[Federal Register: June 10, 2010 (Volume 75, Number 111)]
[Proposed Rules]               
[Page 32869-32872]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2010-0032; [92220-1111-0000-C5]

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List a Distinct Population Segment of the Gray Wolf in 
the Northeastern United States as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list a Distinct Population Segment 
(DPS) of the gray wolf (Canis lupus) in five northeastern States as 
endangered under the Endangered Species Act of 1973, as amended (Act). 
We find that the petition does not present substantial scientific or 
commercial information indicating that listing a DPS of the gray wolf 
in Massachusetts, New York, Vermont, New Hampshire, and Maine may be 
warranted. Therefore, we will not initiate a further status review in 
response to this petition. However, we ask the public to submit to us 
at any time, any new information that becomes available concerning the 
presence of the gray wolf in the northeastern United States, 
particularly information to substantiate the presence of breeding 

DATES: The finding announced in this document was made on June 10, 

ADDRESSES: This finding is available on the Internet at http://
www.regulations.gov. Supporting scientific documentation we used in 
preparing this finding is available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, New England Field Office, 70 Commercial Street, Suite 
300, Concord, New Hampshire 03301. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 

FOR FURTHER INFORMATION CONTACT: Thomas Chapman, Field Supervisor, or 
Michael Amaral, Fish and Wildlife Supervisory Biologist, of the New 
England Field Office (see ADDRESSES), by telephone at 603-223-2541, or 
by facsimile to 603-223-0104. If you use a telecommunications device 
for the deaf (TDD), please call the Federal

[[Page 32870]]

Information Relay Service at 800-877-8339.



    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information to indicate that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files. To the maximum extent practicable, we 
are to make this finding within 90 days of our receipt of the petition, 
and publish our notice of the finding promptly in the Federal Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial information was presented, we 
are required to promptly commence a review of the status of the 
    We base this finding on information provided by the petitioner(s) 
and information available in our files at the time of the petition 
review. We evaluated that information in accordance with 50 CFR 
424.14(b). On an ongoing basis prior to receipt of the petition, we 
have had frequent contact with State wildlife biologists from the five-
State area and believe that our files represent the best information 
available regarding the potential occurrence of wolves in the 
northeastern United States. Our process for making this 90-day finding 
under Sec.  4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our 
regulations is limited to a determination of whether the information in 
the petition and in our files meets the ``substantial information'' 

Petition History

    On February 4, 2009, we received a petition, dated January 31, 
2009, from Mr. John Glowa of South China, Maine (on behalf of himself 
and four other private citizens), requesting that we list a 
``Northeastern Gray Wolf Distinct Population Segment consisting of the 
States of New York, Vermont, New Hampshire, Maine, and Massachusetts.'' 
The petition did not specify whether the DPS should be listed as 
endangered or threatened. The petitioners also requested that we 
``regulate the commerce or taking, and treat as endangered species in 
the States of New York, Vermont, New Hampshire, Maine, and 
Massachusetts, coyotes (Canis latrans), coyote-gray wolf hybrids (Canis 
latrans x Canis lupus), eastern wolves (Canis lycaon), eastern wolf-
gray wolf hybrids (Canis lycaon x Canis lupus), coyote-eastern wolf 
hybrids (Canis latrans x Canis lycaon), and coyote-eastern wolf/gray 
wolf hybrids (Canis latrans x Canis lycaon x Canis lupus) because of 
their close resemblance to the federally endangered and protected gray 
wolf.'' In addition, the petitioners requested that we develop and 
implement a Northeastern Gray Wolf Recovery Plan. The request to 
regulate the commerce and taking of coyotes and wolf-like canids, and 
the request to develop a Northeastern Gray Wolf Recovery Plan, are not 
petitionable actions under the Act and will be addressed separately 
from this finding.
    The petition clearly identified itself as such and included the 
identification information of the petitioner required at 50 CFR 
424.14(a). We acknowledged receipt of the petition in a letter to Mr. 
Glowa dated February 24, 2009. This finding addresses the petition to 
list a Northeastern DPS of the gray wolf (Canis lupus).

