was 74 percent, and varied from 80 percent in national parks and remote wildness areas down to 60 percent in areas more developed by humans (Murray

et al.

2008; Smith

et al.

2008). There is an average of just over five pups per pack, but that decreased to an average of about 4 pups by winter. Periodically there are as few as 2 surviving pups in packs in a few localized areas (YNP) due to outbreaks of canine diseases (largely canine distemper). Only about 60% of all wolf packs classified as breeding pairs each year and adult and pup survival, rather than reproduction, was the key determinate on a pack's final status. Those packs that did not qualify either were not surveyed intensively enough to document final status, did not raise at least 2 pups, were not confirmed to contain both an adult male and female on Dec 31, or contact with them was lost (missing, killed, radio-collar loss, etc) before winter. Therefore, the breeding pair estimate represents a minimum and conservative measure of the number of wolf packs that actually meet the breeding pair metric.

The NRM population grew at an average annual rate of 22 percent per year from 1995-2008 (Service

et al.

2009, Table 4). The NRM population in 2008 grew slowly, indicating it could be approaching the carrying capacity of suitable habitat. Wolf populations regulate their distribution by their social territoriality. Packs defend exclusive areas of 200 to 500 square miles and defend those areas from other lone wolves and packs. Wolves regulate their density depending on food availability. If food is limited pack territories are larger meaning fewer can fit into a limited space. If prey is abundant packs can fulfill their needs in a smaller area and therefore more packs can fit into a smaller area. In the NRM, with its limited suitable habitat and relatively fixed prey base, the wolf population has grown by having wolves in more places within suitable habitat not by having more wolves in the same space or packs beginning to occupy unsuitable habitat. We believe that scientific evidence such as the well documented self regulation of wolf populations by prey density and social strife (Fuller

et al.

2003); stagnant overall distribution of packs since 2002 (Figure 1); limited amount of suitable habitat in the NRM (Oakleaf

et al.

2006); high mortality of wolves in unsuitable habitat due to chronic conflicts with people (Smith

et al.

2008); increase livestock depredations and more control (in many areas); and slowly of wolf population growth rates in recent years (Service

et al.

2009); all indicate that the NRM wolf population maybe approaching its carrying capacity in suitable habitat. Maintaining wolf numbers above 1,500 maybe difficult as the rate of conflicts per wolf would increase greatly if packs tried to occupy unsuitable habitat. Movement and breeding by dispersing wolves between northwestern Montana, central Idaho and southwest Canada appears common. GYA is the most distinct area, but between radio telemetry data (1995-2008) and genetic analysis (1995-2004) it appears that there is about one natural dispersing wolf entering the GYA per year and a little more than one effective migrant per generation (a ‘new’ wolf that breeds every four years) in the GYA system. Contemporary statistics for genetic diversity from 2002-2004 for central Idaho, northwestern Montana, and the GYA, respectively are; n = 85, 104, 210; allelic diversity = 9.5, 9.1, 10.3; observed heterozygosity = 0.723, 0.650, 0.708; expected heterozygosity = 0.767, 0.728, 0.738. (vonHoldt

et al.

2008). These levels have not diminished since 1995. The small differences between expected and observed heterozygosity around 0.70 on a scale of zero (no diversity) to 1 (maximum possible diversity, which is very unlikely to be encountered in a wild population) and high allelic (alleles are the different forms of a gene) diversity averaging over 9 alleles per locus (location of a gene on a chromosome) demonstrate all subpopulations within the NRM wolf populations have high standing levels of genetic variability. By all measures the NRM wolf population is extremely demographically and genetically diverse, will remain so, and is completely biologically recovered.

Public Comments Solicited

In our proposed rule, we requested that all interested parties submit information, data, comments or suggestions (72 FR 6106, February 8, 2007). The comment period was open from February 8, 2007 through May 9, 2007 (72 FR 6106, February 8, 2007; 72 FR 14760, March 29, 2007), from July 6, 2007 through August 6, 2007 (72 FR 36939, July 6, 2007), and from October 28, 2008 through November 28, 2008 (73 FR 63926, October 28, 2008). We also held eight public hearings and eight open houses on the proposal (72 FR 6106, February 8, 2007; 72 FR 14760, March 29, 2007; 73 FR 36939, July 6, 2007). During the 150-day comment period, we received over 520,000 comments including approximately 240,000 comments during our most recent comment period. Comments were submitted by a wide array of parties, including the general public, environmental organizations, sportsman and outfitter groups, agricultural agencies and organizations, and Tribal, Federal, State, and local governments.

Peer Review

In accordance with our Interagency Policy for Peer Review in Endangered Species Act Activities (59 FR 34270, July 1, 1994) and the Office of Management and Budget's (OMB) Final Information Quality Bulletin for Peer Review, we solicited independent review of the science in the proposed delisting rule from eight well-published North American scientists with extensive expertise in wolf biology. All eight peer reviewers submitted comments on the proposed delisting rule during the initial 90-day comment period (72 FR 6106, February 8, 2007; 72 FR 14760, March 29, 2007). Five of those experts reviewed the proposal again after we reopened the comment period (73 FR 36939, July 6, 2007) to allow consideration of Wyoming's revised wolf management plan and its impact upon our proposal. Finally, on October 29, 2008, we provided these eight experts and nine others the opportunity to review and comment on our February 8, 2007 (72 FR 6106) delisting proposal and our October 28, 2008 (73 FR 63926) notice reopening the comment period. None offered any additional comments on the rule making, although several offered comments on our draft genetics MOU (Groen

et al.

