[Federal Register: January 6, 2005 (Volume 70, Number 4)]
[Rules and Regulations]               
[Page 1285-1311]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 1285]]


Part II

Department of the Interior


Fish and Wildlife Service


50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Regulation for 
Nonessential Experimental Populations of the Western Distinct 
Population Segment of the Gray Wolf; Final Rule

[[Page 1286]]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT61

Endangered and Threatened Wildlife and Plants; Regulation for 
Nonessential Experimental Populations of the Western Distinct 
Population Segment of the Gray Wolf

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service) establish a 
rule for the nonessential experimental populations (NEPs) of the 
Western Distinct Population Segment (DPS) of the gray wolf (Canis 
lupus), so that in States and on Tribal reservations with Service-
approved wolf management plans, we can better address the concerns of 
affected landowners and the impacts of a biologically recovered wolf 
population. In addition, States and Tribes with Service accepted wolf 
management plans can petition the Service for lead management authority 
for experimental wolves consistent with this rule. Within the 
Yellowstone and central Idaho experimental population areas, only the 
States of Idaho and Montana currently have approved management plans 
for gray wolves. The State of Wyoming has prepared a wolf management 
plan that was not approved by the Service. No Tribes have approved 
management plans. Therefore, at this point in time these regulatory 
changes only affect wolf management within the experimental population 
areas in Montana and Idaho. As we discussed in our advance notice of 
proposed rulemaking regarding delisting the Western DPS of the gray 
wolf (68 FR 15879; April 1, 2003), once Wyoming has an approved wolf 
management plan, we intend to propose removing the gray wolf in the 
Western DPS from the List of Endangered and Threatened Wildlife. This 
rule does not affect gray wolves in the Eastern DPS, the Southwestern 
DPS, or the non-experimental wolves in the Western DPS.

DATES: The effective date of this rule is February 7, 2005.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at U.S. Fish and Wildlife 
Service, Office of the Western Gray Wolf Recovery Coordinator, 100 
North Park, Suite 320, Helena, Montana 59601. Call 406-449-5225 to make 

FOR FURTHER INFORMATION CONTACT: Ed Bangs, Western Gray Wolf Recovery 
Coordinator, at the above address or telephone 406-449-5225, ext. 204 
or at ed_bangs@fws.gov or on our Web site at http://westerngraywolf.fws.gov/



    In 1994, we promulgated special rules under section 10(j) of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), for the purpose of wolf reintroduction. The rules, codified at 
50 CFR 17.84(i), established two nonessential experimental populations 
(NEPs), one for the central Idaho area and the other for the 
Yellowstone area, that provided management flexibility to address the 
potential negative impacts and concerns regarding wolf reintroduction.
    On April 1, 2003, we published in the Federal Register (69 FR 
15879) an Advance Notice of Proposed Rulemaking under the Act, 
announcing our intent to remove the Western DPS of the gray wolf (Canis 
lupus) from the List of Endangered and Threatened Wildlife in the near 
future. At the time, we indicated that the number of wolves in the 
Yellowstone and central Idaho NEP areas had exceeded our numerical 
recovery goals. We also emphasized the importance of State wolf 
management plans to any delisting decision; we believed these plans 
would be the major determinants of wolf protection and prey 
availability, and would set and enforce limits on human use and other 
forms of take, once the wolf is delisted. These State management plans 
will determine the overall regulatory framework for the future 
conservation of gray wolves, outside of Tribal reservations, after 
delisting. For reasons we discuss in more detail below, we are not yet 
prepared to propose delisting the Western DPS of gray wolves; however, 
we are issuing a new regulation for the NEPs in the Western DPS for 
States or Tribal reservations with Service-approved wolf management 
    Gray wolf populations were eliminated from Montana, Idaho, and 
Wyoming, as well as adjacent southwestern Canada, by the 1930s (Young 
and Goldman 1944). After human-caused mortality of wolves in 
southwestern Canada was regulated in the 1960s, populations expanded 
southward (Carbyn 1983). Dispersing individuals occasionally reached 
the northern Rocky Mountains of the United States (Ream and Mattson 
1982, Nowak 1983), but lacked legal protection there until 1974 when 
they were listed as endangered under the Act.
    In 1982, Congress made significant changes to the Act with the 
addition of section 10(j), which provides for the designation of 
specific reintroduced populations of listed species as ``experimental 
populations.'' Previously, we had authority to reintroduce populations 
into unoccupied portions of a listed species' historical range when 
doing so would foster the species' conservation and recovery. However, 
local citizens often opposed these reintroductions because they were 
concerned about the placement of restrictions and prohibitions on 
Federal and private activities. Under section 10(j) of the Act, the 
Secretary of the Department of the Interior can designate reintroduced 
populations established outside the species' current range, but within 
its historical range, as ``experimental.'' Based on the best scientific 
and commercial data available, we must determine whether experimental 
populations are ``essential,'' or ``nonessential,'' to the continued 
existence of the species. Regulatory restrictions are considerably 
reduced under a Nonessential Experimental Population (NEP) designation.
    Without the ``nonessential experimental population'' designation, 
the Act provides that species listed as endangered or threatened are 
afforded protection primarily through the prohibitions of section 9 and 
the requirements of section 7. Section 9 of the Act prohibits the take 
of an endangered species. ``Take'' is defined by the Act as harass, 
harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt 
to engage in any such conduct. Service regulations (50 CFR 17.31) 
generally extend the prohibitions of take to threatened wildlife. 
Section 7 of the Act outlines the procedures for Federal interagency 
cooperation to conserve federally listed species and protect designated 
critical habitat. It mandates all Federal agencies to determine how to 
use their existing authorities to further the purposes of the Act to 
aid in recovering listed species. It also states that Federal agencies 
will, in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    For purposes of section 9 of the Act, a population designated as 
experimental is treated as threatened regardless of the species' 
designation elsewhere in its

[[Page 1287]]

range. Through section 4(d) of the Act, threatened designation allows 
us greater discretion in devising management programs and special 
regulations for such a population. Section 4(d) of the Act allows us to 
adopt regulations that are necessary to provide for the conservation of 
a threatened species. In these situations, the general regulations that 
extend most section 9 prohibitions to threatened species do not apply 
to that species, and the special 4(d) rule contains the prohibitions 
and exemptions necessary and appropriate to conserve that species. 
Regulations issued under section 4(d) for NEPs are usually more 
compatible with routine human activities in the reintroduction area.
    For the purposes of section 7 of the Act, we treat NEPs as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or National Park, and section 7(a)(1) and the consultation 
requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) 
requires all Federal agencies to use their authorities to conserve 
listed species. Section 7(a)(2) requires that Federal agencies, in 
consultation with the Service, ensure that any action authorized, 
funded, or carried out is not likely to jeopardize the continued 
existence of a listed species or adversely modify its critical habitat. 
When NEPs are located outside a National Wildlife Refuge or National 
Park, we treat the population as proposed for listing and only two 
provisions of section 7 would apply--section 7(a)(1) and section 
7(a)(4). In these instances, NEPs provide additional flexibility 
because Federal agencies are not required to consult with us under 
section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer 
(rather than consult) with the Service on actions that are likely to 
jeopardize the continued existence of a species proposed to be listed. 
The results of a conference are advisory in nature and do not restrict 
agencies from carrying out, funding, or authorizing activities.
    In 1994, we promulgated special rules under section 10(j) of the 
Act for the purpose of wolf reintroduction. The rules, codified at 50 
CFR 17.84(i), established two NEPs, one for the central Idaho area and 
the other for the Yellowstone area. We also identified protective 
measures and management practices necessary for the populations' 
conservation and recovery. As wolves in the NEPs are generally treated 
as a threatened species, these rules provided additional flexibility in 
managing wolf populations within the experimental population areas 
compared to outside these areas, where wolves were listed as 
    Since their reintroduction in 1994, wolf populations in both 
experimental areas have exceeded expectations (Service 2004). This 
success prompted the Service to reclassify the status of gray wolves in 
the Western DPS, outside of the experimental population areas, to 
threatened (68 FR 15804) and publish a special 4(d) rule for the WDPS 
(found in 50 CFR 17.40(n)) that provides more flexible management for 
wolves outside the experimental population areas. We also published an 
advance notice of proposed rulemaking, indicating our intent to delist 
the Western DPS of gray wolves in the future (68 FR 15879).
    However, the 2003 4(d) rule did not apply within the experimental 
population areas in Idaho or Yellowstone; as a result, management of 
threatened wolves in the western DPS outside of the experimental 
population areas became more flexible than management of wolves inside 
the experimental population areas. We now issue a rule for States or 
Tribal reservations with Service-approved wolf management plans that 
provides for additional flexibility within the experimental population 
areas in recognition of the fact that wolves are numerous in the 
experimental population areas. In addition, the rule provides for 
transition to a State and Tribal lead for wolf management in those 
States or reservations with Service-approved wolf management plans, 
with the exception of lands managed by the National Park Service or the 
Service. The 1994 NEP rules found at 50 CFR 17.84(i) are retained in 
Wyoming and on Tribal reservations within Wyoming without approved 
management plans.

Previous Federal Actions

    The northern Rocky Mountain wolf (Canis lupus 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 (U.S. 
Department of the Interior 1974). To eliminate problems with listing 
separate subspecies of the gray wolf and identifying relatively narrow 
geographic areas in which those subspecies are protected, 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 Minnesota, where the gray wolf was 
reclassified to threatened. In addition, critical habitat was 
designated in Minnesota and Michigan in that rulemaking.
    On November 22, 1994, we designated areas in Idaho, Montana, and 
Wyoming as NEPs in order to initiate gray wolf reintroduction in 
central Idaho and the Greater Yellowstone area (59 FR 60252, 59 FR 
60266). These experimental population designations contain special 
rules that govern the take of wolves within the geographical areas. The 
1994 rules governing those experimental populations allowed for 
increases in the authority of States and Tribes to manage the wolves 
under a State or Tribal management plan approved by the Service. 
Specifically, the 1994 rules allowed States or Tribes to expand the 
definition of ``livestock'' for purposes of managing conflicts between 
wolves and livestock, and the rules also allowed States and Tribes to 
document adverse effects of wolves on ungulates for the purposes of 
managing those conflicts.
    In January 1995, 15 wolves captured in Alberta, Canada, were 
released in central Idaho. In January 1996, an additional 20 wolves 
from British Columbia were released into the central Idaho experimental 
population area. In March 1995, 14 wolves from Alberta were released 
from holding pens in Yellowstone National Park. In April 1996, this 
procedure was repeated with 17 wolves from British Columbia (Bangs and 
Fritts 1996, Fritts et al. 1997, see Service 2004 for additional 
    On December 11, 1997, we published a proposal to revise the NEP 
rules in central Idaho and the Yellowstone area (62 FR 65237). This 
proposal attempted to clarify ambiguous language regarding wolf control 
options of suspected captive wolves and wolf-dog hybrids found in the 
wild within the experimental population areas. Due to litigation over 
wolf reintroduction, in which the Service ultimately prevailed, and 
other priorities, that proposal was never finalized. This rule resolves 
that ambiguous language (see (xi)(H) in this rule).
    On July 13, 2000, we published a proposal (65 FR 43450) to revise 
the listing of the gray wolf across most of the conterminous United 
States. On April 1, 2003, we published a rule establishing three DPSs 
(Western, Eastern, and Southwestern) and reclassifying the gray wolf 
from endangered to threatened in the Western and Eastern DPSs except 
where NEPs existed (68 FR 15804). We established special rules under 
section 4(d) of the Act for the Western and Eastern DPSs. Also on April 
1, 2003, we published two Advance Notices of Proposed Rulemaking 
announcing our intent to delist the gray wolf in the Eastern (68 FR 
15876) and Western (68 FR 15879) DPSs in the future.

[[Page 1288]]

    We received several petitions during the past decade requesting 
delisting of the gray wolf in all or part of the 48 conterminous 
States. We subsequently published findings that these petitions did not 
present substantial information that delisting gray wolves in all or 
part of the conterminous 48 States was warranted (54 FR 16380, April 
24, 1989; 55 CFR 48656, November 30, 1990; 63 FR 55839, October 19, 

Recovery Goals

    The demographic recovery goal for the WDPS is a minimum of 30 
breeding pairs, each consisting of an adult male and an adult female 
that successfully produced at least 2 pups that survived until December 
31, that are equitably distributed among 3 recovery areas/States for 3 
successive years (68 FR 15804). Our current estimates indicate wolf 
populations in northwestern Montana where they are designated 
threatened, and in central Idaho and Yellowstone where they are 
designated experimental, have exceeded this recovery goal. In late 2002 
there were about 663 wolves and 43 breeding pairs equitably distributed 
throughout Montana (about 183 wolves and 16 breeding pairs), Idaho 
(about 263 wolves and 9 breeding pairs), and Wyoming (217 wolves and 18 
breeding pairs) (Service et al. 2003). The year 2002 was the third 
successive year that the wolf population in Montana, Idaho, and Wyoming 
had 30 or more breeding pairs. The wolf population continues to expand 
in the NEP areas. At the end of 2003, the wolf population was estimated 
at 761 wolves and 51 breeding pairs. Montana had an estimated 182 
wolves and 10 breeding pairs, Idaho had 345 wolves and 25 breeding 
pairs, and Wyoming had 234 wolves and 16 breeding pairs (Service et al. 
2004). Preliminary monitoring in 2004 indicates the wolf population 
continues to increase, again primarily in the NEP areas (Service 

Currently Designated Nonessential Experimental Populations of Gray 

    The Secretary designated two NEP areas for gray wolves in the 
Northern Rockies. Wolves were reintroduced into the Yellowstone NEP 
Area and the Central Idaho NEP Area in 1995 and 1996. The 
reintroductions as experimental populations were intended to further 
the recovery of gray wolves in the northern United States Rocky 
Mountains, as described in the recovery plan (Service 1987), and 
provide more management flexibility to address local and State concerns 
about wolf-related conflicts.
    The Central Idaho Experimental Population Area consists of the 
portion of Idaho south of Interstate Highway 90 and west of Interstate 
15; and the portion of Montana south of Interstate 90, west of 
Interstate 15, and south of Highway 12 west of Missoula (59 FR 60266; 
November 22, 1994).
    The Yellowstone Experimental Population Area consists of the 
portion of Idaho east of Interstate Highway 15; the portion of Montana 
east of Interstate Highway 15 and south of the Missouri River from 
Great Falls, Montana, to the eastern Montana border; and all of Wyoming 
(59 FR 60252; November 22, 1994).
    However, as explained below, the new regulation proposed here will 
not apply in Wyoming or within any Tribal reservation in Wyoming at 
this time.

Current Special Regulations for the Western Distinct Population Segment

    Three special rules currently apply to wolves in Montana, Idaho, 
and Wyoming. The two 1994 10(j) experimental population rules allow 
flexibility in the management of wolves, including authorization for 
private citizens to non-injuriously harass wolves and take wolves that 
are in the act of attacking livestock on private land, without a 
permit. These rules also provide a permit process that similarly allows 
the take, under certain circumstances, of wolves in the act of 
attacking livestock on public land. In addition, they allow 
opportunistic non-injurious harassment of wolves by livestock producers 
on private and public grazing lands, and also allow designated 
government employees or Service-designated agents under specified 
circumstances to perform non-lethal and lethal control to remove 
problem wolves. The 1994 rules allow States and Tribes to define 
unacceptable impacts on native ungulate herds and relocate wolves to 
reduce wolf predation. They also provide a mechanism for increased 
State and Tribal participation in wolf management, if cooperative 
agreements are developed to make them designated agents of the Service.
    The 2003 4(d) rule for the Western DPS outside of the Central Idaho 
and Yellowstone NEP areas allows landowners and permittees on Federal 
grazing allotments to harass wolves in a non-injurious manner at any 
time. Like the 1994 10(j) rules, the 4(d) rule allows flexibility in 
the management of wolves, including authorization for private citizens 
on private land to non-injuriously harass wolves and take wolves that 
are in the act of attacking livestock, livestock herding or guarding 
animals, or dogs without a permit. The 4(d) rule also provides a 
written authorization process that allows the taking, under certain 
circumstances, of wolves on public land in the act of attacking 
livestock or livestock herding or guarding animals. In addition, it 
allows designated government employees or Service-designated agents to 
perform non-lethal and lethal control to remove problem wolves under 
specified circumstances. The 4(d) rule allows take of wolves under 
written authorization in a few more circumstances than the 1994 10(j) 
rules. Like the 1994 10(j) rules, the 4(d) rule allows the State and 
Tribes to define unacceptable impacts on native ungulate herds and 
relocate wolves to reduce wolf predation. The 4(d) rule, like the 1994 
10(j) rules, also provides a mechanism for increased State and Tribal 
participation in wolf management, if cooperative agreements are 
developed to make them designated agents of the Service. A table 
comparing the parameters of wolf management in this final 10(j) rule 
with those in the 1994 10(j) rules, and with the 4(d) rules, is 
included as part of this rule.

