[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Rules and Regulations]
[Pages 75506-75512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24299]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2018-0097; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BD60
Endangered and Threatened Wildlife and Plants; Reinstatement of
Endangered Species Act Protections for the Gray Wolf (Canis Lupus) in
Compliance With Court Order
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing
this final rule to comply with a district court order that vacated our
November 3, 2020, rule removing the gray wolf (Canis lupus) from the
List of Endangered and Threatened Wildlife. As a result of the court's
order, the regulatory protections under the Endangered Species Act of
1973, as amended (Act), apply to the gray wolf in all or portions of
the 45 U.S. States and Mexico where the species was listed at the time
we issued the delisting rule. The court order went into effect on
February 10, 2022, and is the subject of several consolidated, pending
appeals in the Ninth Circuit. While those appeals are pending, the
Service is bound by the district court's order. Thus, this final rule
implements the court's order by correcting the Code of Federal
Regulations and officially reinstating threatened status for gray wolf
in Minnesota; endangered status for gray wolf in all or portions of the
remaining 44 U.S. States and Mexico where the species was listed prior
to our November 2020 delisting rule; critical habitat for gray wolf in
Minnesota and Michigan; and the rule promulgated under section 4(d) of
the Act for gray wolf in Minnesota. Gray wolves in Montana, Idaho,
Wyoming, the eastern third of Washington and Oregon, and north-central
Utah (collectively, the Northern Rocky Mountains) retain their delisted
status and are not affected by this final rule. This rule does not have
any effect on the separate listing of the Mexican wolf subspecies
(Canis lupus baileyi) as endangered under the Act.
DATES: This action is effective November 3, 2023. However, the court
order had legal effect immediately upon its filing on February 10,
2022.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov in Docket No. FWS-HQ-ES-2018-0097.
FOR FURTHER INFORMATION CONTACT: Rachel London, Chief, Branch of
Delisting and Foreign Species, Ecological Services, U.S. Fish and
Wildlife Service, Headquarters Office, MS:ES, 5275, Leesburg Pike,
Falls Church, VA 22041-3803; telephone (703) 358-2491. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
On November 3, 2020, we published a final rule to remove the gray
wolf entities that were listed at that time in the lower 48 United
States and Mexico from the Federal List of Endangered and Threatened
Wildlife in title 50 of the Code of Federal Regulations (CFR) at 50 CFR
17.11(h) (85 FR 69778; hereafter referred to as ``our 2020 delisting
rule''). Additional background information on the gray wolf in the
lower 48 United States and Mexico and on that rulemaking decision,
including previous Federal actions, can be found in our 2020 delisting
rule. The rule became effective on January 4, 2021.
Three lawsuits challenging our 2020 delisting rule were filed in
the U.S. District Court for the Northern District of California.
Defenders of Wildlife v. U.S. Fish and Wildlife Service, No. 21-00344
(N.D. Cal.), WildEarth Guardians v. Bernhardt, No. 21-00349 (N.D.
Cal.), NRDC v. U.S. Department of the Interior, No. 21-00561 (N.D.
Cal.). On February 10, 2022, the district court vacated and remanded
our 2020
[[Page 75507]]
delisting rule. That decision reinstated Federal protections that were
in place prior to the effective date of our 2020 delisting rule.
Therefore, gray wolves are once again listed as threatened in Minnesota
and endangered in all or portions of 44 U.S. States and Mexico. See
Effects of the Rule, below, for a description of the CFR changes
resulting from this final rule.
Multiple parties, including the Service, appealed the district
court's order to the U.S. Court of Appeals for the Ninth Circuit (Nos.
21-16382, 16383, 16384, 22-15529, 15532, 15534, 15535, 15536, 15537,
15262, 15627, 15628). The parties have been engaged in mediation. On
January 26, 2023, the Circuit Mediator issued an order temporarily
staying the appeals for administrative purposes until February 2, 2024.
During the abeyance, the Service is updating the status review for the
gray wolf throughout the lower 48 United States and commencing a
stakeholder engagement effort.
Administrative Procedure
To comply with the February 10, 2022, court order, we must
reinstate the following:
Threatened species status for gray wolf in Minnesota,
Endangered species status for gray wolf in all or portions
of 44 U.S. States and Mexico,
Critical habitat designation for gray wolf in Minnesota
and Michigan, and
A section 4(d) rule for gray wolf in Minnesota.
Therefore, the Director has determined, pursuant to 5 U.S.C.