2008).

Generally, the reviewers agreed with our conclusion that the wolf population in the NRM DPS is biologically recovered and is no longer threatened as long as the States adequately regulate human-caused mortality. The reviewers provided many valuable thoughts, questions, and suggestions for improving the document. Issues identified by a majority of reviewers included suggestions to expand the discussion related to: The recovery criteria (connectivity, foreseeable future, metapopulation, and breeding pairs); the adequacy of State wolf management plans and their future commitments; how the DPS boundary and criteria for suitable habitat were developed; options to retain the Act's protections in

portions of Wyoming; and the effect of human-caused mortality on the wolf population.

Summary of Public Comments

We reviewed and considered all comments in this final decision. Substantive comments received during the comment periods and all new information have been addressed below or incorporated directly into this final rule. Comments of a similar nature are grouped together under subject headings in a series of “Issues” and “Responses.”

Technical and Editorial Comments

Issue 1:

Numerous technical and editorial comments and corrections were provided by respondents on nearly every part of the proposal. Several peer reviewers and others suggested or provided additional literature to consider in the final rule.

Response 1:

We corrected and updated this final rule wherever appropriate and possible. We edited the rule to make its purpose and rationale clearer. We shortened and condensed several sections by not repeating information that was already contained in the references cited. Several other sections were expanded to better explain our position.

The literature used and recommended by the peer reviewers and others has been considered and incorporated, as appropriate, in this final rule. We also reviewed and added literature in development and in press to our reference list when it represents the best scientific and commercial data available. The list of literature cited in this rule will be posted on our Web site (

http://westerngraywolf.fws.gov/

).

Compliance With Laws, Regulations and Policy

Issue 2:

Numerous parties suggested that delisting the NRM DPS does not comply with our legal, regulatory, and policy responsibilities.

Response 2:

We have carefully reviewed the legal requirements of the Act, its implementing regulations, and relevant case law, all relevant Executive, Secretarial, and Director Orders, Departmental and Service policy, and other Federal policies and procedures. We believe this rule and the process by which it was developed fully satisfies all of our legal, regulatory, and policy responsibilities. Issues relating to specific concerns such as identifying a DPS, using State boundaries as part of the DPS boundary, retaining the Act's protections in significant portions of the NRM DPS, legal criteria for judging adequate regulatory mechanisms, adequacy of the public comment process, clarity of our proposal, and several other legal requirements are each specifically addressed elsewhere in this rule. Furthermore, on December 12, 2008 a formal opinion was issued by the Solicitor of the Department of the Interior, “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). 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/

.

Issue 3:

Some commenters suggested that a new NEPA analysis on the 1995 reintroduction was needed because wolves have exceeded levels analyzed in the 1994 Environmental Impact Statement (EIS). Others suggested NEPA compliance on the delisting was needed for other reasons.

Response 3:

The 1994 EIS was limited to the NRM wolf reintroduction efforts and is not applicable to the delisting process. As noted in the proposed rule, NEPA compliance documents, such as environmental assessments or environmental impact statements, need not be prepared in connection with actions adopted pursuant to section 4(a) of the Act (listings, delistings, and reclassifications). A notice outlining the Service's reasons for this determination was published in the

Federal Register

on October 25, 1983 (48 FR 49244).

Issue 4:

Some commenters suggested that we did not adequately consult with Native American Tribes, as required by Secretarial Order 3206 and our Native American Policy.

Response 4:

During the development of the proposal and this final rule, we endeavored to consult with Native American Tribes and Native American organizations to provide them information concerning the proposal and gain an understanding of their perspectives. We made additional efforts to contact and inform Tribes during the comment period, including providing the opportunity for informational meetings with Tribal representatives before the open houses and hearings on the delisting proposal. As we have become aware of Native American concerns, we have tried to address those concerns to the extent allowed by the Act, the Administrative Procedures Act, and other Federal statutes. Specifically, we worked closely with and fund the Nez Perce Tribe's wolf management program, assisted the Wind River Tribes in developing a Tribal Wolf Management Plan (Wind River Tribes 2007) that we approved in June 2007, and coordinated with the Salish and Kootenai and Blackfeet Tribes regarding wolf management on their Tribal lands.

Recovery Goals, Recovery Criteria, and Delisting

Issue 5:

Some commenters suggested that we should not use numerical quotas in reclassification or delisting decisions for the gray wolf. Commenters offered a multitude of reasons why delisting is warranted/not warranted or premature/overdue.

Response 5:

The Act specifies that objective and measurable criteria be developed for recovering listed species. For a detailed discussion of the NRM wolf recovery criteria see the Recovery section. This final delisting determination is based upon the species' status relative to the Act's definition of threatened or endangered and considers potential threats to the species as outlined in section 4(a)(1) of the Act. Population numbers and status provide useful information for assessing the species' vulnerability to these factors. As described in detail in this rule, the species no longer meets the definition of threatened or endangered in all of its range, thus, delisting across most of the NRM DPS is warranted.

Issue 6:

Some commenters requested that we further explain the recovery criteria. These commenters expressed confusion over the current recovery goal because recent modifications have not been accomplished through the recovery planning process.