State and Tribal Wolf Management Plans

    In order to delist the Western DPS wolf population due to recovery, 
the demographic criteria (a minimum of 30 breeding pairs of wolves [an 
adult male and female wolf that raise at least 2 pups until December 
31] that are equitably distributed throughout Montana, Idaho, and 
Wyoming for a minimum of 3 successive years) must be met, and the 
Service must determine, based on the best scientific and commercial 
data available, that the species is no longer in danger of extinction 
and is not likely to be in danger of extinction in the foreseeable 
future throughout all or a significant portion of its range. The basis 
for the determination is a review of the status of the species in 
relation to five factors identified in section 4(a)(1) of the Act--(A) 
the present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; and (E) other natural or 
manmade factors affecting its continued existence. These factors are 
not analyzed in detail as part of this rule because there was no 
proposed change in the WDPS listing status. Rather, this rule focuses 
on management of NEP wolves in the WDPS as we await delisting and 
transfer of management for

[[Page 1289]]

wolves in the WDPS to the States and Tribes.
    State management plans have been determined by the Service to be 
the most appropriate means of maintaining a recovered wolf population 
and of providing adequate regulatory mechanisms post-delisting (i.e., 
addressing factor D) because the primary responsibility for management 
of the species will rest with the States upon delisting and subsequent 
removal of the protections of the Act. Therefore, based on the 
demographic criteria mentioned above, each State needs to commit to 
maintain at least 10 or more breeding pairs, so the wolf population 
will not fall below 30 breeding pairs overall, and so that an equitable 
distribution of wolf breeding pairs is maintained among the three 
States. The northern Rocky Mountain wolf population is a three-part 
metapopulation and requires adequate management by all three States to 
ensure sufficient connectivity and distribution to remain recovered. 
Because the population inhabits parts of Montana, Idaho, and Wyoming, 
all three States must have adequate regulatory mechanisms to reasonably 
ensure their share of the population will remain recovered before the 
Service can propose it be delisted.
    The Service determined that Wyoming's current State law and its 
wolf management plan do not suffice as an adequate regulatory mechanism 
for the purposes of delisting (letter from Service Director Steven 
Williams to Montana, Idaho, and Wyoming, January 13, 2004). 
Consequently, this rule, which defines the expanded authorities for 
States or Tribes with Service-approved plans, does not affect the 
portion of the Yellowstone NEP area in Wyoming. Wyoming has initiated 
legal action challenging our decision to not approve their wolf 
management plan. As the case works its way through the court system, we 
will attempt to continue to work with Tribes in Wyoming and the State 
of Wyoming to develop a Wyoming State law and State or Tribal wolf 
management plans that we can approve. Once we have approved a wolf 
management plan for the State of Wyoming, and barring the 
identification of any new threats to the species, we expect to propose 
rulemaking to remove the Western DPS of the gray wolf from the List of 
Endangered and Threatened Wildlife (for additional discussion, see our 
Advance Notice of Proposed Rulemaking at 68 FR 15879).
    At this time there are few, if any, wolf breeding pairs or packs 
that significantly use Tribal reservation lands in the NEPs in Montana, 
Idaho, or Wyoming, and the recovery and subsequent maintenance of a 
recovered wolf population does not depend upon Tribal reservations or 
Tribal wolf management. The Service has not requested wolf management 
plans from any Tribe within the Western DPS, and any future delisting 
action is unlikely to be dependent on wolf management on Tribal lands. 
We do not believe any Tribal treaty rights to hunt and gather on ceded 
lands are adversely affected by this rule.
    To provide as much flexibility as possible for Tribal members who 
are landowners, this rule treats Tribal members' lands on reservations 
as private property. Therefore, on Tribal lands within Montana and 
Idaho, individuals may take wolves on reservation lands as allowed on 
other private lands under this rule, if such take is allowed by Tribal 
wildlife regulations. A Tribal government may not assume designated 
agent status and lead for wolf management until it has a Tribal wolf 
management plan that has been approved by the Service. Tribes in 
Wyoming may develop their own wolf management plan for their 
reservation, and once accepted by the Service, may assume designated 
agent status. In the absence of a Service-approved Tribal wolf 
management plan or cooperative agreement, the Service will issue any 
written authorization for wolf take on Tribal lands.

Summary of Comments and Recommendations

A. Soliciting Public Comment

    In our March 9, 2004, proposed rule and associated notifications, 
we requested that all interested parties submit comments, data, or 
other information that might aid in our decisions or otherwise 
contribute to the development of this final rule. The comment period 
for the proposed rule was open from March 9, 2004, through May 10, 
2004. During that period we publicized and conducted two public 
hearings, one in Helena, Montana, on April 19, 2004, and another in 
Boise, Idaho, on April 20, 2004. We did not receive any requests for 
additional hearings and none were held. We also provided additional 
information at several general public meetings in order to explain the 
proposal, respond to questions concerning gray wolf protection and 
recovery, and receive input from interested parties. We contacted 
appropriate Federal, State, and Tribal agencies, scientific 
organizations, agricultural organizations, outdoor user groups, 
environmental organizations, animal rights groups, and other interested 
parties and requested that they comment on the proposal. We conducted 
numerous press interviews to promote wide coverage of our proposed rule 
in the media. We published legal notices in many newspapers announcing 
the proposal and hearings, and invited comment. We posted the proposal 
and numerous background documents on our Web site, and we provided 
copies upon request by mail or E-mail and at our hearings and 
informational meetings. We established several methods for interested 
parties to provide comments and other materials, including verbally or 
in writing at public hearings, by letter, E-mail, facsimile, or on our 
Web site.
    During the 60-day comment period and at our two public hearings, we 
received nearly 23,000 separate comments, including comments from 39 
individuals or agency representatives who spoke at public hearings. 
These comments included form letters and petitions with multiple 
signatures. Comments originated from nearly all States and several 
countries. We revised and updated the proposed rule in order to address 
comments and information we received during the comment period. In the 
following paragraphs we address the substantive comments we received 
concerning various aspects of the proposed rule. Comments of a similar 
nature are grouped together under subject headings (referred to as 
``Issues'' for the purpose of this summary) below, along with our 
response to each. In addition to the following discussion, refer to the 
``Changes from the Proposed Rule'' section (also below) for more 

B. Technical and Editorial Comments

    Issue 1: Numerous technical and editorial comments and corrections 
were provided by respondents.
    Response 1-1: We corrected and updated numbers and other data 
wherever appropriate. We edited the rule to make its purpose and wolf 
management strategies clearer.
    Response 1-2: We eliminated or condensed several sections in the 
proposed rule because they were either no longer relevant or to improve 
the clarity and intent of this rule. These changes include dropping 
most references to wolf management and regulations outside of the 
Western DPS and the central Idaho and Yellowstone NEP areas; dropping 
detailed descriptions of the Montana and Idaho wolf management plans; 
and dropping or condensing sections that are no longer relevant because 
they applied

[[Page 1290]]

more to the past active wolf reintroduction program rather than the 
current program that maintains and manages an established recovered 
wolf population.
    Response 1-3: We include a table that compares the parameters of 
wolf management in this final 10(j) rule with those in the 1994 10(j) 
rules and with the 4(d) rule.
    Issue 2: Changes were suggested for our definitions of terms such 
as ``reasonable belief,'' ``problem wolf,'' ``in the act,'' 
``landowner,'' ``livestock,'' and ``active den site.'' Most of the 
changes were recommended to improve consistency with State or other 
Federal rules, to improve law enforcement capabilities, or to clarify 
this rule.
    Response 2-1: Allowing wolf take because of an individual's 
``reasonable belief'' the wolf may attack livestock appeared to invite 
abuse of wolf take. The Service and State law enforcement officials 
indicated that the term ``reasonable belief'' is largely unenforceable 
in the context of its use in the proposed rule, because it could be 
read to require proof of an individual's state of mind. It could allow 
more liberal take of wolves than current State regulations and 
standards allow for defense of private property from other large 
carnivores managed by the States. The standards for taking wolves to 
protect property on private and public land were changed to make them 
more enforceable and also more consistent with State regulations and 
enforcement standards. Take will be allowed if wolves are physically 
attacking or ``in the act of'' attacking--i.e., molesting, harassing, 
chasing--livestock, livestock guarding and herding animals, and dogs), 
and if an agency investigation can confirm such take based on physical 
evidence of an attack or threat of attack likely to occur at any 
    Response 2-2: The definition of take of problem wolves ``in the 
act'' has been changed to a definition of ``in the act of attacking,'' 
meaning `` the actual biting, wounding, grasping, or killing of 
livestock or dogs, or chasing, molesting, or harassing by wolves that 
would indicate to a reasonable person that such biting, wounding, 
grasping, or killing is likely to occur at any moment.'' Evidence of an 
attack must be available upon investigation. If no actual biting, 
wounding, grasping or killing has occurred, evidence must be available 
that a reasonable person would have believed that it was likely to 
occur at any moment. This standard does not require proof of an 
individual's state of mind. Instead, the standard requires evidence 
that an attack was likely to occur. Such evidence may include 
photographs of livestock or of the physical scene immediately following 
the wolf taking; indications that livestock were chased, molested or 
harassed, such as livestock and wolf tracks, trampled ground, broken 
fences, brush or vegetation, or muddied, lathered, bunched or trampled 
livestock; or dead or wounded livestock. This change will make take of 
wolves in defense of private property more enforceable and more 
consistent with State regulations. This standard will still allow the 
take of wolves that are physically attacking livestock or dogs on 
private lands, and livestock on public lands. We believe that by 
expanding the definition of ``in the act'' to include wolves preparing 
to attack livestock or dogs, we will more effectively remove problem 
wolves, enhance the ability of landowners and public land permittees to 
protect their private property, reduce the agency workload, and reduce 
the potential for abuse of this regulation that could result in the 
take of non-problem wolves, while not resulting in adverse impacts to 
wolf populations.
    Response 2-3: We agree that the definition of a ``problem wolf'' 
should not include a wolf attacking any domestic animal, such as a cat, 
but should be more specific to the types of animals that have been 
attacked in the past such as horses, cattle, sheep, mules, goats, 
domestic bison, llamas, and dogs. The definition of a problem wolf has 
been changed to a wolf that attacks livestock (defined as cattle, 
sheep, horses, mules, goats, domestic bison, certain types of livestock 
herding or guarding animals) and dogs on private lands, and livestock 
on public lands. The Service or our designated agent(s) can designate 
and control a problem wolf, if it has attacked domestic animals other 
than livestock or dogs, two or more times in a calendar year.
    Response 2-4: Wolves should not be labeled ``problem wolves'' when 
they are attracted, artificially fed, or baited, or when livestock are 
not reasonably protected. The conditions required for take of a problem 
wolf are--(A) Evidence of dead or wounded livestock or dogs caused by 
wolves or evidence that an attack on livestock or dogs by wolves is 
likely to occur at any moment; (B) A likelihood that additional losses 
will occur if no control is taken; (C) No unusual attractants or 
artificial or intentional feeding of wolves; and (D) On public lands, 
animal husbandry practices specified in approved allotment plans and 
annual operating plans are being followed.
    Response 2-5: Definitions of ``routinely present'' and 
``demonstrable but non-immediate threat to human safety'' need 
clarification. We dropped these two phrases from the final rule. Issues 
regarding potential threat to private property or human safety will be 
reworded ``as determined by the Service or our designated agent(s).''
    Response 2-6: Some suggested that the definition for ``active den 
site'' begin earlier than April 1 or go later than June 30. From 1987 
through 2004, we have monitored over 329 breeding pairs of wolves in 
Montana, Idaho, and Wyoming (USFWS 2004) and none were documented to 
have produced pups before April 1. By June 30 wolf pups are mobile and 
many begin moving to rendezvous sites, so we did not expand the time 
frame within that definition. Land-use restrictions, even around active 
den sites, have rarely been required to protect wolves in the past and 
we do not believe they will be necessary in the future (Bangs et al. in 
    Response 2-7: Some comments suggested certain sex and age classes 
of wolves, i.e., breeding females or their pups, should be more 
protected than others. We dropped language from the final rule 
regarding more restrictive control options for females with pups or 
their pups. Our data indicate that after 4-6 weeks other pack members 
can successfully raise wolf pups, and removal of the breeding female 
does not mean the pups will not survive (Boyd and Jimenez 1994). Most 
pups are born by mid-April, and by early summer when most livestock 
come onto public grazing allotments, pups are mobile and can be raised 
by other pack members. Wolf packs are resilient to change and losing 
pack members, including alphas, as this happens frequently in nature 
even when humans are not impacting wolf pack social dynamics (Mech and 
Boitani 2003). We also recognize that, at times, the presence of wolf 
pups and their extra food requirement contribute to livestock 
depredation. Therefore, we have left the case-by-case decisions about 
wolf removal to our and our designated agent(s)' field personnel. We 
believe leaving such decisions to professional personnel in the field 
increases management flexibility and will not affect wolf recovery or 
the overall level of agency-caused wolf mortality.
    Response 2-8: Some commenters recommended a more restrictive 
definition for ``landowner'' or restricting the use of take 
authorization by private individuals to remove problem wolves. Under 
this rule ``landowner'' applies only to private landowners or public 
land permittees who actually experience confirmed wolf depredations.

[[Page 1291]]

C. Legal Compliance With Laws, Regulations, and Policy

    Issue 3: There was some confusion as to where and when the rule 
applies. Some believed it would immediately apply to all parts of any 
State with an approved management plan and others believed it would 
immediately apply throughout all experimental population areas. Some 
perceived that the new rule only applied after States with acceptable 
plans sign Memorandum of Agreements (MOAs) with the Secretary.
    Response 3-1: This rule applies only to experimental areas within 
States or Tribal reservations with approved management plans, which at 
this time means only within the States of Montana and Idaho (letter 
from Service Director Steven Williams to Montana, Idaho, and Wyoming, 
January 13, 2004). Until a management plan from the State of Wyoming or 
a Wyoming Tribe is approved by the Service, no part of this rule 
applies in Wyoming or on a Tribal reservation in Wyoming. All wolf 
management in Wyoming remains under the aegis of the 1994 10(j) rules. 
When the Service approves a Wyoming or Tribal wolf management plan in 
that State, then this rule also will apply in Wyoming or that Tribal 
reservation in Wyoming. Furthermore, no Tribe in Montana or Idaho can 
lead wolf management on their reservation until the Tribe has a wolf 
management plan approved by the Service. Neither the 1994 rules nor 
this rule apply outside of the experimental population areas, except it 
provides some management options to the Service and our designated 
agent(s) for wolves from the experimental population area that disperse 
beyond the experimental population boundaries. Maps are provided to 
show the established experimental population areas in which this rule 
may apply.
    Response 3-2: This rule becomes effective within 30 days in the 
experimental population areas in Montana and Idaho, as they have wolf 
management plans that have been approved by the Service. As soon as 
Wyoming or a Tribal reservation in Wyoming has a wolf management plan 
that is approved by the Service, this rule will become immediately 
effective in that respective area. While Tribal reservations in Montana 
and Idaho are considered as private land for individuals under the 
provisions of this rule, Tribal governments may not become designated 
agents and lead wolf management on reservations until they have a 
Tribal wolf management plan approved by the Service.
    Response 3-3: The completion of an MOA with the Secretary of the 
DOI which is consistent with this rule allows a State or Tribe to take 
the lead in wolf management, to become ``designated agent(s),'' and to 
implement all parts of its approved wolf management plan that are 
consistent with this rule. This includes issuing written authorization 
for take, and making all decisions regarding implementation of the 
State or Tribal plan consistent with this rule. Under the MOA process, 
the Service will annually review the States' and Tribes' implementation 
of their plans to ensure compliance with this rule and to ensure the 
wolf population remains above recovery levels. States and Tribes also 
can become ``designated agent(s)'' and implement all or selected 
portions of this rule by entering into a cooperative agreement with the 
    Issue 4: Some commenters believed the new 10(j) rule calls for a 
new Environmental Impact Statement (EIS) or additional section 7 
    Response 4-1: We have carefully reviewed the requirements of the 
National Environmental Policy Act (NEPA) and its regulations (Council 
on Environmental Quality 40 CFR Section 1502.9). We believe this final 
rule, as well as the process by which it was developed and finalized, 
comply with all provisions of the Act, NEPA, and applicable 
regulations. The possible impacts resulting from this rule do not 
differ or extend beyond the scope of those examined in the 1994 EIS 
(Service 1994) or the 1994 10(j) rules. We do not believe the additions 
in this new 10(j) rule constitute substantial changes that create new 
environmental concerns. We present the following evidence:
    In the 1994 EIS and 10(j) rules we predicted that 100 wolves in 
each of the 2 experimental areas would kill an annual average of 10-19 
cattle and 57-68 sheep. Confirmed losses have been below predicted 
levels, even though wolf population levels are higher than predicted. 
From 1995 through 2003, wolves were confirmed to have killed 8.4-13.2 
cattle, 33.6-46.3 sheep, and 2.5-2.7 dogs annually per experimental 
area. As predicted in the EIS, from 1987 through 2004 a cumulative 
total of approximately $440,000 in private compensation has been paid 
to livestock producers who have had confirmed or probable livestock 
losses caused by wolves, including areas both inside and outside the 
experimental population areas. The EIS also predicted that in each of 
the two experimental population areas annual livestock losses would 
range from $1,888 to $30,470 annually; and in reality, annual 
compensation for wolf-caused losses has averaged about $17,000 per area 
since 1995. The EIS predicted economic losses (in the range of 
$207,000-$857,000), primarily due to decreases in hunting for female 
elk; some decreases in winter control hunts for female elk have 
occurred, all within predicted levels. The EIS predicted that 
visitation to Yellowstone National Park would increase and generate 
$23,000,000 of economic activity in Montana, Idaho, and Wyoming. The 
popularity of wolf viewing in Yellowstone surpassed our predictions, 
although the economic impact is largely unknown.
    The EIS predicted that the wolf population (defined by the 
distribution of breeding pairs) would likely remain within the EIS 
primary analysis area (Forest Service lands and adjacent private lands 
in central Idaho, and public land in and around Yellowstone National 
Park and private land in adjacent counties). As predicted, although 
individual lone wolves have dispersed widely, judging from the 
distribution of breeding pairs, the wolf population is contained within 
the EIS's primary analysis area.
    In the EIS and 1994 10(j) rules, we also anticipated that legal 
control of wolves to minimize livestock depredations would annually 
remove an average 10 percent of the experimental population. Since 1995 
lethal wolf removal has annually removed an average of less than 5 
percent of the experimental wolf population. We predicted that the 
numerical and temporal goals for wolf population recovery would be 
reached in late 2002, with about 129 wolves counted in late winter in 
each of the 2 areas. These recovery criteria were reached in late 2002, 
but with an estimated 271-284 wolves per recovery area, about twice the 
predicted levels.
    We anticipate that this rule will result in some additional wolf 
mortality by the public over current levels. However, the combination 
of agency control and legal control by the public will still likely 
effect on average 10 percent or less of the wolf population annually 
and we believe will not increase human-caused mortality to a level that 
could reduce the wolf population below recovery levels. Thus this rule 
does not create impacts that were not already analyzed or anticipated 
in the 1994 EIS and 1994 10(j) rules. This rule also provides 
safeguards that we believe will maintain the wolf population above 
numerical recovery goals in the experimental population areas. These 
safeguards are discussed throughout the body and discussion of the 
rule, including but not limited to the conditions under which the take 
provisions of the rule may be

