[Federal Register Volume 80, Number 11 (Friday, January 16, 2015)]
[Rules and Regulations]
[Pages 2512-2567]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00436]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0056; FXES11130900000-156-FF09E42000]
RIN 1018-AY46
Endangered and Threatened Wildlife and Plants; Revision to the
Regulations for the Nonessential Experimental Population of the Mexican
Wolf
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise the
regulations for the nonessential experimental population of the Mexican
wolf (Canis lupus baileyi) under section 10(j) of the Endangered
Species Act of 1973, as amended. This action is being taken in
coordination with our final rule in this Federal Register to list the
Mexican wolf as an endangered subspecies. The regulatory revisions in
this rule will improve the project to reintroduce a nonessential
experimental population, thereby increasing potential for recovery of
this species.
DATES: This rule becomes effective February 17, 2015.
ADDRESSES: This final rule, along with the public comments,
environmental impact statement (EIS), and record of decision, are
available on the Internet at http://www.regulations.gov, Docket No.
FWS-R2-ES-2013-0056 or from the office listed in FOR FURTHER
INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Sherry Barrett, Mexican Wolf Recovery
Coordinator, U.S. Fish and Wildlife Service, New Mexico Ecological
Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113; by
telephone 505-761-4704; or by facsimile 505-346-2542. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339. Further contact
information can be found on the Mexican Wolf Recovery Program's Web
site at http://www.fws.gov/southwest/es/mexicanwolf/.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. We are revising the regulations
under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) (Act
or ESA) that established the experimental population of the Mexican
wolf (Canis lupus baileyi) to further its conservation by improving the
effectiveness of the reintroduction project in managing the
experimental population. We intend to do this by: (1) Modifying the
geographic boundaries in which Mexican wolves are managed south of
Interstate-40 in Arizona and New Mexico under section 10(j) of the Act;
(2) modifying the management regulations that govern the initial
release, translocation, removal and take of Mexican wolves; and (3)
issuing a permit under section 10(a)(1)(A) of the Act for management of
Mexican wolves both inside and outside of the Mexican Wolf Experimental
Population Area (MWEPA). Revisions to the regulations, which were
promulgated in 1998, and the section 10(a)(1)(A) permit are needed
because: (1) Under the current regulations we will not be able to
achieve the necessary population growth, distribution, and recruitment
that would contribute to the persistence of, and improve the genetic
variation within, the experimental population; (2) there is a potential
for Mexican wolves to disperse into southern Arizona and New Mexico
from reintroduction areas in the States of Sonora and Chihuahua in
northern Mexico; and (3) certain provisions lack clarity, are
inadequate, or limit the efficacy and flexibility of our management of
the experimental population of Mexican wolves.
Also, this final rule is necessitated by a related action we are
taking to classify the Mexican wolf as an endangered subspecies. The
Mexican wolf has been listed under the Act in the Code of Federal
Regulations (CFR) at 50 CFR 17.11(h) as part of the gray wolf (Canis
lupus) listing since 1978. Therefore, when we designated the Mexican
wolf experimental population in 1998 (1998 Final Rule; 63 FR 1752,
January 12, 1998), it corresponded to the gray wolf listing in even
though it was specific to our Mexican wolf recovery effort. With this
publication of the final rule to list the Mexican wolf as an endangered
subspecies, we need to revise 50 CFR 17.11(h) such that the
experimental population will be associated with the Mexican wolf
subspecies listing rather than with the gray wolf species.
[[Page 2513]]
The basis for our action. The 1982 amendments to the Act included
the addition of section 10(j), which allows for reintroduced
populations of listed species to be designated as ``experimental
populations.'' Under section 10(j) of the Act and our regulations at 50
CFR 17.81, the Service may designate as an experimental population a
population of endangered or threatened species that has been or will be
released into suitable natural habitat outside the species' current
natural range (but within its probable historical range, absent a
finding by the Director of the Service in the extreme case that the
primary habitat of the species has been unsuitably and irreversibly
altered or destroyed). With the experimental population designation,
the relevant population is treated as threatened for purposes of
section 9 of the Act, regardless of the species' designation elsewhere
in its range. Treating the experimental population as threatened allows
us the discretion to devise management programs and special regulations
for such a population. Section 4(d) of the Act allows us to adopt any
regulations that are necessary and advisable to provide for the
conservation of a threatened species. When designating an experimental
population, the general regulations that extend most section 9
prohibitions to threatened species do not apply to that species, and
the section 10(j) rule contains the prohibitions and exemptions
necessary and advisable to conserve that species.
We prepared an EIS. We prepared a final Environmental Impact
Statement (EIS) pursuant to the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) to ensure that we considered the
environmental impacts of the designation of the proposed nonessential
experimental population of Mexican wolves. From October through
December 2007, we conducted a public scoping process under NEPA based
on our intent to modify the 1998 Final Rule. We developed a scoping
report in April 2008, but we did not propose or finalize any
modifications to the 1998 Final Rule at that time. We again initiated
scoping on August 5, 2013 (78 FR 47268). We utilized all information
collected since the 2007 scoping process began in the development of
the draft EIS published in the Federal Register on July 25, 2014 (79 FR
43358). We used information from the analyses in the final EIS
published in the Federal Register on November 25, 2014 (79 FR 70154),
to inform our final decision on the revision to the regulations for the
experimental population of the Mexican wolf.
We conducted peer review. In accordance with our joint policy
published in the Federal Register on July 1, 1994 (59 FR 34270), we
conducted peer review on our June 13, 2013 (78 FR 35719), and our July
25, 2014 (79 FR 43358), proposed rules. The purpose of such review is
to ensure that our final rule for this species is based on
scientifically sound data, assumptions, and analyses. We invited six
peer reviewers to comment, during the open public comment period, on
our use and interpretation of the science used in developing our
proposed rule. We considered all comments and information we received
during the comment periods on the proposed rules during preparation of
this final rulemaking.
Previous Federal Actions
The Mexican wolf was listed under the Act as an endangered
subspecies in 1976 (41 FR 17736, April 28, 1976). In 1978, the Service
listed the entire gray wolf species in North America south of Canada as
endangered, except in Minnesota where it was listed as threatened (43
FR 9607, March 9, 1978). This 1978 listing at the species level
subsumed the previous Mexican wolf subspecies listing. However, the
1978 listing rule (43 FR 9607, March 9, 1978) stated that we would
continue to recognize the Mexican wolf as a valid biological subspecies
for purposes of research and conservation.
After the 1978 listing, the Service initiated recovery programs for
the gray wolf in three broad geographical regions of the country: The
Northern Rocky Mountains, the Western Great Lakes, and the Southwest.
In the Southwest, a recovery plan was developed specifically for the
Mexican wolf, acknowledging and implementing the regional gray wolf
recovery focus on the conservation of the Mexican wolf as a subspecies
(Service 1982). The 1982 Mexican Wolf Recovery Plan did not provide
recovery criteria, but recommended an initial two-pronged approach to
recovery to establish a captive-breeding program and reintroduce
captive Mexican wolves to the wild (Service 1982, p. 28).
In 1996, we completed a final Environmental Impact Statement (EIS),
``Reintroduction of the Mexican Wolf Within Its Historic Range in the
Southwestern United States,'' after assessing potential locations for
reintroduction of the Mexican wolf (Service 1996). On April 3, 1997,
the Department of the Interior issued its Record of Decision on the
final EIS (62 FR 15915), and on January 12, 1998, we published a final
rule in the Federal Register to establish the Mexican Wolf Experimental
Population Area (MWEPA) in central Arizona and New Mexico (63 FR 1752;
hereafter referred to as the 1998 Final Rule).
On August 4, 2010, the Service published a 90-day finding in the
Federal Register on two petitions to list the Mexican wolf as an
endangered subspecies with critical habitat (75 FR 46894). In the 90-
day finding, we determined that the petitions presented substantial
scientific information that the Mexican wolf may warrant
reclassification as a subspecies or distinct population segment (DPS).
As a result of this finding, we initiated a status review. On October
9, 2012, we published our 12-month finding (77 FR 61375) stating that
the listing of the Mexican wolf as a subspecies or DPS was not
warranted at that time because Mexican wolves already receive the
protections of the Act under the species-level gray wolf listing of
1978.
On February 29, 2012, we completed a 5-year review of the gray wolf
listed entity, recommending that the entity currently described on the
List of Endangered and Threatened Wildlife should be revised to reflect
the distribution and status of gray wolf populations in the lower 48
States and Mexico by removing all areas currently included in its
range, as described in the CFR, except where there is a valid species,
subspecies, or DPS that is threatened or endangered (Service 2012).
On June 13, 2013 (78 FR 35664), we concurrently proposed a rule in
the Federal Register to delist the gray wolf and list the Mexican wolf
subspecies as endangered. The proposal to list the Mexican wolf as an
endangered subspecies necessitated that we propose a revision to the
regulations for the experimental population of the Mexican wolf in
Arizona and New Mexico in order to correctly document this population
as an experimental population of the Mexican wolf subspecies rather
than the gray wolf species found in the current CFR. We also proposed
several changes to the
[[Page 2514]]
section 10(j) rule and management regulations of Mexican wolves to
improve the effectiveness of the reintroduction project in managing the
experimental population. Therefore, on June 13, 2013 (78 FR 35719), we
published a proposed rule to revise the regulations for the
experimental population designation of the Mexican wolf. That proposal
had a 90-day comment period ending September 11, 2013.
On August 5, 2013 (78 FR 47268), we published a notice of intent to
prepare an EIS in conjunction with the proposed rule to revise the
regulations for the experimental population designation of the Mexican
wolf. That notice of intent to prepare an EIS had a 45-day comment
period ending September 19, 2013. On September 5, 2013 (78 FR 54613),
we extended the public comment period on the proposed rule to revise
the regulations for the experimental population designation of the
Mexican wolf to end on October 28, 2013, and announced public hearings.
On October 28, 2013 (78 FR 64192), we once again extended the public
comment period on the proposed rule to revise the regulations for the
experimental population designation of the Mexican wolf to end on
December 17, 2013, and announced public hearings.
On July 25, 2014 (79 FR 43358), we proposed a new revision to the
regulations for the experimental population of the Mexican wolf, and
announced the availability of a draft EIS on the proposal. That
proposal had a 60-day comment period ending September 23, 2014.
In a July 29, 2013, stipulated settlement agreement between the
Service and the Center for Biological Diversity, the Service agreed to
submit to the Federal Register for publication, on or before January
12, 2015, a final determination concerning the proposed section 10(j)
rule modification. This final rule revising the regulations for the
existing experimental population of the Mexican wolf meets that
agreement.
Background
Species Information
The Mexican wolf is the smallest extant gray wolf subspecies in
North America. Adults weigh 50 to 90 pounds (lb) (23 to 41 kilograms
(kg)) with a length of 5 to 6 ft (1.5 to 1.8 m) and height at shoulder
of 25 to 32 in (63 to 81 cm) (Brown 1988, p. 119). Mexican wolves are
typically a patchy black, brown to cinnamon, and cream color, with
primarily light underparts (Brown 1988, p. 118). Solid black or white
coloration, as seen in other North American gray wolves, does not exist
in Mexican wolves. The basic life history for the Mexican wolf is
similar to that of other gray wolves (Mech 1970, entire; Service 1982,
p. 11; Service 2010, pp. 32-41).
Historically, Mexican wolves were distributed across portions of
the southwestern United States and northern and central Mexico. In the
United States, this range included eastern, central, and southern
Arizona; southern New Mexico; and western Texas (Brown 1983, pp. 10-11;
Parsons 1996, pp. 102-104). Maps of Mexican wolf historical range are
available in the scientific literature (Young and Goldman 1944, p. 414;
Hall and Kelson, 1959, p. 849; Hall 1981, p. 932; Bogan and Mehlhop
1983, p. 17; Nowak 1995, p. 395; Parsons 1996, p. 106). The
southernmost extent of the Mexican wolf's range in Mexico is
consistently portrayed as ending near Oaxaca (Hall 1981, p. 932; Nowak
1995, p. 395). Depiction of the northern extent of the Mexican wolf's
pre-settlement range among the available descriptions varies depending
on the authors' taxonomic treatment of several subspecies and their
interpretation of where reproductive interaction between neighboring
wolf populations occurred (see this Federal Register publication of the
final rule determining endangered status for the Mexican wolf (Canis
lupus baileyi)).
Mexican wolves were associated with montane woodlands characterized
by sparsely to densely forested mountainous terrain consisting of
evergreen oaks (Quercus spp.) or pinyon (Pinus edulus) and juniper
(Juniperus spp.) to higher elevation pine (Pinus spp.), mixed-conifer
forests, and adjacent grasslands at elevations of 4,000 to 5,000 ft
(1,219 to 1,524 m) where ungulate prey were abundant. Mexican wolves
were believed to have preyed upon white-tailed deer (Odocoileus
virginianus), mule deer (O. hemionus), elk (Cervus elaphus), collared
peccaries (javelina) (Tayassu tajacu), pronghorn (Antilocapra
americana), bighorn sheep (Ovis canadensis), jackrabbits (Lepus spp.),
cottontails (Sylvilagus spp.), and small rodents (Parsons and
Nicholopoulos 1995, pp. 141-142); white-tailed deer and mule deer were
believed to be the primary sources of prey (Brown 1988, p. 132; Bednarz
1988, p. 29).
Today, Mexican wolves in Arizona and New Mexico inhabit evergreen
pine-oak woodlands (i.e., Madrean woodlands), pinyon-juniper woodlands
(i.e., Great Basin conifer forests), and mixed-conifer montane forests
(i.e., Rocky Mountain, or petran, forests) that are inhabited by elk,
mule deer, and white-tailed deer (Service 1996, pp. 3-5; AMOC and IFT
2005, p. TC-3). Mexican wolves in the Blue Range Wolf Recovery Area
(BRWRA) show a strong preference for elk compared to other ungulates
(Adaptive Management Oversight Committee (AMOC) and Interagency Field
Team (IFT) 2005, p. TC-14, Reed et al. 2006, pp. 56, 61; Merkle et al.
2009, p. 482). Other documented sources of prey include deer and
occasionally small mammals and birds (Reed et al. 2006, p. 55). Mexican
wolves are also known to prey and scavenge on livestock (Merkle et al.
2009, p. 482; Breck et al. 2011, entire; Reed et al. 2006, p. 1129;
AMOC and IFT 2005, p. TC-15)).
Recovery Efforts
By the early 1970s, the Mexican wolf was extirpated in the United
States, and by the 1980s, it was also considered extirpated in Mexico.
The United States and Mexico signed the Mexican Wolf Recovery Plan in
1982 (Service 1982). The recovery plan did not contain objective and
measurable recovery criteria for delisting as required by section
4(f)(1) of the Act because the status of the Mexican wolf was so dire
that the recovery team could not foresee full recovery and eventual
delisting (Service 1982, p. 23). Instead, the recovery plan contained a
``prime objective'' to ensure the immediate survival of the Mexican
wolf. The prime objective of the 1982 recovery plan was: ``To conserve
and ensure the survival of Canis lupus baileyi by maintaining a captive
breeding program and reestablishing a viable, self-sustaining
population of at least 100 Mexican wolves in the middle to high
elevations of a 5,000-square-mi area (12,950-square-km) within the
Mexican wolf's historic range'' (Service 1982, p. 23).
In the June 2013 proposed revision (78 FR 35719), we stated that
the purpose of the experimental population is to accomplish the prime
objective of the 1982 Mexican Wolf Recovery Plan to establish a viable,
self-sustaining population of at least 100 Mexican wolves in the wild.
That number was derived solely to prevent the Mexican wolf from going
extinct, not to recover the species. We acknowledge that a
scientifically based population goal is needed as part of the
measurable recovery criteria in order to determine when removing the
Mexican wolf from the endangered species list is appropriate. We intend
to establish a population goal as part of the recovery criteria for
delisting in a future revision to the Mexican Wolf Recovery Plan as
soon as feasible. The population
[[Page 2515]]
objective of 300 to 325 Mexican wolves in the MWEPA established in this
final rule would provide for the persistence of this population and
enable it to contribute to the next phase of working toward full
recovery of the Mexican wolf and its removal from the endangered
species list. In other words, the Mexican wolves in the MWEPA
population will contribute to the delisting criteria, in addition to
other populations, as necessary.
A binational captive-breeding program between the United States and
Mexico, referred to as the Mexican Wolf Species Survival Plan (SSP),
was initiated in 1977 to 1980 with the capture of the last remaining
Mexican wolves in the wild in Mexico and subsequent addition of wolves
from captivity in Mexico and the United States. Through the breeding of
the 7 founding Mexican wolves and generations of their offspring, the
captive population has expanded to approximately 248 wolves in 55
facilities, including 37 facilities in the United States and 18
facilities in Mexico (Siminski and Spevak 2014, p. 2).
The primary purpose of the SSP is to maintain a healthy captive
population of Mexican wolves for the Service and the Direcci[oacute]n
General del Vida Silvestre (in Mexico) for reintroduction into the
wild. This program is an essential component of Mexican wolf recovery.
Specifically, the purpose of the SSP is to reestablish the Mexican wolf
in the wild through captive breeding, public education, and research.
This captive population is the sole source of Mexican wolves available
to reestablish the species in the wild and is imperative to the success
of reintroduction efforts in the United States and Mexico.
Reintroduction efforts to reestablish the Mexican wolf in the wild
have taken place in both the United States and Mexico. Mexico initiated
a reintroduction program with the release of five captive-bred Mexican
wolves into the San Luis Mountains just south of the United States-
Mexico border in October 2011. Through August 2014, Mexico released a
total of 14 adult Mexican wolves, of which 11 died or are believed
dead, and 1 was removed for veterinary care. The remaining two adult
Mexican wolves were documented with five pups in 2014, marking the
first successful reproductive event in Mexico since their extirpation
in the 1980s. We expect the number of Mexican wolves in Mexico to
fluctuate from zero to several wolves or packs of wolves during 2015
and into the future in or around Sonora and Chihuahua or other Mexican
States.
In the United States, we have focused our recovery efforts on the
reestablishment of Mexican wolves as an experimental population under
section 10(j) of the Act in Arizona and New Mexico. We established the
experimental population of Mexican wolves in 1998 to pursue the prime
objective of the 1982 Mexican Wolf Recovery Plan.
(Figure 1). The reintroduction project is a collaborative effort
conducted by the Service, Forest Service, Arizona Game and Fish
Department, White Mountain Apache Tribe, and U.S. Department of
Agriculture's Animal and Plant Health Inspection Service.
[[Page 2516]]
[GRAPHIC] [TIFF OMITTED] TR16JA15.015
In the years 1998 through 2002, we conducted a high number of
initial releases and translocations (n = 110) and a moderate number of
removals (n = 58), which contributed to a net gain of 38 wolves in the
overall population and the highest average population growth rate
(1.003) (e.g., the average population growth was approximately 100
percent per year: Calculated as the population count at year two minus
the population count at year one divided by the population at year one)
experienced by the population. From 2003 through 2007, we conducted a
moderate number of initial releases and translocations (n = 68) and a
high number of removals (n = 84), resulting in a net gain of 10 wolves
in the overall population and an average population growth rate that
was relatively flat (0.069). Between 2008 and 2013, which was
characterized by a low number of releases and translocations (n = 19),
but also a low number of removals (n = 17), we observed a net gain of
31 wolves and a higher average population growth rate (0.095) than the
previous phase (Service 2014, Appendix D, p. 1).
We expect to pursue additional recovery efforts for the Mexican
wolf outside of the MWEPA in the future. In the meantime, we expect
that managing this experimental population in accordance with this
revised rule will contribute to future recovery. We initiated the
revision of the 1982 Mexican Wolf Recovery Plan in 2010. The revised
plan will provide information about suitable habitat and population
sizes for Mexican wolf recovery in the United States and Mexico. A
draft plan will be provided for public and peer review before being
finalized.
More information about the life history, decline, and current
status of the Mexican wolf in the southwestern United States can be
found in the final rule determining endangered status for the Mexican
wolf (Canis lupus baileyi) (published elsewhere in this Federal
Register), the 1982 Mexican Wolf Recovery Plan (Service 1982, pp. 5-8,
11-12), the 1996 final EIS (Service 1996, pp. 1-7), the 1998 Final Rule
(63 FR 1752, January 12, 1998), the Mexican Gray Wolf Blue Range
Reintroduction Project 5-Year Review (Mexican Wolf Blue Range Adaptive
Management Oversight Committee and Interagency Field Team 2005, pp. TC-
1 to TC-2), the Mexican Wolf Conservation Assessment (Service 2010, pp.
7-15, 20-42), the Mexican Wolf Recovery Program Progress reports from
2001 to 2013, and the 2014 final EIS (Service 2014). These documents
are available on-line at http://www.fws.gov/southwest/es/mexicanwolf/.
Population Objective for Mexican Wolves in the MWEPA
As noted above, this experimental population represents just one
component of Mexican wolf recovery based on our understanding that
multiple Mexican wolf populations may be necessary for recovery.