Previous Federal Actions

    In 1974, we listed two subspecies of gray wolf as endangered: The 
Northern Rocky Mountain (NRM) gray wolf (C. l. irremotus) and the 
eastern timber wolf (C. l. lycaon) in the Great Lakes region (39 FR 
1158, January 4, 1974). We listed a third gray wolf subspecies, the 
Mexican wolf (C. l. baileyi), as endangered on April 28, 1976 (41 FR 
17736), in Mexico and the southwestern United States. On June 14, 1976 
(41 FR 24062), we listed the Texas gray wolf subspecies (C. l. 
monstrabilis) as endangered in Texas and Mexico.
    In 1978, we listed the gray wolf species, Canis lupus, as 
endangered throughout the lower 48 States, except for a threatened 
listing in Minnesota (43 FR 9607, March 9, 1978). Recovery efforts that 
followed were most successful in the species' core areas in the 
Northern Rocky Mountains and the Western Great Lakes. In 2000, we 
proposed to revise this species listing into four DPSs: the Western 
Great Lakes, Western, Northeastern, and Southwestern DPSs (65 FR 43450, 
July 13, 2000). We also proposed to downlist all but the Southwestern 
DPS to threatened status based on recovery in the core areas within the 
Western and Western Great Lakes DPSs.
    In a 2003 final rule (68 FR 15804, April 1, 2003), we found that 
listing a Northeastern DPS of the gray wolf was not warranted because 
the available data and public comments did not show any breeding 
population in the Northeast. In addition, there was scientific 
uncertainty about the species of wolf that occurred in this region 
historically, as well as uncertainty regarding the taxonomic identity 
of the wolves indigenous to nearby areas in Ontario and Quebec, Canada. 
This issue is under continuing study. We, therefore, combined the wolf 
range in the Northeast with the Western Great Lakes DPS and called it 
the Eastern DPS. The 2003 final rule downlisted the Eastern DPS and a 
Western DPS to threatened based on wolf recovery in the core population 
areas. The 2003 rule also listed a Southwestern DPS as endangered.
    Plaintiffs in Oregon opposed to the downlistings challenged the 
2003 rule that reclassified these DPSs from the endangered lower 48 
population. The District Court in Oregon held that the 2003 rule 
violated the Act, in part because it created the new threatened DPSs 
without analyzing the threats to any wolves outside their core recovery 
areas (Defenders of Wildlife v. Secretary, 354 F. Supp.2d 1156, 1171-72 
(D. Ore. 2005)). Plaintiffs in Vermont also challenged the 2003 rule, 
and the District Court there likewise stated that the rule failed to 
analyze the threats outside the core areas (National Wildlife 
Federation v. Norton, 386 F. Supp.2d 553, 565 (D. Vt. 2005)). The 
Vermont court also rejected the biological basis of the Eastern DPS 
because the 2003 rule suggested that, based on the best information 
available at that time, any wolves in the Northeast, and those in 
Eastern Canada, were a different population from wolves in the Midwest.
    Because the two courts vacated the 2003 rule, the endangered 
listing throughout the lower 48 States (and threatened in Minnesota) 
was reinstated. Neither court addressed the question whether a 
Northeastern DPS could ever be designated with that region's ``low to 
non-existent'' population of wolves (Defenders of Wildlife, 354 F. 
Supp.2d at 1173; National Wildlife Federation, 386 F. Supp.2d at 565). 
As suggested by the two courts, we have since described core 
populations in smaller Western Great Lakes and Northern Rocky Mountains 
DPSs that may be recovered (74 FR 15070, 15123; April 2, 2009). Those 
findings have been challenged. Except for the threatened listing in 
Minnesota; where listed as an experimental population; and where

[[Page 32871]]

delisted due to recovery in Montana, Idaho, portions of eastern 
Washington, portions of eastern Oregon, and portions of north-central 
Utah, wolves in the lower 48 States' range, including the Northeast, 
currently remain listed as endangered (50 CFR 17.11(h)).
    In an April 1, 2003, petition to list a Northeastern gray wolf DPS, 
the Defenders of Wildlife and the Sierra Club (and others) concurred 
with the determination in our 2003 final rule regarding the absence of 
a breeding population (Defenders of Wildlife et al. 2003). Their 
petition stated ``Since no wolves have formed packs or established 
territories over the course of the past few decades in the northeast 
region, there is little reason to believe that they will do so in the 
future.'' In regard to the 2003 Defenders et al. petition, the Service 
responded that the absence of a wolf population in the Northeast 
precluded us from designating that entity as a DPS (J. Geiger, FWS in 
litt. Sept. 12, 2003).