[[Page 1292]]

implemented. In conclusion, we are adopting the prior EIS for this 
rulemaking because the analysis is still applicable, i.e., the 
conditions have not changed and the action has not changed 
    Response 4-2: We have conducted an intra-Service section 7 
consultation on this rulemaking. We have determined that the original 
consultation (contained in Appendix 7 of the 1994 EIS) remains adequate 
in its analysis of the gray wolf, woodland caribou, black-footed 
ferret, bald eagle, whooping crane, piping plover, least tern, pallid 
sturgeon, sockeye salmon, chinook salmon, Kendall Warm Springs dace, 
Wyoming toad, five species of Snake River mollusks, and MacFarlene's 
four-o'clock. No impacts to these species beyond those predicted in 
1994 have occurred and this rule will cause no additional impacts 
beyond those envisioned in 1994. Since 1994, Canada lynx, bull trout, 
water howellia, white sturgeon, northern Idaho ground squirrel, 
Spalding's catchfly, and steelhead have been listed under the Act 
within the experimental population areas. In our original consultation, 
we determined wolf recovery would not affect any of those species but 
did not provide justification. We have updated the consultation to 
include a rationale of why the proposed action would not affect these 
species. Finally, because three grizzly bear cubs have been killed by 
wolves within the action area since the original consultation, we 
formally consulted on the effects of the proposed action on the grizzly 
bear. In this consultation, we determined that the project was not 
likely to jeopardize the continued existence of the grizzly bear (a 
copy of this consultation is available; see FOR FURTHER INFORMATION 
CONTACT section, above).
    Issue 5: Some commenters believed we improperly considered 
economic, political, or other factors when developing the proposed 
rule. Some believed we favored livestock and State interests, and 
others believed we favored outside interests and environmental 
    Response 5: Except when designating critical habitat, the Act 
prohibits economic considerations during the rulemaking process and the 
Administrative Procedure Act prohibits Federal agencies from providing 
special interest groups any special access to the rulemaking process. 
This rulemaking has complied with those prohibitions.
    Issue 6: Some commenters believed we are violating the Service's 
    Response 6: The USFWS mission is working with others, to conserve, 
protect, and enhance fish, wildlife and plants and their habitats for 
the continuing benefit of the American people. A decade ago, the 
Service and our cooperators reintroduced wolves into the northern Rocky 
Mountains, and the WDPS wolf population have now exceeded numerical 
recovery goals outlined in the 1994 EIS. Nothing in this rule reduces 
the ability of the Service to achieve its mission or its responsibility 
under the Endangered Species Act to recover gray wolves; rather, this 
rule builds on the partnerships already established with the States and 
Tribes to manage the species.
    Issue 7: One comment suggested the proposed rule violates the 
Airborne Hunting Act. Another suggested wolf control for State ungulate 
management violates the Wilderness Act.
    Response 7-1: This rule does not allow public hunting of wolves, 
including by aircraft. It allows management agencies to remove problem 
wolves, using such tools as darting, netgunning, or gunning from 
aircraft. This type of agency activity is not a violation of the 
Airborne Hunting Act.
    Response 7-2: This rule does not supersede or invalidate any other 
Federal, State, or Tribal laws or regulations. All wolf management 
activities under this rule must be conducted in compliance with all 
other applicable laws and regulations.

D. Lethal Control

    Issue 8: Many commenters expressed varying degrees of opposition or 
support for the lethal control of gray wolves. Some commenters asked 
that we prohibit any form of lethal take; some supported killing of 
wolves only in defense of human life; some supported lethal control 
only if carried out by designated government agent(s); and others felt 
that lethal control should never occur on public lands. Lethal control 
of wolves that kill only pets also was opposed by some. Others 
(especially in Idaho) advocated lethal removal of all wolves. Some 
commented that all wolf control should be conducted in a humane manner. 
Others indicated that for physical evidence to be preserved, the site 
of the wolf take should remain undisturbed and be examined quickly to 
reduce the potential for abuse of the rule.
    Response 8-1: The Service will continue to cooperate with the U.S. 
Department of Agriculture-Animal and Plant Health Inspection Service-
Wildlife Services (USDA-APHIS-WS), State agencies, universities, and 
special interest groups to investigate ways to reduce the level of 
conflict between people, livestock, and wolves (Service 2004; Bangs et 
al. in press; Bradley 2003; Bangs and Shivik 2002; Oakleaf 2001). To 
date, we and our partners in wolf recovery have investigated and 
implemented the use of fencing; guard animals; extra herders; light, 
siren, and other scare devices, including those activated by wolf 
radio-collars; shock aversion conditioning; flagging; less-than-lethal 
munitions; offensive and repelling scents; supplemental feeding; 
harassing wolves at dens and rendezvous sites to move the center of 
wolf pack activity away from livestock; trapping and moving individual 
pack members or the entire pack; moving livestock and providing 
alternative pasture; investigating the characteristics of livestock 
operations that experience higher depredation rates; and research into 
the type of livestock and rate of livestock loss that are confirmed in 
remote public grazing allotments. We also correspond with researchers 
and wildlife managers around the world to learn how they deal with 
similar problems. While preventative and non-lethal control methods can 
be useful in some situations, they are not consistently reliable, and 
lethal control will remain an important tool to manage wolves that have 
learned to depredate on livestock. Lethal removal of problem wolves to 
the extent that it reduces the wolf population below recovery levels is 
not permitted. Under this rule, we or our designated agent(s) will 
regulate human-caused mortality of wolves in a manner that reduces 
conflicts between wolves and people while maintaining a recovered wolf 
    Response 8-2: To preserve physical evidence of a wolf attack, we 
require in the rule that any wolf take be reported within 24 hours and 
the site remains undisturbed.
    Response 8-3: The Service treats wolves as humanely as conditions 
allow. We or our designated agent(s) routinely capture and release 
wolves for monitoring, research, and control. We train our employees in 
humane wildlife handling techniques. We capture wolves by leg-hold 
trapping, snaring, darting, and use the utmost caution to preserve the 
health and well-being of the captured animal. Mortalities resulting 
from wolf captures are below 2 percent of the animals handled. When we 
or our designated agent(s) must kill problem wolves, we use the most 
effective and humane techniques possible under field conditions. We 
continue to investigate non-lethal ways to reduce wolf-livestock 
conflicts, and we prefer to prevent livestock depredations, if 
possible, rather than react to them by killing depredating wolves.

[[Page 1293]]

    Response 8-4: This rule clearly states that for take by landowners 
on their private lands or take on public land by a Federal allotment 
permittees of a gray wolf in the act of attacking livestock or dogs, 
the carcass of the wolf and the surrounding area should not be 
disturbed in order to preserve physical evidence that the take was 
conducted according to this rule. The take should be reported 
immediately, and the Service or our designated agent(s) will use the 
carcass and evidence in the area surrounding it to confirm that the 
livestock or dogs were wounded, harassed, molested, or killed by 
wolves. The take of any wolf without such evidence of a direct and 
immediate threat may be referred to the appropriate authorities for 
    Issue 9: We received comments about the differentiation in wolf 
management between public and private lands, such as: States do not 
differentiate between private and public lands for defense of personal 
property from most resident predators and neither should the Service; 
the Service should not control wolves on public land; the Service 
should recognize the difficulties with different wolf management 
strategies for livestock producers in checkerboard areas of mixed 
public and private ownership; and the Service should recognize the 
special authorities of Tribes on reservations and ceded lands.
    Response 9-1: Under this rule, any landowner can shoot a wolf 
attacking or ``in the act'' of attacking livestock or dogs on private 
land without prior written authorization. The rule also allows legally 
authorized permittees on public land, including outfitters and guides, 
to kill a wolf attacking or ``in the act'' of attacking livestock or 
herding or guarding animals being used as part of their Federal land-
use permit on their public allotment without prior written 
authorization. We consider reservation lands in States with approved 
plans as private land to extend as much management flexibility as 
possible to Tribal lands. Any such take of wolves must be reported 
immediately and evidence of an attack or that wolves were ``in the 
act'' of attacking must be presented to agency investigators. Any take 
of wolves without such evidence of attack (such as wounded or dead 
livestock or dogs) or without evidence that a reasonable person would 
have believed an attack was likely to occur at any moment (such as 
indicators that livestock were being chased or harassed by wolves, and 
proximity of wolves to livestock), may be referred to the proper 
authorities for prosecution. The mandatory evidence and reporting 
provisions will reduce the number of wolves killed by permittees, and 
will minimize the potential for abuse. Removing the wolves that are 
actually attacking livestock is a more effective method of removing 
problem wolves, especially on remote public lands, than agency control 
days after depredations have occurred. After a problem wolf is removed 
by a permittee, further agency control is rarely warranted, especially 
because immediate action by the permittee can more easily target the 
problem wolf, compared to agency control after-the-fact based on 
educated assumptions concerning the identity of the problem wolf. This 
provision does not allow the taking of wolves to protect hunting dogs 
(because they do not qualify as livestock under this rule) being used 
by outfitters and guides on public land, nor will it allow private 
individuals recreating on public land who are not public land 
permittees to take wolves unless in self-defense or in defense of 
    Response 9-2: By making the take provisions between private land 
and public land similar, we have reduced the confusion that might 
surround problem wolf management options in areas of checkerboard 
landownership whose borders may be difficult to ascertain.
    Issue 10: Some commenters requested the definition of ``public land 
permittee'' be expanded to include permitted outfitters and guides.
    Response 10-1: We dropped the written authorization requirement for 
take of wolves by public land permittees, including guides and 
outfitters, when wolves are attacking or are ``in the act'' of 
attacking livestock on their allotments during the active period of 
their federally-issued land-use permit. ``Public land permittee'' also 
includes Tribal members who are legally grazing their livestock on 
ceded public lands under Tribal treaty rights. The rule does not allow 
the taking of wolves on public lands when wolves attack dogs that are 
not being used by permittees for livestock guarding or herding. Private 
users of public land or people who are not active public land 
permittees may non-injuriously harass wolves that are attacking 
livestock or dogs but may not kill or injure wolves on public land for 
attacking livestock or dogs.
    Response 10-2: This rule allows us or our designated agent(s) to 
issue ``shoot on sight'' written authorizations to both private 
landowners and public land permittees with active grazing allotments 
after wolf depredations have been confirmed, agency lethal control is 
already authorized, and wolves still present a significant threat to 
livestock. Such take must be conducted in compliance with the 
conditions specified in the written take authorization issued by the 
Service or our designated agent(s).
    Issue 11: We received comments for and against agency control of 
wolves in response to wolf impacts on ungulate herds. People against 
such control believe that wolves are part of the ecosystem and that 
predator and prey should be allowed to naturally fluctuate. People who 
supported such agency wolf control believed that wolves could 
significantly reduce hunter harvest of ungulates, fostering ill will 
and increasing the potential for illegal killing of wolves. Some were 
concerned about abuse of this provision and lack of public review and 
scientific integrity in the decision-making process. There was some 
question as to how wolf management for ungulates would apply in 
Wyoming, the only State without an accepted wolf management plan.
    Response 11-1: Under the 1994 rules, any State, including Wyoming, 
or Tribe can move wolves if they document that wolf predation is 
negatively impacting attainment of State or Tribal goals for big game. 
To date, no State or Tribe has documented excessive wolf predation on 
native ungulate herds, warranting wolf removal, nor has any State or 
Tribe requested such.
    Response 11-2: In some situations, wolf predation, in combination 
with other factors, could potentially contribute to dramatic localized 
declines in wild ungulate populations (Mech and Boitani 2003). As noted 
in their comments on the proposed rule, segments of the public and 
State fish and game agencies are concerned that if these conditions 
exist and wolf predation is contributing to dramatic declines in a 
local ungulate population, management of wolf predation should be an 
available option. Most, if not all, core wolf habitat in the 
experimental population areas is now occupied by wolf packs. Any 
relocated wolves are likely to settle outside of core areas and near 
livestock and private property--likely creating additional conflicts 
with local livestock producers (Bradley 2003). This rule allows wolves 
to be killed to resolve significant conflicts with State and Tribal 
ungulate management objectives.
    Response 11-3: States and Tribes can lethally take wolves to 
resolve significant ungulate management issues, but only after 
submitting a scientific, written proposal that has undergone peer and 
public review. The State or Tribal proposal must define the issue, 
history, past and future monitoring and management and describe the 