However, for purposes of this final rule, we are
[[Page 2517]]
establishing a population objective for the experimental population
throughout the MWEPA in both Arizona and New Mexico based on the best
available information until future recovery planning efforts are able
to determine a population goal for range-wide recovery. We intend for
the experimental population objective for this population to contribute
to the future population goal established for the range-wide recovery
of the Mexican wolf.
Several studies in the scientific literature helped inform our
establishment of a population objective for the MWEPA. For instance,
Wayne and Hedrick (2010, p. 3) recommend Mexican wolf recovery criteria
to include 3 connecting populations of at least 250 Mexican wolves in
each population. Their recommendation was based on the genetic aspects
(effective population size) of the Mexican wolf relative to that of the
gray wolf in the Northern Rocky Mountains and the recovery goals
established for the Northern Rocky Mountains population. They suggest
that the recovery goals of the Northern Rocky Mountains population (300
wolves, 30 breeding pairs, in 3 populations, with some level of
connectivity) should serve as a starting point for Mexican wolf
recovery goals because of the degree of inbreeding, higher level of
human-caused mortality, and lower likelihood of persistence of Mexican
wolves compared with wolves in the Northern Rocky Mountains. They
conclude that 3 connected populations of 250 wolves in each population
would likely be necessary to achieve recovery rangewide, suggesting
that if natural gene flow does not occur between these populations then
artificial movement may be necessary (Wayne and Hedrick 2010, p. 3).
Carroll et al. (2014) performed more sophisticated analyses of
potential recovery scenarios for the Mexican wolf using a population
viability model, pedigree analyses of Mexican wolves currently in the
BRWRA or captivity, and habitat models related to connectivity. Carroll
et al. (2014, entire) analyzed the variation of mortality and dispersal
metrics relative to probabilities for extinction and quasi-extinction
(i.e., the probability of being relisted to threatened) in a
metapopulation structure consisting of three populations that were
connected via dispersal. Because two of these populations were assumed
to have been founded using a more genetically diverse group of animals
than is currently present in the experimental population in the BRWRA,
the average viability of the populations was significantly higher than
predicted for the experimental population.
The population extinction threshold was established as a 5 percent
population extinction risk, as is commonly used in recovery plans
(Carroll et al. 2014, p. 81). The risk of extinction varied by both
population size and the number of effective migrants per generation (an
effective migrant is an animal that comes from outside a population and
successfully reproduces within the population). The risk of extinction
for population sizes below 200 was affected by the number of migrants
exchanging genetic information with the population. When located within
a metapopulation of three equally sized populations, populations of 100
had a greater than 5 percent extinction risk, even with 3 effective
migrants per generation per population. Populations of 125 were more
resilient with 2.5 to 3.0 effective migrants per generation.
Populations of 150 with greater than 0.5 effective migrants per
generation showed extinction risk below the 5% threshold (Carroll et
al. 2014, p. 81). This effect occurred in part because the migrants
provided genetic exchange between the populations, which reduced the
relatedness within each population and, therefore, increased
persistence for each population.
Carroll et al. (2014, entire) also examined a quasi-extinction
threshold. Quasi-extinction represents the likelihood that a
population, once it exceeds a certain population size, will again drop
below that size in the future (e.g., due to the effects of accumulation
of genetic inbreeding). In this analysis, they demonstrated that
certain population sizes with higher levels of effective migration
reduced the probability of quasi-extinction (Carroll et al. 2014, p.
82). A population comprising between 175 and 200 wolves had a less than
50 percent probability of quasi-extinction depending on whether the
population had 0.5 to 1.0 effective migrants per generation. Population
sizes of 300 to 325 achieved closer to a 10 percent probability of
quasi-extinction regardless of whether the population had 0.5 or 1.0
effective migrants per generation, suggesting that at larger population
sizes (above 300) increasing migration beyond 0.5 effective migrants
per generation is a less important factor, when each population is
present within a larger metapopulation (Carroll et al. 2014, p. 82).
Based on Carroll et al. (2014 entire), a population objective of at
least 300 Mexican wolves with some number of effective migrants would
be appropriate for a single population objective, recognizing that the
number of effective migrants per generation greatly affects population
persistence at various population sizes. We recommend a population
objective of 300 to 325 Mexican wolves within the MWEPA throughout both
Arizona and New Mexico with a minimum of 1 to 2 effective migrants per
generation entering the population, depending on its size, over the
long term. Further information on the minimum number of effective
migrants per generation needed per population size is discussed in
Section 1.2.2 of the final EIS (Service 2014). In the more immediate
future, we may conduct additional releases in excess of 1-2 effective
migrants per generation to address the high degree of relatedness of
wolves in the current BRWRA. We will continue to refine this
information through a revised recovery plan. It will be important to
ensure that a specific number of effective migrants are incorporated
into the population, in this case from captivity, until such time as
other wild populations are established within the context of a
metapopulation as defined in a Service-approved recovery plan (Carroll
et al. 2014, entire). Prior to the establishment of other wild Mexican
wolf populations outside of the MWEPA and documentation of effective
migrants between wild populations, we will need to use the captive
population as a source of migrants for the experimental population.
Why We Need To Revise the 1998 Final Rule
We are revising the regulations to the experimental population to
further the conservation of the Mexican wolf by improving the
effectiveness of the reintroduction project in managing the
experimental population. We intend to do this by: (1) Modifying the
geographic boundaries in which Mexican wolves are managed south of
Interstate-40 in Arizona and New Mexico under section 10(j) of the Act;
(2) modifying the management regulations that govern the initial
release, translocation, removal, and take of Mexican wolves; and (3)
issuing a section 10(a)(1)(A) permit for management of Mexican wolves
both inside and outside of the MWEPA. Revisions to the 1998 Final Rule
and the section 10(a)(1)(A) permit are needed because: (1) Under the
current regulations we will not be able to achieve the necessary
population growth, distribution, and recruitment that would contribute
to the persistence of, and improve the genetic variation within, the
experimental population; (2) there is a potential for Mexican wolves
[[Page 2518]]
to disperse into southern Arizona and New Mexico from reintroduction
areas in the States of Sonora and Chihuahua in northern Mexico; and (3)
certain provisions lack clarity, are inadequate, or limit the efficacy
and flexibility of our management of the experimental population of
Mexican wolves.
Over time and through project reviews, annual reports, monitoring,
and communication with our partners and the public, we recognize that
elements of the 1998 Final Rule designation need to be revised to help
us enhance the growth, stability, and success of the experimental
population. Specifically, the 1998 Final Rule currently restricts
initial releases of Mexican wolves to the Primary Recovery Zone, which
constitutes only 16 percent of the BRWRA. This provision has
constrained the number and location of Mexican wolves that can be
released from captivity into the wild, which limits our ability to
improve the genetic status of the population. Also, the 1998 Final Rule
has a requirement that Mexican wolves stay within the BRWRA, which does
not allow for natural dispersal movements from the BRWRA or occupation
of the MWEPA. This requirement constrains the growth of the wild
population. Under the 1998 Final Rule, we are required to implement
management actions that disrupt social structure or lead to removal of
wolves from the wild when a Mexican wolf naturally disperses from the
BRWRA into the MWEPA. Therefore, we are revising a number of provisions
that were established in the 1998 Final Rule to further the
conservation of the Mexican wolf by improving the effectiveness of the
reintroduction project in managing the experimental population.
Statutory and Regulatory Framework
The Act provides that species listed as endangered are afforded
protection primarily through the prohibitions of section 9 and the
requirements of section 7. Section 9 of the Act, among other things,
prohibits the take of endangered wildlife. ``Take'' is defined by the
Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or attempt to engage in any such conduct. Section 7 of the
Act outlines the procedures for Federal interagency cooperation to
conserve federally listed species and protect designated critical
habitat. It mandates that all Federal agencies use their existing
authorities to further the purposes of the Act by carrying out programs
for the conservation of listed species. It also states that Federal
agencies must, 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.
The 1982 amendments to the Act included the addition of section
10(j), which allows for the designation of reintroduced populations of
listed species as ``experimental populations.'' Under section 10(j) of
the Act and our regulations at 50 CFR 17.81, the Service may designate
as an experimental population a population of endangered or threatened
species that has been or will be released into suitable natural habitat
outside the species' current natural range, but within its probable
historical range. With the experimental population designation, the
relevant population is treated as threatened, regardless of the
species' designation elsewhere in its range. Threatened status allows
us discretion in devising management programs and special regulations
for such a population through the use of section 4(d) of the Act.
Section 4(d) allows us to adopt any regulations that are necessary and
advisable 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 rule issued under section 10(j) of the Act (hereafter referred to
as a 10(j) rule) contains the prohibitions and exemptions necessary and
appropriate to conserve that species.
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find, by
regulation, that such release will further the conservation of the
species. In making such a finding, the Service uses the best scientific
and commercial data available to consider: (1) Any possible adverse
effects on extant populations of a species as a result of removal of
individuals, eggs, or propagules for introduction elsewhere; (2) the
likelihood that any such experimental population will become
established and survive in the foreseeable future; (3) the relative
effects that establishment of an experimental population will have on
the recovery of the species; and (4) the extent to which the introduced
population may be affected by existing or anticipated Federal or State
actions or private activities within or adjacent to the experimental
population area.
Furthermore, as set forth in 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population(s); (2) a finding, based solely on the best scientific and
commercial data available, and the supporting factual basis, on whether
the experimental population is, or is not, essential to the continued
existence of the species in the wild; (3) management restrictions,
protective measures, or other special management concerns of that
population, which may include but are not limited to, measures to
isolate and contain the experimental population designated in the
regulation from natural populations; and (4) a process for periodic
review and evaluation of the success or failure of the release and the
effect of the release on the conservation and recovery of the species.
Under 50 CFR 17.81(d), the Service must consult with appropriate
State game and fish agencies, local governmental entities, affected
Federal agencies, and affected private landowners in developing and
implementing experimental population rules. To the maximum extent
practicable, section 10(j) rules represent an agreement between the
Service, the affected State and Federal agencies, and persons holding
any interest in land that may be affected by the establishment of an
experimental population.
Based on the best scientific and commercial data available, we must
determine whether the experimental population is essential or
nonessential to the continued existence of the species. The regulations
(50 CFR 17.80(b)) state that an experimental population is considered
essential if its loss would be likely to appreciably reduce the
likelihood of survival of that species in the wild. All other
populations are considered nonessential.
For the purposes of section 7 of the Act, we treat a nonessential
experimental population as a threatened species when it is located
within a National Wildlife Refuge or unit of the National Park Service,
and Federal agency conservation requirements under section 7(a)(1) and
the Federal agency
[[Page 2519]]
consultation requirements of section 7(a)(2) of the Act apply. Section
7(a)(1) requires all Federal agencies to use their authorities to carry
out programs for the conservation of 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 a nonessential experimental
population is located outside a National Wildlife Refuge or National
Park Service unit, then, for the purposes of section 7, we treat the
population as proposed for listing and only section 7(a)(1) and section
7(a)(4) apply.
In these instances, a nonessential experimental population provides
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 in the form of
conservation recommendations that are optional as the agencies carry
out, fund, or authorize activities. Because the nonessential
experimental population is, by definition, not essential to the
continued existence of the species, the effects of proposed actions
affecting the nonessential experimental population will generally not
rise to the level of jeopardizing the continued existence of the
species. As a result, a formal conference will likely never be required
for Mexican wolves established within the experimental population area.
Nonetheless, some agencies voluntarily confer with the Service on
actions that may affect a proposed species. Activities that are not
carried out, funded, or authorized by Federal agencies are not subject
to provisions or requirements in section 7.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat
shall not be designated for any experimental population that is
determined to be nonessential. Accordingly, we cannot designate
critical habitat in areas where we establish a nonessential
experimental population.
Revisions to the Geographic Area of the Mexican Wolf Experimental
Population
We are expanding the MWEPA by moving the southern boundary from
Interstate Highway 10 to the United States-Mexico international border
across Arizona and New Mexico (Figure 2). Expanding the MWEPA was a
recommendation in the Mexican Wolf Blue Range Reintroduction Project 5-
Year Review (AMOC and IFT 2005, p. ARC-3). We are making this
modification because the reintroduction effort for Mexican wolves now
being undertaken by the Mexican Government has established a need to
manage Mexican wolves that may disperse into southern Arizona and New
Mexico from reestablished Mexican wolf populations in Mexico. An
expansion of the MWEPA south to the international border with Mexico
would allow us to manage all Mexican wolves in this area, regardless of
origin, under the experimental population 10(j) rule. The regulatory
flexibility provided by our revisions to the 1998 Final Rule would
allow us to take management actions within the MWEPA that further the
conservation of the Mexican wolf while being responsive to needs of the
local community in cases of problem wolf behavior.
Figure 2--Revised geographic boundaries for the Mexican wolf
experimental population area (MWEPA).
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[[Page 2520]]
Also, we are identifying Zones 1, 2, and 3 as different management
areas within the MWEPA and discontinuing the use of the term BRWRA.
Zone 1 is where Mexican wolves may be initially released or
translocated, and includes all of the Apache, Gila, and Sitgreaves
National Forests; the Payson, Pleasant Valley, and Tonto Basin Ranger
Districts of the Tonto National Forest; and the Magdalena Ranger
District of the Cibola National Forest. Zone 2 is where Mexican wolves
will be allowed to naturally disperse into and occupy, and where
Mexican wolves may be translocated. On Federal land in Zone 2, initial
releases of Mexican wolves are limited to pups less than 5 months old,
which allows for the cross-fostering of pups from the captive
population into the wild, and it enables translocation-eligible adults
to be re-released with pups born in captivity. On private and tribal
land in Zone 2, Mexican wolves of any age, including adults, can also
be initially released under a Service- and State-approved management
agreement with private landowners or a Service-approved management
agreement with tribal agencies. Translocations in Zone 2 will be
focused on suitable Mexican wolf habitat that is contiguous to occupied
Mexican wolf range. Zone 3 is where neither initial releases nor
translocations will occur, but Mexican wolves will be allowed to
disperse into and occupy. Zone 3 is an area of less suitable Mexican
wolf habitat where Mexican wolves will be more actively managed under
the authorities of this rule to reduce conflict with the potentially
affected public.
Further, we have included a phased approach to translocations,
initial releases, and occupancy of Mexican wolves west of Highway 87.
In consultations with officials of the Arizona Game and Fish
Department, they expressed concern that elk populations west of Highway
87 are generally smaller in number and isolated from each other
compared to elk populations east of Highway 87. Also, areas west of
Highway 87 tend to be drier, and, therefore, elk herds have greater
fluctuations in population size than herds in more mesic areas to the
east. As such, Arizona's most dense and productive elk populations are
found in the eastern part of the State, generally east of Highway 87.
Therefore, we have included a phased approach to translocations,
initial releases, and occupancy of Mexican wolves west of Highway 87.
As part of the phased-approach, Phase 1 will be implemented for the
first 5 years following the effective date of this rule (see DATES).
During this phase, initial releases and translocation of Mexican wolves
can occur throughout Zone 1 with the exception of the area west of
State Highway 87 in Arizona (Figure 3). No translocations can be
conducted west of State Highway 87 in Arizona in Zone 2. Mexican wolves
can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA
(Zones 1, 2, and 3). However, during Phase 1, dispersal and occupancy
in Zone 2 west of State Highway 87 will be limited to the area north of
State Highway 260 and west to Interstate 17.
Figure 3--Phase 1 management boundaries for the Mexican wolf
experimental population in Arizona.
[[Page 2521]]
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If determined to be necessary by the 5-year evaluation, we will
initiate Phase 2 (Figure 4). In Phase 2, initial releases and
translocation of Mexican wolves can occur throughout Zone 1 including
the area west of State Highway 87 in Arizona. No translocations can be
conducted west of Interstate Highway 17 in Arizona. Mexican wolves can
disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA
(Zones 1, 2, and 3) with the exception of those areas west of State
Highway 89 in Arizona.
Figure 4--Phase 2 management boundaries for the Mexican wolf
experimental population in Arizona.
[[Page 2522]]
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If determined to be necessary by the 8-year evaluation and Phase 2
has already been implemented, Phase 3 will be initiated (Figure 5). In
Phase 3, initial release and translocation of Mexican wolves can occur
throughout Zone 1; Mexican wolves can disperse naturally from Zones 1
and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3). However, no
translocations can be conducted west of State Highway 89 in Arizona.
The phasing may be expedited with the concurrence of participating
State game and fish agencies. Regardless of the phase implemented, by
the beginning of year 12 from the effective date of this rule (see
DATES), we will move to full implementation of this rule throughout the
MWEPA, and the phased management approach will no longer apply (Figure
2). Full implementation means that initial release and translocation of
Mexican wolves can occur throughout entire Zone 1; Mexican wolves can
disperse naturally from Zone 1 into and within the MWEPA (Zones 2 and
3) and occupy the MWEPA (Zones 1, 2 and 3); and translocations can be
conducted at selected translocation sites on Federal land within Zones
1 and 2 of the MWEPA.
Figure 5--Phase 3 management boundaries for the Mexican wolf
experimental population in Arizona.
[[Page 2523]]
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Additionally, we are eliminating the BRWRA designation along with
the primary and secondary recovery zones provided for in the 1998 Final
Rule in accordance with recommendations in the Mexican Wolf Blue Range
Reintroduction Project 5-Year Review (AMOC and IFT 2005, p. ARC-4). We
are designating Zone 1 as the area where initial releases can occur,
which includes the entire Apache and Sitgreaves National Forests and
the Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the
Tonto National Forest in Arizona; and the Gila National Forest and the
Magdalena Ranger District of the Cibola National Forest in New Mexico
(Figure 2). This revision will provide additional area and locations
for initial releases of Mexican wolves to the wild from captivity
beyond that currently allowed by the 1998 Final Rule.
With this final rule, we have removed the small portion of the
MWEPA in Texas. This area is not likely to contribute substantially to
our population objective and is not suitable for the conservation of
Mexican wolves because of the lack of a sufficient amount of suitable
habitat for the Mexican wolf. We do not expect Mexican wolves to occupy
the small portion of Texas that was previously in the MWEPA because
ungulate populations are inadequate to support Mexican wolves there.
Lastly, we are removing the White Sands Wolf Recovery Area as a
possible reintroduction site for Mexican wolves (Figure 2), although
Mexican wolves will still be able to disperse to and occupy this area.
Under the 1998 Final Rule, initial releases and reintroduction
[[Page 2524]]
of Mexican wolves into the White Sands Wolf Recovery Area was
authorized if the Service found it necessary and feasible in order to
achieve the recovery goal of at least 100 Mexican wolves occupying
5,000 square mi (12,950 square km) (Service 1998). While this recovery
area lies within the probable historical range of the Mexican wolf, and
could be an important reestablishment site if prey densities increased
substantially, it is now considered a marginally suitable area for
Mexican wolf release and reestablishment primarily due to the low
density of prey. For this reason the Mexican Wolf Blue Range
Reintroduction Project 5-Year Review recommended that an amended or new
experimental population rule not include White Sands Missile Range as a
Mexican Wolf Recovery Area or as a reintroduction zone (AMOC and IFT
2005, p. ARC-3).
Reintroduction Procedures
In our 1998 Final Rule, we stated that we would release 14 family
groups of Mexican wolves into the BRWRA over a period of 5 years to
achieve our objective of establishing a population of at least 100 wild
Mexican wolves. Selection criteria for Mexican wolves that are released
include genetics, reproductive performance, behavioral compatibility,
response to the adaptive process, and other factors (63 FR 1754,
January 12, 1998). Since the end of that initial 5-year period in 2003,
we have continued to conduct initial releases of Mexican wolves from
captivity into the BRWRA and to translocate wolves with previous wild
experience back into the BRWRA.
We have considerable experience conducting initial releases and
resulting data upon which to guide our actions. We consider a
successful initial release to be any Mexican wolf that ultimately
breeds and produces pups in the wild. Between 1998 and 2013, our
initial release success rate has been about 21 percent (Service 2014,
Appendix D, p. 4). In other words, for every 100 wolves we release,
only 21 of them survive, breed, and produce pups, therefore becoming
effective migrants. Based on this success rate, and during the first 20
years of management under this final rule, we expect that each time we
initially release wolves we will need to release 10 wolves to achieve 2
effective migrants, one component of our population objective for the
MWEPA. Migrants are important to the conservation of the species to
help alleviate genetic threats to the population including reducing
kinship (the relatedness of animals to one another) and reducing loss
of genetic variation. Based on assessment of the initial release
success of various historical release strategies (single wolves, pairs,
packs, etc.), we would expect to achieve this target by releasing 2
packs, each with an adult pair and several pups, during years 1 to 4
and 4 to 8, and 1 or 2 packs during the next three successive
generations until year 20, or for 5 generations. We may conduct several
additional releases in the immediate future in excess of 2 effective
migrants per generation to specifically address the high degree of
relatedness of wolves in the current BRWRA. The number of effective
migrants needed to alleviate genetic threats to the population could
decrease in the third and subsequent generations, assuming the
population is above 250, as a population of that size is more robust.
