Wolf Crossing

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

SUMMARY: On February 8, 2007, we, the U.S. Fish and Wildlife Service 
(Service), published a proposed rule to establish a distinct population 
segment (DPS) of the gray wolf (Canis lupus) in the Northern Rocky 
Mountains (NRM) of the United States and to remove the gray wolf in the 
NRM DPS from the List of Endangered and Threatened Wildlife under the 
Endangered Species Act of 1973, as amended (Act) (72 FR 6106). On 
February 27, 2008, we issued a final rule establishing and delisting 
the NRM gray wolf DPS (73 FR 10514). Several parties filed a lawsuit 
challenging our final rule and asking to have it enjoined. On July 18, 
2008, the U.S. District Court for the District of Montana enjoined the 
Service’s implementation of the final delisting rule, after concluding 
that Plaintiffs were likely to prevail on merits of their claims. In 
light of this decision, we asked the court to vacate the final rule and 
remand it to us. On October 14, 2008, the court issued an order 
vacating our February 27, 2008, final rule (73 FR 10514) and remanding
it back to the Service for further consideration.
    We announce the reopening of the comment period for our February 8, 
2007, proposed rule (72 FR 6106). We now intend to reconsider our 2007 
proposed rule and issue a new listing determination. We seek 
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 (described in more 
detail below), 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 Western Great Lakes gray wolf DPS (also described in more detail 
below). If you have previously submitted comments, please do not 
resubmit them because we have already incorporated them in the public 
record and will fully consider them in our final decision.

DATES: We request that comments on this proposal be submitted by the 
close of business on November 28, 2008.

ADDRESSES: You may submit comments by one of the following methods:
    Federal eRulemaking Portal: http:// www.regulations.gov. 
Follow the instructions for submitting comments.
    U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AW37; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.

We will not accept e-mail or faxes. We will post all comments on http:/
/www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Edward E. Bangs, Western Gray Wolf 
Recovery Coordinator, U.S. Fish and Wildlife Service, 585 Shepard Way, 
Helena, MT 59601 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:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we hereby 
request data, comments, new information, or suggestions from the 
public, other concerned governmental agencies, the scientific 
community, Tribes, industry, or any other interested party concerning 
this proposed rule. We particularly seek comments concerning:
    (1) Whether it is appropriate or necessary to revise our recovery 
goal (described below) to clarify that the genetic exchange called for 
can be satisfied through either natural migration or managed genetic 
exchange.
    (2) What additional management, protections, and regulatory 
mechanisms may be needed to facilitate genetic exchange (including both 
natural migration and managed genetic exchange) including the actions 
outlined in the draft memorandum of understanding regarding the 
protection of genetic diversity of NRM gray wolves (available online 
at: http://westerngraywolf.fws.gov).
    (3) What portions of Wyoming need to be managed as a trophy game 
area, how Wyoming should manage wolves in the trophy game area, and the 
significance of all portions of the range in the State of Wyoming in 
maintaining the viability of the NRM DPS.
    (4) The adequacy of existing regulatory mechanisms in Montana, 
Idaho, and Wyoming, including whether Wyoming’s regulatory mechanisms 
do or should manage for 15 breeding pairs and 150 wolves in mid-winter 
and if Wyoming’s malleable trophy game area affects its ability to 
manage for such numbers of wolves.
    (5) If we determine that Wyoming’s State law and State wolf 
management plan do not constitute adequate regulatory mechanisms, the 
area in northwestern Wyoming that is a significant portion of the range 
of the NRM DPS that should retain its nonessential experimental 
population status under section 10(j) of the Act, even if we determine 
the rest of the DPS should be delisted.
    (6) How Idaho, Montana, and Wyoming’s management of take associated 
with their defense of property laws and hunting regulations affects 
each State’s commitment and ability to manage for 15 breeding pairs and 
150 wolves in mid-winter.
    (7) Whether and under what authority the Service may identify and 
designate a DPS within a broader pre-existing listing and determine 
that this DPS should be removed from the endangered species list.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section. We will not accept anonymous comments; your 
comment must include your first and last name, city, State, country, 
and postal (zip) code. Finally, we will not consider hand-delivered 
comments that we do not receive or mailed comments that are not 
postmarked by the date specified in the DATES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment–including any personal identifying information–will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information in addition to the required items 
specified above, such as your street address, phone number, or e-mail 
address, you may request at the top of your document that we withhold 
this information from public review. However, we cannot guarantee that 
we will be able to do so. We will post all hardcopy comments on http://
www.regulations.gov.