553(b), that prior notice and opportunity for public comment are
impractical and unnecessary. The Director has further determined,
pursuant to 5 U.S.C. 553(d), that the agency has good cause to make
this rule effective upon publication.
We are also making the following technical revisions to the section
4(d) rule at 50 CFR 17.40(d):
(1) correcting the misspelling of ``Hoodoo Point'' in Sec.
17.40(d)(1)(i);
(2) correcting the misspelling of ``the Duluth, Missabe and Iron
Range Railroad'' in Sec. 17.40(d)(1)(ii);
(3) substituting a higher quality image of the map of regulatory
zones that appears in Sec. 17.40(d)(1)(vi); and
(4) updating the contact information for providing notifications to
the Service in Sec. 17.40(d)(2)(D).
Rather than make these changes in a separate rulemaking, we are
combining them with the section 4(d) rule reinstatement for
administrative convenience. The Director has determined, pursuant to 5
U.S.C. 553(b), that prior notice and an opportunity for public comment
on these revisions are unnecessary because the changes are
insignificant in nature and impact and inconsequential to the public.
Effects of the Rule
As a result of the February 10, 2022, district court order, any and
all gray wolves in Minnesota are listed as threatened, and any and all
gray wolves in all or portions of 44 U.S. States and Mexico are listed
as endangered. In the United States, this includes: all of Alabama,
Arkansas, California, Colorado, Connecticut, Delaware, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Massachusetts, Maryland, Maine, Michigan, Missouri, Mississippi, North
Carolina, North Dakota, Nebraska, New Hampshire, New Jersey, Nevada,
New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Virginia, Vermont, West Virginia, and
Wisconsin; and portions of Arizona, New Mexico, Oregon, Utah, and
Washington (as depicted in figure 1 below and our November 3, 2020,
delisting rule; 85 FR 69778 at 69782).
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[[Page 75508]]
[GRAPHIC] [TIFF OMITTED] TR03NO23.034
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The reinstated regulations at 50 CFR 17.95(a) designate critical
habitat for gray wolf in Minnesota and Michigan, and the reinstated
regulations at 50 CFR 17.40(d) govern the regulation of gray wolf in
Minnesota. The provisions of these regulations are the same as those in
the regulations that were removed by our 2020 delisting rule (November
3, 2020; 85 FR 69778 at 69895).
This rule does not affect the status of gray wolf in Montana,
Idaho, Wyoming, the eastern third of Washington and Oregon, and north-
central Utah. Wolves in these areas retain their delisted status and
will continue to be managed by the States and Tribes. Finally, this
rule does not affect the gray wolf's Appendix II status under the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES).
Future Actions
By February 2, 2024, the Service intends to submit to the Office of
the Federal Register a proposed rule concerning the listing status of
gray wolves in the lower 48 United States under the Act. Our status
determination will be based on the best available information as of the
time of publication. If the appeals described earlier in this document
nonetheless proceed and the district court's order is reversed, then
the Service will take appropriate action to comply with and implement
the Court of Appeals' judgment, including, if required, publishing
another final rule reinstating the Service's 2020 delisting rule.
Authors
The primary authors of this final rule are the staff members of the
U.S. Fish and Wildlife Service's Headquarters Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11, in paragraph (h), by adding two entries for
``Wolf, gray'' in alphabetic order under Mammals in the List of
Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 75509]]
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Listing citations and
Common name Scientific name Where listed Status applicable rules
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Mammals
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* * * * * * *
Wolf, gray..................... Canis lupus...... U.S.A.: All of AL, AR, E 32 FR 4001, 3/11/1967;
CA, CO, CT, DE, FL, 41 FR 24062, 6/14/
GA, IA, IN, IL, KS, 1976;
KY, LA, MA, MD, ME, 43 FR 9607, 3/9/1978;
MI, MO, MS, NC, ND, 73 FR 75356, 12/11/
NE, NH, NJ, NV, NY, 2008;
OH, OK, PA, RI, SC, 74 FR 47483, 9/16/
SD, TN, TX, VA, VT, 2009;
WI, and WV; and 80 FR 9218, 2/20/2015;
portions of AZ, NM, 50 CFR 17.95(a).\CH\
OR, UT, and WA as
follows:
(1) Northern AZ (that
portion north of the
centerline of
Interstate Highway
40);.
(2) Northern NM (that
portion north of the
centerline of
Interstate Highway
40);.