We may also conduct infrequent initial releases over time for other
management purposes such as replacing wolves that have been removed
from the wild. This number of effective migrants (7 to 10 wolves over 5
generations) is negligible from a population size standpoint, but
should be significant from a genetic standpoint assuming animals
selected for initial release are genetically desirable contributions to
the population (Carroll et al. 2014, p. 81).
We expect to have adequate availability of initial release sites
for the initial releases during future generations. That is, we would
need 7 to 10 sites available (unoccupied by established wolf packs) for
the release of packs. Zone 1 of the MWEPA provides for at least 7
release sites (see Figure D-2, Service 2014, Appendix D, p. 9).
However, the ability to conduct initial releases of packs in these
areas will also depend on the natural recolonization of the area.
Coordination with State and Federal agencies, counties, Tribes, and the
public would be needed prior to identifying specific release sites in
Zone 1.
Management of the Experimental Population of Mexican Wolves
The prime objective of the 1982 recovery plan was to conserve and
ensure the survival of the Mexican wolf by maintaining a captive-
breeding program and reestablishing a viable, self-sustaining
population of at least 100 Mexican wolves in the wild (Service 1982, p.
23). Based on the 1982 recovery plan, we established a captive-breeding
population, starting with 7 founding wolves, of 240 to 300 Mexican
wolves in 55 breeding facilities in the United States and Mexico. The
1998 Final Rule enabled us to release Mexican wolves from this captive
population into the wild to determine if it was possible to establish a
wild population following the extirpation of the species in the early
1970s. Since 1998, we have demonstrated success in establishing a wild
population (e.g., a minimum of 83 Mexican wolves in the wild, all of
which are wildborn as of December 2013). However, we are now revising
the 1998 Final Rule so that we can improve the effectiveness of the
reintroduction project to achieve the necessary population growth,
distribution, and recruitment, as well as genetic variation within the
Mexican wolf experimental population so that it can contribute to
recovery in the future. Following this phase of improving the existing
experimental population regulation, we intend to revise the Mexican
wolf recovery plan so that it provides a recovery goal and objective
and measurable recovery criteria, which may require further revision to
this regulation for the experimental population in the future including
any necessary analysis pursuant to NEPA.
We are implementing this rule to further the conservation of the
Mexican wolf by improving the effectiveness of the reintroduction
project in managing the experimental population. The experimental
designation enables the Service to develop measures for management of
the population that are less restrictive than the mandatory
prohibitions that protect species with endangered status. This includes
allowing limited take of individual Mexican wolves under narrowly
defined circumstances (50 CFR 17.84(k)(6)). Management flexibility is
needed to make reintroduction compatible with current and planned human
activities, such as livestock grazing and hunting. It is also critical
to obtaining needed State, tribal, local, and private landowner
cooperation. The Service believes this flexibility has and will
continue to improve the likelihood of success of this reestablishment
effort. Management of the experimental population may include any of
the provisions herein or provided for in Service-approved management
plans, protocols, and permits.
Upon the effective date of this rule and as described under
paragraph (k)(9)(iv) in the regulations at the end of this document and
in accordance with management phasing in Arizona, we are allowing
initial release of Mexican wolves throughout the entire Zone 1;
allowing Mexican wolves to disperse naturally from Zones 1 and 2 into,
and occupy, the MWEPA (Zones 1, 2, and 3). We are allowing
translocation of Mexican wolves at selected
[[Page 2525]]
translocation sites on Federal land within Zones 1 and 2 of the MWEPA,
and we can develop management agreements with private landowners, with
the concurrence of State game and fish agencies, and with tribal
governments, for management of Mexican wolves in Zone 2. Under this
rule, we are allowing Mexican wolves to occupy Federal and non-Federal
land in the MWEPA, except in the case of depredation, other nuisance
behavior, or an unacceptable impact to a wild ungulate herd that cannot
be effectively managed through non-removal techniques. In addition,
Mexican wolves will be captured and removed from tribal trust land if
requested by the tribal government.
In order to maximize our management flexibility, we have revised
the regulations for the take of Mexican wolves on Federal and non-
Federal land within the entire MWEPA (Zones 1, 2, and 3) by:
(1) Modifying the conditions that determine when we would issue a
permit to allow livestock owners or their agents to take (including
intentional harassment or kill), in conjunction with a control action,
any Mexican wolf that is in the act of biting, wounding, or killing
livestock on Federal land, where specified in the permit; allowing
domestic animal owners or their agents to take (including kill or
injure) any Mexican wolf that is in the act of biting, wounding or
killing domestic animals on non-Federal land anywhere within the MWEPA;
(2) Providing that the Service or a designated agency may, in
conjunction with a removal action authorized by the Service, issue
permits to allow domestic animal owners or their agents (e.g.,
employees, land manager, local officials) to take (including
intentional harassment or kill) any Mexican wolf that is present on
non-Federal land where specified in the permit; and
(3) Revising the conditions under which take will be authorized in
response to an unacceptable impact of Mexican wolf predation on a wild
ungulate herd.
Additionally, subject to Service and State approved management
agreements, the Service or a designated agency may develop and
implement management actions on private land in management Zones 1 and
2 within the MWEPA in voluntary cooperation with private landowners,
including but not limited to initial release and translocation of
wolves onto such lands if requested by the landowner.
Subject to agreements with tribal governments, the Service may
develop and implement management actions on tribal trust land in
management Zones 1, 2, and 3 within the MWEPA in voluntary cooperation
with tribal governments including but not limited to initial release
and translocation. No agreement with a Tribe is necessary for the
capture and removal of Mexican wolves from tribal trust land if
requested by the tribal government.
Further, we have included a phased approach to translocations,
initial releases, and occupancy of Mexican wolves west of Highway 87.
As part of the phased-approach, Phase 1 will be implemented for the
first 5 years following the effective date of this rule (see DATES).
During this phase, we will conduct initial releases of Mexican wolves
throughout Zone 1 with the exception of the area west of State Highway
87 in Arizona (Figure 3). No translocations can be conducted west of
State Highway 87 in Arizona in Zone 2. Mexican wolves can disperse
naturally from Zones 1 and 2 into and occupy the MWEPA (Zones 1, 2 and
3). However, during Phase 1, dispersal and occupancy in Zone 2 west of
State Highway 87 will be limited to the area north of State Highway 260
and west to Interstate 17.
If determined to be necessary by the 5-year evaluation, we will
initiate Phase 2 (Figure 4). In Phase 2 initial releases of Mexican
wolves can occur throughout Zone 1 including the area west of State
Highway 87 in Arizona. No translocations can be conducted west of
Interstate Highway 17 in Arizona. Mexican wolves can disperse naturally
from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3) with
the exception of those areas west of State Highway 89 in Arizona.
If determined to be necessary by the 8-year evaluation and Phase 2
has already been implemented, Phase 3 will be initiated (Figure 5). In
Phase 3, initial release of Mexican wolves can occur throughout Zone 1.
No translocations can be conducted west of State Highway 89 in Arizona.
Mexican wolves can disperse naturally from Zones 1 and 2 into and
occupy the MWEPA (Zones 1, 2, and 3).
While implementing this phased approach, two evaluations will be
conducted: (1) Covering the first 5 years and (2) covering the first 8
years after the effective date of this rule in order to determine if we
will move forward with the next phase. Each phase evaluation will
consider adverse human interactions with Mexican wolves, impacts to
wild ungulate herds, and whether or not the Mexican wolf population in
the MWEPA is achieving a population number consistent with a 10 percent
annual growth rate based on end-of-year counts, such that 5 years after
the effective date of this rule the population of Mexican wolves in the
wild is at least 150, and 8 years after the effective date of this rule
the population of Mexican wolves in the wild is at least 200. If we
have not achieved this population growth, we will move forward to the
next phase. Regardless of the outcome of the two evaluations, by the
beginning of year 12 from the effective date of this rule, we will move
to full implementation of this rule throughout the MWEPA, and the
phased management approach will no longer apply. The phasing may be
expedited with the concurrence of participating State game and fish
agencies.
Also, we are revising and reissuing the Mexican Wolf Recovery
Program's section 10(a)(1)(A) research and recovery permit (TE-091551-8
dated 04/04/2013) so that it applies to management of Mexican wolves
both within and outside of the MWEPA. Under this permit we will
authorize removal of Mexican wolves that can be identified as coming
from the experimental population that disperse and establish
territories in areas outside of the MWEPA. We will make a
determination, based in part on their genetic value relative to the
Mexican wolf population, to maintain these wolves in captivity,
translocate them to areas of suitable habitat within the MWEPA, or
transfer them to Mexico.
Identification and Monitoring
Prior to release from captivity into the wild, Mexican wolves will
receive permanent identification marks and radio collars, as
appropriate. While not all Mexican wolves are radio-collared, we
attempt to maintain at least two radio collars per pack in the wild.
Radio collars allow the Service to monitor reproduction, dispersal,
survival, pack formation, depredations, predation, and a variety of
other important biological metrics. We do not foresee a scenario where
we would not continue an active monitoring strategy for Mexican wolves
while they are listed under the Act. However, we also recognize that a
majority of wild Mexican wolves may not have radio collars as the
population grows.
The Service will measure the success or failure of releases,
translocations, and other management actions by monitoring,
researching, and evaluating the status of Mexican wolves and their
offspring. Using adaptive management principles, the Service will
continue to modify subsequent management actions depending on what is
learned. We will prepare periodic progress reports, annual reports, and
publications, as
[[Page 2526]]
appropriate, to evaluate release strategies and other management
actions.
The 1998 Final Rule contained requirements to conduct full
evaluations of the status of the experimental population after 3 and 5
years. As part of the evaluations, a recommendation was made for
continuation, modification, or termination of the reintroduction
project. Both evaluations were conducted and recommendations were made
to continue the experimental population with modifications. These
reviews were intensive efforts that included Service staff, other
Federal, State, and tribal agencies, independent experts, and public
involvement. We will conduct a one-time full evaluation of this final
rule 5 years after it becomes effective; the evaluation will focus on
modifications needed to improve the efficacy of reestablishing Mexican
wolves in the wild and the contribution the experimental population is
making toward the recovery of the Mexican wolf. We do not consider a 3-
year review to be necessary, as we included this provision in the 1998
Final Rule to address the substantial uncertainties we had with
reestablishing captive Mexican wolves to the wild. Therefore, a one-
time program review conducted 5 years after our final determination
will provide an appropriate interval to assess the effectiveness of the
project. This one-time program review is separate from the status
review of the listed species that we will conduct once every 5 years as
required by section 4(c)(2) of the Act.
Summary of Comments and Recommendations
From October through December 2007, we conducted a public scoping
process under NEPA based on our intent to modify the 1998 Final Rule.
We developed a scoping report in April 2008, but we did not propose or
finalize any modifications to the 1998 Final Rule at that time. We
again initiated scoping on August 5, 2013 (78 FR 47268), when we
published a notice of intent to prepare an EIS in conjunction with the
proposed rule to revise the regulations for the experimental population
designation of the Mexican wolf. That notice of intent to prepare an
EIS had a 45-day comment period ending September 19, 2013. We requested
written comments from the public on the proposed revision to the
regulations for the experimental population of the Mexican wolf during
two comment periods: June 13, 2013, to December 17, 2013, and July 25,
2014, to September 23, 2014. Additionally four public hearings were
held: November 20, 2013, in Albuquerque, New Mexico; December 3, 2013,
in Pinetop, Arizona; August 11, 2014, in Pinetop, Arizona; and August
13, 2014, in Truth or Consequences, New Mexico. We also contacted
appropriate Federal, tribal, State, county, and local agencies,
scientific organizations, and other interested parties and invited them
to comment on the proposed rule during these comment periods.
Over the course of the two comment periods, we received
approximately 48,131 comment submissions. All substantive information
provided during these comment periods, including the public hearings,
has either been incorporated directly into this final determination or
addressed below. Comments from peer reviewers and State game and fish
agencies are grouped separately. In addition to the comments, some
commenters submitted for our consideration additional reports and
references, which were reviewed and incorporated into this final rule
as appropriate.
Peer Reviewer Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from six knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from four of the
six peer reviewers we contacted during the first comment period. During
the second comment period, we received responses from one of the six
peer reviewers.
We reviewed all comments received from the peer reviewers regarding
the proposed revision to the regulations for the experimental
population designation of the Mexican wolf. The peer reviewers
generally concurred with our methods and conclusions, and provided
additional information, clarifications, and suggestions to improve this
final rule. Peer reviewer comments are addressed in the following
summary and incorporated into the final rule, as appropriate.
(1) Comment: The wording ``based on established ungulate management
goals'' and ``unacceptable impact'' in the take provision for
unacceptable impacts to wild ungulates is problematic in being so
loosely worded and unqualified as to allow a wide variety of
interpretations.
Our response: Based on information that we received from the
Arizona Game and Fish Department and agreed upon by the New Mexico
Department of Game and Fish, an unacceptable impact to a wild ungulate
herd will be determined by a State game and fish agency based upon
ungulate management goals, or a 15 percent decline in an ungulate herd
as documented by a State game and fish agency, using their preferred
methodology, based on the preponderance of evidence from bull to cow
ratios, cow to calf ratios, hunter days, and/or elk population
estimates. The rule also includes the process that the State game and
fish agencies must follow to demonstrate that the decline in the
ungulate population was influenced by Mexican wolves.
(2) Comment: There needs to be some justification presented why 100
Mexican wolves was once determined to be biologically warranted or why
that number rather than 50 or 200 is not the goal for Mexican wolf
restoration in its historical range of the purported subspecies in
Arizona and New Mexico. There needs to be some link to how 100 Mexican
wolves will help achieve recovery for the subspecies as defined under
the Act.
Our response: As of the early 1970s, the Mexican wolf was
extirpated in the United States. The prime objective of the 1982
recovery plan was to conserve and ensure the survival of the Mexican
wolf by maintaining a captive-breeding program and reestablishing a
viable, self-sustaining population of at least 100 Mexican wolves in
the wild (Service 1982, p. 23). This number was not intended to be a
recovery goal. It was a starting point to determine whether or not we
could successfully establish a population of Mexican wolves in the wild
that would conserve the species and lead to its recovery. Based on the
1982 recovery plan, we have now established a captive-breeding program
and a wild population; however, we recognize the need to revise the
1998 Final Rule so that we can improve the effectiveness of the
reintroduction project to achieve the necessary population growth,
distribution, and recruitment, as well as genetic variation within the
Mexican wolf experimental population so that it can contribute to
recovery in the future. We acknowledge that a scientifically based
population goal, as a component of future objective and measurable
recovery criteria, is needed in order to help determine when removing
the Mexican wolf from the endangered species list is appropriate.
Following this phase of improving the existing experimental population
regulation, we intend to revise the Mexican wolf recovery plan so that
it provides a recovery goal and objective and measurable recovery
criteria, which may require further revision to this regulation for the
experimental
[[Page 2527]]
population in the future including any necessary analysis pursuant to
NEPA.
In the meantime, this experimental population represents just one
phase of Mexican wolf recovery. Based on Carroll et al. (Carroll et al.
2014, pp. 81-82)), a population objective of at least 300 Mexican
wolves with some number of effective migrants would be appropriate for
a single population objective, recognizing that the number of effective
migrants per generation greatly affects population persistence at
various population sizes. We have established a population objective of
300-325 wolves for the MWEPA.
(3) Comment: The June 2013 proposed rule suggests that any
landowner can request translocation and the Service will attempt to do
that. I believe this concept would be a huge mistake and will lead to
the very problems that have occurred, to the detriment of Mexican wolf
recovery, with the agency removal of non-problem Mexican wolves outside
the primary recovery area. If Mexican wolves cause a problem, then deal
with them. If not, leave them alone and let them assist with achieving
population objectives. That type of provision invites conflict, public
demands that cannot be satisfied, bad public relations, and waste of
agency resources. The rule should be crystal clear for the public to
understand.
Our response: We clarified many of the provisions in our revised
proposed rule that published in the Federal Register on July 25, 2014.
We will not remove a Mexican wolf if a landowner (other than tribes on
tribal trust lands) requests removal and the wolf is not engaging in
activities that fit the definition of a ``problem wolf.'' We have
clarified the language to allow the initial release and translocation
of Mexican wolves onto private lands if there is an agreement with the
landowner and concurrence with the State game and fish agency.
(4) Comment: Take of a Mexican wolf by a pet owner is not an issue
and should be allowed. It is not going to be a significant issue either
way, as very few Mexican wolves will ever be taken, but might give pet
owners some recourse and peace of mind.
Our response: We have included a provision in this final rule to
allow for take of Mexican wolves by owners of domestic animals, which
include pet dogs and dogs working livestock or being lawfully used to
trail or locate wildlife on non-Federal lands. Domestic animal means
livestock as defined in the regulations at the end of this final rule
and non-feral dogs. On non-Federal lands, domestic animal owners or
their agents may take (including kill or injure) any Mexican wolf that
is in the act of biting, killing, or wounding a domestic animal, as
defined in the regulations, provided that evidence of freshly wounded
or killed domestic animals by Mexican wolves is present. In addition,
anyone may use opportunistic harassment of any Mexican wolf at any time
provided that Mexican wolves are not purposefully attracted, tracked,
searched out, or chased and then harassed.
Comments From Other Federal Agencies
(5) Comment: The potential expansion of the BRWRA to include the
Lakeside and Black Mesa Districts of the Sitgreaves National Forest and
the Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the
Tonto National Forest will bring additional issues that must be
considered and addressed by the Service. Of particular concern is the
heavy interspersion of inholdings of private lands, towns and numerous
unincorporated areas, and the adjacency of the Black Mesa, Tonto,
Payson, and Pleasant Valley Ranger Districts to the Phoenix
metropolitan area. These Districts also have extensive open road and
motorized trail networks with extremely high recreational use.
Our response: We acknowledge that there are areas within the MWEPA
that are of less suitable Mexican wolf habitat and where Mexican wolves
will be more actively managed under the authorities of this rule to
reduce human conflict. Initial releases of Mexican wolves will be well
away from towns and dwellings. We expect Mexican wolves to occupy areas
of suitable habitat where ungulate populations are adequate to support
them and conflict with humans and their livestock would be low. If
Mexican wolves move outside areas of suitable habitat, such as the
areas described by the commenter, they will be more actively managed.
(6) Comment: One Federal agency suggested that expanding the MWEPA
boundary to include areas south of Interstate 10 to the United States-
Mexico international border is problematic because there are few deer
or elk in this area and this expansion would likely lead to increased
livestock predation. Because the area contains more people than remote
forested areas of Arizona and New Mexico, there would likely be more
interaction and conflict with both people and pets.
Our response: The area of Arizona and New Mexico south of
Interstate 10 may provide stepping stone habitat and dispersal
corridors for wolves dispersing north from Mexico and south from the
experimental population. Management of all Mexican wolves in this area
under this final rule will improve the effectiveness of the
reintroduction project in minimizing and mitigating wolf-human conflict
by providing more management flexibility. Without the experimental
population designation, wolves that disperse north from Mexico would
currently be considered fully endangered, which allows for only limited
management and runs counter to the management allowed by the
nonessential experimental population designation.
(7) Comment: One Federal agency recommended clarifying whether the
revised 10(j) rule constituted a change in the way depredation losses
have been counted in the past. It was recommended that the Service
gather information on the total number of livestock killed by wolves,
not just the number of incidents, because the actual number of
livestock involved is still important and needs to be accounted for and
reported.
Our response: In this final rule, we do not change the way
depredation losses have been counted in the past. We do not use the
term depredation incident and only use the term depredation in our
definition of problem wolves. We define depredation as the confirmed
killing or wounding of lawfully present domestic animals by one or more
Mexican wolves. Also, we define problem wolves as Mexican wolves that
are individuals or members of a group or pack (including adults,
yearlings, and pups greater than 4 months of age) that were involved in
a depredation on lawfully present domestic animals; or habituated to
humans, human residences, or other facilities regularly occupied by
humans.
(8) Comment: The proposed rule provides for unintentional take
coverage for Federal, State, or tribal agency employees or their
contractors while engaging in the course of their official duties, such
as military training and testing. Some military bases support a robust
recreation program as part of its mission in accordance with the Sikes
Act. Unintentional take should cover users of Federal lands that are
not agency employees or their contractors, such as recreational users
and hunters.
Our response: The provision for unintentional take allows for the
take of a Mexican wolf by any person if the take is unintentional and
occurs while engaging in an otherwise lawful activity. Such take must
be reported as specified in accordance with paragraph (k)(6) of the
regulations. Hunters and other shooters have the responsibility to
identify their quarry or target before shooting, thus shooting a wolf
as a result of mistaking it for another species
[[Page 2528]]
will not be considered unintentional take. Take by poisoning will not
be considered unintentional take.