[[Page 1294]]

indicating the impact by wolf predation on the wild ungulate 
population, what degree of wolf removal will occur, and why it believes 
wolf control is appropriate. The proposal must discuss other potential 
remedies. The Service will review the State's or Tribe's proposal once 
it has undergone peer and public review. The Service will only approve 
wolf take for ungulate management after we determine that the proposal 
scientifically supports wolf removal and does not compromise wolf 
recovery objectives.
    Issue 12: Some comments supported and others were against 
translocation (capturing and releasing at a distant location) of 
problem wolves.
    Response 12: Translocation of wolves to reduce wolf-livestock 
conflicts can be a valuable management tool when wolf populations are 
low and empty habitat is available (Bradley 2003). The Rocky Mountain 
wolf population is well above recovery levels and nearly all suitable 
release sites for translocated wolves are already occupied by resident 
wolf packs. Wolves are territorial, and resident packs may kill strange 
wolves in their territory. Translocating problem wolves is often 
unsuccessful at preventing further problems, because once a wolf has 
learned that livestock can be prey, it can carry that learned behavior 
to its new location, where it can continue being a problem wolf 
(Service 1999). Also, some wolves travel great distances after 
translocation and return to the area where they were captured and begin 
attacking livestock again. As a result, translocated wolves rarely 
contribute to recovery of the Rocky Mountain wolf population (62 FR 
65237). The Service or our designated agent(s) will primarily rely on 
lethal control for management of wolves that attack livestock, if non-
lethal methods appear ineffective, because most habitat in Montana, 
Idaho, and Wyoming that does not have livestock is already occupied by 
resident wolf packs. No wolves have been relocated in Montana, Idaho, 
or Wyoming since 2001. However, in rare instances, translocation may be 
used to resolve conflicts or excessive depredation of native wild 
ungulate populations.
    Issue 13: Some recommended the Service emphasize non-lethal wolf 
control to resolve conflicts, including encouraging ranchers to take 
measures to reduce the risk of wolf depredation.
    Response 13: The Service works with USDA-APHIS-WS, livestock 
organizations, private groups, and individuals to identify and 
publicize ways that livestock producers can reduce the risk of wolf 
depredation. The decision to use any of the tools offered is strictly 
voluntary on the part of the livestock producer, but in the past many 
producers have been willing to take additional steps to reduce the risk 
of wolf predation. To date, a multitude of preventative and non-lethal 
wolf control measures have been used to reduce wolf conflicts with 
livestock. None are always reliable or effective, but some can have 
limited and temporary benefit (Bangs and Shivik 2002, see Service 2004 
for additional references). The Service and our designated agent(s) 
will continue to investigate preventative and non-lethal management 
options to reduce wolf conflicts with livestock, but lethal control 
will continue to be an important option in many situations.
    Wolf populations can remain stable while withstanding 25-35 percent 
human-caused mortality per year (Mech and Boitani 2003). Agency lethal 
control of problem wolves was predicted in the 1994 EIS to remove about 
10 percent of the wolf population annually, and at that level lethal 
control will reduce the overall level of conflicts with livestock 
without reducing the wolf population. To date, agency lethal control of 
wolves has removed an average of less than 5 percent of the wolf 
population annually and the amount of lethal take allowed under this 
new regulation is not predicted to increase annual wolf mortality above 
10 percent annually of the population or to a level that reduces the 
wolf population below recovery levels.
    Issue 14: Some commenters believed the Service should not loosen 
restrictions on lethal take of wolves, and that we should base the take 
levels on scientific information, not local political pressure.
    Response 14: We recognize that excessive human persecution of 
wolves is the primary reason for the decline of wolves across North 
America. We believe the protections of the Act, in combination with 
extensive public education efforts by the Service and numerous private 
and public partner organizations, have reduced human persecution and 
led to the increase in gray wolf numbers and an expansion of their 
range. For the wolf population to remain recovered, human-caused 
mortality must be regulated. This rule provides adequate regulation of 
human-caused mortality to prevent severe population declines. We have 
based our decisions about the appropriate level of wolf control on wolf 
biology, research, and our best professional judgment (see Service 2004 
for relevant references), despite pressure from interest groups at both 
ends of the spectrum of human perspectives about wolves and wolf 
    Issue 15: Some commenters described the past persecution of wolves 
and expressed the belief that similar persecution will resume if the 
proposed rule is adopted.
    Response 15: This final rule is not expected to significantly 
increase the level of human persecution of gray wolves. It does not 
reduce the Federal protection for illegally killing gray wolves. We 
believe that providing additional mechanisms for the control of problem 
wolves, including harassment and control options, will reduce the need 
for reactive agency lethal control and the incentive to illegally kill 
wolves. We do not believe this rule will increase the threats from 
human-caused mortality to the majority of the wolf population that does 
not exhibit problem behavior, and indeed will increase human tolerance 
for non-depredating wolves and will help decrease those threats.

E. Other Management Concerns

    Issue 16: Some asked what procedural steps are required to 
determine ``excessive population pressure'' so that wolves might be 
hunted by the public. Others requested we not allow public hunting or 
trapping of wolves.
    Response 16: This rule does not allow public hunting or trapping of 
wolves. We do not envision that a case of ``excessive population 
pressure'' could be made for this wolf population that would allow 
consideration of public hunting while wolves are listed.

F. State Management Concerns

    Issue 17: Concern was expressed about whether State or Tribal 
management of gray wolves would provide adequate protection to ensure 
the continued viability of the wolf population. Others welcomed the 
State or Tribal lead in management over the Federal management, though 
some were concerned about funding for State and Tribal wolf management. 
Some thought the cost of State management should be paid by the Federal 
    Response 17-1: If a State or Tribe (on its reservation) is 
interested in assuming management responsibility for wolves while they 
are listed, the Service must first approve their wolf management plan. 
The Service must be assured that State or Tribal management will be 
consistent with the Act, this rule, and recovery of the species, before 
we may delegate management responsibility to that State or Tribe. 
States and Tribes with approved plans are only able to manage the wolf 
population within the framework established by this rule.
    Response 17-2: We have funded State and Tribal wolf monitoring, 

[[Page 1295]]

and management planning efforts for gray wolves in Montana, Idaho, and 
Wyoming. For the past several years, Congress has targeted funding for 
wolf management to Montana, Idaho, and Wyoming, and the Nez Perce 
Tribe. In addition, Federal grant programs are available that fund 
wildlife management programs by the States and Tribes. The Cooperative 
Endangered Species Conservation Fund, for example, provides funds to 
states for species and habitat conservation actions for threatened and 
endangered and other at-risk species.

G. Native American Management Concerns

    Issue 18: Some felt that the Tribal wolf management roles vis-
[agrave]-vis the Federal and State agencies should be clarified and 
    Response 18: This rule provides Tribes with all the same 
opportunities on reservation lands, i.e., lands held by a Tribe in fee 
simple or held in trust for Tribes, that it offers the States on lands 
under State wildlife management authority. Tribes with Service-accepted 
wolf management plans and wildlife management authority and capability 
can assume the lead for wolf management on their reservation lands 
through the same MOA process with the Secretary of DOI that is 
available to States, or can serve as designated agents through the 
cooperative agreement process. This rule treats Tribal member's lands 
on reservations as private property within the borders of States with 
approved wolf management plans. Tribal individuals within reservations 
may take wolves according to the provisions of this rule, assuming such 
take is legal under Tribal regulations. In the absence of a Service-
approved Tribal wolf management plan or cooperative agreement, the 
Service will issue any written authorization for wolf take on Tribal 
    Issue 19: The Nez Perce Tribe asked for Government-to-Government 
discussions with the Service.
    Response 19: The Service met with Nez Perce Tribal representatives 
on October 25, 2004, in Boise, Idaho, to fulfill their request for a 
government-to-government meeting regarding the Tribe's role in wolf 
management. We also acknowledged receipt of their draft wolf management 
plan titled ``Nez Perce Tribal Gray Wolf Conservation and Management 
Plan.'' We were unable to discuss the details of this final rule at 
that time, and agreed to review their draft wolf management plan once 
this rule is promulgated. The Nez Perce Tribe has done a commendable 
job in the wolf recovery program since 1995. During wolf recovery, 
under contract with the Service, the Nez Perce Tribe has provided such 
services as wolf monitoring, communications with affected and 
interested parties, and research. We encourage the continued 
cooperation and coordination between the Tribes and States to delineate 
the roles and responsibilities for management of wolves both inside and 
outside Tribal reservations. Tribal reservations within States with 
approved wolf management plans are considered `private land' for the 
purposes of this rule. Therefore, individuals on Tribal lands may take 
wolves according to the provisions of this final rule for private 
landowners, and thereby benefit from the additional flexibility this 
rule provides, as long as it does not violate Tribal regulations.
    Issue 20: Tribes have extensive treaty rights on ceded lands 
throughout the experimental population areas.
    Response 20: The provisions of this rule are available to Tribal 
governments only on their reservation lands. Wolf management on private 
inholdings within reservations without approved Tribal wolf management 
plans will be coordinated by the Service. The States have lead resident 
game management authorities outside of reservations and should include 
any Tribal treaty rights in their State management plans. Tribal treaty 
rights, such as a share of the potential legal wolf harvest, are not an 
issue affected by this rule. This rule does recognize and encourage 
State and Tribal cooperative agreements to provide opportunities for 
increased wolf management flexibility and consistency throughout 
reservations, ceded lands, and other areas within States. This rule 
also acknowledges Tribal treaty rights for pasturing and grazing 
livestock on ceded lands, as specified below. This rule treats wolves 
on reservations in States with approved wolf management plans as if 
they were on private property, thereby affording individuals on those 
reservations additional management flexibility to deal with problem 

G. Memorandum of Agreement Concerns

    Issue 21: Two interpretations were expressed about the relationship 
between this rule and the proposed MOAs. Some thought this rule would 
go into effect immediately in any State with an approved plan, and that 
the MOA was a subsequent and separate process. Another interpretation 
was this rule would only go into effect after a State or Tribe 
completed an MOA with the DOI.
    Response 21: This rule is effective in 30 days from the date of 
publication within any part of the experimental population area within 
a State or Tribal reservation that has a Service-accepted wolf 
management plan. The MOA process is a separate and subsequent issue. 
The States or Tribes can choose to become designated agents under this 
rule through either an MOA or a cooperative agreement.
    Issue 22: The intent of the MOA was questioned. Some thought the 
MOA allowed a State or Tribe to implement this rule while others 
thought it allowed additional flexibility beyond that permitted by this 
    Response 22: The MOA process cannot allow wolf management beyond 
that authorized by this rule without further public comment and 
modification of this rule. The MOA process gives States or Tribes the 
opportunity to take the lead in implementing all parts of this rule, 
including issuance of take authorization, and determining what types 
and levels of control are necessary to manage problem wolves.
    Issue 23: Some questioned whether this rule or an MOA under this 
rule would cover management of areas outside the 10(j) experimental 
population areas.
    Response 23: This rule and related MOAs only apply to State or 
Tribal management inside the experimental population areas.
    Issue 24: A few comments addressed the exclusion of Wyoming from 
this rule because Wyoming lacks a Service-approved plan. Some argued 
Wyoming's plan should have been approved. The support was mixed, some 
wanting this rule to apply in Wyoming, regardless of State plan 
approval. Others indicated that Wyoming should not get the benefit of 
this rule's additional flexibility without an adequate State plan.
    Response 24: This rule will apply in Wyoming only after Wyoming has 
a wolf management plan that is approved by the Service. Likewise this 
rule will apply to any Tribal reservation land in Wyoming only after 
that Tribe has a wolf management plan approved by the Service. In the 
absence of a Service-approved wolf management plan, the 1994 10(j) 
rules still apply to Wyoming and all Tribal reservations within the 
experimental population areas in Wyoming.
    Issue 25: Concerning the timing of implementation of the provisions 
of the rule, some wanted it to be effective immediately, others wanted 
a phase-in period. Some indicated that if the Secretary can terminate 
an MOA in 90

[[Page 1296]]

days, the States and Tribes should be allowed to do the same.
    Response 25-1: This rule becomes effective in 30 days from date of 
publication. The Secretary will review any State or Tribal petition as 
soon as possible; references to a 30-day timeframe for acting on the 
MOA have been removed.
    Response 25-2: The language in the final rule has been changed to 
allow either party to terminate the MOA with 90 days notice.

H. General Comments on the Proposed Experimental Rule

    Issue 26: The bulk of the comments from the public were very 
similar. While most stated the proposed rule was not protective enough 
of wolves, others said it was too protective.
    Response 26: We solicited comments to identify new information and 
search for new ideas to improve wolf management under this rule. We 
addressed the substantive comments we received, and did not modify this 
rule because more people expressed one opinion over another.
    Issue 27: Some believed that States with approved wolf management 
plans should be able to be delisted separately.
    Response 27: We are not proposing to delist the WDPS gray wolves at 
this time. Therefore, comments of this nature are not addressed in this 
rule. In addition, at this time the Act does not allow wolves to be 
delisted on a State-by-State basis.

I. Comments Not Germane to This Rulemaking

    Some comments went beyond the scope of this rulemaking, or beyond 
the authority of Service or the Act. Since these issues do not relate 
to the action we proposed, they are not addressed here. These comments 
included support or opposition for future delisting proposals. Some 
indicated concern that this rule might lead to the killing of wolf-like 
canids (dogs) by the public. Some comments indicated wolves were either 
not native to the experimental areas, wolf reintroduction was illegal, 
wolf reintroduction usurped States' rights, that the type of wolf that 
currently lives in Montana, Idaho, and Wyoming is a non-native wolf, or 
that the Service fails to use the definition of a species as proposed 
by Linnaeus. Many of these types of comments were discussed in the 
reclassification rule (68 FR 15804). We also received comments 
expressing support for, and opposition to, wolf recovery and the 
proposal (or parts of it) without further elaboration or explanation.
    Issue 28: Where did the idea for this rule come from; was it 
politically motivated?
    Response 28: The Service proposed a rule revision in 1997 (62 FR 
65237) but litigation postponed development of a final rule. The 
States, particularly Idaho, raised the issue of a rule revision in 2002 
when the WDPS wolf population first achieved its recovery goal. 
However, the Service did not initiate a rule revision at that time 
because we believed the recovered wolf population should be delisted 
and instead focused our resources and efforts on helping the States 
develop wolf management plans and on preparing a delisting proposal. 
However, in 2004 after the Service did not approve the Wyoming wolf 
plan and it appeared delisting would be delayed, we reconsidered a rule 
change. The Service developed this rule to assist in management of the 
recovered wolf population and to begin the transition to increased 
State and Tribal involvement while we continue our efforts to delist 
the recovered wolf population.

Changes to the Final Rule

    As a result of comments, additional data received during the 
comment period, and additional analysis, several changes were made to 
the special rule we proposed on March 9, 2004 (69 FR 10956). Every 
section of the rule received some degree of specific or general public 
comment. The following paragraphs discuss significant changes.
    Comments showed a polarization over the issues of when, where, by 
whom, and under what circumstances lethal control would occur. The 
conditions under which a private citizen can take a wolf in this final 
rule differ slightly from the March 2004 proposed rule. The net result 
of the changes will likely slightly increase the level of problem wolf 
take by the public on public land, and slightly decrease the level of 
public wolf take on private land, over that proposed in March 2004. 
This rule will result in a higher level of problem wolf take on both 
private and public land by the public than the 1994 10(j) rules (see 
Comparison Table). We expect this take to be minimal, but it may 
slightly decrease the overall rate of livestock depredation and 
slightly decrease agency expenditures to control problem wolves. The 
main potential effect of this rule is to slightly shift the ability to 
remove problem wolves to the affected landowners and public land 
permittees, from the Service and our designated agent(s). These changes 
will more closely align wolf management strategy with existing State 
management of large carnivores and the approved Montana and Idaho State 
wolf management plans.
    Since 1995, when the first wolves were reintroduced into the 
experimental population areas, less than two wolves have been taken by 
the public each year. Six wolves have been shot on private land as they 
attacked livestock and eight wolves were killed on private land under 
``shoot-on-sight'' written authorizations for chronic livestock 
depredations. No wolves have been killed by the public on public land, 
even though the Service has issued written authorizations to shoot 
wolves attacking livestock on grazing allotments. Overall agency take 
to resolve conflicts with livestock, including authorized take by the 
public, resulted in an average of 6.6 percent (range 0-11.2 percent) 
and 2.9 percent (range 0-4.8 percent) of the NEP wolves being removed 
annually from 1995 though 2003, in the Yellowstone and central Idaho 
areas, respectively. Before wolves were reintroduced in 1995, we 
predicted that agency wolf control (including legal regulated take in 
defense of private property) would remove an average 10 percent of the 
population annually. We do not foresee this final rule increasing wolf 
mortality, including regulated take by the public in defense of their 
private property or by States or Tribes in response to unacceptable 
impacts to ungulate populations, to levels that average more than 10 
percent annually, or to a level that threatens wolf recovery. Mandatory 
reporting and the requirement for evidence of wolf attacks are similar 
to State requirements for taking black bears and mountain lions to 
protect private property. These mandatory conditions should minimize 
the potential for abuse of the regulations and take of non-problem 
    Significant changes to and clarifications of the final rule are 
discussed in the following sections.
    1. Proposed--Allowed only landowners and public land permittees to 
opportunistically harass wolves in a non-injurious manner at any time 
for any reason. Such harassment was allowed only when there were not 
purposeful actions to attract, track, wait for, or search out the wolf. 
Examples of this type of harassment include scaring the wolf with noise 
[yelling or shooting into the air], movement [running or driving toward 
the wolf], or objects [throwing a rock at a wolf or releasing bear 
pepper spray]. Such harassment must be of a very limited duration, 
cannot result in any injuries to the wolf, and must be reported to us 
or our designated agent(s) within 7 days.
    1. Final--Allows anyone to opportunistically harass wolves in a 
non-injurious manner at any time for