(3) Western OR (that
portion of OR west of
the centerline of
Highway 395 and
Highway 78 north of
Burns Junction and
that portion of OR
west of the
centerline of Highway
95 south of Burns
Junction);.
(4) Most of UT (that
portion of UT south
and west of the
centerline of Highway
84 and that portion
of UT south of
Highway 80 from Echo
to the UT/WY
Stateline); and.
(5) Western WA (that
portion of WA west of
the centerline of
Highway 97 and
Highway 17 north of
Mesa and that portion
of WA west of the
centerline of Highway
395 south of Mesa)
Mexico..
Wolf, gray..................... Canis lupus...... U.S.A. (MN)........... T 43 FR 9607, 3/9/1978;
50 CFR 17.40(d);\4(d)\
50 CFR 17.95(a).\CH\
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0
3. Amend Sec. 17.40 by adding paragraph (d) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(d) Gray wolf (Canis lupus) in Minnesota.
(1) Zones. For purposes of these regulations, the State of
Minnesota is divided into the following five zones:
(i) Zone 1--4,488 square miles. Beginning at the point of
intersection of United States and Canadian boundaries in Section 22,
Township 71 North, Range 22 West, in Rainy Lake, then proceeding along
the west side of Sections 22, 27, and 34 in said Township and Sections
3, 10, 15, 22, 27, and 34 in Township 70 North, Range 22 West and
Sections 3 and 10 in Township 69 North, Range 22 West; then east along
the south boundaries of Sections 10, 11, and 12 in said Township; then
south along the Koochiching and St. Louis Counties line to Highway 53;
thence southeasterly along State Highway 53 to the junction with County
Route 765; thence easterly along County Route 765 to the junction with
Kabetogama Lake in Ash River Bay; thence along the south boundary of
Section 33 in Township 69 North, Range 19 West, to the junction with
the Moose River; thence southeasterly along the Moose River to Moose
Lake; thence along the western shore of Moose Lake to the river between
Moose Lake and Long Lake; thence along the said river to Long Lake;
thence along the east shore of Long Lake to the drainage on the
southeast side of Long Lake in NE\1/4\, Section 18, Township 67 North,
Range 18 West; thence along the said drainage southeasterly and
subsequently northeasterly to Marion Lake, the drainage being in
Sections 17 and 18, Township 67 North, Range 18 West; thence along the
west shoreline of Marion Lake proceeding southeasterly to the Moose
Creek; thence along Moose Creek to Flap Creek; thence southeasterly
along Flap Creek to the Vermilion River; thence southerly along the
Vermilion River to Vermilion Lake; thence along the Superior National
Forest boundary in a southeasterly direction through Vermilion Lake
passing these points: Oak Narrows, Muskrat Channel, South of Pine
Island, to Hoodoo Point and the junction with County Route 697; thence
southeasterly on County Route 697 to the junction with State Highway
169; thence easterly along State Highway 169 to the junction with State
Highway 1; thence easterly along State Highway 1 to the junction with
the Erie Railroad tracks at Murphy City; thence easterly along the Erie
Railroad tracks to the junction with Lake Superior at Taconite Harbor;
thence northeasterly along the North Shore of Lake Superior to the
Canadian Border; thence westerly along the Canadian Border to the point
of beginning in Rainy Lake.
