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Environmental Law

: ESA Blawg

Distinct population segments of gray wolves removed from ESA protection in Western Great Lakes and Northern Rockies

By Keith Rizzardi

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74 Fed. Reg. 15070 / Vol. 74, No. 62 / Thursday, April 2, 2009 / Department of the Interior Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment; Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment; and To Revise the List of Endangered and Threatened Wildlife; Final Rules

SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS) identify the Western Great Lakes (WGL) Distinct Population Segment (DPS) of the gray wolf (Canis lupus). The geographic extent of this DPS includes all of Minnesota, Wisconsin, and Michigan; the eastern half of North Dakota and South Dakota; the northern half of Iowa; the northern portions of Illinois and Indiana; and the northwestern portion of Ohio. We also revise the List of Endangered and Threatened Wildlife established under the Endangered Species Act of 1973, as amended (Act) by removing gray wolves within the WGL DPS. We are taking these actions because available data indicate that this DPS no longer meets the definitions of threatened or endangered under the Act. The threats have been reduced or eliminated, as evidenced by a population that is stable or increasing in Minnesota, Wisconsin, and Michigan, and greatly exceeds the numerical recovery criteria established in its recovery plan. Completed State wolf management plans will provide adequate protection and management of the WGL DPS after this revision of the listing. This final rule removes this DPS from the lists of Threatened and Endangered Wildlife, removes the currently designated critical habitat for the gray wolf in Minnesota and Michigan, and removes the current special regulations for gray wolves in Minnesota. On April 16, 2007, three parties filed a lawsuit against the U.S. Department of the Interior (Department) and the Service, challenging the Service’s February 8, 2007 (72 FR 6052), identification and delisting of the WGL DPS. On September 29, 2008, the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs (Humane Society of the United States v. Kempthorne, No. 1:07–CV–00677 (D.D.C.). In that ruling the court vacated and remanded the Service’s application of the February 8, 2007 (72 FR 6052), final delisting rule for the WGL DPS of the gray wolf. On remand, the Service was directed to provide an explanation as to how simultaneously identifying and delisting a DPS is consistent with the Act’s text, structure, policy objectives, legislative history, and any relevant judicial interpretations. This final rule addresses the September 29, 2008, court ruling.

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Photo of Yellowstone wolf pack from Wyoming Game and Fish Department available from the University of Wyoming. Overall, the wolf population estimate for 2008 is slightly higher than that for 2007, indicating a declining rate of increase as suitable habitat becomes increasingly saturated with resident wolf packs. However, in Wyoming, and most notably Yellowstone National Park, wolf populations have not increased, with 171 wolves in 2004, a decline thereafter, and a rebound to 171 wolves in 2008. FWS indiciated that the decline could be because (1) Highly suitable habitat in YNP was saturated with wolf packs; (2) conflict among packs appeared to limit
population density; (3) fewer elk occur in YNP than when reintroduction took place; and (4) a suspected 2005 outbreak of a canine disease.

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74 Fed. Reg. 15123 / Vol. 74, No. 62 /Thursday, April 2, 2009 / DEPARTMENT OF THE INTERIOR Fish and Wildlife Service / 50 CFR Part 17 / Endangered and Threatened Wildlife and Plants; Final Rule To Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and To Revise the List of Endangered and Threatened Wildlife

SUMMARY: Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), identify a distinct population segment (DPS) of the gray wolf (Canis lupus) in the Northern Rocky Mountains (NRM) of the United States and revise the List of Endangered and Threatened Wildlife by removing gray wolves within NRM DPS boundaries, except in Wyoming. The NRM gray wolf DPS encompasses the eastern one-third of Washington and Oregon, a small part of north-central Utah, and all of Montana, Idaho, and Wyoming. Our current estimate for 2008 indicates the NRM DPS contains approximately 1,639 wolves (491 in Montana; 846 in Idaho; 302 in Wyoming) in 95 breeding pairs (34 in Montana; 39 in Idaho; 22 in Wyoming). These numbers are about 5 times higher than the minimum population recovery goal and 3 times higher than the minimum breeding pair recovery goal. The end of 2008 will mark the ninth consecutive year the population has exceeded our numeric and distributional recovery goals. The States of Montana and Idaho have adopted State laws, management plans, and regulations that meet the requirements of the Act and will conserve a recovered wolf population into the foreseeable future. In our proposed rule (72 FR 6106, February 8, 2007), we noted that removing the Act’s protections in Wyoming was dependant upon the State’s wolf law (W.S. 11–6– 302 et seq. and 23–1–101, et seq. in House Bill 0213) and wolf management plan adequately conserving Wyoming’s portion of a recovered NRM wolf population. In light of the July 18, 2008, U.S. District Court order, we reexamined Wyoming law, its management plans and implementing regulations, and now determine they are not adequate regulatory mechanisms for the purposes of the Act. We determine that the best scientific and commercial data available demonstrates that (1) the NRM DPS is not threatened or endangered throughout ‘‘all’’ of its range (i.e., not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represents a significant portion of range where the species remains in danger of extinction because of inadequate regulatory mechanisms. Thus, this final rule removes the Act’s protections throughout the NRM DPS except for Wyoming. Wolves in Wyoming will continue to be regulated as a nonessential, experimental population per 50 CFR 17.84(i) and (n).

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KEITHINKING: the management of wolf populations remains one of the most controversial aspects of Endangered Species Act implementation. These announcements continue the historic trend. According to the Times of the Internet, The Humane Society of the United States says it will challenge the federal decision to remove the gray wolf from its prior ESA protections. Defenders of Wildlife called the decision "tragic." But Conservation Magazine, citing an article in Molecular Ecology, notes that Great Lakes wolves bred and mixed genes with coyotes and other wolves, so science may support the designation of Great Lakes wolf populations as a distinct population segment. See also, prior ESA blawg. Notably, some local media sources have characterized the decision as simply shifting wolf management responsibilities to state entities. See Duluth News Tribune. Montana, Idaho and Washington wolf populations are up, for example, but Yellowstone populations are down. See The Kitsap Sun. As a result, Wyoming was not among the empowered states, and the gray wolf stayed listed there. Guess what? Wyoming is filing suit. Notably, FWS previously found the 2003 Wyoming legislation and plan inadequate to conserve Wyoming’s share of a recovered NRM gray wolf population. Wyoming sued FWS over the issue, and lost in the District and Circuit Courts. 360 F. Supp 2nd 1214 (D. Wyo. 2005); 442 F. 3rd 1262 (10th Cir. 2006). In 2008, Wyoming declined to sign the Genetics Memorandum of Understanding, and in 2009, FWS found that Wyoming’s regulatory framework did not meet the requirements of the Act, and the state does not have an FWS-approved wolf management plan.

Full post as published by ESA Blawg on April 05, 2009 (boomark / email).