Response 6:

The Service's current recovery goal for the NRM gray wolf population is: Thirty or more breeding pairs (an adult male and an adult female that raise at least 2 pups until December 31) comprising 300+ wolves in a metapopulation (a population that exists as partially isolated sets of subpopulations) with genetic exchange between subpopulations (Service 1994; Fritts and Carbyn 1995). Step-down recovery targets require Montana, Idaho, and Wyoming to each maintain at least 10 breeding pairs and 100 wolves by managing for a safety margin of at least 15 breeding pairs and at least 150 wolves in mid-winter. Genetic exchange can be natural or, if necessary, agency managed. The rule now provides a fuller explanation of the recovery goals and their evolution over time (see the Reclassification and Recovery Goals section).

Issue 7:

Several commenters used the higher numbers of wolves required for recovery of wolves in the WGL DPS as evidence that the NRM wolf population is too low to delist.

Response 7:

The recovery goals for the WGL DPS and the NRM DPS differ because the biological circumstances (such as prey type and density, wolf density, habitat suitability, terrain, other ecological conditions, the history of recovery and planning efforts, and potential for human conflict) in each area differ. The WGL can support more and higher densities of wolves because of high white-tailed deer density, homogenous and more contiguous suitable habitat, different patterns of livestock density, distribution, and management, and different patterns of human access. However, the standards for achieving recovery have the same biological foundation. Each set of recovery goals required a metapopulation structure, numerical and distribution delisting criteria to be exceeded for several years, State plans that would adequately regulate wolf mortality, and sufficient elimination or reduction of threats to the population. The standards for achieving recovery in the WGL DPS and NRM DPS are both scientifically valid and realistically reflect the biological similarities and differences between each area.

Within the NRM DPS, most of the 170,227 km

2

(65,725 mi

2

) of suitable habitat for pack persistence is occupied and likely at or above long-term carrying capacity. The occupied portions of the NRM DPS have remained constant since 2002. Given limitations in available suitable habitat for pack persistence, significant expansion of the wolf population into new areas of the NRM DPS is unlikely. We believe maintaining the NRM gray wolf population at or above 1,500 wolves in currently occupied areas would slowly reduce wild prey abundance in suitable wolf habitat. This would result in a gradual decline in the number of wolves that could be supported in suitable habitat. Higher rates of livestock depredation in these and surrounding areas would follow. This too would reduce the wolf population because problem wolves are typically controlled.

The Great Lakes wolf population also grew until it saturated suitable habitat. Wolves in the Minnesota portion of the Great Lakes regions have not increased their distribution and numbers in the past ten years. In both the Great Lakes region and the NRM DPS, we set recovery targets at approximately one-third of carrying capacity, while the States plan to manage at about two-thirds of carrying capacity. We believe the biological carrying capacity of suitable habitat is set by wild prey distribution and density, ability of packs to persist, raise young and provide dispersers back into the population, level of conflict with people, overall rate of reproduction and morality, and a density and distribution of wolves and wolf packs necessary to maintain a viable metapopulation.

Issue 8:

Some commenters felt that the 1994 recovery goal was inadequate to ensure the continued viability of the NRM DPS. Specifically, they stated that the 1994 EIS could not properly evaluate the recovery goals because predicting the number of wolves the two then-unoccupied recovery zones might support was not possible. Some thought that the wolf recovery goals should be reevaluated given historic or current wolf numbers and distribution. Others thought that additional protection of the ecosystem, such as reduced livestock grazing, eliminating roads, and increasing restrictions on human development, on which the NRM wolves depend would be necessary to accomplish successful recovery in areas of historic occupancy. Some commenters stated that 2,000 to 6,000 or more wolves were necessary to maintain a viable and recovered wolf population. Others indicated that the wolf population was growing out of control and should be reduced to the minimum recovery goal of 300 wolves in 30 breeding pairs.

Response 8:

We do not dispute the fact that the NRM can support a wolf population that is several times higher than the minimum numerical recovery goal necessary to meet the Act's requirements. However, under the Act, species recovery is considered to be the return of a species to the point where it is no longer threatened or endangered. Recovery under the Act does not require restoring a species to historic levels or even maximizing possible density, distribution, or genetic diversity. The Service has reviewed the NRM wolf recovery goal to ensure it is adequate and that it has been fully achieved (see discussion in Recovery section). We have modified it when scientific evidence warranted. We determined that a 3-State wolf metapopulation that requires maintenance of at least 10 breeding pairs and at least 100 wolves in mid-winter per State by managing for a safety margin of at least 15 breeding pairs and at least 150 wolves in mid-winter per State is biologically recovered. Montana and Idaho have committed to maintain the NRM wolf population well above their minimum numerical and distributional share of the NRM wolf population. In Wyoming, the continuation of National Park Service and Service wolf management will assure that Wyoming's share of the NRM wolf population is maintained well above recovery levels. Collectively, these commitments indicate that the entire NRM wolf population is likely to consist of 973 to 1,302 wolves in 77 to 104 breeding pairs (See Recovery Planning and Factor D).