[[Page 1297]]

any reason. All the same conditions as proposed apply in that such 
harassment must be conducted on an opportunistic basis, may not 
physically harm the wolf, and there can be no purposeful actions to 
attract, track, wait for or search out the wolf. Such harassment must 
be reported within 7 days.
    Discussion--Wolves are normally wary of humans. However, wolves can 
become accustomed to being around people unless people teach them to 
avoid close contact. We believe that allowing anyone to 
opportunistically harass a wolf, as long as the wolf is not injured, 
will not result in any physical harm to wolves, but could make them 
more wary of people (Bangs and Shivik 2001; Bangs et al In press). Such 
harassment will provide people with an extra means to protect their 
livestock and pets from wolf conflict, without harming the wolf. Wary 
wolves should be more likely to avoid areas with high levels of human 
activity, which should reduce conflicts with people and their 
livestock, thereby reducing the level of reactive lethal control. Such 
non-injurious harassment should also make wolves more cautious of 
people which could reduce the opportunity for people to illegally take 
    2. Proposed--Allowed the take of wolves attacking any domestic 
animal on private land or when there was a ``reasonable belief'' that 
such an attack was imminent.
    2. Final--Allows the take of wolves attacking (actually biting, 
wounding, grasping) or in the act of chasing, molesting, or harassing 
that would indicate to a reasonable person that such biting, wounding, 
grasping, or killing is likely to occur at any moment. On private land, 
wolves can be taken without written take authorization if they are 
attacking livestock (defined as cattle, sheep, horses, mules, goats, 
domestic bison, and livestock herding or guarding animals) or dogs. On 
public land, wolves can be taken without written take authorization 
when they are attacking livestock but only by a permittee with a 
current Federal land-use permit that requires livestock use. On both 
private and public land, evidence of an attack, such as wounded 
livestock, or evidence that a reasonable person would have believed an 
attack was likely to occur at any moment, such as indicators that 
livestock were being chased or harassed by wolves, and proximity of 
wolves to livestock, must be presented to investigators. This is more 
protective of wolves on private land because the final rule limits this 
take to livestock or dogs, less protective on public land because it 
allows take without take authorization, and overall, less protective of 
wolves than the 1994 10(j) rules or the March 2004 proposed rule.
    Discussion--Some wildlife law enforcement agents claimed parts of 
the proposed rule were unenforceable. For example, we received comments 
that ``reasonable belief'' was a vague term, as used in the proposed 
rule, and would invite abuse and killing of non-problem wolves. The 
definition of ``in the act of attacking'' in this final rule is 
consistent with existing State statutes regarding the legal take of 
mountain lions and black bears to protect private property. This type 
of ``defense of property'' regulation has generally worked well--take 
of both mountain lions and black bears under such State regulations is 
generally limited to less than 10 individuals per year. The wording in 
this final rule does not require determination of a person's state of 
mind; instead it requires physical evidence to verify the attack, or 
physical evidence that a reasonable person would have believed an 
attack was likely to occur at any moment. Take of wolves must be 
reported within 24 hours (with additional reasonable time to report 
take allowed if access to the site is limited). Take without such 
evidence may be referred to the proper authorities for prosecution. 
Allowing public take of problem wolves in such a manner allows for 
effective removal of problem wolves and reduces the likelihood of abuse 
of the regulations.
    3. Proposed--Allowed take on private land of a wolf attacking any 
domestic animal.
    3. Final--Only allows take on private land of a wolf attacking 
livestock (cattle, sheep, horses, mules, goats, domestic bison, and 
herding and guarding animals) or dogs. This is more protective of 
wolves than the proposed rule and less protective than the 1994 10(j) 
    Discussion--In 1987, the first livestock depredation by wolves in 
Montana in recent history occurred. From 1987 through 2003, wolves have 
been confirmed to have killed a minimum total of 301 cattle, 804 sheep, 
20 other livestock (10 goats, 9 llamas, and a foal horse), and 63 dogs 
in Montana, Idaho, and Wyoming. There have been a few scattered reports 
of suspected wolf depredations on poultry, cats, or hares--but none of 
these were ever confirmed. Public comment indicated that abuse of the 
regulation was more likely if wolf take was allowed for any domestic 
animal. We agreed and concluded that wolf control should be restricted 
to types of domestic animals that have been attacked in the past, are 
common in the experimental areas, are often free-ranging, and are large 
enough that if they are attacked there would be physical evidence to 
investigate and confirm wolf involvement.
    4. Proposed--Allowed take, by grazing permittees on public land, of 
wolves attacking livestock, after a confirmed depredation on livestock 
had already occurred and a written Federal take authorization had been 
    4. Final--Allows take by some public land permittees on public land 
of wolves attacking or in the act of attacking livestock--without 
written take authorization. Public land permittees include Tribal 
members who are legally grazing livestock on ceded lands under 
recognized treaty rights. This rule does not allow take of wolves by 
the general public on public land or take of wolves attacking dogs, 
with the exception of dogs being used by permittees for herding or 
guarding livestock. We believed that permittees should be allowed to 
immediately remove problem wolves without a take authorization, if 
wolves are caught in the act of attacking their livestock in their area 
of designated use. This is less protective of wolves than the proposed 
rule or the 1994 10(j) rules, but should lead to more effective control 
with more surety that the problem wolves are the ones taken.
    Discussion--The most effective mechanism to target and remove 
individual problem wolves is to immediately take wolves seen attacking 
or in the act of attacking livestock. We believe that such take will be 
limited. To date no wolf has been legally taken on public land under a 
written lethal take authorization by a livestock producer who saw it 
attacking his/her livestock. The opportunity for abuse and excessive 
take is reduced by requirements to report the take, hold an active 
Federal land-use permit for livestock use or be a Tribal member 
exercising recognized treaty rights, and limit such take to a specific 
active allotment. We do not allow lethal take of wolves to protect 
hunting hounds or pet dogs that are not being used by permittees to 
guard or herd livestock, nor do we allow lethal take of wolves by the 
general public recreating on public lands to protect livestock or dogs. 
We believe that hound hunters and the general public can adequately 
protect their livestock and dogs on public land by opportunistic non-
injurious harassment of wolves.
    5. Proposed--Allowed issuance to private landowners or their 
adjacent neighbors or public land grazing permittees written take 
authorization of limited duration to shoot on sight wolves on private 
property or adjacent

[[Page 1298]]

private property or active allotment, after (1) One confirmed wolf 
depredation on livestock or domestic animals; and (2) We determine 
wolves are routinely present and are a significant risk.
    5. Final--Allows issuance to private landowners with confirmed 
depredation on their private property or public land livestock grazing 
permittees, written take authorization of limited duration to shoot on 
sight wolves on their private property or their active allotment, after 
(1) One confirmed wolf depredation on livestock or dogs on that private 
property or one confirmed depredation on livestock on an active grazing 
allotment; (2) We or our designated agent(s) determine that wolves are 
routinely present and are a significant risk; and (3) We or our 
designated agent(s) are authorized to do lethal control. Written take 
authorization may be issued at our or our designated agent(s)'; 
discretion on a case-by-case basis to assist in the removal of problem 
wolves. On private land, this is less protective of wolves than the 
proposed rule, and more protective than the 1994 10(j) rules that 
allowed ``shoot-on-sight'' written take authorization to be issued 
after the second confirmed livestock depredation, even to adjacent 
neighbors who did not have previous depredations on their property. On 
public grazing allotments, it is less protective of wolves than the 
proposed rule or the 1994 10(j) rules.
    Discussion--Shoot-on-sight written take authorizations should only 
be issued when the agencies also are actively trying to lethally remove 
problem wolves, as is currently the case. Such take authorizations 
should be an option on public land grazing allotments, where access and 
agency removal of problem wolves is often more difficult. Narrowing the 
scope by which such take authorizations can be issued will more closely 
focus removal on problem adult wolves and resolution of chronic 
livestock depredations, and will reduce the potential for abuse. This 
provision of the final rule is consistent with management of large 
predators causing property damage on public land under current State 
wildlife regulations.
    6. Proposed--Allowed States or Tribes to lethally remove wolves 
causing unacceptable impacts to native ungulate populations or herds, 
after they consulted with the Service, and identified possible 
mitigation measures and remedies, and only if such take would not 
inhibit wolf recovery.
    6. Final--Provides a process for the States or Tribes to lethally 
remove wolves in response to wild ungulate impacts, similar to the 
proposed rule but in a more structured, transparent, and science-based 
process. The State or Tribe would develop a science-based plan and make 
it available for peer and public review. Based on that peer review and 
public comment, the State or Tribe would finalize the plan and then 
submit it to the Service for written concurrence. The Service would 
approve the plan if we determine the proposal is scientifically-based 
and would not reduce the wolf population below recovery levels. The 
final rule is similar to the proposed rule and less protective of 
wolves than the 1994 10(j) rules, which only allowed relocation of 
wolves in response to wild ungulate impacts.
    Discussion--Commenters showed a lot of mistrust over the issue of 
lethally removing wolves for State ungulate management objectives. To 
provide checks and balances in this process and satisfy our mandates 
under the Act that our decisions are made upon the best scientific 
information available, we recommend an open, transparent, science-based 
process. We believe that scientific studies in North America 
demonstrate that under some circumstances wolf predation can effect 
ungulate populations and hunter harvest (Mech and Boitani 2003) and 
predicted as much in our 1994 EIS analysis of the effects of wolf 
reintroduction. Because there are no large blocks of unoccupied wolf 
habitat in the experimental population areas, this final rule allows 
for the lethal removal rather than relocation of wolves that are 
causing significant impact to State or Tribal managed ungulate herds.
    7. Proposed--Required the release of any breeding female and her 
pups if caught on public land before October 1 during an initial agency 
wolf control action.
    7. Final--Allows the Service or our designated agent(s) the 
discretion to decide whether to remove any depredating wolf, including 
breeding females or their pups, on public land after the first 
confirmed livestock depredation. The final rule is less protective of 
female wolves and their pups than either the proposed rule or the 1994 
10(j) rules.
    Discussion--Pups less than 6 months of age do not have permanent 
teeth and are rarely directly involved in killing livestock. However, 
breeding females can be active hunters for the pack, and packs with 
pups may need to hunt more often to feed the pups. Pups older than 6 
weeks have been successfully reared by pack members other than the 
breeding female (Boyd and Jimenez 1994). Most livestock are not grazed 
on public land until June, when the pups are old enough to be raised by 
other pack members. Pups younger than 6 months are rarely targeted 
during agency wolf control actions, but the alpha female may be 
identified as the primary livestock killer. The final rule allows the 
Service or our designated agent(s) more management flexibility to make 
decisions in the field on a case-by-case basis depending on the best 
information available at the time. We do not expect this flexibility to 
result in any significant increase in the take of either breeding 
females or pups, but control may occur earlier in the year than in the 
    8. Proposed--Allowed the States with accepted wolf management plans 
to petition the Secretary to assume wolf management authority and 
possibly identify and implement management strategies in the accepted 
State wolf plan beyond those identified in the proposed rule. The 
Secretary would have to respond within 30 days of receipt of the 
    8. Final--Allows both States and Tribes on their reservations, with 
approved wolf management plans, to petition the Secretary to lead 
implementation of this rule. Under an MOA, the States or Tribes could 
authorize and conduct all the wolf management activities that the 
Service currently conducts and implement all portions of their approved 
State or Tribal wolf management plan that are consistent with this 
rule. These activities include: (1) Wolf monitoring--such as capture, 
radio-collaring, telemetry monitoring, and other wolf population census 
techniques; (2) wolf control--such as implementing or authorizing USDA-
APHIS-WS to use non-lethal or lethal control to minimize damage to 
private property by wolves, issue written take authorizations (less-
than-lethal munitions and shoot-on-sight written take authorizations) 
to the public on both private and public land; (3) determining whether 
wolf control is needed to resolve excessive wolf predation on big game 
populations; (4) wolf-related research--such as investigating the 
relationships between wolves and livestock and the effect of wolf 
predation on big game populations and hunter harvest; (5) conducting 
wolf information and educational programs; and (6) assisting in the 
enforcement of regulations designed to conserve the wolf population. 
All or some of these authorities and responsibilities also can be 
assumed without an MOA, with ``designated agent'' status under a 
cooperative agreement with the Service, but routine coordination on a 
daily or weekly basis is required. Under a cooperative agreement, only 
the specific

[[Page 1299]]

provisions of the 10(j) rule are implemented, not the State or Tribal 
wolf management plan. Under an MOA, all applicable portions of the 
State or Tribal wolf management plan which are consistent with this 
rule can be implemented. The Service oversight is limited to a general 
review of the overall program on an annual basis to ensure the wolf 
population is being maintained above recovery levels.
    This rule eliminates reference to the 30-day requirement to approve 
an MOA. The Secretary will approve the petition as soon as possible but 
only after he/she determines all applicable policies and laws were 
appropriately addressed.
    States or Tribes with approved plans may not implement additional 
management strategies beyond those identified in this rule, without a 
proposed amendment to the 10(j) rule and an opportunity for public 
    Discussion--Commenters pointed out that the term ``designated 
agent'' was used inconsistently in the proposed rule, and that Tribes 
have unique wildlife management authorities and wildlife treaty rights 
separate from the States. In the final rule, we clarify that the Tribes 
have their own rights and separate governments and have the ability to 
enter into an MOA with the Secretary of DOI if they have accepted wolf 
management plans for their reservation lands. States or Tribes with 
approved wolf management plans can become designated agents for the 
purposes of this rule in two ways:
    (1) Cooperative Agreements--The States and Tribes can enter into 
cooperative agreements with the Service to implement portions of this 
experimental rule, and serve as Service's ``designated agent'' for all 
or parts of this rule. States and Tribes that develop cooperative 
agreements with the Service are responsible for implementing this rule 
as written and are required to routinely consult with the Service on 
all the wolf management activities the States or Tribe has agreed to 
    (2) MOA--Under an MOA, the Secretary may appoint the State or Tribe 
to be a ``designated agent'' and may delegate all wolf management 
responsibilities to the State or Tribe, and the State or Tribe may 
implement all portions of this rule and applicable portions of their 
management plan without day-to-day oversight by the Service. These are 
in addition to the authorities given to a ``designated agent.'' Under 
an MOA, the States and Tribes must report to the Service on an annual 
basis, and the Service review ensures that State or Tribal management 
maintains the wolf population at or above recovery levels.
    The differences between an MOA and a cooperative agreement are that 
the cooperative agreement allows the States or Tribes to assist the 
Service to implement various parts of the Service's wolf conservation 
and management program as a designated agent, while the MOA provides 
the States or Tribes the opportunity to independently lead their 
approved wolf management and conservation efforts, plus act as a 
designated agent. The States and Tribes may enforce their own 
regulations and assist in our investigations under this rule, but under 
either a cooperative agreement or an MOA the Service retains the lead 
for law enforcement investigations and prosecution of violations of 
this rule.

          Final Rule Compared to the 1994 Experimental Population Special Rules and the 2003 4(d) Rule
             Refer to the regulations in 50 CFR for the complete wording and reporting requirements.
                                       Final experimental
            Provision               population rules 50 CFR       1994 rules 50 CFR       2003 4(d) Rule 50 CFR
                                            17.84(n)                  17.84(i)                  17.40(n)
Geographic Area..................  Same as 1994 rules. This   Same as final...........  This special applies to
                                    special rule applies                                 the gray wolf in
                                    only to wolves within                                Washington, Oregon,
                                    the areas of two NEPs,                               California, Idaho,
                                    which together include--                             Nevada, Montana, Utah
                                    Wyoming, the southern                                north of U.S. Highway
                                    portion of Montana, &                                50, and Colorado north
                                    Idaho south of                                       of Interstate Highway
                                    Interstate 90 but only                               70, except where listed
                                    in States or on Tribal                               as an experimental
                                    lands that have State or                             population in Idaho,
                                    Tribal wolf management                               Montana, and Wyoming.
                                    plans accepted by the
Interagency Coordination (Section  Same as 1994 rules.        Same as final...........  Consultations would
 7 Consultation).                   Federal agency                                       occur for the gray wolf
                                    consultation with the                                as they would for any
                                    Service on agency                                    threatened species.
                                    actions that may affect
                                    gray wolves is not
                                    required within the two
                                    NEPs, unless those
                                    actions are on lands of
                                    the National Park System
                                    or the National Wildlife
                                    Refuge System.
Take in Self Defense.............  Same as 1994 rules. Any    Same as final...........  Same as final.
                                    person may take a wolf
                                    in self defense or in
                                    defense of others.
Protection of Human Life & Safety  Same as 1994 rules. The    Same as final...........  Same as final.
                                    Service, or our
                                    designated agents, may
                                    promptly remove (that
                                    is, place in captivity
                                    or kill) any wolf
                                    determined by the
                                    Service or designated
                                    agent to be a threat to
                                    human life or safety.
Opportunistic Harassment.........  Anyone can                 Landowners & permit       Same as 1994 rules.
                                    opportunistically harass   holders on Federal land
                                    gray wolves in a non-      (including guides &
                                    injurious manner without   outfitters) can
                                    Service written            opportunistically
                                    authorization.             harass gray wolves in a
                                                               non-injurious manner
                                                               without Service written

[[Page 1300]]