Species Information

    The biology and ecology of the gray wolf has been widely reported 
in the scientific literature (e.g., Carbyn et al. 1995; Wydeven et al. 
2009), in Service recovery plans (e.g., Recovery Plan for the Eastern 
Timber Wolf (Service 1992)), and in previous proposed and final rules 
(e.g., 68 FR 15804, April 1, 2003; 71 FR 15266, March 27, 2006; and 74 
FR 15123, April 2, 2009). In brief, gray wolves are the largest wild 
members of the Canidae, or dog family. Adults can range from 18 to 80 
kilograms (40-175 pounds), depending on sex and geographic locale. In 
North America, wolves are primarily predators of large mammals, such as 
moose (Alces alces), white-tailed deer (Odocoileus virginianus), and 
beaver (Castor canadensis). Wolves are social animals, normally living 
in packs of 2 to12 animals, but occasionally pack sizes of greater than 
20 animals are reported (68 FR 15805).

Distribution and Taxonomy

    The gray wolf historically occurred across most of North America, 
Europe, and Asia. The only areas of the coterminous United States that 
apparently lacked gray wolf populations since the last glacial period 
are parts of California and portions of the southern and eastern United 
States (an area occupied by the red wolf, C. rufus). The identity of 
the precolonial wolf species that inhabited the northeastern United 
States has recently been called into question because there is some 
evidence that indicates that contemporary wolves in southeastern 
Ontario and southeastern Quebec (and some historical wolf specimens 
from the northeastern United States) are genetically more closely 
related to the red wolf than the gray wolf (Wilson et al. 2000; Wilson 
et al. 2003; Grewal et al. 2004; Kyle et al. 2006; and Kyle et al. 

Status of the Species

    It is widely accepted that wolves became extirpated from the 
northeastern United States by the year 1900 (Young and Goldman 1944 in 
Carbyn et al. 1995; Nowak 2002; Villemure and Jolicoeur 2004). As noted 
above, from 2000 to 2003, the Service reviewed the existing status of 
the wolf in the northeastern United States and found no reliable 
evidence of breeding pairs or wolves that had established territories. 
The petition lists information on eight wolves or wolf-like canids 
killed in the northeastern United States over a 40-year period from 
1968 to 2007, and one additional animal in southern Quebec Province, 
Canada. The species' identity and the origin of several of the animals 
remain uncertain, and available genetic data indicate that two of the 
wolves were likely the result of a domestic breeding. The 2002 
occurrence of a wolf killed in southern Quebec Province was noted as 
the first confirmed record of a wolf south of the St. Lawrence River in 
over 100 years (Villemure and Jolicoeur 2004). The Service finds that 
this is strong evidence that wolf breeding pairs have not become 
established in southern Quebec Province, a forested and mixed 
agricultural landscape contiguous with forested habitats in Maine and 
New Hampshire. Statements by the petitioners that in 2005, ``wildlife 
workers'' were monitoring a wolf pack 20 miles north of the Vermont 
border in Quebec could not be verified (Struhsacker, NWF in litt. 
2008), and no further reports of wolves in that area are known to the 
Service (USFWS unpublished data).
    The petition provides an accounting of individual dead wolves and 
wolf-like canids. It also includes information that potential source 
populations of wolves occur north of the St. Lawrence River in Quebec 
and Ontario, Canada, from which wolves could disperse to the five-State 
area. The Service concurs that source populations of wolves do occur 
within the recorded dispersal capability of a wolf. However, the 
petition and our files do not include information sufficient to 
conclude that wolves may have formed breeding pairs in the five-State 

Distinct Population Segment Analysis

    Section 3 of the Act defines ``species'' as including ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature.'' The term ``distinct population segment'' is not 
recognized in the scientific literature. Therefore, the Service and the 
National Marine Fisheries Service adopted a joint policy for 
recognizing DPSs under the Act (DPS Policy; 61 FR 4722) on February 7, 
1996. The DPS Policy requires the consideration of two elements when 
evaluating whether a vertebrate population segment may be considered a 
DPS: (1) The discreteness of the population segment in relation to the 
remainder of the species or subspecies to which it belongs; and (2) the 
significance of the population segment to the species or subspecies to 
which it belongs.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) It 
is markedly separated from other populations of the same taxon (an 
organism or group of organisms) as a consequence of physical, 
physiological, ecological, or behavioral factors; or (2) it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of Sec.  4(a)(1)(D) of the Act (i.e., inadequate 
regulatory mechanisms).
    If a population segment is found to be discrete under one or more 
of the above conditions, its biological and ecological significance to 
the taxon to which it belongs is evaluated. This consideration may 
include, but is not limited to: (1) Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that the loss of the discrete population segment 
would result in a significant gap in the range of a taxon; (3) evidence 
that the discrete population segment represents the only surviving 
natural occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historic range; and (4) evidence that 
the discrete population segment differs markedly from other populations 
of the species in its genetic characteristics.
    The definition of a ``population'' is central to our analysis under 
the DPS policy. Our regulations define a ``population'' as a ``group of 
fish or wildlife * * * in common spatial arrangement that interbreed 