Commenters provided no convincing scientific evidence that at least 2,000 to 6,000 wolves are required in a wolf population for it to be recovered to meet the Act's purposes. Wolf populations in many parts of the world have remained viable at much lower levels unless they were deliberately extirpated by people. Furthermore, not only is the current population of 1,639 wolves far above minimum recovery levels, we have concluded that there is not enough suitable habitat in the NRM DPS to support 2,000 to 6,000 wolves over the long term without tolerating rates of livestock depredation and impacts to big game populations many times higher than has occurred in the past twenty years. Additional habitat protections in suitable habitat will not meaningfully increase carrying capacity of the NRM DPS. Restoration into areas currently considered unsuitable for pack persistence would require massive Federal and State programs to reduce or eliminate livestock on Federal, State, Tribal and, mostly, private property. Such an approach is unnecessary and unwarranted to remove the threat of extinction to the NRM DPS for the foreseeable future. Specifically, we do not believe there is a need for additional habitat protections in the NRMs as the DPS contains sufficient quality and quantity of habitat to maintain a healthy and viable wolf population in the long-term (as discussed in Factor A below). To the extant that a larger population is desired by some to sustain biological viability, the NRM wolf population represents a 650 km (400 mi) southern range extension of a vast contiguous wolf population that numbers over 12,000 wolves in western Canada and about 65,000 wolves across all of Canada and Alaska.

While some commenters felt that the NRM wolf population should be reduced to minimum recovery levels, the Act does not require or authorize the Service to manage a listed species to keep it from surpassing minimum recovery goals. States are also unlikely to accommodate this request as they have agreed to manage for a wolf population at least 50 percent above minimum recovery levels and will likely manage for a population of over 1,000 wolves, well above even this minimum level. Due to smaller safety margins to account for stochastic events, it would require much more intensive and costly monitoring and management to assure the future conservation of a

recovered wolf population that was composed of less than 500 wolves than it would for the greater than 1,000 wolves that will be maintained in the NRM by the States and Service after delisting.

Issue 9:

Some commenters questioned the objectivity of the peer review process for the recovery goals.

Response 9:

We used an extensive unbiased scientific peer review and public review process and our own expertise to help investigate, and modify as necessary, the recovery goals. We purposely invited reviews from experts with widely divergent philosophies to increase the range of opinions and perspectives. While the comments of some former litigants selected quotes from one end of the bell curve of all the diversity of opinion that was offered on wolf recovery goals to support their perspective (Fallon 2008), a review of the peer review comments in their entirety reveal the wide diversity of opinion (Bangs 2002). We continue to conclude, as did over three-fourths of the experts contacted, that the recovery goal is adequate to ensure wolves in the NRM do not again become threatened or endangered. Additionally, peer reviews of the State wolf management plans and the rulemaking process also confirmed the adequacy of the recovery goals to maintain a recovered wolf population in the NRM DPS. See the discussion in the recovery section for more details.

Issue 10:

We received numerous comments related to the recovery objective of having genetic exchange between subpopulations, the isolation of the GYA recovery area, and a perceived failure to meet the recovery goal because of the lack of successful migrants into the GYA. Many commenters expressed opinions on available options to achieve the genetic exchange mentioned in the recovery goal. Some commenters stated that only natural connectivity and gene flow constituted recovery. Some of these individuals believed the July 18, 2008, District Court preliminary injunction order mandated natural connectivity. Numerous commenters opined that agency-managed genetic exchange (moving individual wolves or their genes into the affected population segment) was “a government dating program” and did not constitute “true recovery” under the Act. Other commenters believed that it was biologically immaterial to wolf population status and genetic vigor whether such exchange occurred solely by natural dispersal or by human-assisted migration management. Others stated that while natural connectivity was desirable to reduce the need for management intervention and cost, human-assisted migration management was an important safeguard, if ever needed. Still other commenters concluded that even if the GYA was totally isolated, biological problems are unlikely to materialize at a meaningful level. These commenters pointed to wolf biology, strong recovery standards for the ecosystem, and actual real world cases of isolated wolf populations to support their position. Opinions and theoretical predictions varied on what level of gene flow was required and if State management practices would increase or decrease those opportunities. Finally, commenters provided thoughts on our draft memorandum of understanding regarding the protection of genetic diversity of NRM gray wolves. Some commenters stated there was no need for the MOU as State wolf management plans already committed potential signees to manage the issue. Other commenters stated that a promise of future action by the States was not legally sufficient to resolve future genetic concerns and allow delisting. Some said the MOU guaranteed genetic connectivity would never threaten the NRM wolf population.

Response 10:

Currently, genetic diversity throughout the NRM DPS is very high (Forbes and Boyd 1996, p. 1084; Forbes and Boyd 1997, p. 226; vonHoldt

et al.

2007, p. 19; vonHoldt

et al.

2008). Wolves in northwestern Montana and both the reintroduced populations are as genetically diverse as their vast, secure, healthy, contiguous, and connected source populations in Canada; thus, inadequate genetic diversity is not a wolf conservation issue in the NRM at this time (Forbes and Boyd 1997, p. 1089; vonHoldt

et al.

2007, p. 19). This genetic health is the result of deliberate management actions by the Service and its cooperators since 1995. It is misleading to compare the large, connected, and genetically robust NRM wolf population to very small, very inbred and very isolated wolf populations in order to forecast theoretical problems the NRM population may have with genetic diversity, let alone to an extent that could threaten the viability of the NRM wolf population. Dr. L.D. Mech, the world's foremost authority on wolves, responded to our inquiry about ways we might guarantee to ensure the future genetic health of the NRM wolf population (Fuller

et al.

2003, p. 189-190; Groen

et al.

2008) as “I consider this a nonissue.” Genetic issues are discussed further in Factor E below.