(9) Comment: The Marine Corps conducts military and associated
activities adjacent to and within restricted airspace overlying the
Cabeza Prieta National Wildlife Refuge. As such activities may affect
Mexican wolves that may be present on the refuge, the Federal agency
recommended that the rule clarify how exclusions, specifically use of
lands within the National Wildlife Refuge System as safety buffer zones
for military activities, apply to military activities adjacent to and
over the refuge.
Our response: The Cabeza Prieta National Wildlife Refuge occurs
within Zone 3 of the MWEPA, which is an area of less suitable Mexican
wolf habitat. We expect very few Mexican wolves to occupy these areas
of less suitable habitat because ungulate populations are inadequate to
support them. In any case, Federal, State, or tribal agency employees
or their contractors may take a Mexican wolf or wolf-like animal if the
take is unintentional and occurs while engaging in the course of their
official duties. This includes, but is not limited to, military
training and testing and Department of Homeland Security border
security activities. Further, the use of lands within the National Park
or National Wildlife Refuge Systems as safety buffer zones for military
activities and Department of Homeland Security border security
activities are specifically excluded from the definition of
``disturbance-causing land-use activity.''
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments received from the States regarding the proposal to revise the
regulations to the experimental population of the Mexican wolf are
addressed below.
(10) Comment: The June 2013 proposed revision classifies State Game
Commission-owned lands as public without any discussions with the
States. Because the proposed classification would limit Mexican wolf
management flexibility on Commission-owned properties, the Service
should exclude State Game Commission-owned lands.
Our response: In this final rule, we have separate provisions for
take of Mexican wolves based on whether they occur on Federal or non-
Federal lands. Non-Federal land means any private, State-owned, or
tribal trust land. In this final rule, State Game Commission-owned
lands are considered non-Federal lands.
(11) Comment: One State agency requested that the Service explain
how increased impacts to ranchers, rural families, property owners,
recreational users, and local communities will be mitigated under the
proposed rule change to allow direct release throughout the BRWRA.
Our response: We have included several provisions in the final rule
that will mitigate the potential impacts of Mexican wolves on
landowners, recreational users, and local communities. Under the final
rule, on non-Federal lands, domestic animal owners or their agents may
take (including kill or injure) any Mexican wolf that is in the act of
biting, killing, or wounding a domestic animal, as defined in the
regulations, provided that evidence of freshly wounded or killed
domestic animals by Mexican wolves is present; on Federal land,
livestock owners may be permitted to take a wolf that is in the act of
biting, killing, or wounding livestock. We have also included a
provision for issuance of take permits on non-Federal land for domestic
animal owners to assist the Service or its designated agency in
completing wolf control actions. In addition, after the Service or its
designated agency has confirmed Mexican wolf presence on any land
within the MWEPA, the Service or its designated agency may issue
permits valid for not longer than 1 year, with appropriate stipulations
or conditions, to allow intentional harassment of Mexican wolves.
(12) Comment: Clarify how depredation compensation, incentive, and
mitigation programs will be funded and administered.
Our response: This rule does not fund or administer depredation
compensation and mitigation programs. However, the Service, in
cooperation with the National Fish and Wildlife Foundation, established
the Mexican Wolf/Livestock Interdiction Trust Fund (Trust Fund), in
2009. The objective of the Trust Fund is to generate long-term funding
for prolonged financial support to livestock operators within the
framework of cooperative conservation and recovery of Mexican wolf
populations in the Southwest. The Trust Fund is overseen by the Mexican
Wolf/Livestock Coexistence Council, an 11-member group of ranchers,
Tribes, county coalitions, and environmental groups that may identify,
recommend, and approve conservation activities, identify recipients,
and approve the amount of the direct disbursement of Trust Funds to
qualified recipients. The Coexistence Council completed the Mexican
Wolf/Livestock Coexistence Plan in March 2014. It is the current policy
of the Coexistence Council to pay 100 percent of the market value of
confirmed depredated cattle and 50 percent market value for probable
kills. In addition, the Coexistence Council distributed $85,500 for a
pay-for-presence program to ranchers in the BRWRA in 2014. The Payment
for Presence program mitigated other uncompensated costs (i.e.,
unconfirmed wolf kills that are never found) that ranchers experience
with the presence of wolves. The Payment for Presence program uses a
formula, based on wolf utilization of allotments, the number of pups
that are alive at the end of the year from a wolf pack utilizing an
allotment, the ranchers' implementation of conflict avoidance methods,
and the number of livestock exposed to wolves, to equitably distribute
available funds among ranchers applying to the program. Continued
funding under the Coexistence Plan will depend on obtaining funding
from private and public sources.
(13) Comment: The Mexican Wolf/Livestock Coexistence Council is
underfunded and significantly challenged to fund losses and conflict-
avoidance measures by currently participating livestock producers
within the BRWRA and MWEPA. Under its current financial limitations, it
has no ability to provide significant (if any) financial support for
broad-scale conservation actions rather than compensation for local
losses. Neither the proposed rule nor the draft EIS shed adequate light
on anticipated costs of interdiction, incentives, etc.
Our response: Start-up funding for the Coexistence Council has been
provided by the Fish and Wildlife Service and Non-Governmental
Organizations. It is our understanding that the Coexistence Council
will continue to seek private and public funding into the future.
(14) Comment: The Service must identify and analyze methods and
means of avoiding, reducing, or mitigating Mexican wolf depredation on
livestock and pets, including identification of realistic methods by
which to fund and implement such programs over the long term,
preferably over a 20-year planning horizon.
Our response: As the total number of Mexican wolves in the
experimental population increases, the Service will increasingly manage
problem wolves by means authorized in this final rule in a way that
furthers the conservation of the Mexican wolf while being responsive to
the needs of the local community in cases of depredation or nuisance
[[Page 2529]]
behavior by wolves. This final rule includes several provisions by
which depredation on livestock and pets can be avoided and reduced. For
instance, anyone may conduct opportunistic harassment of any Mexican
wolf at any time provided that Mexican wolves are not purposefully
attracted, tracked, searched out, or chased and then harassed. Also,
after the Service or its designated agency has confirmed Mexican wolf
presence on any land within the MWEPA, the Service or its designated
agency may issue permits valid for not longer than 1 year, with
appropriate stipulations or conditions, to allow intentional harassment
of Mexican wolves.
(15) Comment: The proposed amendments to the experimental
population rules are unnecessary to achieve the population objective
for the Mexican wolf. The purpose and need for the original 1998
Mexican wolf section 10(j) rule was to establish a population of at
least 100 Mexican wolves in the BRWRA. Currently, 75 wolves occupy this
area, and the 100 individual population objective will be met in the
near future. Based on population growth over the past several years,
the proposed amendments are not necessary for the population objective
to be achieved.
Our response: Section 2 of the Act requires the Service to conserve
endangered and threatened species and utilize its authorities in
furtherance of the purposes of the Act. According to Section 3 of the
Act, conserve means to use and the use of all methods and procedures
which are necessary to bring any endangered or threatened species to
the point at which the measures provided pursuant to the Act are no
longer necessary. The 1982 Mexican Wolf Recovery Plan contained a
``prime objective'' to ensure the immediate survival of the Mexican
wolf--that ``prime objective'' to ensure immediate survival was 100
wolves. That number, 100 wolves, was not enough, and still is not
enough, to delist the Mexican wolf. The purpose of our action is to
improve the effectiveness of the reintroduction project in managing the
experimental population in order to ensure conservation of the Mexican
wolf. Conservation of this species certainly requires more than 100
wolves in the wild. It is our expectation that the new population
objective for the MWEPA will help to ensure a stable population of
Mexican wolves in the MWEPA in the future. This stable population will
then contribute to the range-wide recovery of the species, the goal of
which will be determined in a future revision to the Mexican wolf
recovery plan.
(16) Comment: One State agency requested that the Service add
language to the rule that explicitly requires State review and approval
prior to any release on private lands or non-trust tribally owned lands
under the jurisdiction of the State. Further, they requested that we
establish a minimum set of factors that must be considered in this
review. These factors include:
The presence of sufficient native prey within a 10- to 15-
mile (16- to 24-kilometer) radius of proposed release site (as
determined by the State);
the State's evaluation of probable impacts to State trust
species both on the private property where the release is being
proposed as well as adjoining lands;
zones of potential dispersal;
both spatial and temporal density and distribution of
livestock in the adjoining area;
livestock depredation removal thresholds; and
pre-release confirmation from the Service of the timely
availability of sufficiently trained and competent Service personnel
and the associated fiscal resources and equipment needed to effectively
monitor, manage, and remove released Mexican wolves should the removal
threshold be met.
Our response: In this final rule, we have included provisions for
management on private land within Zones 1 and 2 of the MWEPA, so that
the Service or designated agency may develop and implement management
actions to benefit Mexican wolf recovery in cooperation with willing
private landowners, and with the concurrence of the State game and fish
agency. These actions include: Occupancy by natural dispersal; initial
release; and translocation of Mexican wolves onto private lands in
Zones 1 or 2 if requested by the landowner and with the concurrence of
the State game and fish agency. We have also included provisions for
management on tribal trust land within Zones 1 and 2 in the MWEPA,
where the Service or a designated agency may develop and implement
management actions in cooperation with willing tribal governments,
including: Occupancy by natural dispersal; initial release;
translocation onto tribal trust land; and capture and removal of
Mexican wolves from tribal trust land if requested by the tribal
government.
(17) Comment: The specifications for releases of Mexican wolves on
private land should be included in the proposed rule. Releases on
private lands require Federal action and will have direct impacts on
other surrounding private landowners, wildlife, livestock, and Federal
and State public land. Also, surrounding landowners should be consulted
prior to any such release being made. Livestock producers adjacent to
private land release sites must be made aware of these releases in
order to implement measures to avoid depredation. The Service should
develop a set of specific criteria for private land releases prior to
any revision to the final 10(j) rule or EIS.
Our response: On private land within Zones 1 and 2 of the MWEPA,
the Service or designated agency may develop and implement management
actions to benefit Mexican wolf recovery in cooperation with willing
private landowners, including: Occupancy by natural dispersal; initial
release; and translocation of Mexican wolves onto such lands in Zones 1
or 2 if requested by the landowner and with the concurrence of the
State game and fish agency. Specifications for releases may be
different for different landowners, so these specifications will be
developed as part of the management actions rather than in the final
rule, and with the concurrence of State game and fish agencies.
(18) Comment: As they relate to allowable take, the differences
between what is allowed on public land and what is allowed on private
land have been a continuing source of confusion under the 1998 Final
Rule and will continue to be a source of confusion under the proposed
rule. The problem is best remedied by making take provisions for
individuals the same on public land as on private land. It was
suggested that the language in the proposed rule be modified to allow
for owners of livestock on public lands allotted for livestock grazing
the same ability that livestock owners or their agents have on private
or tribal lands to take any Mexican wolf in the act of killing,
wounding, or biting livestock, regardless of the number of breeding
pairs or the most recent population count.
Our response: This final rule has been modified to clarify take
provisions on Federal and non-Federal land. It is our intent that the
regulatory burden of Mexican wolf recovery rest on Federal land;
therefore, we have provided additional take provisions on non-Federal
land to allow for more flexibility in the management of problem wolves.
The differences in allowable take on Federal and non-Federal land will
help us effectively manage Mexican wolves within the MWEPA in a manner
that furthers its conservation while being responsive to the needs of
the local community in cases of depredation or nuisance
[[Page 2530]]
behavior by wolves on non-Federal lands. We expect that modifying the
provisions governing the take of Mexican wolves to provide clarity and
consistency will contribute to our efforts to find the appropriate
balance between enabling wolf population growth and minimizing nuisance
and depredation impacts on local stakeholders.
(19) Comment: It was suggested that the Service develop and publish
for review a set of criteria for removal of Mexican wolves based on
certain situational elements such as the number of livestock killed or
injured, the frequency of wolf depredation, and the individual economic
impacts to the livestock producer.
Our response: We did not include a set of specific criteria for
removal of problem wolves in this final rule in order to maximize our
flexibility in effectively managing Mexican wolves in a manner that
furthers the conservation of the Mexican wolf while being responsive to
the needs of local communities. These criteria will be developed in a
management plan, which will provide for adaptive management as we gain
more information on Mexican wolf management and techniques to minimize
conflicts between Mexican wolves and livestock.
(20) Comment: Several State agencies suggested that allowable take
by authorized personnel would be subject to Service approval,
presumably on a case-by-case basis, which has often been highly
problematic when cooperating agencies have tried to take aggressive,
timely action to address problem wolf incidents. In addition, the
Service has not been willing, since 2007, to use lethal take as a tool
in managing problem wolves. The Service must enable agencies and
stakeholders to directly and effectively address problem-wolf issues
while they are occurring. Maintaining effective Mexican wolf management
tools is critical to building agency and stakeholder confidence in the
process of reintroducing Mexican wolves to historical range.
Limitations that prevent timely deployment of available tools undermine
State agency and stakeholder confidence in the reintroduction project.
Our response: The final rule authorizes the Service or designated
agency to carry out intentional or opportunistic harassment, nonlethal
control measures, translocation, placement in captivity, or lethal
control of problem wolves. The Service or a designated agency may take
any Mexican wolf in the experimental population in a manner consistent
with a Service-approved management plan, special management measure,
biological opinion pursuant to section 7(a)(2) of the Act, conference
opinion pursuant to section 7(a)(4) of the Act, section 6 of the Act as
described in 50 CFR 17.31 for State game and fish agencies with
authority to manage Mexican wolves, or a valid permit issued by the
Service through 50 CFR 17.32.
(21) Comment: The revised 10(j) rule and associated EIS should
analyze an alternative that allows issuing permits on a case-by-case
basis, to enable consideration of geographic variation in depredation
activity or breeding status of Mexican wolves. Situation-specific
approaches to managing chronic depredation behavior by specific Mexican
wolves that generate adverse economic and social impacts should not be
superseded by general thresholds working independently of the
undesirable Mexican wolf behaviors that cause such conflict.
Our response: The final rule authorizes the issuance of permits to
domestic animal owners or their agents on non-Federal lands to assist
the Service or designated agency in completing a control action. The
final rule also authorizes the issuance of permits to livestock owners
or their agents to take any Mexican wolf that is in the act of biting,
killing, or wounding livestock on Federal land where specified in the
permit, to assist the Service or designated agency in completing
control actions. Issuance of these permits will be at the Service's
discretion and thus analyzed on a case-by-case basis. Also, we realize
that geographic variation throughout the MWEPA requires different
management approaches. That is why we have identified Zones 1, 2, and 3
as different management areas within the MWEPA. We identified these
Zones in order to improve the effectiveness of our reintroduction
project while minimizing and mitigating Mexican wolf-human conflict.
(22) Comment: One State agency suggested modifying the language to
set the minimum population size to at least 100 Mexican wolves within
the MWEPA as documented by the most recent end-of-year count, and
strike any reference to other established populations. The new
provision would require that the minimum population level of 100 wolves
within the BRWRA must be met before the Service would issue take
permits to producers on public lands to address wolves that are in the
act of killing their livestock.
Our response: The suggested modification will not allow us to
improve the effectiveness of the reintroduction project to achieve the
necessary population growth, distribution, and recruitment, as well as
genetic variation within the Mexican wolf experimental population so
that it can contribute to recovery in the future. In recognition that
the MWEPA will include a variety of land ownership types, our provision
to issue a permit for take of a Mexican wolf in the act of wounding,
biting, or killing livestock on Federal land will allow us to better
consider the site specific circumstances associated with the event
compared to establishing a minimum population level of 100 wolves prior
to being able to issue such permits; this flexibility will also
contribute to our ability to conserve the Mexican wolf by allowing us
to integrate information about the current population, including
genetic issues, into our permit decisions.
(23) Comment: Several State agencies suggested that the language in
the rule be modified to allow pet owners, regardless of where they are,
to take Mexican wolves that are in the act of attacking or killing
pets. Pets, like livestock, are considered by most owners to be private
property, and restricting a person's ability to protect their private
property, regardless of where, may be contrary to their constitutional
rights.
Our response: We have included a provision in this final rule to
allow for take of Mexican wolves by domestic animal owners, which
includes pet dog owners, on non-Federal lands. Specifically, on non-
Federal lands, domestic animal owners or their agents may take
(including kill or injure) any Mexican wolf that is in the act of
biting, killing, or wounding a domestic animal, as defined in the
regulations, provided that evidence of freshly wounded or killed
domestic animals by Mexican wolves is present. Domestic animal means
livestock as defined in the regulations and non-feral dogs. In
addition, anyone may conduct opportunistic harassment of any Mexican
wolf at any time provided that Mexican wolves are not purposefully
attracted, tracked, searched out, or chased and then harassed. Pet
owners on Federal lands can protect their pets via opportunistic
harassment.
(24) Comment: One State agency suggested clarifying whether working
dogs and tracking hounds, etc., are considered pets or protected in
some similar manner. The rule revision should appropriately address
protecting working and tracking dogs on public as well as private land.
Our response: Take of Mexican wolves by livestock guarding dogs,
when used in the traditional manner to protect livestock on Federal and
non-
[[Page 2531]]
Federal lands, is allowed. Dogs that are working livestock or being
lawfully used to trail or locate wildlife are excluded from the
definition of feral dogs, and are thus included as domestic animals.
See comment above where we discuss allowable forms of take for domestic
animal owners on non-Federal lands.
(25) Comment: One State agency requested that they not be required
to develop a Service-approved Mexican Wolf Management Plan or become
party to any wolf-related memorandum of agreement or understanding to
lawfully take Mexican wolves by any means the State agency deems
necessary when it has been determined by the State that Mexican wolf
impacts on State trust species are unsustainable and jeopardizing an
ungulate population, or when a Mexican wolf has dispersed outside of
the MWEPA and the Service is unable to capture the disperser in a
timely manner.
Our response: Participation in the conservation of Mexican wolves
by States is voluntary. Pursuant to this final rule, no State will be
required to develop a Service-approved Mexican Wolf Management Plan or
become party to any wolf-related memorandum of agreement or
understanding. In this final rule, we have provided a definition of
unacceptable impact to a wild ungulate herd and process for State game
and fish agencies to follow to demonstrate that any decline in an
ungulate herd was influenced by Mexican wolf predation. The final rule
provides that the Service or a designated agency may take any Mexican
wolf in the experimental population in a manner consistent with a
Service-approved management plan, special management measure,
biological opinion pursuant to section 7(a)(2) of the Act, conference
opinion pursuant to section 7(a)(4) of the Act, as described in 50 CFR
17.31 for State game and fish agencies with authority to manage Mexican
wolves, or a valid permit issued by the Service through 50 CFR 17.32 If
a Mexican wolf or wolves disperse outside the MWEPA, the Act (16 U.S.C.
1531 et seq.) prohibits activities with endangered and threatened
species unless a Federal permit allows such activities. As part of this
rulemaking process, we have issued a section 10(a)(1)(A) permit to
allow for certain activities with Mexican wolves that occur outside the
MWEPA. Under this permit we will authorize removal of Mexican wolves
that can be identified as coming from the experimental population that
disperse and establish territories in areas outside of the MWEPA. Also,
in compliance with NEPA (42 U.S.C. 4321 et seq.), we have included
analysis of the environmental effects of the permit as part of our EIS.
(26) Comment: One State agency requested that we clarify, by an
affirmative statement, that State regulators and other officials cannot
be held liable for causing a take of a Mexican wolf simply by their
regulation of trapping, or lack thereof.
Our response: Whether or not any person or entity will be held
liable for the take of Mexican wolves in the future will be made on a
case-by-case basis. Therefore, the Service cannot give the commenter
the clarification requested. However, the final rule provides for
unintentional take within the MWEPA. Unintentional take means take that
occurs despite the use of due care, is coincidental to an otherwise
lawful activity, and is not done on purpose. Take of a Mexican wolf by
any person is allowed if the take is unintentional and occurs while
engaging in an otherwise lawful activity. In addition, taking a Mexican
wolf with a trap, snare, or other type of capture device within
occupied Mexican wolf range is prohibited and will not be considered
unintentional take, unless due care was exercised to avoid injury or
death to a wolf. With regard to trapping activities, due care is
further defined in the final rule.
(27) Comment: The Service should allow State game and fish agencies
to issue ``Incidental Take Permits'' (section 10(a)(1)(B) of the Act)
to individuals involved in lawful activities where Mexican wolves might
be adversely affected by those activities.
Our response: The Act prohibits the ``take'' of listed species
through direct harm or habitat destruction. In the 1982 amendments to
the Act, Congress authorized the Service, not State wildlife agencies,
to issue permits for the ``incidental take'' of endangered and
threatened wildlife species in section 10(a)(1)(B) of the Act. Thus,
permit holders can proceed with an activity that is legal in all other
respects, but results in the ``incidental'' taking of a listed species.
These incidental take permits could be issued to address the incidental
take of Mexican wolves associated with otherwise legal activities.