Intentional Harassment...........  The Service or our         No specific provision     Same as final, except
                                    designated agent can       for intentional           written authorization
                                    issue a 1-year take        harassment were           is for 90 days.
                                    authorization to private   available in the 1994
                                    landowners & to Federal    rules, but since 2000
                                    permittees after           over 150 intentional
                                    verified persistent wolf   take authorizations
                                    activity on their          have been issued for 90-
                                    private land or            days on private land,
                                    allotment. The written     under Section 17.32
                                    take authorization would   research permits within
                                    allow intentional &        the experimental areas.
                                    potentially injurious,     No wolves have been
                                    (less-than-lethal          seriously injured.
                                    munitions) but non-
                                    lethal, harassment of
Taking wolves ``in the act'' of    Landowners on their own    The 1994 rules allowed    Landowners on their own
 attacking livestock on PRIVATE     private land may take a    wolf take on private      private land may shoot
 land by private individuals        gray wolf attacking        land without written      wolves that are biting,
 without prior written              (killing, wounding, or     authorization, when       wounding or killing
 authorization.                     biting) or in the act of   wolves were physically    livestock, herding or
                                    attacking (actively        biting & grasping         guard animals, or dogs.
                                    chasing, molesting,        livestock (cattle,        Landowners shall
                                    harassing) their           sheep, horses, &          provide evidence of
                                    livestock (includes        mules). Six wolves have   animals wounded or kill
                                    livestock herding &        been killed attacking     by wolves in less than
                                    guarding animals) or       livestock since 1995.     24 hours, and Service
                                    dogs. Such take must be                              confirms animals were
                                    reported in 24 hours &                               wounded or killed by
                                    injured or dead                                      wolves.
                                    livestock or dogs or
                                    physical evidence that
                                    would lead a reasonable
                                    person to believe that
                                    an attack would occur at
                                    any moment on livestock
                                    or dogs must be evident
                                    to verify the wolf
Taking persistent problem wolves   ``Livestock'' is defined   The 1994 rules mandated   Same as 1994 rules,
 ``in the act'' on PUBLIC land by   to include livestock       that after six breeding   except written
 public land permittees.            herding or guarding        pairs of wolves were      authorization to
                                    animals. Public land is    established in an NEP     livestock grazing
                                    only Federal land.         area, livestock           permittees would also
                                    Livestock producers &      producers & permittees    allow the killing of
                                    some permittees with an    with current valid        wolves attacking
                                    active valid Federal       livestock grazing         herding or guard
                                    grazing or outfitting/     allotments on public      animals on Federal
                                    guiding permits could      land could get a 45-day   lands and there are no
                                    take wolves that were      written authorization     limitations based upon
                                    attacking or in the act    from the Service or our   the number of breeding
                                    of attacking livestock     designated agents, to     pairs.
                                    on their active Federal    take gray wolves in the
                                    allotment or areas of      act of killing,
                                    use--without written       wounding, or biting
                                    take authorization. Such   livestock. The Service
                                    taking must be reported    must have verified
                                    within 24 hours &          previous attacks by
                                    physical evidence of an    wolves, & must have
                                    attack or in the act of    completed agency
                                    an attack by wolves on     efforts to resolve the
                                    livestock must be          problem. No wolves were
                                    evident.                   ever taken under these
                                                               written authorizations.
Additional taking by private       If we or our designated    There were no specific    Same as 1994 rules, but
 citizens on their PRIVATE LAND     agent confirm a            provision for such        specifically allows
 or an active GRAZING ALLOTMENT     depredation on livestock   written authorizations    written authorization
 for chronic wolf depredation.      or dogs on private         in the 1994 rules.        to shoot wolves on
                                    property or livestock on   However, since 1999,      sight maybe issued to a
                                    a public grazing           about 50 shoot-on-sight   private property owner
                                    allotment, & we have       written take              or adjacent private
                                    confirmed that wolves      authorizations (CFR       landowners after at
                                    are routinely present on   17.32) have been issued   least two separate
                                    that property & present    on private land,          confirmed depredations
                                    a significant risk to      including adjacent        by wolves on livestock,
                                    livestock or dogs, &       neighbors, with chronic   livestock herding or
                                    have authorized agency     (2 or more) livestock     guarding animals, or
                                    lethal control--the        depredations. Eight       dogs, and the Service
                                    private landowner or       wolves have been killed.  has determined that
                                    grazing permittee that                               wolves are routinely
                                    experienced the                                      present and present a
                                    depredation may receive                              significant risk to
                                    written authorization                                their livestock.
                                    from us or our
                                    designated agent to kill
                                    ``shoot on sight'' those
                                    problem wolves on their
                                    private land or their
                                    grazing allotment, under
                                    specified conditions.

[[Page 1301]]

Government take of PROBLEM WOLVES  Same as 1994, with         ``Problem wolves'' are    Same as 1994 rules,
                                    wording clarifications.    defined as wolves that    except as in final
                                    The Service or our         attack livestock once     rule--includes dogs,
                                    designated agent may       or any domestic animal    and livestock herding
                                    take any wolves that       twice in a calendar       an guarding animals.
                                    attack livestock or dogs   year. Depredations on
                                    once on private or         dogs could only be
                                    public land--or that       resolved by relocation
                                    twice in a calendar year   of the problem wolf.
                                    attack domestic animals    Criteria to determine
                                    other than livestock or    when take will be
                                    dogs on private land.      initiated are similar
                                    Taking may include non-    to those for the NEP--
                                    lethal measures such as    (1) evidence of the
                                    aversive conditioning,     attack, (2) reason to
                                    nonlethal control, &/or    believe that additional
                                    translocating wolves or    attacks will occur, (3)
                                    lethal control. There      no evidence of unusual
                                    are no agency              wolf attractants, & (4)
                                    limitations based on the   any previously
                                    total numbers of wolves    specified animal
                                    or the sex & age of the    husbandry practices
                                    wolves being controlled.   have been implemented,
                                    Criteria to determine      if on public lands.
                                    when take will be          Lethal control cannot
                                    initiated are--(1)         be used when five or
                                    physical evidence of the   fewer packs are present
                                    attack, (2) reason to      in the experimental
                                    believe that additional    population area, &
                                    attacks will occur, (3)    there is additional
                                    no evidence of unusual     protection of females
                                    wolf attractants, & (4)    with pups & pups prior
                                    any previously specified   to October 1, when five
                                    animal husbandry           or fewer pack or
                                    practices have been        present in the
                                    implemented, if on         experimental population
                                    public lands.              area.
Government removal killing or the  Similar to the 1994        Under the 1994            Same as 1994 rules,
 translation (capture & moving)     rules, but wolves may be   regulation, the States    except after 10
 of wolves to reduce impacts on     lethally removed by        or Tribes may capture &   breeding pairs are
 wild ungulates.                    State or Tribal            translocate wolves to     documented, the
                                    personnel. If gray wolf    other areas within the    Service, in
                                    predation is negatively    same NEP area, if the     consultation with
                                    impacting localized wild   gray wolf predation is    states and tribes, may
                                    ungulate populations at    negatively impacting      relocate wolves that
                                    an unacceptable level,     localized wild ungulate   are significantly
                                    as defined by the States   populations at an         impacting native
                                    & Tribes (on               unacceptable level, as    ungulate herds.
                                    reservations) wolves       defined by the States &
                                    maybe lethally removed.    Tribes. State/Tribal
                                    Removal can only occur     wolf management plans
                                    after the States or        must be approved by the
                                    Tribes have identified     Service before such
                                    other possible             movement of wolves may
                                    mitigative measures or     be conducted, & the
                                    remedies, & they have      Service must determine
                                    completed a peer-          that such translations
                                    reviewed written           will not inhibit wolf
                                    proposal that has          population growth
                                    undergone public           toward recovery levels.
                                    comment. The Service
                                    will determine if such
                                    removal will inhibit
                                    maintaining wolf
                                    recovery levels before
                                    any such removal could
                                    be authorized.
Incidental take..................  Same as 1994 rules with    The 1994 rules stated--   Same as final.
                                    minor word changes for     Any person may take a
                                    clarification. Any         gray wolf if the take
                                    person may take a gray     is incidental to an
                                    wolf if the take is        otherwise lawful
                                    incidental to an           activity, & is
                                    otherwise lawful           accidental,
                                    activity, & if             unavoidable,
                                    reasonable due care was    unintentional, not
                                    practiced to avoid such    resulting from
                                    taking, & such taking      negligent conduct
                                    was reported within 24     lacking reasonable due
                                    hours. (We may allow       care, & due care was
                                    additional time if         exercised to avoid
                                    access is limited.).       taking the wolf.
Permits for recovery actions that  Same as the 1994 rules.    Available for scientific  Same as final.
 include take of gray wolves.       Available for scientific   purposes, enhancement
                                    purposes, enhancement of   of propagation or
                                    propagation or survival,   survival, zoological
                                    zoological exhibition,     exhibition, educational
                                    educational purposes, or   purposes, or other
                                    other purposes             purposes consistent
                                    consistent with the Act    with the Act (50 CFR
                                    (50 CFR 17.32).            17.32).

[[Page 1302]]

Additional taking provisions for   Same as the 1994 rules,    The 1994 rules            Same as final.
 agency employees.                  except provision (H) was   permitted--Any employee
                                    added. Any employee or     or agent of the Service
                                    agent of the Service or    or appropriate Federal,
                                    appropriate Federal,       State, or Tribal
                                    State, or Tribal agency,   agency, who is
                                    who is designated in       designated in writing
                                    writing for such           for such purposes by
                                    purposes by the Service,   the Service, when
                                    when acting in the         acting in the course of
                                    course of official         official duties, may
                                    duties, may take a wolf    take a wolf from the
                                    from the wild, if such     wild, if such action is
                                    action is for--(A)         for--(A) scientific
                                    scientific purposes; (B)   purposes; (B) to avoid
                                    to avoid conflict with     conflict with human
                                    human activities; (C) to   activities; (C) to
                                    relocate a wolf within     relocate a wolf within
                                    the NEP areas to improve   the NEP areas to
                                    its survival & recovery    improve its survival &
                                    prospects; (D) to return   recovery prospects; (D)
                                    wolves that have           to return wolves that
                                    wandered outside of the    have wandered outside
                                    NEP areas; (E) to aid or   of the NEP areas; (E)
                                    euthanize sick, injured,   to aid or euthanize
                                    or orphaned wolves; (F)    sick, injured, or
                                    to salvage a dead          orphaned wolves; (F) to
                                    specimen which may be      salvage a dead specimen
                                    used for scientific        which may be used for
                                    study; (G) to aid in law   scientific study; (G)
                                    enforcement                to aid in law
                                    investigations involving   enforcement
                                    wolves or (H) that         investigations
                                    allows such take of        involving wolves.
                                    wolves to prevent wolves
                                    with abnormal physical
                                    or behavioral
                                    characteristics, as
                                    determined by the
The States or Tribes can become    The States & Tribes with   The 1994 rule had no      Same as 1994 rules but
 ``designated agents'' to           approved wolf plans can    provisions for MOAs but   States and Tribes could
 implement the 10j regulations      implement all or select    States & Tribes could     be designated agents &
 through cooperative agreements     parts of this rule         be designated agents &    implement the 4(d)
 with the Service or under an MOA   through ``designated       implement the 10j         rule.
 with the Secretary of the          agent'' status in          regulations, & expand
 Interior.                          cooperative agreements     certain rule
                                    with the Service. Agency   definitions--such as
                                    coordination would occur   the definition of
                                    on a daily or weekly       livestock--under
                                    basis. The States &        cooperative agreements
                                    Tribes can implement all   with the Service. No
                                    of this rule including     public hunting or
                                    all compatible portions    trapping can occur
                                    of their approved wolf     without a determination
                                    management plans under     of excessive population
                                    an MOA with the            pressure.
                                    Secretary of the
                                    Interior. No management
                                    outside the provisions
                                    of this rule is allowed
                                    unless additional public
                                    comment is solicited &
                                    this rule is modified.
                                    Under an MOA, State or
                                    Tribal coordination with
                                    the Service must only
                                    occur on a yearly basis.
                                    No public hunting or
                                    trapping can occur
                                    without a determination
                                    of excessive population
Land-use restrictions on private   Land-use restrictions may  The 1994 rules stated--   Same as final.
 or Federal public lands.           only be employed for       When five or fewer
                                    wolf recovery purposes     breeding pairs of
                                    on National Parks &        wolves are in an
                                    National Wildlife          experimental population
                                    Refuges except between     area, temporary land-
                                    April 1 & June 30, when    use restrictions may be
                                    land-use restrictions      employed on Federal
                                    may be employed to         public lands to control
                                    prevent lethal take of     human disturbance
                                    wolves at active den       around active wolf den
                                    sites on Federal public    sites. These
                                    lands.                     restrictions may be
                                                               required between April
                                                               1 & June 30, within 1
                                                               mile of active wolf den
                                                               or rendezvous sites, &
                                                               would only apply to
                                                               Federal public lands or
                                                               other such lands
                                                               designated in State &
                                                               Tribal wolf management
                                                               plans. When six or more
                                                               breeding pairs are
                                                               established in an
                                                               experimental population
                                                               are, no land-use
                                                               restrictions may be
                                                               employed on Federal
                                                               public lands outside of
                                                               National Parks or
                                                               National Wildlife
                                                               Refuges, unless that
                                                               wolf population fails
                                                               to maintain positive
                                                               growth rates for 2
                                                               consecutive years.

[[Page 1303]]

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and subject to Office of Management 
and Budget (OMB) review. An economic analysis is not required because 
this rule will result in only minor (positive) effects on the very 
small percentage of livestock producers in Idaho and Montana.
    (a) This regulation does not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A brief assessment to 
clarify the costs and benefits associated with this rule follows.
Costs Incurred
    Under this rule, various expenses that are currently incurred by 
the Service to manage the wolves in the NEPs would be transferred to 
the States or Tribes, either through a cooperative agreement or under a 
Memorandum of Agreement (MOA) entered into voluntarily by a State or 
Tribe. Although potential costs are addressed here, we do not quantify 
these expected expenditures. Costs would include personnel costs to 
implement, manage, and monitor the NEP. The personnel costs would be 
based upon the number of hours (and associated salary) necessary to 
perform these tasks. Other costs would include transportation and 
equipment necessary to maintain the NEP. States currently estimate 
their management costs will be 2-3 times higher than our current costs 
of $300K per State.
    We have funded State and Tribal wolf monitoring, research, and 
management planning efforts for gray wolves in Montana, Idaho, and 
Wyoming. For the past several years Congress has targeted funding for 
wolf management to Montana, Idaho, and Wyoming, and the Nez Perce. In 
addition, Federal grant programs are available that fund wildlife 
management programs by the States and Tribes. The Cooperative 
Endangered Species Conservation Fund, for example, provides funds to 
states for species and habitat conservation actions for threatened and 
endangered and other at-risk species.
Benefits Accrued
    This rule would have a beneficial economic effect in that it would 
reduce or remove some regulatory restrictions. The objective of the 
rule is to maintain wolf recovery in the WDPS, which would result in a 
variety of benefits. This rule will also reduce the overall level of 
conflicts between wolves and livestock, particularly on private land. 
This rule is expected to result in more public removal of problem 
wolves, thereby reducing the need for reactive agency removal of 
problem wolves. The methods necessary to quantify these expected 
benefits would be prohibitively expensive to conduct. Therefore, this 
section is limited to qualitative analysis. The potential benefits 
include maintaining a recovered wolf population and reducing conflicts 
between wolves and humans, leading to higher local tolerance of wolves 
and perhaps a lower level of illegal killing.
    (b) This regulation does not create inconsistencies with other 
agencies' actions. It is exactly the same as the other NEP rules 
currently in effect, in regards to agency responsibilities under 
Section 7 of the ESA. This rule reflects continuing success in 
recovering the gray wolf through long-standing cooperative and 
complementary programs by a number of Federal, State, and Tribal 
agencies. Implementation of Service-approved State or Tribal wolf 
management plans supports these existing partnerships.
    (c) This rule will not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs, or the rights and obligations of 
their recipients. Because there are no expected new impacts or 
restrictions to existing human uses of lands in Idaho or Montana as a 
result of this rule, nor in Wyoming or any Tribal reservations that 
remain under the 1994 10(j) rules, no entitlements, grants, user fees, 
loan programs, or the rights and obligations of their recipients are 
expected to occur.
    (d) This rule does raise novel legal or policy issues. Since 1994, 
we have promulgated section 10(j) rules for gray wolves in Idaho, 
Montana, and Yellowstone (Idaho/Wyoming). The gray wolves in the WDPS 
have achieved their recovery population numbers. A status review of the 
species' listing status has determined that the species could be 
delisted once a State wolf management plan has been approved by the 
Service for Montana, Idaho, and Wyoming. State management plans have 
been determined by the Service to be the most appropriate means of 
maintaining a recovered wolf population and of providing adequate 
regulatory mechanisms post-delisting (i.e., addressing factor D, 
``inadequacy of existing regulatory mechanisms'' of the five listing 
factors identified under section 4(a)(1) of the Act) because the 
primary responsibility for management of the species will rest with the 
States upon delisting and subsequent removal of the protections of the 
Act. The States of Idaho and Montana have Service-approved wolf 
management plans. For a variety of reasons, the Service determined that 
Wyoming's current State law and its wolf management plan do not suffice 
as an adequate regulatory mechanism for the purposes of delisting 
(letter from Service Director Steven Williams to Montana, Idaho, and 
Wyoming, January 13, 2004). The Service developed this rule to assist 
in management of the recovered wolf population and to begin the 
transition to increased State and Tribal involvement while we continue 
our efforts to delist the recovered wolf population.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever a Federal agency is required to publish a 
notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. The SBREFA also amended the Regulatory Flexibility Act to 
require a certification statement. Based on the information that is 
available to us at this time, we certify that this regulation will not 
have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    The majority of wolves in the West are currently protected under 
NEP designations that cover Wyoming, most of Idaho, and southern 
Montana and that treat wolves as a threatened species. Special 
regulations exist for these experimental populations that currently 
allow government employees and designated agents, as well as livestock 
producers, to take problem wolves. This regulation does not change the 
nonessential experimental designation, but does contain additional 
special regulations so that States and Tribes with wolf management 
plans approved by the Service can petition the Service to manage 
nonessential experimental

