Federal Register Notice
90-Day Finding on Petitions To Delist the Gray Wolf in Minnesota, Wisconsin, Michigan, and the Western Great Lakes
Below are the Summary and Background sections. Click here to download a PDF file of the entire 6-page Federal Register Notice of the 90-Day Finding on Petitions to Delist the Gray Wolf in Minnesota, Michigan, and Wisconsin
DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R3–ES–2010–0062; 92220–1113–0000–C6]
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of petition finding and initiation of status review.
SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day finding on petitions to remove (delist) the gray wolf in the western Great Lakes from the List of Endangered and Threatened Wildlife (List) established under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petitions present substantial scientific or commercial information indicating that removing the gray wolf in Minnesota, Wisconsin, and Michigan from the List may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if delisting in Minnesota, Wisconsin, and Michigan is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding the gray wolf in Minnesota, Wisconsin, and Michigan. Based on the status review, we will issue a 12-month finding on the petitions, which will address whether any of the petitioned actions are warranted, as provided in section 4(b)(3)(B) of the Act.
DATES: To allow us adequate time to conduct this review, we request that we receive information on or before November 15, 2010. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES section, below), the deadline for submitting an electronic comment is 12:00 Midnight, Eastern Standard Time on this date.
• Federal eRulemaking Portal: http:// www.regulations.gov. In the box that reads ‘‘Enter Keyword or ID,’’ enter the Docket number for this finding, which is [FWS–R3–ES–2010–0062]. Check the box that reads ‘‘Open for Comment/ Submission,’’ and then click the Search button. You should then see an icon that reads ‘‘Submit a Comment.’’ Please ensure that you have found the correct rulemaking before submitting your comment.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R3– ES–2010–0062, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington, VA 22203. We will post all information we receive on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Request for Information section below for more details).
After the date specified in DATES, you must submit information directly to the Regional Office (see FOR FURTHER INFORMATION CONTACT section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.
Laura Ragan, Endangered Species Listing Coordinator, Midwest Regional Office, U.S. Fish and Wildlife Service, 1 Federal Drive, Fort Snelling, Minnesota, 55111, by telephone (612–713–5350), or by facsimile (612–713–5292). If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800–877–8339.
Request for Information
When we make a finding that a petition to remove (delist) a species from the List of Endangered and Threatened Wildlife presents substantial information that the petitioned action may be warranted, we are required to promptly commence a review of the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the gray wolf in Minnesota, Wisconsin, and Michigan from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:
(1) The species’ biology, range, and population trends, including:
(2) The factors that are the basis for making a delisting determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are:
(3) Current or planned activities in the western Great Lakes region and their possible impacts on the wolf and its habitat;
(4) Information concerning the adequacy of the recovery criteria described in the 1992 Recovery Plan for the Eastern Timber Wolf;
(5) The extent and adequacy of Federal, State, and tribal protection and management that would be provided to the wolf in the western Great Lakes region as a delisted species;
(6) Whether gray wolves in Minnesota alone; or in Minnesota and Wisconsin combined; or in Minnesota, Wisconsin, and Michigan combined constitute distinct population segments or entities that which may be removed from the List of Endangered and Threatened Wildlife under the Act; and
(7) Information or data regarding the taxonomy of wolves in the western Great Lakes region. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’
You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http:// www.regulations.gov.
Information and supporting documentation that we received and used in preparing this finding is available for you to review at http:// www.regulations.gov, or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Midwest Regional Office (see FOR FURTHER INFORMATION CONTACT).
Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is ‘‘that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted’’ (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which we subsequently summarize in our 12- month finding.
On March 15, 2010, we received a petition from the Minnesota Department of Natural Resources (MNDNR) requesting that the gray wolf in Minnesota be removed from the lists of endangered or threatened species under the Act. In an April 16, 2010, letter to the MNDNR, we responded that we received the petition and provided an explanation of the petition process. On April 26, 2010, we received a petition from the Wisconsin Department of Natural Resources (WIDNR) requesting that the gray wolf in Minnesota and Wisconsin be removed from the lists of endangered or threatened species under the Act. In a May 14, 2010 letter, to the WIDNR, we responded that we received the petition and provided an explanation of the petition process. On April 26, 2010, we received a petition from the U.S. Sportsmen’s Alliance, representing five other organizations, requesting that gray wolves in the Great Lakes area be removed from the lists of endangered or threatened species under the Act. In a May 28, 2010, letter to the U.S. Sportsmen’s Alliance, we responded that we received the petition and provided an explanation of the petition process. On June 17, 2010, we received a petition from Safari Club International, Safari Club International Foundation and the National Rifle Association of America requesting that wolves of the western Great Lakes be removed from the list of endangered and threatened species. In a June 30, 2010, letter to the Safari Club International we responded that we received the petition and provided an explanation of the petition process.