However, the Service has not been granted legal authority to allow
State game and fish agencies to issue Federal permits in accordance
with the Act. States have the ability to apply for section 10(a)(1)(B)
incidental take permits and issue certificates of inclusion to
individuals who comply with the provisions of the State's conservation
plan and permit.
(28) Comment: One State agency requested that the rule be modified
to indicate that Mexican wolves will be allowed to disperse outside
Zone 1, but will only be allowed to remain and occupy those areas
within Zone 2 that provide sufficient and sustainable prey populations
as determined by the State. The same rationale used by the Service in
justifying the proposal to remove a small portion of Texas from the
MWEPA can also be applied to areas in New Mexico within the MWEPA that
also support marginal habitat for Mexican wolves and native prey.
Our response: Criteria for initial releases of Mexican wolves will
include adequate prey abundance (e.g., elk, deer, and other native
ungulates), based on the best available information from the State or
tribal game and fish agency. Dispersal of Mexican wolves is likely to
include areas within the MWEPA that have less suitable habitat, such as
in Zone 3. However, Mexican wolves will be more actively managed under
the authorities of this rule to reduce human conflicts in these areas.
Furthermore, in this final rule, we have defined unacceptable impact to
a wild ungulate herd and provide the States with the ability to manage
Mexican wolves if they demonstrate predation by Mexican wolves is
influencing a decline in the wild ungulate herd.
(29) Comment: The proposed revision to allow Mexican wolves to
disperse outside the BRWRA and occupy new areas within the MWEPA is
improper at this time because a primary consideration regarding
suitable wolf habitat is presence of adequate prey densities. The
proposed change would allow Mexican wolves to travel to and use areas
within the extended MWEPA that might not support adequate levels of
native ungulate populations. Primary examples would include State trust
lands north of the Apache Sitgreaves National Forests and other
portions of National Forests supporting low-productivity elk and deer
populations. If Mexican wolves were allowed to occupy these areas,
native ungulate populations would be at risk of significant reduction,
causing wolves to prey more predominantly on livestock and creating
other adverse economic impacts.
Our response: The Service has analyzed the habitat within the
MWEPA, and although there are patches of poor-quality habitat, we
expect Mexican wolves to occupy areas of suitable habitat where
ungulate populations are adequate to support them and conflict with
humans and livestock will be low. The final rule provides States the
authority to take Mexican wolves in response to
[[Page 2532]]
unacceptable impacts to wild ungulate herds, as we recognize that
localized reduction in ungulate herds due to wolf predation could
occur.
(30) Comment: Many areas within the MWEPA are not appropriate for
Mexican wolf colonization or occupancy, due to high levels of human
occupancy, high road densities, high levels of public activity
(including recreation), high potential for interaction with domestic
dogs (i.e., depredation and hybridization), and increased potential for
human-caused mortality. The EIS and rule revision should use these
types of predictable conflicts to identify areas within the MWEPA and
recognized subunits in which Mexican wolf dispersal and reestablishment
are not appropriate or necessary for sustaining a Mexican wolf
population and outline practical mechanisms for managing wolves that
disperse to these conflict zones.
Our response: We recognize that there are areas within the MWEPA
where there is limited suitable habitat for Mexican wolves and
increased potential for human-related conflict. Thus, we identified
Zones 1, 2, and 3 as different management areas within the MWEPA in
order to improve the effectiveness of our reintroduction project while
minimizing and mitigating Mexican wolf-human conflict. We have included
a phased approach to Mexican wolf management in western Arizona, where
elk populations west of Highway 87 are generally smaller in number and
isolated from each other compared to elk populations east of Highway
87. Also, we have increased take provisions on non-Federal lands to
allow domestic animal owners or their agents to take any Mexican wolf
that is in the act of biting, killing, or wounding a domestic animal,
as defined in the rule.
(31) Comment: The proposed revision to remove Texas from the MWEPA
is biologically appropriate based on Service review of existing
habitat, prey base, historical range and metapopulation connectivity
within Arizona and New Mexico. However, the same rationale used by the
Service to justify that proposal could also be applied in Arizona, west
of the Mohave and La Paz Counties from Interstate 40 south to
Interstate 10; and in New Mexico, east of Interstate 25 and Interstate
10 from Interstate 40 south to the United States-Mexico international
border. Our point in noting this disparity is not to advocate such
changes at this time but to emphasize that the Service proposals are
not logically consistent.
Our response: Texas was removed from the MWEPA because this area is
not likely to contribute substantially to our purpose and need, and it
is very unlikely that Mexican wolves will disperse into Texas because
of the lack of suitable habitat. However, we have identified portions
of western Arizona and eastern New Mexico that do not have substantial
amounts of suitable habitat as Zone 3 of the MWEPA so that we can
actively manage Mexican wolves that disperse there to reduce human
conflict under the authorities of this rule. In any case, we do not
expect Mexican wolves to occupy these areas of less-suitable habitat
because ungulate populations are inadequate to support them.
(32) Comment: The Service must include a provision that Mexican
wolves that disperse outside the MWEPA will be captured. The proposed
rule affirms that commitment in prefatory text, but does not include it
in the proposed regulations.
Our response: We can only include language in the regulations for
management of Mexican wolves within the MWEPA. However, we intend to
capture Mexican wolves that establish territories outside the MWEPA
under a section 10(a)(1)(A) permit. We are issuing a section
10(a)(1)(A) permit to allow for certain Mexican wolf management
activities that occur outside the MWEPA. Under this permit we have the
ability to authorize removal of Mexican wolves that can be identified
as coming from the experimental population that disperse and establish
territories in areas outside of the MWEPA. Also, in compliance with
NEPA (42 U.S.C. 4321 et seq.), we have included analysis of the
environmental effects of the permit as part of our EIS.
(33) Comment: The Service needs to consider delegating management
authority of Mexican wolves within the MWEPA through this revised rule
or a State and/or Tribal Cooperative Agreement with the Service and/or
Memorandum of Agreement (MOA) with the Secretary of the Interior. The
revised rule needs to enable willing State game and fish agencies and
Tribes to assume lead roles in wolf management within their respective
areas of lawful jurisdiction.
Our response: Neither the Act nor its implementing regulations
allow the Service to delegate its management authority over Mexican
wolves to a State. However, in accordance with this final rule, a State
game and fish agency can become a designated agency, which is a
Federal, State, or tribal agency designated by the Service to assist in
implementing this rule, all or in part, consistent with a Service-
approved management plan, special management measure, conference
opinion pursuant to section 7(a)(4) of the Act, section 6 of the Act,
as described in 50 CFR 17.31 for State game and fish agencies with
authority to manage Mexican wolves, or a valid permit issued by the
Service through 50 CFR 17.32.
(34) Comment: The Service needs to consider delegating management
authority to Wildlife Services (a division of the U.S. Department of
Agriculture's Animal and Plant Health Inspection Service (USDA-APHIS))
for such things as investigating reported depredations on livestock or
other domestic animals and reports of nuisance or problem wolves;
determining whether and which wolf or wolves depredated on livestock or
other domestic animals; and capturing, translocating, and removing
Mexican wolves.
Our response: Neither the Act nor its implementing regulations
allow the Service to delegate its management authority over Mexican
wolves to a State or another Federal agency, in this case, USDA-APHIS.
In this final rule, Wildlife Services is one of the lead agencies that
will confirm cases of wolf depredation on lawfully present domestic
animals. Also, Wildlife Services can become a designated agency to
assist in implementing this rule (see response to comment above).
(35) Comment: The Service needs to clarify who verifies legal
presence of grazing livestock and how they verify it (relative to
confirming depredation). Also, the Service needs to clarify which
agency or agencies would conduct investigations to confirm or refute
claims of livestock depredation.
Our response: It is the responsibility of the land management
agency to verify the legal presence of grazing livestock on their land.
In regard to investigating livestock depredation, the Service, Wildlife
Services, or other Service-designated agencies will confirm cases of
wolf depredation on lawfully present livestock or domestic animals.
(36) Comment: Define thresholds and methods for temporary and
permanent removal of depredating and nuisance Mexican wolves; clearly
describe how Mexican wolf mortalities and livestock or domestic animal
depredation will be investigated and documented while ensuring that
State, Federal, and tribal law enforcement interests are not
compromised by non-commissioned employees of the Service and its
designated agents; and clearly delineate the laws and regulations
pertaining to ownership and removal or destruction of livestock
carcasses on public, State, tribal, and private lands.
[[Page 2533]]
Our response: Immediately following publication of this final rule,
the Service will begin working with partner agencies on an interagency
management plan that will include standard operating procedures for
management of Mexican wolves, discuss flexible thresholds for removal
of problem Mexican wolves, and describe how Mexican wolf mortalities
and livestock depredations will be investigated. This process of
following a Mexican wolf 10(j) rule with an interagency management plan
that includes standard operating procedures was done with the 1998 rule
and the 1998 Interagency Management Plan. The laws and regulations
pertaining to ownership and removal or destruction of livestock
carcasses on public, State, tribal, and private lands are outside the
purview of the Mexican wolf management plan.
(37) Comment: The Service must propose a modification to give the
States and Tribes authority to control Mexican wolves when the
population reaches a predetermined objective, before Mexican wolves
have an unacceptable impact on wild ungulate populations.
Our response: Neither the Act nor its implementing regulations
allow the Service to delegate its management authority over Mexican
wolves to a State or Tribe. In this final rule, we have included a
population objective of 300 to 325 Mexican wolves. We have also
included provisions for take in response to unacceptable impacts to
wild ungulates. The final rule allows Tribes to request the removal of
Mexican wolves from their tribal trust lands.
(38) Comment: One State agency requested that the definition of
occupied Mexican wolf range be changed to tie occupied range to the
presence of breeding populations of Mexican wolves only.
Our response: We have changed the definition of occupied Mexican
wolf range to mean an area of confirmed presence of Mexican wolves
based on the most recent map of occupied range posted on the Service's
Mexican Wolf Recovery Program Web site at http://www.fws.gov/southwest/es/mexicanwolf/. Specific to the prohibitions in paragraph (k)(5)(iii)
of this rule, Zone 3 and tribal trust lands are not considered occupied
range.
(39) Comment: Mexican wolves are highly mobile (especially young
males) and will move great distances crossing unsuitable habitat in
order to expand their range. The presence of a single Mexican wolf over
the period of 1 month does not denote occupied range. Implicit in the
term ``occupied'' is to possess or hold a place or to take up
residence. A single Mexican wolf by nature is transient. Mexican wolves
are pack animals. In order to occupy or take up residence in a home
range, a family group must be established through breeding and
successful production of offspring. The definition of occupied Mexican
gray wolf range should be changed to tie occupied range to the presence
of breeding populations of Mexican wolves only.
Our response: See response to comment above.
(40) Comment: One State agency recommended that Mexican wolves
involved in depredations on private land be classified as problem
wolves. Failure of the Service to include private lands in this
definition demonstrates the lack of consideration given to private
landowners and livestock producers.
Our response: In this final rule, problem wolves are defined as
Mexican wolves that, for purposes of management and control by the
Service or its designated agent(s), are individuals or members of a
group or pack (including adults, yearlings, and pups greater than 4
months of age) that were involved in a depredation on lawfully present
domestic animals; or habituated to humans, human residences, or other
facilities regularly occupied by humans. This definition of problem
wolf applies to both Federal and non-Federal land within the MWEPA.
(41) Comment: The entire purpose for the revision has changed ``to
the conservation of the Mexican wolf by improving the effectiveness of
the Reintroduction Project in managing the experimental population.''
Utah was not consulted about this change in emphasis and purpose, nor
was it consulted about any of the newest provisions contained within
the experimental population rule revision and associated draft EIS.
Our response: In accordance with 50 CFR 17.81(d), to the maximum
extent practicable, this rule represents an agreement between the
Service, the affected State and Federal agencies, and persons holding
any interest in land that may be affected by the establishment of this
experimental population. The Service is limiting the revised MWEPA to
areas south of Interstate 40 in Arizona and New Mexico. Also, we intend
to capture and return any Mexican wolves that disperse outside the
MWEPA. Because Utah is not a State affected by this rule, we did not
consult separately with that State. We are willing to meet with Utah or
any other State at any time.
(42) Comment: One State agency suggested the Service include
prescriptions for when and how a Mexican wolf that exhibits
unacceptable behaviors, such as persistent depredation or signs of
habituation would be removed from the wild.
Our response: Mexican wolves described by the requestor may meet
the definition of ``problem wolves.'' The rule explains how problem
wolves will be managed in general. Immediately following publication of
this final rule, the Service will begin working with partner agencies
on an interagency management plan that will include standard operating
procedures, discuss flexible thresholds for removal of problem Mexican
wolves, and describe how Mexican wolf mortalities and livestock
depredations will be investigated. The interagency management plan and
its standard operating procedures will fully comply with this rule.
(43) Comment: The Service should include a mechanism for active
inclusion of and support for reintroductions in Mexico.
Our response: We can only include language in the regulations for
management of Mexican wolves within the MWEPA. Furthermore, the Service
only has regulatory authority within the United States. However, we
continue to support Mexico's reintroduction program.
(44) Comment: The Service should include a dispute resolution in
the event of a non-economic impasse that cannot be resolved at any
level between the State wildlife management agency and the Service.
Our response: Immediately following publication of this final rule,
the Service will begin working with partner agencies on a revised
interagency management plan that will include an addendum for a dispute
resolution process. The revised interagency management plan and its
standard operating procedures will fully comply with this rule.
(45) Comment: The revised rule should identify how and when wolf
releases will be made and that there must be concurrence between the
State wildlife agencies and the Service.
Our response: Information on how and when Mexican wolf releases
will be made will be included in an interagency management plan, which
the Service will begin working with partner agencies on immediately
following publication of this final rule. The interagency management
plan and its standard operating procedures will fully comply with this
rule.
(46) Comment: The Service proposal asserts that under no
circumstances would shooting a Mexican wolf be considered incidental
take. This approach predetermines the outcomes of investigations that
in many cases to
[[Page 2534]]
date, in Arizona, New Mexico, and elsewhere in gray wolf range, have
resulted in findings that private citizens and wildlife agency
officials have on occasion incidentally (inadvertently) taken a wolf by
shooting. The Service fails to analyze adequately the impacts of this
strategy on agency wolf management efforts and on private citizens who
might kill a wolf when protecting their livestock against coyote
depredation.
Our response: The Service does not make this assertion. Under
certain circumstances incidental take of a Mexican wolf by shooting
might be allowable (i.e., take in defense of human life). Each incident
of take will be investigated and determinations regarding those
investigations will be made on a case-by-case basis. Nothing in this
rule predetermines the outcome of an investigation into the take of a
Mexican wolf.
(47) Comment: The proposed rule fails to include any portion of the
cooperating agencies' alternative (proposal) in violation of 50 CFR
17.81(d), which requires that any regulation promulgated pursuant to
section 10(j) of the ESA shall, to the maximum extent practicable,
represent an agreement between the Service, an affected State, Federal
agencies, and affected landowners. The omission of any significant
element of the Cooperating Agencies' proposal in the proposed rule is
clear evidence the Service has failed to provide meaningful cooperation
or make a good faith effort to reach an agreement with the cooperating
agencies.
Our response: In accordance with 50 CFR 17.81(d), to the maximum
extent practicable, this rule represents an agreement between the
Service, the affected State, and Federal agencies, and persons holding
any interest in land that may be affected by the establishment of this
experimental population. We invited 84 Federal and State agencies,
local governments, and tribes to participate as cooperating agencies in
the development of the EIS, 27 of which signed memoranda of agreements.
We have maintained a list of individual stakeholders, as well as a Web
site, since the initiation of the EIS development to ensure that
interested and potentially affected parties received information on the
EIS and notices of opportunities for public involvement. We met with
the Arizona Game and Fish Department and the New Mexico Department of
Game and Fish to collect data and develop the analyses of effects to
native species, particularly ungulates and economic impacts associated
with hunting in Arizona and New Mexico. We also met with the two State
game and fish agencies to discuss issues and recommendations they may
have with the proposed rules. To the maximum extent practicable, the
Service has provided meaningful cooperation and made a good faith
effort to reach an agreement with cooperating agencies. Parts of this
final rule that the States requested, and that the Service has agreed
to, include: a population objective of 300-325 wolves in the MWEPA, a
phased management approach in western Arizona, clarifications to
various definitions, and the definition and take provision related to
unacceptable impacts to native ungulates. The final EIS (Service 2014)
addressed other portions of the Arizona Cooperating Agency's
alternative in Chapter 2 that did not meet our purpose and need.
(48) Comment: The proposed rule unlawfully shifts the burden to the
States to monitor Mexican wolf predation and the impacts to prey
populations. The Tenth Amendment to the Constitution prohibits a
Federal agency from compelling a State to administer a Federal
regulatory program. Requiring the States to document impacts to the
ungulate population forces the States to undertake expensive scientific
studies to determine what impact wolf predation has on prey
populations. Monitoring impacts to ungulate populations will help
understand the relationship between wolf predation and ungulate
management goals, and it will also provide valuable information on the
relationship between prey populations and wolf conservation.
Our response: This rule does not require the States to do anything
that they have not asked to do. Nothing in this rule compels a State to
administer this program because the Act does not allow the Service to
delegate its authority in such a manner. We met with the Arizona Game
and Fish Department and the New Mexico Department of Game and Fish,
and, pursuant to their request, we defined unacceptable impact to a
wild ungulate herd. According to the definition that the States
created, an unacceptable impact to a wild ungulate herd will be
determined by a State game and fish agency based upon ungulate
management goals, or a 15 percent decline in an ungulate herd as
documented by a State game and fish agency, using their preferred
methodology, based on the preponderance of evidence from bull to cow
ratios, cow to calf ratios, hunter days, and/or elk population
estimates. Because the State game and fish agencies conduct annual
monitoring of their wild ungulate herds regardless of this final rule,
we do not believe this final rule unlawfully shifts the burden to the
States to monitor Mexican wolf predation and the impacts to prey
populations.
(49) Comment: The Service must provide a definition for the term
``domestic animals'' to clarify the reference and distinguish it from
``livestock.'' The definition for ``Problem wolves'' includes a
reference to impacts on ``domestic animals,'' but it is not clear what
animals are included under this reference for purposes of affecting
associated management responses to problem wolves.
Our response: Paragraph (k)(3) of the Definitions section of the
regulations includes definitions for both domestic animals and
livestock. Domestic animal means livestock as defined in paragraph
(k)(3) and non-feral dogs. Livestock means domestic alpacas, bison,
burros (donkeys), cattle, goats, horses, llamas, mules, and sheep, or
other domestic animals defined as livestock in Service-approved State
and tribal Mexican wolf management plans. Poultry is not considered
livestock under this rule.
(50) Comment: The Service must clarify that the reintroduction
project is a collaborative project among multiple jurisdictions that is
guided by an overarching MOU, and that accompanying management has been
implemented through an Interagency Field Team staffed and supported by
resource management agencies that are signatories to the MOU.
Our response: The clarification requested in this comment is not
required by the Act or its implementing regulations. Immediately
following publication of this final rule, the Service will begin
working with partner agencies on an interagency management plan that
will include standard operating procedures.
(51) Comment: One State agency suggested removing proposed
paragraphs (k)(5)(iii)(B) through (E) because the State laws and
guidelines encompass standards for minimizing any harm or fatalities
that might occur once a Mexican wolf becomes incidentally trapped.
Our response: With regard to due care and trapping activities, we
have left paragraphs (k)(5)(iii)(B) through (E) in the final rule
because these due care provisions allow for trapping to occur in a way
that reduces harm to Mexican wolves.
(52) Comment: As a result of our perspective that the Service has
demonstrated a lack of commitment to various aspects of the Mexican
wolf
[[Page 2535]]
program, we suggest that the new final rule include a provision that
rescinds the new experimental population rule and immediately
reinstates the 1998 Final Rule. This change would include using all
means necessary to return the population to the 1998 objective of at
least 100 wolves but no more than the number of wolves that are present
within the current BRWRA if the Service initiates any Federal process
to change the experimental population status of Mexican wolves or
designate critical habitat for the experimental population.
Our response: The provision requested in the comment is not legally
required by the Act or its implementing regulations. Therefore, we will
not insert such a provision into this rule. Any change to the status of
the Mexican wolf will require further public review and comment.
(53) Comment: The definition of depredation should exclude the
words ``confirmed'' and ``lawfully present.'' Depredation occurs
anytime a Mexican wolf attacks domestic animals. Inclusion of these
qualifiers would result in reported depredations lower than what
actually occurs.
Our response: In this final rule, we have defined as Depredation
the confirmed killing or wounding of lawfully present domestic animals
by one or more Mexican wolves. The Service, USDA-APHIS (Wildlife
Services), or other Service-designated agencies will confirm cases of
wolf depredation on lawfully present domestic animals. The
``confirmed'' killing or wounding of lawfully present domestic animals
by a Mexican wolf is needed to ensure that the depredation was caused
by a Mexican wolf and not some other predator. The words ``lawfully
present'' are part of the depredation definition because we do not want
to influence Mexican wolf management for a depredation where the
domestic animal was trespassing. For example, cattle trespassing on
Federal lands are not considered lawfully present domestic animals.