We agree that a portion of the Service's recovery goal calls for “genetic exchange between subpopulations” (see the Recovery section above). Genetic exchange was also a major focus of the July 18, 2008, District Court preliminary injunction order. The Recovery section of this rule now clarifies the Service's recovery goal, including the genetic exchange portion of it, to correct any misunderstandings or alternative interpretations of what constitutes biological wolf recovery in the NRM. This section provides wording from past documents to demonstrate that the Service recovery goal was never dependent on natural connectivity or proven multi-generation genetic exchange within any recovery segment. Instead, the primary purpose of this portion of the recovery goal was to ensure that no recovery area was totally isolated. The 1994 EIS (Service 1994, p. 6-7) defined a “Recovered wolf population” as “10 breeding pairs of wolves in each of 3 areas for 3 successive years with some level of movement between areas.” Natural dispersal and successful reproduction of radio-collared wolves has been documented between all three subpopulation.

Some commenters provided scientific papers that dealt with potential wildlife conservation problems resulting from low genetic diversity and inbreeding, or that such problems were unlikely to be resolved by only one immigrant. We appreciate those papers and perspectives and recognize low genetic diversity can have costs to population health. However, the problems resulting from low genetic diversity and inbreeding cited were in wildlife populations that started from very few founders and remained at low levels for long periods of time, remained isolated, existed in small fragmented habitats, and no management was taken to resolve problems. But even those populations grew very rapidly in suitable habitat after human-caused mortality was regulated. These examples have virtually no relevance to the NRM wolf population. The NRM wolf population is large. It started from many diverse founders, grew rapidly, has very high genetic diversity, is not isolated, and it is attached to a Canadian population composed of 12,000 wolves. Wolves in the NRM live in 3 genetically and demographically connected areas of secure suitable habitat covering an area of nearly 240,000 km

2

(100,000 mi

2

) and management actions have been and will continue to be used to resolve any actual genetic problems that might develop in the future. In addition, the purpose of the Act is not to maximize genetic diversity or to quibble about

genetic theory or the results of theoretical models and their assumptions. The Act is intended to prevent species from becoming extinct and clearly the NRM wolf population will never be threatened by low genetic diversity, genetic drift, or inbreeding. See Factor E for a detailed discussion of this issue.

Implementation of the recently finalized Genetics MOU (Groen

et al.

2008), which was improved by public and peer review comment, makes it even more unlikely that agency-managed genetic exchange would be necessary in the foreseeable future. This MOU recognizes that genetic diversity is currently very high throughout the NRM DPS and commits to establish and maintain a monitoring protocol to ensure that necessary levels of gene flow occur so that the population retains high levels of genetic and demographic diversity (Groen

et al.

2008). The number of effective migrants needed to maintain genetic diversity in any one recovery area is a function of its overall population size, the number of dispersers that successfully breed, and the demographic parameters of that population segment. As noted above, we believe current levels of natural connectivity are sufficient to address any theoretical genetic issues. However, we recognize work on this issue is ongoing. The MOU ensures this issue will be appropriately managed into the foreseeable future by the NRM DPS's State and Federal partners as new information comes to light (Groen

et al.

2008). Should genetic or demographic issues ever materialize that could threaten the NRM wolf population, an outcome we believe is extremely unlikely, the MOU ensures States will implement techniques to facilitate agency-managed genetic exchange (moving individual wolves or their genes into the affected population segment) (Groen

et al.

2008).

We believe Wyoming must institute additional protections to facilitate natural genetic exchange. Specifically, the State's regulatory framework should minimize take of non-problem wolves in all suitable habitat and across all of Wyoming's potential migration routes among NRM subpopulations. Statewide trophy game status will assist in this regard as migrating wolves use the current predator area. This measure is particularly important during peak dispersal, breeding, and pup rearing periods. In addition to requiring that Wyoming manage for at least 15 breeding pairs and at least 150 wolves in mid-winter in their State, Wyoming must also manage for at least 7 breeding pairs and at least 70 wolves in Wyoming outside the National Parks. Such requirements are necessary to provide adequate buffers to prevent the population from falling below recovery levels. This secondary goal will provide dispersing wolves more social openings and protection from excessive human-caused mortality. This will also maintain a sufficiently large number of wolves in the GYA; larger population size is a proven remedy to genetic inbreeding. Until Wyoming develops adequate regulatory mechanisms, continued Federal management of the Wyoming wolf population will maximize potential for genetic exchange.

Future Wolf Numbers

Issue 11:

Many commenters pointed out that the States will manage for fewer wolves than currently exist. Some commenters thought that fewer wolves would reduce the number of dispersing wolves and limit natural connectivity among the subpopulations. Others recommended that we recognize and take into account the fact that wolf numbers can fluctuate dramatically.

Response 11:

The delisted NRM DPS wolf population is likely to be reduced from its current levels of around 1,639 wolves by State management. Below carrying capacity (the current carrying capacity of suitable habitat in the NRM may be around 1,500 wolves), the population is likely to continue to reproduce at high rates. However, attempts to maintain the population above 1,500 wolves may be difficult because suitable habitat will be fully occupied and packs attempting to colonize unsuitable habitat would cause chronic conflict with livestock. Regardless, wolf populations in the three States containing most of the occupied and most of the suitable habitat in the NRM DPS will be managed for at least 15 breeding pairs and at least 150 wolves so that the population never goes below recovery levels. The entire NRM wolf population is likely to consist of 973 to 1,302 wolves in 77 to 104 breeding pairs. Specifically, State projections indicate the NRM wolf population in Montana and Idaho will likely be managed for around 673 to 1,002 wolves in 52 to 79 breeding pairs (See Recovery Planning and Factor D). In Wyoming, the Act's protections will remain in place, thus, Wyoming is likely to maintain a wolf population of about 300 wolves in 22 breeding pairs. We believe maintenance well above the minimum recovery goal is more than sufficient to maintain wolf recovery in the NRM.