[[Page 1304]]

wolves under this more flexible rule. These changes only have effect in 
States or Tribes (on Tribal reservations) that have an approved 
management plan for gray wolves. Within the Western DPS of the gray 
wolf, only the States of Idaho and Montana have approved plans. 
Therefore, the regulation is expected to result in a small economic 
gain to some livestock producers in States with approved wolf 
management plans (i.e., Idaho and Montana) within the boundary of the 
NEPs of gray wolves in the Western DPS (Central Idaho NEP area and 
Yellowstone NEP area); it will have no economic impact on livestock 
producers in Wyoming or on any Tribal reservations in Wyoming as at 
this time their plans have not been approved.
    This regulation adopts certain provisions of Sec.  17.40(n), which 
covers the area in northwestern Montana outside of the two NEP areas 
mentioned above and adjacent States, providing for more consistent 
management both inside and outside of the NEP areas, unless identified 
otherwise. Additionally, new regulations were added that expand or 
clarify current prohibitions. Secondly, we identify a process for 
transferring authorities within the experimental population boundaries 
to States or Tribes with approved plans.
    Expanded or clarified prohibitions in this rule include the 
following. Intentional or potentially injurious harassment can occur by 
written take authorization on private land and public land. Wolves 
attacking not only livestock, but also dogs, on private land can be 
taken without a permit if they are caught in the act of attacking such 
animals. On public land, some permittees can take wolves attacking 
livestock without a permit. Written authorizations can be issued by the 
Service to take wolves on private land if they are a significant risk 
to livestock or dogs or on public lands if livestock are at risk. The 
new special regulation clarifies how take of wolves can occur if they 
are determined to be causing unacceptable impacts to wild ungulate 
populations. In addition, the new special regulation define livestock 
to include herding and guarding animals.
    The new special regulation provides for States or Tribes with wolf 
management plans approved by the Service to transition from the 
provisions of this rule to the provisions of the State or Tribal wolf 
management plan that are consistent with Federal regulations within the 
boundaries of the NEP areas. States or Tribes may, at their discretion, 
administer this transition through new or existing agreements with the 
    In anticipation of delisting the Western DPS of the gray wolf, we 
have worked closely with States to ensure that their plans provide the 
protection and flexibility necessary to manage wolves at or above 
recovery levels. Approved plans are those plans that have passed peer 
review and Service scrutiny aimed at ensuring that recovery levels are 
maintained. It is appropriate to have States which have met this 
approval standard begin managing wolves according to their approved 
plans for several reasons. The States already assume an important role 
in the management of this species, the goals for recovery have been 
exceeded, and a gradual transfer of responsibilities while the wolves 
are protected under the Act provides an adjustment period for both the 
State wildlife agencies, Federal agencies (the Service, USDA), and 
Tribes. The adjustment period will allow time to work out any 
unforeseen issues that may arise.
    The reduced restrictions on taking problem wolves in this rule will 
make their control easier and more effective, thus reducing the 
economic losses that result from wolf depredation on livestock and 
guard animals and dogs. Furthermore, a private program compensates 
livestock producers if they suffer confirmed livestock losses by 
wolves. Since 1995, annual compensation for livestock losses has 
averaged $17,000 in each recovery area. The potential effect on 
livestock producers in western States is very small, but more flexible 
wolf management will be entirely beneficial to the operations of a few 

Small Business Regulatory Enforcement Fairness Act

    This regulation is not a major rule under 5 U.S.C. 801 et seq., the 
    (a) This regulation will not have an annual effect on the economy 
of $100 million or more and is fully expected to have no significant 
economic impacts. The majority of livestock producers within the range 
of the wolf are on small ranches, and the total number of livestock 
producers that may be affected by wolves is small. The regulation 
further reduces the effect that wolves will have on individual 
livestock producers by eliminating some permit requirements. 
Compensation programs also are in place to offset losses to individual 
livestock producers. Thus, even if livestock producers affected are 
small businesses, the combined economic effects are minimal and provide 
a benefit to small business.
    (b) This regulation will not cause a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions and will impose no 
additional regulatory restraints in addition to those already in 
    (c) This regulation will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises. Based on the analysis of identified factors, we have 
determined that no individual industries within the United States will 
be significantly affected and that no changes in the demography of 
populations are anticipated. The intent of this special rule is to 
facilitate and continue existing commercial activities while providing 
for the conservation of species by better addressing the concerns of 
affected landowners and the impacts of a biologically recovered wolf 

Unfunded Mandates Reform Act

    The regulation defines a process for voluntary and cooperative 
transfer of management responsibilities for a listed species back to 
the States. Therefore, in accordance with the Unfunded Mandates Reform 
Act (2 U.S.C. 1501, et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. As stated 
above, this regulation will result in only minor positive economic 
effects for a very small percentage of livestock producers.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This rule is not 
expected to have any significant economic impacts nor will it impose 
any unfunded mandates on other Federal, State or local government 
agencies to carry out specific activities.

Takings (Executive Order 12630)

    In accordance with Executive Order 12630, this rule will not have 
significant implications concerning taking of private property by the 
Federal government. This rule will substantially advance a legitimate 
government interest (conservation and recovery of listed species) and 
will not present a bar to all reasonable and expected beneficial use of 
private property. Because of the regulatory flexibility provided by NEP 
designations under section 10(j) of the Act, we believe that the 
increased flexibility in this regulation and State or Tribal lead wolf 
management will reduce regulatory restrictions on private lands and 
will result in minor positive

[[Page 1305]]

economic effects for a small percentage of livestock producers.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, this regulation will not 
have significant Federalism effects. This rule will not have 
substantial direct effects on the States, on the relationship between 
the States and the Federal Government, or on the distribution of power 
and responsibilities among the various levels of government. The State 
wildlife agencies in Idaho and Montana requested that we undertake this 
rulemaking in order to assist the States in reducing conflicts with 
local landowners and returning the species to State or Tribal 
management. Maintaining the recovery goals for these wolves will 
contribute to their eventual delisting and their return to State 
management. No intrusion on State policy or administration is expected; 
roles or responsibilities of Federal or State governments will not 
change; and fiscal capacity will not be substantially directly 
affected. The special rule operates to maintain the existing 
relationship between the States and the Federal government and is being 
undertaken at the request of State agencies. We have endeavored to 
cooperate with the States in the preparation of this rule. Therefore, 
this rule does not have significant Federalism effects or implications 
to warrant the preparation of a Federalism Assessment pursuant to the 
provisions of Executive Order 13132.

Civil Justice Reform (Executive Order 12988)

    In accordance with Executive Order 12988, the DOI has determined 
that this rule does not unduly burden the judicial system and meets the 
applicable standards provided in sections 3(a) and 3(b)(2) of the 

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.) require that Federal agencies obtain approval from OMB 
before collecting information from the public. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information, unless it displays a currently valid control 
number. This rule does not contain any new collections of information 
other than those permit application forms already approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget clearance number 1018-0094, and the collection of 
information on experimental populations already approved under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned Office of 
Management and Budget clearance number 1018-0095.

National Environmental Policy Act

    In 1994, the Service issued an EIS (Service 1994) that addressed 
the impacts of introducing gray wolves to Yellowstone National Park and 
central Idaho and the NEP rule for these reintroductions. The 1994 EIS 
addressed cooperative agreements whereby the States of Wyoming, 
Montana, and Idaho could assume the lead for implementing wolf recovery 
and anticipated that the States and Tribes would be the primary 
agencies implementing the experimental population rule outside National 
Parks and National Wildlife Refuges. We evaluated whether any revisions 
to the EIS were required prior to finalizing this proposed regulation, 
and determined that there are no new significant impacts or effects 
caused by this rule beyond those previously identified and evaluated in 
the Service's 1994 EIS on wolf reintroduction. Thus, we are adopting 
the prior EIS for this rulemaking because the analysis is still 
applicable, i.e., the conditions have not changed and the action has 
not changed significantly.

Government-to-Government Relationship With Tribes (Executive Order 

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and 512 DM 2, we 
are coordinating this rule with affected Tribes within the Western DPS. 
We fully considered all of the comments on the proposed special 
regulation that were submitted during the public comment period and 
attempted to address those concerns, new data, and new information 
where appropriate. The Service representatives met with members of the 
Nez Perce Tribe in October 2004 to discuss wolf management in Idaho.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from our Helena office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Final Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:


1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec.  17.11(h) by revising the existing entries in the List of 
Endangered and Threatened Wildlife under MAMMALS for ``Western Distinct 
Population Segment U.S.A. (CA, ID, MT, NV, OR, WA, WY, UT north of U.S. 
Highway 50, and CO north of Interstate Highway 70, except where listed 
as an experimental population)'' and ``Wolf, gray U.S.A. (WY and 
portions of ID and MT)'' to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                       Species                                              Vertebrate population
------------------------------------------------------   Historic range      where endangered or        Status     When listed    Critical     Special
           Common name              Scientific name                               threatened                                      habitat       rules

[[Page 1306]]

                                                                      * * * * * * *

                                                                      * * * * * * *
Wolf, gray......................  Canis lupus........  Holarctic.........  Western Distinct         T                1, 6, 13,          N/A     17.40(n)
                                                                            Population Segment--                       15, 35,
                                                                            U.S.A. (CA, ID, MT,                      561, 562,
                                                                            NV, OR, WA, WY, UT                        735, 745
                                                                            north of U.S. Highway
                                                                            50, and CO north of
                                                                            Interstate Highway 70,
                                                                            except where listed as
                                                                            an experimental

                                                                      * * * * * * *
Wolf, gray......................  Canis lupus........  Holarctic.........  U.S.A. (WY and portions  XN               561, 562,          N/A    17.84(i),
                                                                            of ID and MT--see                              745                  17.84(n)

                                                                      * * * * * * *

3. Amend 17.84 by adding paragraph (n), including maps, as set forth 

Sec.  17.84  Special rules--vertebrates.

* * * * *
    (n) Gray wolf (Canis lupus). (1) The gray wolves (wolf) identified 
in paragraphs (n)(9)(i) and (ii) of this section are nonessential 
experimental populations. These wolves will be managed in accordance 
with the respective provisions of this paragraph (n) in the boundaries 
of the nonessential experimental population (NEP) areas within any 
State or Tribal reservation that has a wolf management plan that has 
been approved by the Service, as further provided in this paragraph 
(n). Furthermore, any State or Tribe that has a wolf management plan 
approved by the Service can petition the Secretary of the Department of 
the Interior (DOI) to assume the lead authority for wolf management 
under this rule within the borders of the NEP areas in their respective 
State or reservation.
    (2) The Service finds that management of nonessential experimental 
gray wolves, as defined in this paragraph (n), will further the 
conservation of the species.
    (3) Definitions of terms used in paragraph (n) of this section 
    Active den site--A den or a specific above-ground site that is 
being used on a daily basis by wolves to raise newborn pups during the 
period April 1 to June 30.
    Breeding pair--An adult male and an adult female wolf that, during 
the previous breeding season, produced at least two pups that survived 
until December 31 of the year of their birth.
    Designated agent--Includes Federal agencies authorized or directed 
by the Service, and States or Tribes with a wolf management plan 
approved by the Director of the Service and with established 
cooperative agreements with us or Memoranda of Agreement (MOAs) 
approved by the Secretary of the DOI. Federal agencies, States, or 
Tribes may become ``designated agents'' through cooperative agreements 
with the Service whereby they agree to assist the Service to implement 
some portions of this rule. If a State or Tribe becomes a ``designated 
agent'' through a cooperative agreement, the Service will help 
coordinate their activities and retain authority for program direction, 
oversight, and guidance. States and Tribes with approved plans also may 
become ``designated agents'' by submitting a petition to the Secretary 
to establish an MOA under this rule. Once accepted by the Secretary, 
the MOA may allow the State or Tribe to assume lead authority for wolf 
management and to implement the portions of their State or Tribal plans 
that are consistent with this rule. The Service oversight (aside from 
Service law enforcement investigations) under an MOA is limited to 
monitoring compliance with this rule, issuing written authorizations 
for wolf take on reservations without approved wolf management plans, 
and an annual review of the State or Tribal program to ensure the wolf 
population is being maintained above recovery levels.
    Domestic animals--Animals that have been selectively bred over many 
generations to enhance specific traits for their use by humans, 
including use as pets. This includes livestock (as defined below) and 
    Intentional harassment--The deliberate and pre-planned harassment 
of wolves, including by less-than-lethal munitions (such as 12-gauge 
shotgun rubber-bullets and bean-bag shells), that are designed to cause 
physical discomfort and temporary physical injury but not death. The 
wolf may have been tracked, waited for, chased, or searched out and 
then harassed.
    In the act of attacking--The actual biting, wounding, grasping, or 
killing of livestock or dogs, or chasing, molesting, or harassing by 
wolves that would indicate to a reasonable person that such biting, 
wounding, grasping, or killing of livestock or dogs is likely to occur 
at any moment.
    Landowner--An owner of private land, or his/her immediate family 
members, or the owner's employees who are currently employed to 
actively work on that private land. In addition, the owner(s) (or his/
her employees) of livestock that are currently and legally grazed on 
that private land and other lease-holders on that private land (such as 
outfitters or guides who lease hunting rights from private landowners), 
are considered landowners on that private land for the purposes of this 
regulation. Private land, under this regulation, also includes all non-
Federal land and land within Tribal reservations. Individuals legally 
using Tribal lands in States with approved plans are considered 
landowners for the purposes of this rule. ``Landowner'' in this 
regulation includes legal grazing permittees or their current employees 
on State, county, or city public or Tribal grazing lands.
    Livestock--Cattle, sheep, horses, mules, goats, domestic bison, and 
herding and guarding animals (llamas, donkeys, and certain breeds of 
dogs commonly used for herding or guarding livestock). Livestock 
excludes dogs that are not being used for livestock guarding or 

[[Page 1307]]