(54) Comment: The proposed definition for livestock represents an
inconsistency with the New Mexico Livestock Code at 77-2-1.1 NMSA 1978.
Any kind or class of livestock represents a significant investment by
owners and should be included in the rule's definition.
Our response: We recognize that there are various definitions for
``livestock'' in the multiple jurisdictions across the States of
Arizona and New Mexico. We have defined livestock for purposes of this
final rule, which may not be consistent with the purposes of the
various jurisdictions.
(55) Comment: Paragraph (k)(7)(viii)(C) of the proposed rule
provides that, ``Take of Mexican wolves by Wildlife Services employees
while conducting official duties associated with predator damage
management activities for species other than Mexican wolves may be
considered unintentional if it is coincidental to a legal activity and
the Wildlife Services employees have adhered to all applicable Wildlife
Services' policies, Mexican wolf standard operating procedures, and
reasonable and prudent measures or recommendations contained in
Wildlife Service's biological and conference opinions.'' These
exemptions and exclusions from the take provisions need to be extended
to local government agents and licensed livestock producers that use M-
44 devices for predator damage management.
Our response: We have included a provision in this final rule
prohibiting Wildlife Services from using M-44's and choking-type snares
in occupied Mexican wolf range and that Wildlife Services may restrict
or modify other predator control activities pursuant to a Service-
approved management agreement or a conference opinion between Wildlife
Services and the Service. The provision for unintentional take allows
for the take of a Mexican wolf by any person if the take is
unintentional and occurs while the person is engaging in an otherwise
lawful activity. Such take must be reported as specified in accordance
with paragraph (k)(6) of the regulations. Hunters and other shooters
have the responsibility to identify their quarry or target before
shooting, thus shooting a wolf as a result of mistaking it for another
species will not be considered unintentional take. Take by poisoning
will not be considered unintentional take.
(56) Comment: Another problem with take by poisoning not being
included as unintentional take exists with the use of livestock
protection collars (LPCs) that use Compound 1080 or some other
poisoning agent. LPCs are licensed and approved for use in New Mexico
as a predator damage management tool. Livestock producers and
government employees can be licensed to use these devices. The
poisoning agent in LPCs is released when a predator physically bites
the collar. Thus, for these devices to take a Mexican wolf, the wolf
would have to be engaged in the act of biting the animal wearing the
LPC. The Service should include provisions for the use of LPCs in the
experimental population rule.
Our response: Take by poisoning will not be considered
unintentional take. Poisoning is nondiscriminatory, and if allowed,
LPCs on livestock that died for reasons other than Mexican wolf
predation could result in Mexican wolf mortalities for those that were
scavenging on dead carcasses.
Comments From Tribes
(57) Comment: Any changes to the rule must include assurances that
funding from the Service will continue, which will allow Tribes to
effectively manage Mexican wolves that enter tribal trust lands. If
changes result in a significant increase in Mexican wolves on tribal
trust lands, funding from the Service should increase correspondingly.
The Service needs to provide assurances to the tribes that any Mexican
wolves moving onto tribal trust lands will be managed according to
tribal authorities and increased funding for the Tribe to manage these
additional wolves.
Our response: The Service's funding is allocated annually by
Congress; therefore, we are not able to provide assurances in a final
rule regarding funding to Tribes for management of Mexican wolves.
However, it is our intent to continue to provide funding to Tribes as
it is available for the management of Mexican wolves on their tribal
lands.
(58) Comment: Further information was requested on the total number
of reintroduced Mexican wolves that will be needed to achieve a viable
and self-sustaining population goal. Further, the projected timeframe
was requested for when the Service has considered achieving an adequate
population in which the Mexican wolf will no longer be considered
endangered and require special designation.
Our response: The Service has not yet completed a revised recovery
plan that would describe the total number of Mexican wolves, and the
timeframe, needed to achieve a viable and self-sustaining population
such that the protections of the Act would no longer be needed.
However, we have provided for a population objective of 300-325 Mexican
wolves within the MWEPA in this final rule.
(59) Comment: Clarify which Mexican wolves on which lands will
contribute toward reintroduction and recovery objectives. The 1998
Final Rule speaks to a population objective of at least 100 wolves
within the MWEPA. The MWEPA defined by the current proposed rule
revision does not include tribal lands, thus the significant
contribution of the White Mountain Apache Tribe to Mexican wolf
[[Page 2536]]
conservation is masked on the front end, even as the total number of
wild Mexican wolves counted each year includes those on tribal lands
and thus masks how short the Service is falling in achieving its
objective of establishing a population of at least 100 wolves on non-
tribal lands.
Our response: The 1998 Final Rule included tribal lands within the
MWEPA, although they were not included in the BRWRA. At the request of
the White Mountain Apache Tribe, we do not identify the number of
Mexican wolves or packs on the Fort Apache Indian Reservation; however,
those numbers are included in the overall Arizona population count, as
they are important contributions to the experimental population. We
will develop recovery criteria in a revised Mexican Wolf Recovery Plan,
which will include a determination of how many Mexican wolves are
needed for recovery as well as other measures of threat alleviation; we
intend for the experimental population in the MWEPA (including wolves
on participating tribal lands) to function as a population contributing
to the delisting criteria. However, as provided in this final rule, the
Service or a designated agency may develop and implement management
actions in cooperation with willing tribal governments on tribal trust
land within Zones 1 and 2 of the MWEPA, including: Occupancy by natural
dispersal; initial release; translocation of Mexican wolves onto such
lands; and capture and removal of Mexican wolves from tribal trust land
if requested by the tribal government. Thus, we recognize that even a
participating tribe may request the removal of Mexican wolves from
their tribal trust lands at any time.
(60) Comment: The Service has not provided a revised draft copy of
the 1982 Mexican Wolf Recovery Plan, which will impact the proposed
revision to the regulations for the experimental population of the
Mexican wolf. The proposed revisions would have more validity and it
would be easier to understand the impacts if there was a clear recovery
goal.
Our response: We have not yet completed a revised recovery plan
that would articulate objective and measurable recovery criteria for
the species. We intend to revise the recovery plan as soon as feasible.
(61) Comment: Make it explicit that tribal-acquired lands that have
not been reserved by Congress cannot be included in the ``tribal
lands'' for which the Service intends to allow tribal development of
management plans and/or execution of other wolf management activities.
Clearly, tribal trust lands (which include, but may not be limited to,
designated Reservation lands) are different than fee-simple lands
acquired by Tribes. State wildlife management authorities do not extend
to Reservations, but they do extend to private lands that Tribes
acquire through purchase or lease, and which are not held in trust by
the Federal Government.
Our response: In this final rule, we have defined tribal trust land
to mean any lands title to which is either: (1) Held in trust by the
United States for the benefit of any Indian tribe or individual; or (2)
held by any Indian tribe or individual subject to restrictions by the
United States against alienation. For purposes of this rule, tribal
trust land does not include land purchased in fee title by a Tribe. We
consider fee simple lands purchased by Tribes to be private land for
purposes of development and implementing management actions to benefit
Mexican wolf recovery, under paragraph (k)(9)(ii) of the regulations.
(62) Comment: The Service needs to evaluate impacts to the Tribe's
trophy elk program and subsequent loss of revenue if Mexican wolves
from the Tonto National Forest move onto Reservation lands. The
proposed revisions' failure to separately identify big game depredation
is a major flaw. The San Carlos Apache Tribe's elk hunts are recognized
worldwide as exceptional big game hunting experiences. The Tribe and
its member outfitters benefit economically from elk and deer hunts on
the Reservation. The proposed revision, by concentrating on livestock
depredation, fails to recognize the importance of big game hunting to
the Tribe and the importance of harvest of game by hunters on the
Reservation.
Our response: The Service has done this evaluation. As part of the
economic analysis associated with the EIS, we utilized available
information in our impact analysis for biological resources and the
hunting economic sector in the project area. We found that trends in
hunter visitation and success rates since 1998 in the areas occupied by
Mexican wolves are stable or increasing based on the number of licensed
hunters and hunter success rates. Further, Tribes that do not want
Mexican wolves on their tribal trust land can request removal of
wolves, and our final rule allows for the take of Mexican wolves due to
unacceptable impacts to wild ungulate herds as defined by State
management objectives, which will serve as mitigation for any herds
that may suffer heavier predation impacts. Therefore, we do not foresee
a significant economic impact to a substantial number of small entities
associated with hunting activities.
(63) Comment: Provisions for take of Mexican wolves on the
Reservation should exist and should not be equated with private land
take. Tribes are sovereign and should not be viewed as the equivalent
to private or public land.
Our response: The Service recognizes the unique government-to-
government relationship between Indian Tribes and the United States.
Furthermore, the Service recognizes that Indian lands are not Federal
public lands or part of the public domain, and are not subject to
Federal public land laws. They were retained by Tribes or were set
aside for tribal use pursuant to treaties, statutes, judicial
decisions, executive orders, or agreements. These lands are managed by
Indian Tribes in accordance with tribal goals and objectives, within
the framework of applicable laws. Mexican wolves on all land, including
tribal reservations, within the MWEPA will be managed under the
proposed 10(j) rule. Under their sovereign authority Tribes have the
option of allowing Mexican wolves to occupy tribal trust land or to
request their removal. Tribes will also have the option to enter into
voluntary agreements with the Service for the management of Mexican
wolves on tribal trust land. No agreement is necessary for the capture
and removal of Mexican wolves from tribal trust land if requested by
the tribal government. In this final rule, tribal members can harass a
wolf (considered nonlethal take) exhibiting nuisance behavior or
habituation; take (including kill or injure) any Mexican wolf in the
act of killing, wounding, or biting domestic animals (specifically
livestock and pet dogs) on tribal land, and take (which includes
killing as well as nonlethal actions such as harassing, harming, and
wounding) a Mexican wolf in self-defense or defense of the lives of
others. Also, in conjunction with a removal action authorized by the
Service, the Service or a designated agency may, under certain
circumstances, issue permits to allow domestic animal owners or their
agents to take (including kill or injure) any Mexican wolf that is
present on non-Federal land anywhere within the MWEPA.
(64) Comment: The proposed revision fails to address the Tribe's
concerns and objections pertaining to livestock and game depredation by
the Mexican wolf on Tribal trust land. Any attempts to compare the
effects of depredations on the Reservation with the effects of
depredations that have occurred in the MWEPA are unavailing to the
Tribe's view, because of the disproportionate economic impact upon the
Tribe and its
[[Page 2537]]
members. The Service's lack of Federal funding to compensate State and
Tribal livestock operators for depredation issues is a concern for
Tribal livestock operators.
Our response: The Service evaluated the impacts of livestock and
game depredation by Mexican wolves within the economic analyses
associated with the EIS pursuant to the NEPA process, including an
environmental justice analysis to consider impacts to Native American
tribes. In addition, a document was developed by a Tribal subgroup of
the Mexican Wolf Recovery Team, titled, ``Tribal Perspectives on
Mexican Wolf Recovery.'' This document presents the various
perspectives that Tribes may have regarding the Mexican Wolf Recovery
Program. Perspectives include cultural, traditional, economic, legal,
and social considerations that are important for the Service and other
agencies to understand when implementing Mexican wolf recovery on or
near Tribal lands. As sovereign nations, Tribes have authority over
their lands and, thus, have a unique relationship with federal
agencies. Regarding compensation for livestock depredations, both the
San Carlos Apache Tribe and the White Mountain Apache Tribe have
participated on the Mexican Wolf/Livestock Coexistence Council to
develop compensation guidelines and a long-term coexistence plan. The
Coexistence Council is now in the process of seeking funding from
private and public sources.
(65) Comment: No additional reintroductions of Mexican wolves
should take place in Arizona or New Mexico until reintroduction in
prime areas in Mexico is ongoing and Mexico is fully committed to the
program; the Arizona Game and Fish Department has primary control of
the program in Arizona; the Service provides Tribes with adequate
funds; and section 10(j) of the Act has been utilized to allow take of
Mexican wolves killing, wounding, biting, chasing, threatening, or
harassing humans, pets, or livestock on private land, subject to
reasonable notice and reporting requirements.
Our response: Currently, Mexico is reintroducing Mexican wolves
from the captive population into their historical range in Mexico, in
accordance with their laws and their recovery plan for the Mexican
wolf. The Service only has regulatory authority within the United
States, and it is our mission to work with others to conserve, protect,
and enhance fish, wildlife, and plants and their habitats for the
continuing benefit of the American people. In this final rule, we allow
for: (1) Designated agencies, including the Arizona Game and Fish
Department and tribes, to assist in implementing this rule, (2) Take in
defense of human life (Under section 11(a)(3) of the Act and 50 CFR
17.21(c)(2), any person may take (which includes killing as well as
nonlethal actions such as harassing or harming) a Mexican wolf in self-
defense or defense of the lives of others.); and (3) on non-Federal
lands anywhere within the MWEPA, domestic animal owners or their agents
may take (including kill or injure) any Mexican wolf that is in the act
of biting, killing, or wounding a domestic animal, as defined in
paragraph (k)(3) of this section.
(66) Comment: Describe how Mexican wolf management on Tribal and
non-Tribal lands in both Arizona and New Mexico will be coordinated to
ensure that neither positive nor negative impacts of Mexican wolf
reintroduction will fall disproportionately on Tribes or on non-Tribal
interests.
Our response: Because the regulatory burden of Mexican wolf
recovery rests on Federal land, this final rule has been modified to
allow for separate take provisions on Federal and non-Federal land
(which includes tribal land) to allow for more flexibility in
management of problem wolves on non-Federal land. The Service will
continue to communicate with local communities and Tribes regarding the
management of wolves on tribal and non-tribal lands in both Arizona and
New Mexico through our Web site, conference calls, webinars, and face-
to-face meetings. The Service is committed to ensuring that negative
impacts of Mexican wolf reintroduction will not fall disproportionately
on tribes. To this end, we have included a provision for the
development of management agreements with any tribe that wishes to
participate in the reintroduction and host Mexican wolves on their
land. Tribes that do not want Mexican wolves on their tribal trust land
can request removal of wolves. We have excluded tribal land in our
definition of occupied Mexican wolf range related to due care for
trapping activities.
(67) Comment: Some tribes acknowledged that the Mexican wolf plays
an integral predatory role in the ecosystem and was once a traditional
species. It was the Tribe's opinion that the current experimental
population of the Mexican wolf should remain at the current
designation.
Our response: With this final rule, we revise the 1998 Final Rule
to improve the effectiveness of our reintroduction project. Over time
and through input from our partners, we recognized the need to revise
the 1998 Final Rule to help us enhance the growth, stability, and
success of the experimental population. The revisions include allowing
Mexican wolves to be released in a larger area as well as allowing them
to disperse throughout and occupy the MWEPA.
(68) Comment: One Tribe stated that the proposed revision to the
regulations for the experimental population of the Mexican wolf
expansion and reintroduction efforts of the Service on tribal trust
lands is against traditional beliefs and further consultation on
Traditional Ecological Knowledge regarding wolves with the Tribes is
warranted.
Our response: The Service would appreciate invitations from Tribes
for consultation on Traditional Ecological Knowledge regarding wolves.
The reintroduction program would benefit from incorporating Traditional
Ecological Knowledge of Mexican wolves that historically occurred in
Arizona and New Mexico into our knowledge base. For example, a study on
the cultural aspects of Mexican wolves was recently completed in 2009
with White Mountain and San Carlos Apache Tribes. As noted in responses
to comments above, tribes have the ability under this final rule to
request the removal of Mexican wolves from their tribal trust lands.
(69) Comment: The Service has not disclosed the number of Mexican
wolves proposed to be released and the location of release sites within
the State of Arizona.
Our response: Chapter 1 and Appendix D of the EIS describe the
number of initial releases we expect to conduct in order to improve the
genetic composition of the experimental population (one to two packs of
Mexican wolves every 4 years). We will work with Tribes and partner
agencies to identify appropriate release sites based on criteria that
address adequate prey and avoidance of human conflicts; Appendix D of
the EIS provides more information on current initial release sites and
our process for selecting sites in the future in the discussion of
Alternative One.
(70) Comment: One Tribe expressed concerns regarding the Service's
justification of further introduction of the Mexican wolf in Arizona.
They stated that according to the Service's current data, the State of
Arizona accounts for only 15 to 18 percent of suitable habitat for the
Mexican wolf in its entire historical range. The Tribe recommended that
reintroduction efforts be concentrated and focused on historical home
range in Mexico. It is the Tribe's opinion that the Mexican
[[Page 2538]]
wolf should be reintroduced in Mexico and allowed to naturally disperse
from its historical habitat and range.
Our response: Maps of the Mexican wolf's historical range are
available in the scientific literature (Young and Goldman 1944, p. 414;
Hall and Kelson, 1959, p. 849; Hall 1981, p. 932; Bogan and Mehlhop
1983, p. 17; Nowak 1995, p. 395; Parsons 1996, p. 106). Depiction of
the northern extent of the Mexican wolf's historical range among the
available descriptions varies depending on the authors' taxonomic
treatment of several subspecies that occurred in the Southwest and
their related treatment of intergradation zones. There is evidence
indicating that the Mexican wolf may have ranged north into southern
Utah and southern Colorado within zones of intergradation where
interbreeding with other gray wolf subspecies may have occurred
(Leonard et al. 2005, pp. 11 and 15). In any case, the Service is
currently working with the Mexican Government on Mexican wolf
conservation and reintroduction in northern Mexico. However, the
southwestern United States is also an important area for the recovery
of the Mexican wolves, and, thus, we will continue with the
reintroduction and management of Mexican wolves in the MWEPA.
(71) Comment: The Service has indicated there is no Federal funding
for future Mexican wolf recovery efforts and Tribes can develop their
own Mexican Wolf Management Plans, with Federal approval, including
take measures with certain restrictions. Based on tribal sovereignty
and the tribes' rights to manage their natural resources, it was the
opinion of one tribe that they have the right to develop their own wolf
management plan, including take measures that are in the best interest
of the Tribe. If Federal funding is available to tribes, the tribe will
comply with Federal requirements and comply with Federal approval of
tribe's proposed wolf management plans.
Our response: The Service will explore Statements of Relationship
with individual Tribes as well as assist with the development of Tribal
Wolf Management Plans. Such plans, once approved by the Service, would
provide the Tribe with authorization for implementation of take
measures, as provided for in this final rule.
(72) Comment: Expand the MWEPA from the United States-Mexico border
to the border of Utah and Colorado, throughout the entire States of
Arizona and New Mexico. This would eliminate the need for a special
management plan in areas outside the MWEPA in Arizona and New Mexico.
Our response: The 1998 Final Rule enabled us to release Mexican
wolves from the captive population into the wild to determine if it was
possible to establish a wild population following the extirpation of
the species in the early 1970s. Since 1998, we have demonstrated
success in establishing a wild population (e.g., a minimum of 83
Mexican wolves in the wild, all of which are wild born as of December
2013). However, we are now expanding the MWEPA and revising the
regulations to the 1998 Final Rule so that we can improve the
effectiveness of the reintroduction project to achieve the necessary
population growth, distribution, and recruitment, as well as genetic
variation within the Mexican wolf experimental population so that it
can contribute to recovery in the future. Following this phase of
improving the existing experimental population, we intend to revise the
Mexican wolf recovery plan so that it provides a recovery goal and
objective recovery criteria. Implementation of the revised recovery
plan may necessitate revision to this regulation for the experimental
population in the MWEPA or the development of regulations associated
with the establishment of one or more populations in other areas in the
future, which will include any necessary analysis pursuant to NEPA. If
these actions took place north of I-40, coordination with the States of
Colorado and Utah, in addition to Arizona and New Mexico, would be
required. Because we do not have a revised recovery plan at this time
to guide us on where Mexican wolves are needed to reach full recovery
(i.e., delisting), we are limiting the revised MWEPA to areas south of
Interstate 40 in Arizona and New Mexico.
(73) Comment: Identify the region north of Interstate 40 as a ``no
go'' or ``relocate'' zone, and relocate Mexican wolves that enter this
area back to the MWEPA, retaining the 10(j) flexibility to harass, and
otherwise manage wolves moving north. This would help all entities
manage Mexican wolves moving north; would help maintain the separation
between the northern gray wolf populations and the reintroduced Mexican
wolf; expand the flexibility of the Service in working with Pueblos,
Tribes, private landowners and States; and avoid the abrupt shift in
management between areas.