(ii) Zone 2--1,856 square miles. Beginning at the intersection of
the Erie Mining Co. Railroad and State Highway 1 (Murphy City); thence
southeasterly on State Highway 1 to the junction with County Road 4;
thence southwesterly on County Road 4 to the State Snowmobile Trail
(formerly the Alger-Smith Railroad); thence southwesterly to the
intersection of the Old Railroad Grade and Reserve Mining Co. Railroad
in Section 33 of Township 56 North, Range 9 West; thence northwesterly
along the Railroad to Forest Road 107; thence westerly along Forest
Road 107 to Forest Road 203; thence westerly along Forest Road 203 to
the junction with County Route 2; thence in a northerly direction on
County Route 2 to the junction with
[[Page 75510]]
Forest Road 122; thence in a westerly direction along Forest Road 122
to the junction with the Duluth, Missabe and Iron Range Railroad;
thence in a southwesterly direction along the said railroad tracks to
the junction with County Route 14; thence in a northwesterly direction
along County Route 14 to the junction with County Route 55; thence in a
westerly direction along County Route 55 to the junction with County
Route 44; thence in a southerly direction along County Route 44 to the
junction with County Route 266; thence in a southeasterly direction
along County Route 266 and subsequently in a westerly direction to the
junction with County Road 44; thence in a northerly direction on County
Road 44 to the junction with Township Road 2815; thence westerly along
Township Road 2815 to Alden Lake; thence northwesterly across Alden
Lake to the inlet of the Cloquet River; thence northerly along the
Cloquet River to the junction with Carrol Trail-State Forestry Road;
thence west along the Carrol Trail to the junction with County Route 4
and County Route 49; thence west along County Route 49 to the junction
with the Duluth, Winnipeg and Pacific Railroad; thence in a northerly
direction along said Railroad to the junction with the Whiteface River;
thence in a northeasterly direction along the Whiteface River to the
Whiteface Reservoir; thence along the western shore of the Whiteface
Reservoir to the junction with County Route 340; thence north along
County Route 340 to the junction with County Route 16; thence east
along County Route 16 to the junction with County Route 346; thence in
a northerly direction along County Route 346 to the junction with
County Route 569; thence along County Route 569 to the junction with
County Route 565; thence in a westerly direction along County Route 565
to the junction with County Route 110; thence in a westerly direction
along County Route 110 to the junction with County Route 100; thence in
a north and subsequent west direction along County Route 100 to the
junction with State Highway 135; thence in a northerly direction along
State Highway 135 to the junction with State Highway 169 at Tower;
thence in an easterly direction along the southern boundary of Zone 1
to the point of beginning of Zone 2 at the junction of the Erie
Railroad Tracks and State Highway 1.
(iii) Zone 3--3,501 square miles. Beginning at the junction of
State Highway 11 and State Highway 65; thence southeasterly along State
Highway 65 to the junction with State Highway 1; thence westerly along
State Highway 1 to the junction with State Highway 72; thence north
along State Highway 72 to the junction with an un-numbered township
road beginning in the northeast corner of Section 25, Township 155
North, Range 31 West; thence westerly along the said road for
approximately seven (7) miles to the junction with SFR 95: thence
westerly along SFR 95 and continuing west through the southern boundary
of Sections 36 through 31, Township 155 North, Range 33 West, through
Sections 36 through 31, Township 155 North, Range 34 West, through
Sections 36 through 31, Township 155 North, Range 35 West, through
Sections 36 and 35, Township 155 North, Range 36 West to the junction
with State Highway 89, thence northwesterly along State Highway 89 to
the junction with County Route 44; thence northerly along County Route
44 to the junction with County Route 704; thence northerly along County
704 to the junction with SFR 49; thence northerly along SFR 49 to the
junction with SFR 57; thence easterly along SFR 57 to the junction with
SFR 63: thence south along SFR 63 to the junction with SFR 70; thence
easterly along SFR 70 to the junction with County Route 87; thence
easterly along County Route 87 to the junction with County Route 1;
thence south along County Route 1 to the junction with County Route 16;
thence easterly along County Route 16 to the junction with State
Highway 72; thence south on State Highway 72 to the junction with a
gravel road (un-numbered County District Road) on the north side of
Section 31, Township 158 North, Range 30 West; thence east on said
District Road to the junction with SFR 62; thence easterly on SFR 62 to
the junction with SFR 175; thence south on SFR 175 to the junction with
County Route 101; thence easterly on County Route 101 to the junction
with County Route 11; thence easterly on County Route 11 to the
junction with State Highway 11; thence easterly on State Highway 11 to
the junction with State Highway 65, the point of beginning.
(iv) Zone 4--20,883 square miles. Excluding Zones 1, 2 and 3, all
that part of Minnesota north and east of a line beginning on State
Trunk Highway 48 at the eastern boundary of the State; thence westerly
along Highway 48 to Interstate Highway 35; thence northerly on I-35 to
State Highway 23, thence west one-half mile on Highway 23 to State
Trunk Highway 18; thence westerly along Highway 18 to State Trunk
Highway 65, thence northerly on Highway 65 to State Trunk Highway 210;
thence westerly along Highway 210 to State Trunk Highway 6; thence
northerly on State Trunk Highway 6 to Emily; thence westerly along
County State Aid Highway (CSAH) 1, Crow Wing County, to CSAH 2, Cass
County; thence westerly along CSAH 2 to Pine River; thence
northwesterly along State Trunk Highway 371 to Backus; thence westerly
along State Trunk Highway 87 to U.S. Highway 71; thence northerly along
U.S. 71 to State Trunk Highway 200; thence northwesterly along Highway
200, to County State Aid Highway (CSAH) 2, Clearwater County; thence
northerly along CSAH 2 to Shevlin; thence along U.S. Highway 2 to
Bagley; thence northerly along State Trunk Highway 92 to Gully; thence
northerly along CSAH 2, Polk County, to CSAH 27, Pennington County;
thence along CSAH 27 to State Trunk Highway 1; thence easterly on
Highway 1 to CSAH 28, Pennington County; thence northerly along CSAH 28
to CSAH 54, Marshall County, thence northerly along CSAH 54 to Grygla;
thence west and northerly along Highway 89 to Roseau; thence northerly
along State Truck Highway 310 to the Canadian border.