    Non injurious--Does not cause either temporary or permanent 
physical damage or death.
    Opportunistic harassment--Harassment without the conduct of prior 
purposeful actions to attract, track, wait for, or search out the wolf.
    Private land--All land other than that under Federal Government 
ownership and administration and including Tribal reservations.
    Problem wolves--Wolves that have been confirmed by the Service or 
our designated agent(s) to have attacked or been in the act of 
attacking livestock or dogs on private land or livestock on public land 
within the past 45 days. Wolves that we or our designated agent(s) 
confirm to have attacked any other domestic animals on private land 
twice within a calendar year are considered problem wolves for purposes 
of agency wolf control actions.
    Public land--Federal land such as that administered by the National 
Park Service, Service, Bureau of Land Management, USDA Forest Service, 
Bureau of Reclamation, Department of Defense, or other agencies with 
the Federal Government.
    Public land permittee--A person or that person's employee who has 
an active, valid Federal land-use permit to use specific Federal lands 
to graze livestock, or operate an outfitter or guiding business that 
uses livestock. This definition does not include private individuals or 
organizations who have Federal permits for other activities on public 
land such as collecting firewood, mushrooms, antlers, Christmas trees, 
or logging, mining, oil or gas development, or other uses that do not 
require livestock. In recognition of the special and unique authorities 
of Tribes and their relationship with the U.S. Government, for the 
purposes of this rule, the definition includes Tribal members who 
legally graze their livestock on ceded public lands under recognized 
Tribal treaty rights.
    Remove--Place in captivity, relocate to another location, or kill.
    Research--Scientific studies resulting in data that will lend to 
enhancement of the survival of the gray wolf.
    Rule--Federal regulations--``This rule'' or ``this regulation'' 
refers to this final NEP regulation; ``1994 rules'' refers to the 1994 
NEP rules (50 CFR 17.84(i)); and ``4(d) rule'' refers to the 2003 
special 4(d) regulations for threatened wolves in the Western DPS (50 
CFR 17.40(n)), outside of the experimental population areas.
    Unacceptable impact--State or Tribally-determined decline in a wild 
ungulate population or herd, primarily caused by wolf predation, so 
that the population or herd is not meeting established State or Tribal 
management goals. The State or Tribal determination must be peer-
reviewed and reviewed and commented on by the public, prior to a final 
determination by the Service that an unacceptable impact has occurred, 
and that wolf removal is not likely to impede wolf recovery.
    Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or 
other evidence of physical damage caused by a wolf bite.
    (4) Allowable forms of take of gray wolves. The following 
activities, only in the specific circumstances described under this 
paragraph (n)(4), are allowed: opportunistic harassment; intentional 
harassment; take on private land; take on public land; take in response 
to impacts on wild ungulate populations; take in defense of human life; 
take to protect human safety; take by designated agents to remove 
problem wolves; incidental take; take under permits; take per 
authorizations for employees of designated agents; and take for 
research purposes. Other than as expressly provided in this rule, all 
other forms of take are considered a violation of section 9 of the Act. 
Any wolf or wolf part taken legally must be turned over to the Service 
unless otherwise specified in this paragraph (n). Any take of wolves 
must be reported as outlined in paragraph (n)(6) of this section.
    (i) Opportunistic harassment. Anyone may conduct opportunistic 
harassment of any gray wolf in a non-injurious manner at any time. 
Opportunistic harassment must be reported to the Service or our 
designated agent(s) within 7 days as outlined in paragraph (n)(6) of 
this section.
    (ii) Intentional harassment. After we or our designated agent(s) 
have confirmed wolf activity on private land, on a public land grazing 
allotment, or on a Tribal reservation, we or our designated agent(s) 
may issue written take authorization valid for not longer than 1 year, 
with appropriate conditions, to any landowner or public land permittee 
to intentionally harass wolves. The harassment must occur in the area 
and under the conditions as specifically identified in the written take 
    (iii) Take by landowners on their private land. Landowners may take 
wolves on their private land in the following two additional 
    (A) Any landowner may immediately take a gray wolf in the act of 
attacking livestock or dogs on their private land, provided the 
landowner provides evidence of livestock or dogs recently (less than 24 
hours) wounded, harassed, molested, or killed by wolves, and we or our 
designated agent(s) are able to confirm that the livestock or dogs were 
wounded, harassed, molested, or killed by wolves. The carcass of any 
wolf taken and the area surrounding it should not be disturbed in order 
to preserve physical evidence that the take was conducted according to 
this rule. The take of any wolf without such evidence of a direct and 
immediate threat may be referred to the appropriate authorities for 
    (B) A landowner may take wolves on his/her private land if we or 
our designated agent issued a ``shoot-on-sight'' written take 
authorization of limited duration (45 days or less), and if:
    (1) This landowner's property has had at least one depredation by 
wolves on livestock or dogs that has been confirmed by us or our 
designated agent(s) within the past 30 days; and
    (2) We or our designated agent(s) have determined that problem 
wolves are routinely present on that private property and present a 
significant risk to the health and safety of other livestock or dogs; 
    (3) We or our designated agent(s) have authorized agency lethal 
removal of problem wolves from that same property. The landowner must 
conduct the take in compliance with the written take authorization 
issued by the Service or our designated agent(s).
    (iv) Take on public land. Any livestock producer and public land 
permittee (see definitions in paragraph (n)(3) of this section) who is 
legally using public land under a valid Federal land-use permit may 
immediately take a gray wolf in the act of attacking his/her livestock 
on his/her allotment or other area authorized for his/her use without 
prior written authorization, provided that producer or permittee 
provides evidence of livestock recently (less than 24 hours) wounded, 
harassed, molested, or killed by wolves, and we or our designated 
agent(s) are able to confirm that the livestock were wounded, harassed, 
molested, or killed by wolves. The carcass of any wolf taken and the 
area surrounding it should not be disturbed, in order to preserve 
physical evidence that the take was conducted according to this rule. 
The take of any wolf without such evidence may be referred to the 
appropriate authorities for prosecution.
    (A) At our or our designated agent(s)' discretion, we or our 
designated agent(s) also may issue a shoot-on-sight written take 
authorization of limited duration (45 days or less) to a public land 
grazing permittee to take problem wolves on

[[Page 1308]]

that permittee's active livestock grazing allotment if:
    (1) The grazing allotment has had at least one depredation by 
wolves on livestock that has been confirmed by us or our designated 
agent(s) within the past 30 days; and
    (2) We or our designated agent(s) have determined that problem 
wolves are routinely present on that allotment and present a 
significant risk to the health and safety of livestock; and
    (3) We or our designated agent(s) have authorized agency lethal 
removal of problem wolves from that same allotment.
    (B) The permittee must conduct the take in compliance with the 
written take authorization issued by the Service or our designated 
    (v) Take in response to wild ungulate impacts. If wolf predation is 
having an unacceptable impact on wild ungulate populations (deer, elk, 
moose, bighorn sheep, mountain goats, antelope, or bison) as determined 
by the respective State or Tribe, a State or Tribe may lethally remove 
the wolves in question.
    (A) In order for this provision to apply, the States or Tribes must 
prepare a science-based document that:
    (1) Describes what data indicate that ungulate herd is below 
management objectives, what data indicate the impact by wolf predation 
on the ungulate population, why wolf removal is a warranted solution to 
help restore the ungulate herd to State or Tribal management 
objectives, the level and duration of wolf removal being proposed, and 
how ungulate population response to wolf removal will be measured;
    (2) Identifies possible remedies or conservation measures in 
addition to wolf removal; and
    (3) Provides an opportunity for peer review and public comment on 
their proposal prior to submitting it to the Service for written 
    (B) We must determine that such actions are scientifically-based 
and will not reduce the wolf population below recovery levels before we 
authorize lethal wolf removal.
    (vi) Take in defense of human life. Any person may take a gray wolf 
in defense of the individual's life or the life of another person. The 
unauthorized taking of a wolf without demonstration of an immediate and 
direct threat to human life may be referred to the appropriate 
authorities for prosecution.
    (vii) Take to protect human safety. We or our designated agent(s) 
may promptly remove any wolf that we or our designated agent(s) 
determines to be a threat to human life or safety.
    (viii) Take of problem wolves by Service personnel or our 
designated agent(s). We or our designated agent(s) may carry out 
harassment, non lethal control measures, relocation, placement in 
captivity, or lethal control of problem wolves. To determine the 
presence of problem wolves, we or our designated agent(s) will consider 
all of the following:
    (A) Evidence of wounded livestock, dogs, or other domestic animals, 
or remains of livestock, dogs, or domestic animals that show that the 
injury or death was caused by wolves, or evidence that wolves were in 
the act of attacking livestock, dogs, or domestic animals;
    (B) The likelihood that additional wolf-caused losses or attacks 
may occur if no control action is taken;
    (C) Evidence of unusual attractants or artificial or intentional 
feeding of wolves; and
    (D) Evidence that animal husbandry practices recommended in 
approved allotment plans and annual operating plans were followed.
    (ix) Incidental take. Take of a gray wolf is allowed if the take is 
accidental and incidental to an otherwise lawful activity and if 
reasonable due care was practiced to avoid such take, and such take is 
reported within 24 hours. Incidental take is not allowed if the take is 
not accidental or if reasonable due care was not practiced to avoid 
such take, or it was not reported within 24 hours (we may allow 
additional time if access to the site of the take is limited), and we 
may refer such taking to the appropriate authorities for prosecution. 
Shooters have the responsibility to identify their target before 
shooting. Shooting a wolf as a result of mistaking it for another 
species is not considered accidental and may be referred to the 
appropriate authorities for prosecution.
    (x) Take under permits. Any person with a valid permit issued by 
the Service under Sec.  17.32, or our designated agent(s), may take 
wolves in the wild, pursuant to terms of the permit.
    (xi) Additional take authorization for agency employees. When 
acting in the course of official duties, any employee of the Service or 
our designated agent(s) may take a wolf or wolf-like canid for the 
following purposes:
    (A) Scientific purposes;
    (B) To avoid conflict with human activities;
    (C) To further wolf survival and recovery;
    (D) To aid or euthanize sick, injured, or orphaned wolves;
    (E) To dispose of a dead specimen;
    (F) To salvage a dead specimen that may be used for scientific 
    (G) To aid in law enforcement investigations involving wolves; or
    (H) To prevent wolves or wolf-like canids with abnormal physical or 
behavioral characteristics, as determined by the Service or our 
designated agent(s), from passing on or teaching those traits to other 
    (I) Such take must be reported to the Service within 7 days as 
outlined in paragraph (n)(6) of this section, and specimens are to be 
retained or disposed of only in accordance with directions from the 
    (xii) Take for research purposes. We may issue permits under Sec.  
17.32, or our designated agent(s) may issue written authorization, for 
individuals to take wolves in the wild pursuant to approved scientific 
study proposals. Scientific studies should be reasonably expected to 
result in data that will lend to development of sound management of the 
gray wolf, and lend to enhancement of its survival as a species.
    (5) Federal land use. Restrictions on the use of any Federal lands 
may be put in place to prevent the take of wolves at active den sites 
between April 1 and June 30. Otherwise, no additional land-use 
restrictions on Federal lands, except for National Parks or National 
Wildlife Refuges, may be necessary to reduce or prevent take of wolves 
solely to benefit gray wolf recovery under the Act. This prohibition 
does not preclude restricting land use when necessary to reduce 
negative impacts of wolf restoration efforts on other endangered or 
threatened species.
    (6) Reporting requirements. Except as otherwise specified in 
paragraph (n) of this section or in a permit, any take of a gray wolf 
must be reported to the Service or our designated agent(s) within 24 
hours. We will allow additional reasonable time if access to the site 
is limited. Report any take of wolves, including opportunistic 
harassment, to U.S. Fish and Wildlife Service, Western Gray Wolf 
Recovery Coordinator (100 North Park, Suite 320, Helena, Montana 59601, 
406-449-5225 extension 204; facsimile 406-449-5339), or a Service-
designated agent of another Federal, State, or Tribal agency. Unless 
otherwise specified in paragraph (n) of this section, any wolf or wolf 
part taken legally must be turned over to the Service, which will 
determine the disposition of any live or dead wolves.
    (7) No person shall possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever, any wolf or part thereof 
from the experimental populations taken in violation of the regulations 
in paragraph (n) of this section or in violation of

[[Page 1309]]

applicable State or Tribal fish and wildlife laws or regulations or the 
    (8) It is unlawful for any person to attempt to commit, solicit 
another to commit, or cause to be committed any offense defined in this 
    (9) The sites for these experimental populations are within the 
historic range of the species as designated in Sec.  17.84(i)(7):
    (i) The central Idaho NEP area is shown on Map 1. The boundaries of 
the NEP area are those portions of Idaho that are south of Interstate 
Highway 90 and west of Interstate 15, and those portions of Montana 
south of Interstate 90, Highways 93 and 12 from Missoula, Montana, west 
of Interstate 15.

    (ii) The Yellowstone NEP is shown on Map 2. The boundaries of the 
NEP area are that portion of Idaho that is east of Interstate Highway 
15; that portion of Montana that is east of Interstate Highway 15 and 
south of the Missouri River from Great Falls, Montana, to the eastern 
Montana border; and all of Wyoming.

[[Page 1310]]


    (iii) All wolves found in the wild within the boundaries of these 
experimental areas are considered nonessential experimental animals. In 
the Western Gray Wolf Distinct Population Segment (Washington, Oregon, 
California, Nevada, Montana, Idaho, Wyoming, and Utah and Colorado 
north of Highway 50 and Interstate 70), any wolf that is outside an 
experimental area is considered threatened. Disposition of wolves 
outside the NEP areas may take any of the following courses:
    (A) Any wolf dispersing from the experimental population areas into 
other parts of the Western DPS will be managed under the special 4(d) 
rule for threatened wolves in the Western DPS (50 CFR 17.40(n)).
    (B) Any wolf originating from the experimental population areas and 
dispersing beyond the borders of the Western DPS may be managed by the 
wolf management regulations established for that area, or may be 
returned to the experimental population areas if it has not been 
involved in conflicts with people, or may be removed if it has been 
involved with conflicts with people.
    (10) Wolves in the experimental population areas will be monitored 
by radio-telemetry or other standard wolf population monitoring 
techniques as appropriate. Any animal that is sick, injured, or 
otherwise in need of special care may be captured by authorized 
personnel of the Service or our designated agent(s) and given 
appropriate care. Such an animal will be released back into its 
respective area as soon as possible, unless physical or behavioral 
problems make it necessary to return the animal to captivity or 
euthanize it.
    (11) Memoranda of Agreement (MOAs). Any State or Tribe with gray 
wolves, subject to the terms of this paragraph (n), may petition the 
Secretary for an MOA to take over lead management responsibility and 
authority to implement this rule by managing the nonessential 
experimental gray wolves in that State or on that Tribal reservation, 
and implement all parts of their approved State or Tribal plan that are 
consistent with this rule, provided that the State or Tribe has a wolf 
management plan approved by the Secretary.

[[Page 1311]]

    (i) A State or Tribal petition for wolf management under an MOA 
must show:
    (A) That authority and management capability resides in the State 
or Tribe to conserve the gray wolf throughout the geographical range of 
all experimental populations within the State or within the Tribal 
    (B) That the State or Tribe has an acceptable conservation program 
for the gray wolf, throughout all of the NEP areas within the State or 
Tribal reservation, including the requisite authority and capacity to 
carry out that conservation program.
    (C) A description of exactly what parts of the approved State or 
Tribal plan the State or Tribe intends to implement within the 
framework of this rule.
    (D) A description of the State or Tribal management progress will 
be reported to the Service on at least an annual basis so the Service 
can determine if State or Tribal management has maintained the wolf 
population above recovery levels and was conducted in full compliance 
with this rule.
    (ii) The Secretary will approve such a petition upon a finding that 
the applicable criteria are met and that approval is not likely to 
jeopardize the continued existence of the gray wolf in the Western DPS, 
as defined in Sec.  17.11(h).
    (iii) If the Secretary approves the petition, the Secretary will 
enter into an MOA with the Governor of that State or appropriate Tribal 
    (iv) An MOA for State or Tribal management as provided in this 
section may allow a State or Tribe to become designated agents and lead 
management of nonessential experimental gray wolf populations within 
the borders of their jurisdictions in accordance with the State's or 
Tribe's wolf management plan approved by the Service, except that:
    (A) The MOA may not provide for any form of management inconsistent 
with the protection provided to the species under this rule, without 
further opportunity for appropriate public comment and review and 
amendment of this rule;
    (B) The MOA cannot vest the State or Tribe with any authority over 
matters concerning section 4 of the Act (determining whether a species 
warrants listing);
    (C) The MOA may not provide for public hunting or trapping absent a 
finding by the Secretary of an extraordinary case where population 
pressures within a given ecosystem cannot be otherwise relieved; and
    (D) In the absence of a Tribal wolf management plan or cooperative 
agreement, the MOA cannot vest a State with the authority to issue 
written authorizations for wolf take on reservations. The Service will 
retain the authority to issue these written authorizations until a 
Tribal wolf management plan is approved.
    (v) The MOA for State or Tribal wolf management must provide for 
joint law enforcement responsibilities to ensure that the Service also 
has the authority to enforce the State or Tribal management program 
prohibitions on take.
    (vi) The MOA may not authorize wolf take beyond that stated in the 
experimental population rules but may be more restrictive.
    (vii) The MOA will expressly provide that the results of 
implementing the MOA may be the basis upon which State or Tribal 
regulatory measures will be judged for delisting purposes.
    (viii) The authority for the MOA will be the Act, the Fish and 
Wildlife Act of 1956 (16 U.S.C. 742a-742j), and the Fish and Wildlife 
Coordination Act (16 U.S.C. 661-667e), and any applicable treaty.
    (ix) In order for the MOA to remain in effect, the Secretary must 
find, on an annual basis, that the management under the MOA is not 
jeopardizing the continued existence of the gray wolf in the Western 
DPS. The Secretary or State or Tribe may terminate the MOA upon 90 days 
notice if:
    (A) Management under the MOA is likely to jeopardize the continued 
existence of the gray wolf in the Western DPS; or
    (B) The State or Tribe has failed materially to comply with this 
rule, the MOA, or any relevant provision of the State or Tribal wolf 
management plan; or
    (C) The Service determines that biological circumstances within the 
range of the gray wolf indicate that delisting the species is not 
warranted; or
    (D) The States or Tribes determine that they no longer want the 
wolf management authority vested in them by the Secretary in the MOA.

    Dated: December 29, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-136 Filed 1-4-05; 8:45 am]