Our response: We discuss our rationale for not including the region
north of Interstate 40 as part of the MWEPA in our discussion of
Alternatives Eliminated from Further Consideration in Chapter 2 of the
EIS (Service 2014, Chapter 2, p. 5-7). While we recognize the
importance of natural dispersal and colonization/recolonization of
unoccupied habitat, which expands the species' range, our purpose in
proposing changes to the 1998 Final Rule is to improve the
effectiveness of the reintroduction project to achieve the necessary
population growth, distribution, and recruitment, as well as genetic
variation within the Mexican wolf experimental population so that it
can contribute to recovery in the future. Following this phase of
improving the existing experimental population, we intend to revise the
Mexican wolf recovery plan so that it provides a recovery goal and
objective recovery criteria, which may require further revision to this
regulation for the experimental population in the future including any
necessary analysis pursuant to NEPA. Future revisions may include an
expansion of the MWEPA north of I-40, and such a revision would require
coordination with the States of Colorado and Utah. Because we do not
have a revised recovery plan at this time to guide us on where Mexican
wolves are needed to reach full recovery (i.e., delisting), we are
limiting the revised MWEPA to areas south of Interstate 40 in Arizona
and New Mexico.
(74) Comment: Establish clear relocation guidelines.
Our response: We currently have criteria for initial releases and
translocations of Mexican wolves for the BRWRA, which include distance
from towns and dwellings that are occupied year-round and adequate prey
abundance. We will continue to use these criteria pending completion of
a new management plan, which will include similar provisions.
(75) Comment: On maps of potential habitat or of expanded areas,
include tribal lands and possibly indicate those with resolutions that
permit Mexican wolves or demand removal as separate categories. For
example, Fort Apache Indian Reservation is often indicated, and permits
Mexican wolves, whereas San Carlos Indian Reservation demands removal,
but is not indicated separately from other 10(j) populations.
Our response: The Fort Apache Indian Reservation is included in the
map of our revised 10(j) rule because they have been an important
partner in Mexican wolf reintroductions and we wanted to show the
public where this Reservation is located in relation to the rest of our
initial release areas (Zone 1). We include a map (Figure 3-5 in the
final EIS) of tribal land and suitable habitat
[[Page 2539]]
in the project area (Service 2014, Chapter 3 p. 33).
Comments From the Public
Comments on Legal Compliance With Laws, Regulations, and Policies
(76) Comment: Several commenters stated that Mexican wolves should
be considered essential rather than nonessential under the revised
10(j) designation. When the current rule declared Mexican wolves in the
wild ``nonessential,'' there were only 11 wolves, recently released
from a captive-breeding program, and they made up only 7 percent of all
Mexican wolves in the world. Now the 75 wolves in the wild have up to
four generations of experience in establishing packs and raising pups
and make up more than 22 percent of all of the Mexican wolves in the
world. After four generations of captive breeding with few releases,
scientists warn that there may be serious genetic problems making
captive wolves less able to thrive in the wild. The fourth generation
of wild lobos is not expendable and is essential to recovering this
unique subspecies of wolf. Mexican wolves should have full protection
under the Endangered Species Act.
Our response: This experimental population was originally
designated in 1998, including the determination that it was
nonessential. Nothing in this rule changes the scope of that
designation. The Mexican wolf population that is in the wild in Arizona
and New Mexico today is the experimental population that was designated
in the 1998 Final Rule. This rule revises only the management
regulations that apply to the population. Therefore, reconsideration of
whether the population is essential or nonessential is outside the
scope of this rulemaking. See also, Designation of Experimental
Population as Essential or Nonessential, below.
(77) Comment: Some commenters suggested that designation of the
Mexican wolf as nonessential means that it is not endangered, and,
therefore, there is no reason to reintroduce it.
Our response: The Mexican wolf remains an endangered species under
the Act. The nonessential experimental population designation is a
classification for a geographic area designed to make the
reintroduction and management of endangered species more flexible and
responsive to public concerns to improve the likelihood of successfully
recovering the Mexican wolf.
(78) Comment: Many commenters were concerned that the Service did
not use the best available science.
Our response: As required by section 4(b) of the Act, we used the
best scientific and commercial data available in making this final
determination. We solicited peer review on the proposed revision to the
regulations for the experimental population of the Mexican wolf from
knowledgeable individuals with scientific expertise that included
familiarity with the species, the geographic region in which the
species occurs, and conservation biology principles to ensure that our
final 10(j) rule is based on scientifically sound data, assumptions,
and analysis. Additionally, we requested comments or information from
other concerned governmental agencies, Native American Tribes, the
scientific community, industry, and any other interested parties
concerning the proposed rule. Comments and information we received
helped inform this final rule. We used multiple sources of information
including: Results of numerous surveys, peer-reviewed literature,
unpublished reports by scientists and biological consultants,
geospatial analysis, monitoring data from the BRWRA, and expert opinion
from biologists with extensive experience studying wolves and their
habitat.
In addition, we have complied with our policy on information
standards under the Act (published in the Federal Register on July 1,
1994 (59 FR 34271)), the Information Quality Act (section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Pub. L. 106-554; H.R. 5658)), and our associated Information Quality
Guidelines, which provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. Information sources may include the recovery plan for
the species, peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, other unpublished materials, or experts' opinions or
personal knowledge. Although some of these documents were not published
in peer-reviewed journals, they still contain credible scientific
information and represent the best scientific and commercial data
available.
(79) Comment: The proposed rule does not address the social and
economic impacts with the proposal to introduce, reintroduce, or
translocate wolves.
Our response: We have addressed the various benefits and costs
associated with this rulemaking as required by the Regulatory
Flexibility Act, Small Business Regulatory Enforcement Fairness Act,
and NEPA in the Required Determinations section. Our EIS assesses
economic impacts associated with this rule on livestock production,
hunting, and tourism.
(80) Comment: Eliminate the requirement for a 5-year review and
replace it with a provision requiring annual monitoring and evaluation
presented in annual reports released within 3 months of the annual
population count conducted in January of each year. This is the current
practice of the Interagency Field Team.
Our response: We put the reporting requirement in the regulations
of this revised 10(j) designation because it is a requirement under 50
CFR 17.81(c)(4), which says that any regulation promulgated under
paragraph (a) of the section shall provide a process for periodic
review and evaluation of the success or failure of the release and the
effect of the release on the conservation and recovery of the species.
We are not replacing the 5-year review provision with one requiring
annual monitoring and evaluation presented in annual reports because
the annual reports do not evaluate the success or failure of the 10(j)
designation in relation to the conservation and recovery of the Mexican
wolf as required by 50 CFR 17.81(c)(4).
Comments on Geographic Boundaries of the Revised Mexican Wolf
Experimental Population Area
(81) Comment: The Interstate 40 boundary of the MWEPA is arbitrary
and inconsistent with best science. Mexican wolves should be able to
disperse freely outside of the MWEPA, consistent with other 10(j)
populations (including wolves in the Northern Rocky Mountains
experimental population). Where Mexican wolf conservation is in
desperate need of additional areas to establish territories, there is
no rationale for such removals here.
Our response: While we recognize that Mexican wolf conservation is
in need of additional areas to establish territories, we have expanded
the MWEPA to allow natural dispersal and colonization/recolonization of
unoccupied habitat, which expands the species' range. Our purpose in
proposing changes to the 1998 Final Rule is to improve the
effectiveness of the reintroduction project to achieve the necessary
population growth, distribution, and recruitment, as well as
[[Page 2540]]
genetic variation within the Mexican wolf experimental population so
that it can contribute to recovery in the future. Following this phase
of improving the existing experimental population, we intend to revise
the Mexican wolf recovery plan so that it provides a recovery goal and
objective recovery criteria, which may require further revision to this
regulation for the experimental population in the future including any
necessary analysis pursuant to NEPA. Because we do not have a revised
recovery plan at this time to guide us on where Mexican wolves are
needed to reach full recovery (i.e., delisting), we are limiting the
revised MWEPA to areas south of Interstate 40 in Arizona and New
Mexico. Whether areas north of Interstate 40 are important for the
conservation and recovery of the Mexican wolf will be addressed in a
future revised recovery plan. This issue is further discussed in
Chapter 2, Alternatives Eliminated from Further Consideration, of the
final EIS (Service 2014, Chapter 2, p. 5-7).
(82) Comment: The proposed MWEPA is not enough for recovery and
much of the range that is proposed will not ever actually be suitable
for reintroduction. Therefore, more range needs to be included as there
is more suitable habitat that is available within public lands that was
part of the Mexican wolf historical range. This includes public lands
north of Interstate 40, within the area of the Grand Canyon in Arizona,
and the mountains in northern New Mexico, such as the Jemez and Sangre
de Cristo Mountains and southern Colorado. Provisions in the proposed
rule effectively prevent Mexican wolves from returning to the Grand
Canyon region, including northern Arizona and southern Utah, or to
northern New Mexico and southern Colorado. The Service should eliminate
these arbitrary boundaries to the wolves' movement in order to
facilitate their recovery. These areas are essential for Mexican wolf
recovery.
Our response: This MWEPA represents just one phase of Mexican wolf
recovery. We acknowledge that additional recovery areas are likely to
be needed in the future to recover the Mexican wolf and remove it from
the List of Endangered and Threatened Species. These areas will be
identified in future recovery planning efforts.
(83) Comment: Do not remove the portion of west Texas from the
MWEPA.
Our response: Texas was removed from the MWEPA because this area is
not likely to contribute substantially to our purpose and need, and it
is very unlikely that Mexican wolves will disperse into Texas because
of the lack of suitable habitat. We do not expect Mexican wolves to
occupy the small portion of Texas that was previously in the MWEPA
because ungulate populations are inadequate to support Mexican wolves
there.
(84) Comment: Mexican wolves should not be allowed to occupy the
entire MWEPA. The BRWRA and the Fort Apache Indian Reservation contain
over 9,000 square miles (23,310 square kilometers), which is adequate
to support at least 100 Mexican wolves in the middle to high elevations
of a 5,000-square-mile (12,950-square-kilometer) area within the
Mexican wolf's historic range.
Our response: We have expanded the MWEPA with this final rule in
order to further the conservation of the Mexican wolf. We do not expect
Mexican wolves to occupy the entire MWEPA, but we do expect them to
occupy areas of suitable habitat where ungulate populations are
adequate to support them and conflict with humans and their livestock
would be low. A larger population of Mexican wolves distributed over a
larger area has a higher probability of persistence than a small
population in a small area (Service 2014, Chapter 1, pp. 31-32).
(85) Comment: It is inappropriate for the 10(j) rule to prescribe
the management of Mexican wolves outside the 10(j) designated area
(i.e., to bring back wolves that disperse beyond the MWEPA). Prior to
approving a take permit for wolves outside the MWEPA, the Service will
have to evaluate the potential for any such take to be a major Federal
action significantly impacting the environment pursuant to NEPA. At a
minimum, the Service must complete an environmental assessment
(relevant law suit citation provided).
Our response: Although we mentioned in the preamble our intent to
manage Mexican wolves that disperse outside the MWEPA, we do not have
any language in the regulations that prescribes management of Mexican
wolves outside the 10(j) designated area. However, we are going to
issue a section 10(a)(1)(A) permit to allow for certain activities with
Mexican wolves that occur outside the MWEPA. Under this permit we will
authorize removal of Mexican wolves that can be identified as coming
from the experimental population that disperse and establish
territories in areas outside of the MWEPA. Also, in compliance with
NEPA (42 U.S.C. 4321 et seq.), we have included an analysis of the
environmental effects of the permit as part of our EIS.
(86) Comment: The rule proposes to capture Mexican wolves
dispersing beyond the boundaries of the current MWEPA. The Service's
own Mexican Wolf Recovery Team scientists (Science and Planning
Committee) have written that establishment of additional populations
will be required to achieve recovery, and that the most suitable
habitat to support these populations lies to the north of Interstate
40. This position is also articulated in a recent peer-reviewed journal
article (Carroll et al. 2014). A commitment to capture Mexican wolves
leaving the MWEPA is inconsistent with best available scientific
information. At the very least, the MWEPA should be expanded to extend
northward to Interstate 70.
Our response: This final rule to revise the regulations for the
experimental population of the Mexican wolf that was established in the
1998 Final Rule represents one phase in our approach to recovery and
delisting. The 1998 Final Rule enabled us to release Mexican wolves
from the captive population into the wild to determine if it was
possible to establish a wild population following the extirpation of
the species in the early 1970s. Since 1998, we have demonstrated
success in establishing a wild population (e.g., a minimum of 83
Mexican wolves in the wild, all of which are wild born as of December
2013). However, we are now expanding the MWEPA and revising the
regulations to the 1998 Final Rule so that we can improve the
effectiveness of the reintroduction project to achieve the necessary
population growth, distribution, and recruitment, as well as genetic
variation within the Mexican wolf experimental population so that it
can contribute to recovery in the future. Following this phase of
improving the existing experimental population, we intend to revise the
Mexican wolf recovery plan so that it provides a recovery goal and
objective recovery criteria, which may require further revision to this
regulation for the experimental population in the future including any
necessary analysis pursuant to NEPA. Because we do not have a revised
recovery plan at this time to guide us on where Mexican wolves are
needed to reach full recovery (i.e., delisting), we are limiting the
revised MWEPA to areas south of Interstate 40 in Arizona and New
Mexico.
(87) Comment: According to the 1998 Final Rule, the White Sands
Wolf Recovery Area was specifically intended to serve as a
reintroduction area in the event that the initial goal of 100 wolves
was not reached within the BRWRA, which is exactly what has occurred.
In removing that obligation, fluctuating prey numbers in this recovery
area should not serve as a rationale to continue to neglect it as an
important
[[Page 2541]]
tool in ameliorating inbreeding and in conserving the Mexican wolf.
Our response: While the White Sands Wolf Recovery Area, as
designated in the 1998 Final Rule, lies within the probable historical
range of the Mexican wolf, and could be an important reestablishment
site if prey densities increased substantially, it is now considered a
marginally suitable area for Mexican wolf release and reestablishment
primarily due to the low density of prey. For these reasons the Mexican
Wolf Blue Range Reintroduction Project 5-Year Review recommended that
any amended or new Mexican wolf experimental population rule not
include the White Sands Missile Range as a Mexican Wolf Recovery Area
or as a reintroduction zone (AMOC and IFT 2005, p. ARC-3); our current
habitat analysis supports that recommendation (Service 2014, Section
1.2.14.1 and Figure 1-21).
Comments on Definitions
(88) Comment: The definition of ``occupied range'' is problematic
and inappropriate, because radio-collared locations are not instantly
known to Wildlife Services personnel but are reported in a delayed
manner on Service's Web site. This only informs Wildlife Services where
the wolves were the last time the radio-collared locations were
determined. They are not real time, but are at least a month old. Also,
Mexican wolves move around much more than 5 miles a day.
Our response: We have changed the definition of ``occupied Mexican
wolf range'' to mean an area of confirmed presence of Mexican wolves
based on the most recent map of occupied range posted on the Service's
Mexican Wolf Recovery Program Web site at http://www.fws.gov/southwest/es/mexicanwolf/. The Service will continue to coordinate with Wildlife
Services on an informal basis. Wildlife Services personnel are on the
Interagency Field Team and have access to weekly flight locations, thus
Wildlife Services is informed when Mexican wolves are located in
unexpected areas.
(89) Comment: We believe ``problem wolves'' should be amended as
follows: (1) Are members of a group or pack (including adults and
yearlings) that were directly involved in livestock depredation on
lawfully present livestock two times in an area within 1 year, or (2)
have depredated domestic animals other than livestock on private or
tribal lands, two times in an area within 1 year; or (3) are habituated
to humans, human residence, or other facilities regularly occupied by
humans.
Our response: We have defined ``problem wolves'' as Mexican wolves
that, for purposes of management and control by the Service or its
designated agent(s), are:
(i) Individuals or members of a group or pack (including adults,
yearlings, and pups greater than 4 months of age) that were directly
involved in a depredation on lawfully present domestic animals;
(ii) Habituated to humans, human residences, or other facilities
regularly occupied by humans; or
(iii) Aggressive when unprovoked toward humans.
The 1982 Amendments to the Act, which created section 10(j), were
designed to provide the Service with administrative flexibility to
manage experimental populations of listed species. This definition
provides the Service with flexibility regarding how to manage problem
wolves, whereas the suggestion in the comment does not.
(90) Comment: In the definitions of ``Predation'' and ``Problem
wolves'', ``lawfully present livestock'' should be revised to include
``. . . or on legal allotments (not trespassing and observing all
requirements of the allotment operating instructions) on Federal
lands.'' The definition of ``lawfully present livestock'' needs to be
clarified to include the permittee's obligation to follow U.S. Forest
Service (USFS) operating instructions as a condition of the privilege
of grazing on public lands.
Our response: A permittee's obligation to follow USFS operating
instructions is beyond the purview of these revised regulations to the
experimental population. It is the responsibility of the USFS, Bureau
of Land Management, State Land Commissions, and private landowners who
lease grazing allotments to make sure that their permittees are
complying with the terms and agreements of the leased allotments.
Lawfully present livestock does not include livestock that is
considered to be trespassing on Federal or other lands.
General Comments
(91) Comment: The proposed rule must not include expanded
provisions for take of these critically endangered wolves. Science-
based program reviews have shown that the killing and permanent removal
of Mexican wolves by agency managers to resolve conflicts has been a
major cause of failing to meet the reintroduction objective. The
proposed rule changes offer additional excuses for removing wolves. The
Service needs to tighten restrictions for take of Mexican wolves, not
loosen them.
Our response: Nothing in this rule requires an increase in the
killing or permanent removal of Mexican wolves. The purpose of this
final 10(j) revision is to further the conservation of the Mexican wolf
by improving the effectiveness of the reintroduction project in
managing the experimental population. We have included modifications to
the management regulations that govern take of Mexican wolves in this
final rule to mitigate impacts caused by Mexican wolves and to increase
our management flexibility in recognition that our action area includes
a wider matrix of land ownership type and habitat quality than the
previous BRWRA. The experimental population has grown each year since
2009, when the minimum Mexican wolf population count was 42. The
Mexican wolf minimum population count was 83 in 2013. We expect that
modifying the provisions governing the take of Mexican wolves will
contribute to our efforts to find the appropriate balance between
enabling wolf population growth and minimizing nuisance and depredation
impacts on local stakeholders.
(92) Comment: Traps, including both leg-hold traps and snares,
should not be allowed where Mexican wolves are at risk. There is no way
to exclude a Mexican wolf from a coyote trap. The injuries that Mexican
wolves can sustain in traps can be severe and life-threatening. It is
an avoidable source of harm.
Our response: Incidents of Mexican wolf injuries and mortalities
from trapping targeted at other animals have been low. Since
reintroductions began in 1998 and have continued through December 31,
2013, we are aware of 25 incidents in which Mexican wolves were
captured in nongovernmental (private) traps; at least 7 have been
severely injured, and at least 3 have died as a result of injuries or
activities associated with being captured in a leg-hold trap. More
information about trapping and threats can be found in the final rule
determining endangered status for the Mexican wolf, which published
elsewhere in this Federal Register. The Service and designated agencies
will continue to use leg-hold traps as an effective method to manage
Mexican wolves in the wild. For non-project trappers, we have specified
due care criteria, which include: Following the regulations,
proclamations, recommendations, guidelines, and/or laws within the
State or Tribe where the trapping takes place; modifying or utilizing
appropriate size traps, chains, drags, and stakes to reasonably expect
to prevent a wolf from either breaking the
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chain, or escaping with the trap on the wolf, or utilizing sufficiently
small traps (less than Victor 2) to reasonably expect the wolf to
either immediately pull free from the trap, or span the jaw spread when
stepping on the trap; reporting the capture of a Mexican wolf (even if
the wolf has pulled free) within 24 hours to the Service; not taking a
Mexican wolf via neck snares; and if a Mexican wolf is captured,
trappers can call the Interagency Field Team (1-888-459-WOLF [9653]) as
soon as possible to arrange for radio-collaring and releasing of the
wolf. Per State regulations for releasing nontarget animals, trappers
may also choose to release the animal alive and subsequently contact
the Service or Interagency Field Team.
(93) Comment: In regard to trapping, add a provision that trappers
have to check their traps frequently enough to minimize death or
amputation of a Mexican wolf. Trapping within the MWEPA should require
that traps be checked no less than every 24 hours when the lowest
ambient temperature is above freezing and no less than every 12 hours
when the temperature is below freezing. Until the Mexican wolf is past
the insufficient population of 100, the Service should not abdicate its
recovery responsibility to States' varying trapping regulations, which
are not crafted to promote recovery. The Service should incorporate the
best practices from the experience of its Inter-agency Field Team
(IFT). In particular there must be adequate warning to people
approaching traps and the trappers must check the trap as soon as it is
sprung, as well as at least every 24 hours in case the activation
signal is defective.
Our response: See our response immediately above.
(94) Comment: The revised 10(j) rule should state affirmatively
that trapping is allowed within the MWEPA.