(v) Zone 5--54,603 square miles. All that part of Minnesota south
and west of the line described as the south and west border of Zone 4.
(vi) Map of regulatory zones follows:
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(2) Prohibitions. The following prohibitions apply to the gray wolf
in Minnesota.
(i) Taking. Except as provided in this paragraph (d)(2)(i) of this
section, no person may take a gray wolf in Minnesota.
(A) Any person may take a gray wolf in Minnesota in defense of his
own life or the lives of others.
(B) Any employee or agent of the Service, any other Federal land
management agency, or the Minnesota Department of Natural Resources,
who is designated by his/her agency for such purposes, may, when acting
in the course of his or her official duties, take a gray wolf in
Minnesota without a permit if such action is necessary to:
(1) Aid a sick, injured, or orphaned specimen; or
(2) Dispose of a dead specimen; or
(3) Salvage a dead specimen which may be useful for scientific
study.
(C) Designated employees or agents of the Service or the Minnesota
Department of Natural Resources may
[[Page 75512]]
take a gray wolf without a permit in Minnesota, in zones 2, 3, 4, and
5, as delineated in paragraph (d)(l) of this section, in response to
depredations by a gray wolf on lawfully present domestic animals:
Provided, that such taking must occur within one-half mile of the place
where such depredation occurred and must be performed in a humane
manner: And provided further, that any young of the year taken on or
before August 1 of that year must be released.
(D) Any taking pursuant to paragraph (d)(2)(i)(A), (d)(2)(i)(B), or
(d)(2)(i)(C) of this section must be reported by email to the Twin
Cities Ecological Service Field Office at [email protected] within 5
days. The specimen may only be retained, disposed of, or salvaged in
accordance with directions from the Service.
(E) Any employee or agent of the Service or the Minnesota
Department of Natural Resources, when operating under a Cooperative
Agreement with the Service signed in accordance with section 6(c) of
the Endangered Species Act of 1973, who is designated by the Service or
the Minnesota Department of Natural Resources for such purposes, may,
when acting in the course of his or her official duties, take a gray
wolf in Minnesota to carry out scientific research or conservation
programs.
(ii) Export and commercial transactions. Except as may be
authorized by a permit issued under Sec. 17.32, no person may sell or
offer for sale in interstate commerce, import or export, or in the
course of a commercial activity transport, ship, carry, deliver, or
receive any Minnesota gray wolf.
(iii) Unlawfully taken wolves. No person may possess, sell,
deliver, carry, transport, or ship, by any means whatsoever, a gray
wolf taken unlawfully in Minnesota, except that an employee or agent of
the Service, or any other Federal land management agency, or the
Minnesota Department of Natural Resources, who is designated by his/her
agency for such purposes, may, when acting in the course of his
official duties, possess, deliver, carry, transport, or ship a gray
wolf taken unlawfully in Minnesota.
(3) Permits. All permits available under Sec. 17.32 (General
Permits--Threatened Wildlife) are available with regard to the gray
wolf in Minnesota. All the terms and provisions of Sec. 17.32 apply to
such permits issued under the authority of this paragraph (d)(3).
* * * * *
0
4. Amend Sec. 17.95, in paragraph (a), by adding an entry for ``Gray
Wolf (Canis lupus)'' after the entry for ``Amargosa Vole (Microtus
californicus scirpensis)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Gray Wolf (Canis Lupus)
Michigan. Isle Royale National Park.
Minnesota. Areas of land, water, and airspace in Beltrami, Cook,
Itasca, Koochiching, Lake, Lake of the Woods, Roseau, and St. Louis
Counties, with boundaries (4th and 5th Principal meridians) identical
to those of zones 1, 2, and 3, as delineated in 50 CFR 17.40(d)(l).
* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-24299 Filed 11-2-23; 8:45 am]
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