All of the petitions clearly identified themselves as such and included the requisite identification information from the petitioner, as required by 50 CFR 424.14(a). This finding addresses the four petitions.
Previous Federal Actions
The eastern timber wolf (Canis lupus lycaon) was listed as endangered in Minnesota and Michigan, and the northern Rocky Mountain wolf (C. l. irremotus) was listed as endangered in Montana and Wyoming in the first list of species that were protected under the 1973 Act, published in May 1974 (USDI 1974). A third gray wolf subspecies, the Mexican wolf (C. l. baileyi), was listed as endangered on April 28, 1976, (41 FR 17736) with its known range given as ‘‘Mexico, USA (Arizona, New Mexico, Texas).’’ On June 14, 1976, (41 FR 240624) the subspecies C. l. monstrabilis was listed as endangered (under the misleading common name ‘‘Gray wolf’’), and its range was described as ‘‘Texas, New Mexico, Mexico.’’
On March 9, 1978, we published a rule (43 FR 9607) relisting the gray wolf at the species level (Canis lupus) as endangered throughout the conterminous 48 States and Mexico, except for Minnesota, where the gray wolf was reclassified to threatened. In addition, critical habitat was designated in that rulemaking. In 50 CFR 17.95(a), we describe Isle Royale National Park, Michigan, and Minnesota wolf management zones 1, 2, and 3 (delineated in 50 CFR 17.40(d)(1)) as critical habitat. At that time we also developed special regulations under section 4(d) of the Act for managing wolves in Minnesota. The depredation control portion of the special regulation was later modified (50 FR 50792; December 12, 1985); these special regulations are found in 50 CFR 17.40(d)(2).
On April 1, 2003, we published a final rule revising the listing status of the gray wolf across most of the conterminous United States (68 FR 15804). Within that rule, we identified three distinct population segments (DPS) for the gray wolf. Gray wolves in the Western DPS and the Eastern DPS were reclassified from endangered to threatened, except where already classified as threatened or as an experimental population. Gray wolves in the Southwestern DPS retained their previous endangered or experimental population status. The three existing gray wolf experimental population designations were not affected by the April 1, 2003, final rule. We removed gray wolves from the lists of threatened and endangered wildlife in all or parts of 16 southern and eastern States where the species historically did not occur. We also established a new special rule under section 4(d) of the Act for the threatened Western DPS to increase our ability to effectively manage wolf– human conflicts outside the two experimental population areas in the Western DPS. In addition, we established a second section 4(d) rule that applied provisions similar to those previously in effect in Minnesota to most of the Eastern DPS. These two special rules were codified in 50 CFR 17.40(n) and (o), respectively.
On January 31, 2005, and August 19, 2005, U.S. District Courts in Oregon and Vermont, respectively, ruled that the April 1, 2003, final rule violated the Act (Defenders of Wildlife v. Secretary, U.S. Dep’t of the Interior, 354 F.Supp.2d 1156 (D.Or. 2005); National Wildlife Fed’n v. Norton, 386 F.Supp.2d 553 (D.Vt. 2005) . The Courts’ rulings invalidated the revisions to the gray wolf listing. Therefore, the status of gray wolves outside of Minnesota and outside of areas designated as nonessential experimental populations reverted back to endangered (as had been the case prior to the 2003 reclassification). The courts also invalidated the associated special regulations.
On March 27, 2006, we published a proposal (71 FR 15266–15305) to identify a Western Great Lakes (WGL) DPS of the gray wolf, to remove the WGL DPS from the protections of the Act, to remove designated critical habitat for the gray wolf in Minnesota and Michigan, and to remove special regulations for the gray wolf in Minnesota. The proposal was followed by a 90-day comment period, during which we held four public hearings on the proposal.