Background

    Northern Rocky Mountains DPS Rulemaking and Litigation–On February 
8, 2007, we proposed to designate the NRM DPS of the gray wolf and to 
delist all or most 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 area in 
northwestern Wyoming outside the National Parks (i.e., Yellowstone 
National Park, Grand Teton National Park, and John D. Rockefeller 
Memorial Parkway) would only be delisted in the final rule if the 
Service subsequently determined that adequate State regulatory 
mechanisms were developed. If adequate regulatory mechanisms were not 
developed, we were considering a final rule that would have continued 
to protect wolves under the Act and retained their nonessential 
experimental status in the significant portion of the range in 
northwestern Wyoming, outside the National Parks, while removing the 
Act’s protections in the remainder of the DPS.
    On July 6, 2007, the Service extended the comment period in order 
to consider a 2007 revised Wyoming wolf management plan and State law 
(available online at: http://westerngraywolf.fws.gov) that we stated, 
if implemented, could allow the wolves in northwestern Wyoming to be 
removed from the List of Endangered and Threatened Wildlife (72 FR 
36939). On November 16, 2007, the Wyoming Game and Fish Commission 
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, pp. 1-2).
On February 27, 2008, we issued a final rule establishing the NRM gray 
wolf DPS and removing the entire DPS from the List of Endangered and 
Threatened Wildlife (73 FR 10514).
    On April 28, 2008, 12 parties filed a lawsuit challenging the 
designation 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 15 breeding pairs and Wyoming’s 2007 
statute allowed the Wyoming Fish and Wildlife Commission 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 (available online 
at: http://westerngraywolf.fws.gov) concluded that the Plaintiffs were 
likely to prevail on the merits of their claims. In light of the 
district court decision, 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.
    Western Great Lakes DPS Rulemaking and Litigation–Some persons who 
commented on our proposed rule asserted that the Service may not 
designate a DPS within a broader pre-existing listed entity for the 
purpose of delisting the DPS. This issue is also the subject of a 
recent decision of the U.S. District Court for the District of 
Columbia, which remanded and vacated the February 7, 2008, final rule 
that established the Western Great Lakes DPS of gray wolves and 
determined that it 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 ESA 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 (Humane Society of 
the United States v. Kempthorne, Civil Action No. 07-0677 (PLF) 
(D.D.C., Sept. 29. 2008)).
    The Service is considering how to proceed with the Western Great 
Lakes gray wolf DPS. In the meantime, it is our view that the plain 
language of the Act does provide the Service with the flexibility to 
designate a DPS within a broader pre-existing listed entity and then to 
determine the correct conservation status of the DPS pursuant to 
section 4(a)(1) of the Act (i.e., endangered, threatened, or neither), 
even though the conservation status of the broader entity may differ. 
Alternatively, the Service has reasonably interpreted the Act through 
the DPS Policy (61 FR 4722, February 7, 1996) and other actions as 
authorizing the Service to designate a DPS within a broader entity and 
determine its proper conservation status, even if that means that the 
DPS is delisted.
    Given the court rulings and orders described above, we now intend 
to issue a revised listing determination for the NRM gray wolf DPS to 
address the issues noted by the courts and other new information 
relevant to this action. We also will comprehensively address other 
issues outlined in the complaint and a notice of intent to sue. Several 
of the most important issues being reconsidered are discussed below. 
Comments are also requested on each of these issues.

Recent Status and Distribution Information

    In mid-September of each year we estimate the number of wolves, 
packs, and breeding pairs, as well as livestock depredations and wolves 
killed as a result of agency-authorized control. These counts are 
preliminary, because wolf counting conditions are most accurate in 
early winter due to snow cover. Consequently, the estimates given below 
should be interpreted cautiously. The only “official” annual wolf 
population statistics are provided in the interagency annual report, 
which is normally available in March each year.
    Our annual mid-September wolf population estimate indicates that 
the overall NRM wolf population in 2008 will be about the same as it 
was in 2007. We also predict that both livestock depredations and 
problem wolf removal in 2008 will be slightly higher than they were in 
2007.
    Our mid-September 2007 estimate indicated that this time last year 
there were approximately 1,544 wolves (394 in Montana; 788 in Idaho; 
362 in Wyoming) in 179 packs (71 in Montana; 75 in Idaho; 33 in 
Wyoming) with 105 of those classified as breeding pairs (37 in Montana; 
41 in Idaho; 27 in Wyoming). Our mid-September 2007 estimate indicated 
wolves had killed 112 cattle (48 in Montana; 36 in Idaho; 28 in 
Wyoming), 185 sheep (19 in Montana; 150 in Idaho; 16 in Wyoming), 10 
dogs (1 in Montana; 7 in Idaho; 2 in Wyoming), and a horse (in 
Montana). In response, 135 depredating wolves (50 in Montana; 40 in 
Idaho; 45 in Wyoming) had been killed.
    Our mid-September 2008 estimate indicated there were approximately 
1,463 wolves (360 in Montana; 771 in Idaho; 332 in Wyoming) in 197 
packs (74 in Montana; 89 in Idaho; 34 in Wyoming) with 97 of those 
classified as breeding pairs (36 in Montana; 39 in Idaho; 22 in 
Wyoming). Our mid-September 2008 estimate indicated wolves had killed 
170 cattle (44 in Montana; 81 in Idaho; 45 in Wyoming), 244 sheep (39 
in Montana; 189 in Idaho; 16 in Wyoming), 10 dogs (in Idaho), and 6 
llamas (in Montana). In response, 172 depredating wolves (60 in 
Montana; 81 in Idaho; 31 in Wyoming) had been killed.
    No unusual wolf dispersal events were documented in the NRM DPS in 
2008. A radio-collared wolf from central Idaho continues to live in 
Yellowstone National Park, but it has not joined an existing pack, nor 
did it appear to breed in 2008. A report of a pack of wolves in 
northeastern Utah east of Flaming Gorge Reservoir (outside the proposed 
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 proposed NRM DPS) was investigated in August 2008. 
The existence of this pack was not confirmed.
    A wolf pack (2 adults and 6 pups) was discovered near Twisp, 
Washington, in July 2008. Their territory is outside the proposed NRM 
DPS border. 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. The pack is being monitored via 
radio telemetry by Washington Department of Fish and Wildlife (WDFW). 
On August 22, 2008, the WDFW published a draft State wolf management 
plan for public review and comment. The comment period for this plan 
runs through October 27, 2008. The WDFW anticipates their proposed plan 
will be revised and sent to the Washington Fish and Wildlife Commission 
for approval in late 2009.
    We are reopening the public comment period on our 2007 delisting 
proposal to
allow the public to consider and comment on all new information on the 
NRM wolf population and issues regarding the proposed delisting on this 
population including that which is summarized in this notice.