We recognize that the planned reduction in overall population numbers could reduce dispersal and connectivity among subpopulations. If the population is managed for over a thousand wolves, as expected, we believe the impact on dispersal and connectivity will be negligible. If the population is managed to the minimum recovery target of 150 wolves per State, dispersal would be noticeably impacted, which could require costly and intensive management to mitigate. However, even when wolf populations were low in number and throughout the period when mortality averaged 23 percent of the population annually, some dispersal events occurred between all three recovery areas. We expect some dispersal will continue regardless of the number managed for. State and Tribal management in Montana and Idaho, in combination with continued Federal management of Wyoming, will continue to focus on this issue, especially in regards to the GYA. We believe these efforts will ensure sufficient levels of connectivity among the subpopulations. Should genetic issues that could threaten the population ever materialize, an outcome we believe is extremely unlikely, agency-managed genetic exchange will be used to correct the issue.

We and our State partners recognize that all wildlife populations, including wolves, can fluctuate widely over a relatively short period of time. By managing for at least 50 percent above the minimal recovery levels, and likely for over one thousand wolves, State and Federal management provide an adequate safety margin. This margin, combined with the State's commitment to adaptively manage the species as needed, adequately addressed concerns about population fluctuations.

Additional Recovery Efforts

Issue 12:

Several commenters thought that the Service should have modified our recovery planning and implementation efforts after revising the listing to a single lower 48-State listing in 1978. Commenters requested we develop a single recovery plan for the lower 48-State listed entity before delisting any portion of it. Other commenters thought that the Service should use subspecies to identify DPSs across the gray wolf's historical range, and these DPSs should replace or supplement the current recovery zones. Still others expressed their opinion that additional recovery efforts across the entire lower 48-States were unwise and unnecessary. The adjacent States of California, Nevada, Colorado, Utah, Oregon, and Washington were mentioned most frequently for additional recovery programs. Other

commenters recommended wolves be reintroduced into places such as Central Park in New York City or the National Mall in Washington, DC.

Response 12:

We believe possible future wolf recovery efforts are beyond the scope of this rulemaking as such actions are not necessary to ensure that the NRM DPS remains unlikely to become endangered in the foreseeable future throughout all or a significant portion of its range.

Nevertheless, let us clarify our position on this issue. As noted in the 1978 reclassification rule, we replaced the previous subspecies listings with a single conterminous 48-State entity in order to “most conveniently” handle the gray wolf listing. Our 1978 reclassification rule provided assurances that we would continue to recognize valid biological subspecies for purposes of our research and conservation programs (39 FR 1171, January 4, 1974). The NRM DPS approximates the U.S. historic range of the purported NRM gray wolf subspecies (

C. l. irremotus

) (Service 1980, p. 3; Service 1987, p. 2; 39 FR 1171, January 4, 1974). We never intended, nor do we think it is realistic, to recover the species across the entire lower 48-States.

Finally, we believe we have satisfied our statutory responsibilities for recovery planning. Section 4(f)(1) of the Act instructs us to develop plans for the conservation and survival of threatened and endangered species. The Act further states that priority be given to species that are most likely to benefit from such plans. To this end, we have prioritized gray wolf recovery planning efforts to focus on the NRM, the Great Lakes Region, and the Southwest. We completed a recovery plan for the NRM in 1980 and revised it in 1987. In the Great Lakes Region, we completed a recovery plan in 1978 and revised it in 1992. In the Southwest, a recovery plan was completed in 1982. Any additional planning is discretionary. At this time the Service's resources will be focused on delisting the recovered wolf populations in the Midwest and NRM, and recovering gray wolves in the southwest and red wolves (

Canis rufus

) in the southeast.

Issue 13:

Several commenters thought that wolf recovery should require recolonization of all historical range or, at least, the portions of the historical range that could be made suitable. Some recommended that wolves remain listed to promote wolf restoration within unoccupied portions of the species' historic range, both in and beyond the NRM DPS. Others indicated that the concepts of resiliency, redundancy, and representation need to be addressed over a much broader area. Some believed that our interpretation of recovery led us to focus on occupied habitat and controlling excessive rates of human-caused mortality rather than “true recovery.” It was stated that “true recovery” requires natural connectivity or linkage, protection and enhancement of existing population levels, widespread habitat protection and restoration, and protective regulatory mechanisms.

Response 13:

We believe these recommendations would expand the purpose of the Act. The Act defines conservation as the use of all methods and procedures necessary to bring any endangered or threatened species to the point where the measures provided pursuant to the Act are no longer necessary. According to our implementing regulations (50 CFR 424.11), when a species no longer meets the definition of an endangered or threatened species under the Act, it is recovered, and we are to delist it.

Restoration of historically occupied areas can play a role in achieving the goal of recovery. In this case, occupancy has been restored and will be maintained across the vast majority of the suitable habitat with the NRM DPS. Maintained occupancy across most suitable habitat in Montana and Idaho ensures that the NRM DPS remains unlikely to become endangered in the foreseeable future throughout all of its range. Continued Federal protections in Wyoming ensure this significant portion of the NRM DPS will be maintained. Occupancy across large portions of the historical range, unless required to preclude the NRM DPS from again becoming threatened or endangered, are beyond the requirements of the Act.