On February 8, 2007, we published a final rule identifying a WGL DPS of the gray wolf, removing the WGL DPS from the protections of the Act, removing designated critical habitat for the gray wolf in Minnesota and Michigan, and removing special regulations for the gray wolf in Minnesota (72 FR 6052).
On April 16, 2007, four parties filed a lawsuit against the U.S. Department of the Interior (Department) and the Service, challenging the Service’s February 8, 2007 (72 FR 6052), identification and delisting of the WGL DPS. The plaintiffs argued that the Service may not identify a DPS within a broader pre-existing listed entity for the purpose of delisting the DPS. Based on this argument, on September 29, 2008, the U.S. District Court for the District of Columbia remanded and vacated the February 8, 2007, WGL DPS final rule (72 FR 6052). The court found that the Service had made that decision based on its interpretation that the plain meaning of the Act authorizes the Service to identify and delist a DPS within an already-listed entity. The court disagreed, and concluded that the Act is ambiguous as to whether the Service has this authority. The court accordingly remanded the final rule so that the Service 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 (Humane Society of the United States v. Kempthorne, 579 F. Supp. 2d 7 (D.D.C. 2008).
On December 11, 2008, we published a final rule reinstating protections for the gray wolf in the western Great Lakes and northern Rocky Mountains pursuant to court-orders (73 FR 75356).
On April 2, 2009, we published a final rule identifying the western Great Lakes populations of gray wolves as a DPS, revising the List of Endangered and Threatened Wildlife by removing the DPS from that list, removing designated critical habitat for the gray wolf in Minnesota and Michigan, and removing special regulations for the gray wolf in Minnesota (74 FR 15070). That final rule addressed the narrow issue objectionable to the court and was otherwise substantially the same as the 2007 vacated rule. We did not seek additional public comment on the 2009 final rule.
On June 15, 2009, five parties filed a complaint against the Department and the Service alleging that we violated the Endangered Species Act, the Administrative Procedure Act (APA), and the Court’s Remand Order by publishing the 2009 final rule. The Humane Society, et al. v. Salazar, 09– cv–1092 (D.D.C. 2009). On that same day, the plaintiffs also filed a motion for preliminary injunction alleging that we violated the notice and comment requirement of the APA, the Endangered Species Act’s requirement that we consider the best available science, and the court’s remand order by publishing the 2009 final rule. We conceded that we erred by publishing the 2009 final rule without providing for notice and comment as required by APA (5 U.S.C. 553). On July 2, 2009, a settlement agreement between the parties was signed by the court, remanding and vacating the 2009 final rule. On September 16, 2009, we published a final rule reinstating protections for the gray wolf in the western Great Lakes pursuant to the settlement agreement and court-order (74 FR 47483).
For a discussion of the biology and ecology of gray wolves and general recovery planning efforts, see the proposed WGL wolf rule published on March 27, 2006, (71 FR 15266–15305), also available on http://www.fws.gov/ midwest/wolf/.
Defining a Species Under the Act
Section 3(16) of the Act defines ‘‘species’’ to include ‘‘any species or subspecies of fish and wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature’’ (16 U.S.C. 1532 (16)). Our implementing regulations at 50 CFR 424.02 provide further guidance for determining whether a particular taxon or population is a species or subspecies for the purposes of the Act: ‘‘The Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group’’ (50 CFR 424.11).
To interpret and implement the distinct vertebrate population segment (DPS) provisions of the Act and Congressional guidance, the Service and the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration— Fisheries), published the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) in the Federal Register on February 7, 1996 (61 FR 4722). Under the DPS Policy, three elements are considered in the decision regarding the establishment and classification of a population of a vertebrate species as a possible DPS. Similarly, these three elements are applied for additions to and removals from the List of Endangered and Threatened Wildlife and Plants. These elements are: (1) The discreteness of a population in relation to the remainder of the species to which it belongs, (2) the significance of the population segment to the species to which it belongs, and, if these first two criteria are met, (3) the population segment’s conservation status in relation to the Act’s standards for listing, delisting, or reclassification.
Above are the Summary and Background sections. Click here to download a PDF file of the entire 6-page Federal Register Notice of the 90-Day Finding on Petitions to Delist the Gray Wolf in Minnesota, Michigan, and Wisconsin