[[Page 32872]]

mature'' (50 CFR 17.3). We have refined that definition in experimental 
wolf reintroduction rules to mean ``at least two breeding pairs of gray 
wolves that each successfully raise at least two young'' annually for 2 
consecutive years (59 FR 60252, 60266; November 22, 1994).
    Under the Act, an experimental population must be ``wholly separate 
geographically from nonexperimental populations of the same species'' 
(16 U.S.C. 1539(j)(1)). Opponents of wolf reintroduction in Yellowstone 
National Park have argued that releasing an experimental population 
would violate this separation requirement because individual wolves 
sometimes disperse to Yellowstone from natural populations to the 
north. The Court of Appeals rejected this argument: ``by definition 
lone dispersers do not constitute a population or even part of a 
population, since they are not `in common spatial arrangement' 
sufficient to interbreed with other members of a population'' (Wyoming 
Farm Bureau Federation v. Babbitt, 199 F.3d 1224, 1234 (10th Cir. 
2000)). This decision followed another Court of Appeals holding that, 
despite ``sporadic sightings of isolated indigenous wolves in the 
release area, lone wolves, or `dispersers,' do not constitute a 
population'' under the Act (U.S. v. McKittrick, 142 F.3d 1170, 1175 
(9th Cir. 1998), cert. denied, 525 U.S. 1072 (1999)). Thus, the courts 
have upheld the Service's interpretation that pairs must breed in order 
to have a ``population.''
    The petition provides an account of individual wolves and wolf-like 
canids dispersing into the petitioned DPS area, as occurs in 
Yellowstone National Park. However, the petition does not provide 
information suggesting that dispersing wolves may be interbreeding. Nor 
do we have any information in our files indicating that dispersing 
wolves may be interbreeding. While the occurrence of dispersing wolves 
raises the theoretical possibility that a population could exist, it 
does not constitute substantial information that a population may 
actually exist. That is, it is not the amount of information that would 
lead a reasonable person to conclude that a population (i.e., at least 
two breeding pairs of gray wolves that each successfully raise at least 
two young annually for 2 consecutive years) may exist. Because we do 
not have substantial information that any ``population'' of the gray 
wolf may exist in the Northeast, we lack substantial information that 
there may be a discrete population in the Northeast. Because we find 
that there is not substantial information that a discrete gray wolf 
population may exist in the Northeast, we do not evaluate whether such 
a population could be significant, and could be endangered or 


    We have reviewed the petition and supporting information provided 
with the petition, as well as information in our files. Based on this 
review, we find that the petition and information in our files do not 
present substantial information indicating that listing a gray wolf DPS 
in the States of Massachusetts, New York, Vermont, New Hampshire, and 
Maine as threatened or endangered may be warranted. If you wish to 
provide information regarding the Northeast DPS of gray wolf, you may 
submit your information or materials to the Field Supervisor/Listing 
Coordinator, New England Field Office (see ADDRESSES), at any time.
    As explained above in the Previous Federal Actions section, any 
wolf found in the Northeast is still classified as endangered under the 
lower 48 United States listing. Therefore, should one or more wolves 
disperse into the Northeast from Canada, the protections of the Act 
would apply.

References Cited

    A complete list of all references cited in this document is 
available on the Internet at http://www.regulations.gov and upon 
request, from the New England Field Office (see FOR FURTHER INFORMATION 


    The primary author of this notice is Michael Amaral, Supervisory 
Fish and Wildlife Biologist, (see ADDRESSES). Martin Miller, Chief, 
Division of Threatened and Endangered Species, U.S. Fish and Wildlife 
Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035, also 
contributed to this finding.


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: May 12, 2010.
Daniel M. Ashe,
Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-13882 Filed 6-9-10; 8:45 am]