Reintroducing wolves to areas of highly unsuitable habitat outside the NRM was not considered relevant to this rule. Furthermore, most historic wolf habitat in the contiguous United States has been so modified by people that it is currently unsuitable for wolves.

Resiliency, redundancy, and representation (described in detail in the Conclusion of the 5-Factor Analysis section below) are important factors in the long-term conservation status of any species (Shaffer and Stein 2000). Within the NRM DPS, each of the States and each of the recovery areas meaningfully contributes to its resiliency, redundancy, and representation. Across the lower 48-States, the three wolf populations in the lower 48-States (WGL DPS, NRM DPS, and Mexican wolf) provide the necessary resiliency, redundancy, and representation. These three populations also represent all the genetic diversity remaining in wolves south of Canada after their widespread extirpation during European colonization (Leonard

et al.

2005, p. 9). Additionally, the species remains abundant in many areas of the northern hemisphere. Collectively, this information shows that these principles of conservation biology are satisfied.

We dispute the assertion that we have inappropriately focused our recovery efforts on occupied habitat and mortality control. In fact, we have focused recovery efforts on wolf population levels, distribution, habitat, connectivity, all forms of mortality, wolf/human conflicts, diseases and parasites, predation, human attitudes, genetics, and dispersal (Service

et al.

2002-8). We have worked to maintain public tolerance of wolves by limiting damage to private property. These recovery efforts led to significant increases in wolf numbers and range, allowing wolves to reoccupy habitats they were absent from since the 1930s. Our efforts also provided demographic, genetic, and habitat security. Wolf packs now occupy most of the large blocks of suitable habitat within the DPS. This comprehensive approach to recovery will be continued under State management in Montana and Idaho in the future. Additional recovery actions necessary to achieve a more widely distributed and numerically abundant population are not necessary to meet the definition of recovered under the Act.

Issue 14:

Many commenters thought that we failed to recognize the ecological importance of trophic cascades (the ripple effect in predator, herbivore, plant, and scavenger communities caused by restoring a keystone species like wolves) and ecological effects emanating from wolf restoration in the NRM. Some commenters stated that the Act mandates that a species be “ecologically effective.” Still other commenters thought we should use an “ecosystem approach” when implementing recovery. Finally, some commenters suggested delisting does not fulfill parts of the Service mission which includes, “working with others, to conserve, protect and enhance fish, wildlife, and plants and their habitats for the continuing benefit to the American people.”

Response 14:

We recognize that wolf recovery appears to have caused trophic cascades and ecological effects that affect numerous other animal and plant communities, and their relationships with each other. These effects have been most pronounced in pristine areas, such as in YNP. While these effects likely

still occur at varying degrees elsewhere, they are increasingly modified and subtle the more an area is affected by humans (Smith

et al.

2003, pp. 334-338; Robbins 2004, pp. 80-81; Campbell

et al.

2006, pp. 747-753; Hebblewhite

et al.

2005, p. 2135; Garrott

et al.

2005, p. 1245). While some believe we should stall delisting until these cascading ecological effects are restored throughout the DPS or beyond, this approach is not a requirement of the Act. Instead, when a species no longer meets the definition of an endangered or threatened species under the Act, it is recovered, and we are to delist it. Similarly, the Act does not require that we achieve or maintain “ecological effectiveness” (i.e., occupancy with densities that maintain critical ecosystem interactions and help ensure against ecosystem degradation) (Soule

et al.

2003, p. 1239).

Service policy intends that we apply an ecosystem approach in carrying out our programs for fish and wildlife conservation (National Policy Issuances 95-03 and 96-10; 59 FR 34274, July 1, 1994). The goal of such an approach is to strive to contribute to the effective conservation of natural biological diversity through perpetuation of dynamic, healthy ecosystems when carrying our various mandates and functions. Preserving and recovering endangered and threatened species is one of the more basic aspects of an ecosystem approach to conservation. Successful recovery of a rare species requires that the necessary components of its habitat and ecosystem be conserved, and that diverse partnerships be developed to ensure the long-term protection of those components. Thus, the recovery success demonstrated for gray wolves, a keystone or “highly interactive species” (as defined by Soule

et al.

2003), also is a demonstration of the ecosystem approach.

Finally, we believe delisting portrays successful adherence to our mission statement. Gray wolf recovery programs involve many partners in the private and public sector, at all levels of government, and include numerous other State and Federal agencies. The wolf recovery successes described in this rule resulted from working with others to conserve, protect, and enhance gray wolf populations in the NRM. That success has now reached a point where the NRM wolf population, except Wyoming, no longer qualifies for protection under the Act, so we are delisting most of the NRM DPS. Long-term maintenance of a recovered gray wolf population will provide a continuing benefit to the American people.

Issue 15:

Some commenters suggested that we should delist gray wolves in areas outside of the proposed DPS because: Wolves are common elsewhere (in other areas of the lower 48 States or in Alaska and Canada); wolves have recovered (in that area or elsewhere); wolves are extirpated in many areas and could be delisted on the basis of extinction in those areas; keeping wolves listed where there is little or no suitable habitat results in irresolvable conflicts; and a State can manage a resident species better than the Federal government.

Response 15:

The Federal status of wolves under the Act outside of the NRM DPS is beyond the scope of this action. An evaluation of these areas for either delisting or additional recovery efforts will be forthcoming in a separate effort.

Identifying the NRM Distinct Population Segment

Issue 16:

Some commenters suggested that we improperly recognized the NRM DPS. Some asserted that the Service may not identify a DPS within a broader pre-existing listed entity for the purpose of delisting the DPS. Other held the opposite view, that a DPS-level delisting was allowed. These commenters also noted that the NRM population met the DPS policy's criteria for discreteness and significance, thus, should be recognized as DPS. They suggested that precluding delisting until entire lower 48-State entity was recovered would punish the States that had recovered the species. Some opined that a DPS could not be created and delisted in the same listing action.

Response 16:

As described above, we have determined the NRM DPS is biologically based, appropriate, and was developed in accordance with the Act and the Distinct Vertebrate Population Segment Policy. Our ability to identify a DPS within a broader pre-existing listed entity was the subject of a recent decision of the U.S. District Court for the District of Columbia (

Humane Society of the United States

v.

Kempthorne

, Civil Action No. 07-0677 (PLF) (D.D.C., Sept. 29, 2008)). This order remanded and vacated our February 7, 2008, final rule that identified the WGL DPS of gray wolves and determined that these wolves should be delisted (72 FR 6052). The court found that the Service had made that decision based on its interpretation that the plain meaning of the Act authorizes the Service to create 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 could provide a reasoned explanation of how its interpretation is consistent with the text, structure, legislative history, judicial interpretations, and policy objectives of the Act.

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 species, 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 and such action is the same as the action we are taking today regarding the NRM DPS when we determine that wolves in most of the NRM DPS no longer need ESA protections and that the List of Threatened and Endangered Wildlife should be revised to reflect the current status of these wolves. 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.

As stated previously, 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). 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 Service fully agrees with the analysis and conclusions set out in the Solicitor's opinion and 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/

.

In regard to the NRM wolves, such an approach is further supported by the fact that the DPS is consistent with over 30 years of recovery efforts in the NRMs in that: (1) The DPS approximates the U.S. historic range of the NRM gray wolf subspecies (

C. l. irremotus

) (Service 1980, p. 3; Service 1987, p. 2) which was the originally listed entity in 1974 (39 FR 1171, January 4, 1974); (2) the DPS boundaries are inclusive of the areas focused on by both NRM recovery plans (Service 1980, pp. 7-8; Service 1987, p. 23) and the 1994 environmental impact statement (EIS) (Service 1994, Ch. 1 p. 3); and (3) the DPS is inclusive of the entire Central-Idaho and Yellowstone Non-essential Experimental Population areas (59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 50 CFR 17.84 (i) & (n)).

Issue 17:

Some commenters suggested that the NRM gray wolf population is not a DPS because all populations in the lower 48 States were once connected. Thus, the population should not be considered discrete.

Response 17:

A comprehensive evaluation of the NRM gray wolf population's discreteness is included in the “Analysis for Discreteness” section of the rule above. Historical distribution has no bearing on the NRM population's current discreteness. The boundaries of the NRM DPS consider likely dispersal distances and surrounding unsuitable habitat. We believe a continuous uninterrupted population throughout the lower 48-States, as existed historically, is not achievable. The best scientific and commercial information available indicates the NRM population will remain markedly separated from other gray wolf populations in the lower 48-States. Occupancy in the intervening areas is unsustainable because the areas have been too modified by people for wolves to survive.

Issue 18:

Several people stated that the DPS policy is to be used only in listing decisions and that using it in a delisting decision violates Congressional intent and the legislative and statutory structure of the Act.

Response 18:

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

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

Issue 19:

Some commenters pointed out that the recognition of the NRM DPS created a remnant population. Some commenters suggested this violates the Act as the Act allows us to “consider listing only an entire species, subspecies, or DPS” (

Alsea Valley Alliance

v.

Evans

, 161 F. Supp. 2d 1154, 1162 (D. Or. 2001)); therefore, we cannot declare part of a listed species a DPS without also identifying the remaining listed species as DPS(s).

Response 19:

While in some situations it may be appropriate to recognize multiple DPSs simultaneously, the Act does not require it. This flexibility allows the Service to subsequently list or delist additional DPSs when additional information becomes available or as the conservation status of the taxon changes. Importantly, a court stated that the Act allows this flexibility. In

National Wildlife Federation

v.

Norton

(385 F. Supp. 2d 553, 565 (D. Vt. 2005), the court found that “Nowhere in the Act is the Secretary prevented from creating a `non-DPS remnant,' especially when the remnant area was already listed * * *” Our current identification of a NRM DPS, while retaining the remaining other wolves listed as endangered or nonessential experimental, is consistent with this aspect of the District Court's ruling.

Furthermore, just as the NRM DPS is discrete from the remaining populations in the lower 48 States, the remaining populations are discrete from the NRM DPS. The amended lower 48 State listing is discrete from Canadian populations of gray wolf as delineated by the United States/Canadian international boundary, with significant differences in control of exploitation, management of habitat, conservation status, and regulatory mechanisms. The amended lower 48 State listing is significant in that its loss would result in a significant gap in the range of the taxon (

C. lupus

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

Issue 20:

Some commenters felt that a wolf dispersing outside of the DPS boundaries (e.g., into Colorado) may create confusi

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