Our response: The Service is not authorized to regulate trapping in
the MWEPA. Although we do not state affirmatively in the regulations
that trapping is allowed within the MWEPA, we provide for unintentional
take that occurs despite the use of due care, is coincidental to an
otherwise lawful activity, and is not done on purpose. Taking a Mexican
wolf with a trap, snare, or other type of capture device within
occupied Mexican wolf range is prohibited (except as authorized in
paragraph (k)(7)(viii)(A) of the regulations) and will not be
considered unintentional take, unless due care was exercised to avoid
injury or death to a Mexican wolf as specified in the final rule.
(95) Comment: We need more habitat and more Mexican wolves in the
wild to keep them from inbreeding. Time is of the essence as inbreeding
is already occurring in the captive wolf population.
Our response: This final rule will promote population growth,
genetic diversity, and management flexibility by providing additional
area and locations for initial release of captive Mexican wolves to the
wild. Increased initial releases can improve the genetic composition of
the experimental population because the captive population contains
Mexican wolves with genetic material that is currently unrepresented
(or underrepresented) in the experimental population; therefore,
initial release of the appropriate animals can improve the genetic
composition of the experimental population and minimize the likelihood
of inbreeding. Genetic variation is managed in the captive wolf
population because the Mexican Wolf Species Survival Plan has detailed
lineage information on each captive Mexican wolf and establishes annual
breeding objectives to maintain the genetic diversity of the captive
population (Siminski and Spevak 2014, p. 2).
(96) Comment: Many public comments objected to the killing or
lethal take of Mexican wolves. Commenters noted that there are many
nonlethal methods to keep depredation levels low and that the Service
should require ranchers in the Mexican wolf reintroduction areas to
proactively pursue nonlethal deterrents.
Our response: We and our partners in the reintroduction project
continue to investigate reported depredations and implement a variety
of nonlethal methods to minimize Mexican wolf-livestock conflicts. A
number of provisions in this final rule allow for nonlethal take of
Mexican wolves. However, while preventative and nonlethal control
methods can be useful in some situations, they are not consistently
reliable, so lethal control remains a tool for managing Mexican wolves.
Lethal take of Mexican wolves is most often the management tool of last
resort.
(97) Comment: Wild Mexican wolves should not be captured and
relocated. This activity is a danger to the wild wolves.
Our response: Translocation of Mexican wolves continues to be an
important management tool. In some cases, translocating a wild Mexican
wolf to a new location will disrupt depredation or nuisance behavior
and thus contribute to our efforts to find the appropriate balance
between enabling wolf population growth and minimizing nuisance and
depredation impacts on local communities. As of December 31, 2013, we
have captured 348 individual Mexican wolves, and of these, only 3 have
resulted in capture-related mortalities (see Mexican Wolf Recovery
Program Progress reports from 2001 to 2013 on our Web site at http://www.fws.gov/southwest/es/mexicanwolf/). This level of mortality is
comparable to anesthesia-caused deaths during veterinary procedures and
demonstrates a track record of safely handling Mexican wolves by the
Program.
(98) Comment: Any additional Mexican wolf population introductions
will cause serious harm to deer and elk populations. Please do not
introduce any more Mexican wolves in Arizona or New Mexico.
Our response: In this final rule, we have included provisions
allowing for take of Mexican wolves in response to impacts to wild
ungulates in accordance with certain stipulations. If the States of
Arizona or New Mexico determine that Mexican wolf predation is having
an unacceptable impact to a wild ungulate herd (pronghorn, bighorn
sheep, deer, elk, or bison), the respective State may request approval
from the Service that Mexican wolves be removed from the area of the
impacted ungulate herd. Upon written approval from the Service
following a peer and public review of the data and information
supporting the State's request, the State (Arizona or New Mexico) or
any designated agency may be authorized to remove (capture and
translocate in the MWEPA, move to captivity, transfer to Mexico, or
lethally take) Mexican wolves. Because Tribes are able to request the
capture and removal of Mexican wolves from their tribal trust lands at
any time, take in response to wild ungulate impacts is not applicable
on tribal trust lands. Based on a review of available survey data
between 1998 and 2012, the Arizona Game and Fish Department determined
that while Mexican wolves do target elk as their primary prey source,
including elk calves during the spring and summer season, there was no
discernible impact on the number of elk calves that survive through
early fall periods. A similar finding was made for mule deer (Service
2104, Chapter 4 p. 12-17).
(99) Comment: The Service should develop a comprehensive and
scientifically valid recovery plan that allows for at least three core
populations. The current population in the greater Gila National Forest
would then be one of the three core populations. The current recovery
plan, more than 25 years old, is functionally irrelevant and virtually
useless. The
[[Page 2543]]
2012 draft recovery plan, irrationally scuttled by the Service, should
move forward.
Our response: We acknowledge that a scientifically based population
goal is needed in order to determine when we have achieved recovery.
That population goal will need to be determined in a future revision to
the Mexican Wolf Recovery Plan. We will revise the recovery plan as
soon as feasible. This MWEPA represents just one phase of Mexican wolf
recovery.
(100) Comment: Trapping and the use of M-44's should be banned in
the entire MWEPA. Trapping has already caused significant harm to
individual Mexican wolves. Given the small size of the Mexican wolf
population and the genetic risks associated with the loss of even a
single wolf, the biologically sound, compassionate and precautionary
approach dictates that every protection should be afforded to the
species.
Our response: We have included a provision in this final rule
prohibiting Wildlife Services from using M-44's and choking-type snares
in occupied Mexican wolf range. Taking a Mexican wolf with a trap,
snare, or other type of capture device within occupied Mexican wolf
range is prohibited (except as authorized in paragraph (k)(7)(vii)(A))
and will not be considered unintentional take, unless due care was
exercised to avoid injury or death to a Mexican wolf.
(101) Comment: The revised 10(j) rule does not allow the killing of
a Mexican wolf to protect dogs that defend our livelihood.
Our response: This final rule includes several provisions by which
non-feral dogs may be protected. For instance, anyone may conduct
opportunistic harassment of any Mexican wolf at any time provided that
Mexican wolves are not purposefully attracted, tracked, searched out,
or chased and then harassed. Also, after the Service or its designated
agency has confirmed Mexican wolf presence on any land within the
MWEPA, the Service or its designated agency may issue permits valid for
not longer than 1 year, with appropriate stipulations or conditions, to
allow intentional harassment of Mexican wolves. In addition, we have
provisions on Federal and non-Federal lands to allow for take of
Mexican wolves by livestock guarding dogs, when used in the traditional
manner to protect livestock. Further, on non-Federal lands anywhere
within the MWEPA, domestic animal (includes non-feral dogs) owners or
their agents may take (including kill or injure) any Mexican wolf that
is in the act of biting, killing, or wounding a domestic animal, as
defined in paragraph (k)(3) of the regulations, provided that evidence
of freshly wounded or killed domestic animals by Mexican wolves is
present. Lastly, based on the Service's or a designated agency's
discretion and in conjunction with a removal action authorized by the
Service, the Service or designated agency may issue permits to domestic
animal owners or their agents (e.g., employees, land manager, local
officials) to take (including intentional harassment or killing) any
Mexican wolf that is present on non-Federal land where specified in the
permit.
(102) Comment: Livestock owners should never be allowed to kill
Mexican wolves on public land to protect livestock, nor should they be
allowed to kill them on private land for no reason.
Our response: In order to reduce human-related conflict, we have
included provisions that the Service or designated agency may issue
permits to livestock owners or their agents (e.g., employees, land
manager, local officials) to take (including intentional harassment or
killing) any Mexican wolf that is in the act of biting, killing, or
wounding livestock on Federal land where specified in the permit. These
permits will be based on the Service's or a designated agency's
discretion in conjunction with a removal action authorized by the
Service. Take by permittees under this provision will assist the
Service or designated agency in completing control actions. Also, there
are no provisions in this final rule that allow for the killing of
Mexican wolves on private land for no reason.
(103) Comment: Some commenters believed we are violating the
Service's mission to conserve Mexican wolves by allowing for lethal and
nonlethal take.
Our response: Prior to the 1982 Amendments to the Act, the Service
was authorized to translocate listed species into unoccupied portions
of their historical range in order to aid in the recovery of the
species. Significant local opposition to translocation efforts often
occurred, however, due to concerns over the rigid protection and
prohibitions surrounding listed species under the Act. Section 10(j) of
the 1982 Amendments was designed to resolve this dilemma by providing
new administrative flexibility for selectively applying the
prohibitions of the Act to experimental populations of listed species.
The Service's 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. Nothing in this rule reduces
the ability of the Service to achieve its mission or its responsibility
under the Act to conserve Mexican wolves. Rather, this rule builds on
the establishment of the experimental population and the partnerships
already established with non-Federal entities, States, and Tribes to
manage the Mexican wolf, while recognizing the need to balance recovery
of the Mexican wolf with other human uses in the MWEPA.
(104) Comment: The Service should revise its documents to include
complete genetic analysis from the initial capture of the ancestors of
today's Mexican wolves, including the genetic makeup of the original
animals from which the current population of Mexican wolves is
descended; the numbers of animals analyzed and their identities; the
results of analysis; the cause of dog characteristics in wolf skulls;
and records of any animals in the wild that DNA testing showed were
hybrids and proof they were subsequently eliminated from the
population.
Our response: Including this level of genetic detail is beyond the
purview of this revised 10(j) rule. We have noted in the preamble that
the Mexican wolves selected for release into the wild are wolves that
have genes that are well-represented in the captive population, thus
minimizing any adverse effects on the genetic integrity of the
remaining captive population. The Mexican Wolf SSP has detailed lineage
information on each captive Mexican wolf and establishes annual
breeding objectives to maintain the genetic diversity of the captive
population (Siminski and Spevak 2014, p. 2). The genetic purity of the
Mexican wolves used in the captive program has been confirmed in
published scientific studies.
(105) Comment: Clarify whether livestock operators are required to
implement depredation-avoidance measures before incentives or
compensation funding can be provided, or whether such actions are
voluntary and independent of incentive and compensation programs.
Our response: Although proactive measures are not required to
receive compensation funding, the Coexistence Council may provide
payments based on a formula that includes the presence of Mexican
wolves, number of livestock exposed to wolves, and the rancher's
participation in proactive conflict avoidance measures.
(106) Comment: The proposed rule includes no plan for how the
Service will mitigate damages or reduce the impact of Mexican wolves on
individuals or communities that are harmed by their presence. Instead,
it proposes to further reduce and limit the
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conditions under which Mexican wolves will be removed or when
landowners will be allowed to take action against a problem wolf.
Specific information on how livestock producers will be compensated for
their losses due to Mexican wolves needs to be in the revised rule.
Our response: Regarding compensation for livestock depredations,
the Mexican Wolf/Livestock Coexistence Council has developed
compensation guidelines and a long-term Coexistence Plan. The
Coexistence Council is now in the process of seeking funding from
private and public sources. Further, we have included several
provisions in the final rule that will mitigate the potential impacts
of Mexican wolves on landowners, recreational users, and local
communities. Under the final rule, on non-Federal lands, domestic
animal owners or their agents may take (including kill or injure) any
Mexican wolf that is in the act of biting, killing, or wounding a
domestic animal, as defined in the regulations, provided that evidence
of freshly wounded or killed domestic animals by Mexican wolves is
present; on Federal land, livestock owners may be permitted to take a
wolf that is in the act of biting, killing, or wounding livestock. We
have also included a provision for conditional take permits on non-
Federal land for domestic animal owners to assist the Service or its
designated agency in completing wolf control actions. In addition,
after the Service or its designated agency has confirmed Mexican wolf
presence on any land within the MWEPA, the Service or its designated
agency may issue permits valid for not longer than 1 year, with
appropriate stipulations or conditions, to allow intentional harassment
of Mexican wolves.
(107) Comment: Some commenters suggested that the Mexican wolf is
not a valid subspecies and, thus, should not be subject of an
experimental population rule.
Our response: Based on the best available scientific information,
we continue to recognize the Mexican wolf (Canis lupus baileyi) as a
subspecies of the gray wolf. More information about the taxonomy of the
Mexican wolf can be found in the final rule determining endangered
status for the Mexican wolf, which published elsewhere in this Federal
Register.
(108) Comment: The final revised 10(j) rule should acknowledge the
full name of the subspecies as Mexican gray wolf (Canis lupus baileyi)
rather than Mexican wolf. While this abbreviated nomenclature is
acceptable after the first written usage and in colloquial writing and
speech, taxonomic and genetic studies have documented that the Mexican
gray wolf is a subspecies of gray wolf and regulatory documents should
reflect this.
Our response: As previously noted, we recognize the Mexican gray
wolf or Mexican wolf (Canis lupus baileyi) as a distinct gray wolf
subspecies. For this final rule and to be consistent with other Service
documents, we have chosen to use the common name Mexican wolf rather
than Mexican gray wolf.
(109) Comment: The Service has the legal responsibility to recover
the Mexican wolf and should maintain and consolidate that authority
rather than delegate it again. The Service should issue a final
revision to the 1998 Final Rule that makes clear that it has the sole
authority over Mexican wolves.
Our response: Nothing in this rule delegates the Service's
authority to manage Mexican wolves. Although the Service has the
primary responsibility for the conservation of federally listed species
under the Act, we are committed to working with our partners from other
agencies, Tribes, State and local governments, and private entities to
implement actions to further the conservation and recovery of the
Mexican wolf. Work done by partners from other agencies will be
approved by the Service.
(110) Comment: It is not acceptable to allow permits for the taking
of Mexican wolves, especially without requiring that property owners
and ranchers make significant effort to use nonlethal methods to
control and protect their property.
Our response: We and our partners in Mexican wolf recovery continue
to investigate and implement a variety of nonlethal methods of wolf
management. While preventative and nonlethal control methods can be
useful in some situations, they are not consistently reliable, so
lethal control remains a tool for managing Mexican wolves.
(111) Comment: Provisions should be included to allow and require
the Service to immediately reduce authorized take for all subsequent
years following years when this conservation goal has not been met.
Our response: Even though we do not have a provision in this final
rule that requires the Service to immediately reduce authorized take
for all subsequent years following years when the conservation goal is
not met, we have the flexibility and discretion to consider the status
of the population when issuing take permits to manage Mexican wolves in
the MWEPA. Some form of Mexican wolf management is usually necessary
when wolves prey on livestock or engage in nuisance behavior.
Accordingly, we recognize the importance of obtaining an appropriate
balance between enabling Mexican wolf population growth and minimizing
nuisance and depredation impacts on local communities, and we
understand that removal of wolves to address conflicts with livestock
(depredation) or humans (nuisance) is an essential component of
reintroduction efforts.
(112) Comment: The revised 10(j) rule should include specifications
for issuance of take permits to livestock producers (on private or
public land). Any specifications should be based on the particular set
of circumstances surrounding an ongoing depredation situation. The
issuance of the permit should not depend upon the number of Mexican
wolves in the MWEPA. The Service should develop and publish for review
a set of take permit criteria based on certain situational elements,
such as the number of livestock killed or injured, the frequency of
wolf depredation, and the individual economic impacts to the livestock
producer, landowner, and pet owner.
Our response: In this final rule, the issuance of a take permit to
a livestock producer is based on the Service's or a designated agency's
discretion and in conjunction with a removal action authorized by the
Service. We are not including permit criteria in this rule in order to
remain flexible while responding to specific depredation situations.
Because of the different dynamic issues associated with managing the
Mexican wolf experimental population, we are trying to remain flexible
so that permits fit the permittee's individual situations.
(113) Comment: Rather than addressing illegal shootings, a primary
and immediate threat to the Mexican wolf survival and recovery, the
Service is proposing to expand the circumstances in which Federal
agencies and authorized personnel may take wolves. This would legalize
mistaken Mexican wolf shootings, requiring anti-wolf advocates to
simply claim that they thought the animal was a coyote. Indeed, the
final revisions must include a directive that personnel working on
Mexican wolf recovery shall not engage in other predator control
activities while assigned to the wolf project.
Our response: We have revised the take provisions set forth in the
1998 Final Rule in order to effectively manage Mexican wolves within
the expanded MWEPA in a manner that furthers the conservation of the
Mexican
[[Page 2545]]
wolf while being responsive to the needs of the local community in
cases of depredation or nuisance behavior by wolves. However, we are
not able to include a directive in this final rule that personnel
working on Mexican wolf recovery shall not engage in other predator
control activities because the Service is not authorized to direct the
employees of other Federal and non-Federal agencies. But we have
included a provision that Wildlife Services will discontinue use of M-
44's and choking-type snares in occupied Mexican wolf range and that
Wildlife Services may restrict or modify other predator control
activities pursuant to a Service-approved management agreement or a
conference opinion between Wildlife Services and the Service.
(114) Comment: Provisions must be added that allow a rancher lethal
take options if he or she experiences multiple depredations regardless
of location of those depredations. Private property protection is a
civil and constitutional right and the Service must support that right.
Permit requirements should not be necessary, but if a permit is
required, it should be structured as a cooperative measure rather than
an agency requirement and the issuance of such a permit should be made
retroactive, as ranchers may have to act before making a request.
Our response: We have modified the provisions governing take of a
Mexican wolf to contribute to our efforts to find the appropriate
balance between enabling wolf population growth and minimizing nuisance
and depredation impacts on local stakeholders. There are several
provisions in this final rule by which a domestic animal or livestock
owner can take (including kill or injure) a Mexican wolf in response to
depredations. However, we are not authorized to structure a cooperative
measure that allows the issuance of permits to be made retroactive.
(115) Comment: The revised 10(j) rule should not allow for pet
owners to kill Mexican wolves attacking pets anywhere in the MWEPA. It
is a blank check for wolf opponents to pick up strays and pound
puppies, stake them out, and bait Mexican wolves. Authorizing people to
kill Mexican wolves in defense of pets may open up new opportunities
for fraudulent take.
Our response: We have included various provisions in this final
rule to allow for take of Mexican wolves by domestic animal owners,
which includes pet dog owners. However, for domestic animal owners,
more take provisions are allowed on non-Federal land than on Federal
land. Unless otherwise specified in this final rule or in a permit, any
take of a Mexican wolf must be reported to the Service or a designated
agency within 24 hours. The Service or designated agent will then
investigate the incident, and if there are cases of fraudulent take,
the person or persons may face Federal prosecution.
(116) Comment: We received many comments with an overall general
opposition to allowing any take by pet owners. Several commenters
stated that take of Mexican wolves by pet owners should not be allowed,
especially when previous levels of take were too high to protect
Mexican wolves at a level that furthered the conservation of the
species.
Our response: In this final rule, we have included a provision that
allows for the take of Mexican wolves by domestic animal owners or
their agents if wolves are in the act of biting, killing, or wounding a
domestic animal on non-Federal lands. In addition, there is a provision
that would provide for the conditional issuance of permits to allow
domestic animal owners or their agents to take (including intentional
harassment, injure, or kill) any Mexican wolf that is present on non-
Federal land owned by the domestic animal owner. We estimate that
actual take of a Mexican wolf would occur only in about 25 percent of
the instances in which take would be authorized, or the take of one to
two wolves every other year (Service 2014, Appendix D, p. 6). This
level of take should not significantly impact the conservation of the
species, but see Appendix D of the final EIS for a full analysis of the
predicted impact of additional take provisions on Mexican wolf
conservation, based on incidences to date in the Mexican Wolf Recovery
Program.
(117) Comment: The revised 10(j) rule should give State game and
fish agencies broad authority to manage experimental populations. The
experimental population provisions of the Act (16 U.S.C. 1539(j)) give
the Service the authority to manage experimental populations in ways
different than allowed for other endangered or even threatened species.
These experimental population provisions do not prohibit the Service
from transferring management authority to the State game and fish
agencies, for the purposes of determining if and when take of Mexican
wolves may be allowed. These State game and fish agencies must deal
with the presence of Mexican wolves on a day-to-day basis, as well as
the impact of these wolves on wild ungulates, livestock, and on
revenues generated by the State through hunting licenses, concessions
and other related sources. For that reason, these State game and fish
agencies should have the authority to determine if and when the lethal
removal of Mexican wolves may be carried out. Instead of withholding
that authority from the agencies, or doling it out on a very limited
basis, the Service should recognize and authorize the State game and
fish agencies as the primary authorities for Mexican wolf management.
Our response: Federal law does not allow the Service to delegate
its authority under the Act to a State. Although the Service has the
primary responsibility for the conservation of federally listed species
under the Act, we are committed to working with our partners at other
Federal and State agencies, tribal and local governments, and private
entities to implement actions that help prevent the extinction of
species. With this final rule, we have modified the provisions of the
1998 Final Rule to allow designated agencies, such as a Federal, State,
or tribal agency, to assist in implementing this rule, all or in part,
consistent with a Service-approved management plan, special management
measure, conference opinion pursuant to section 7(a)(4) of the Act,
section 6 of the Act as described in 50 CFR 17.31 for State game and
fish agencies with authority to manage Mexican wolves, or a valid
permit issued by the Service through 50 CFR 17.32. However, if a
Federal, State, or tribal agency becomes a designated agency, the
Service will help coordinate their activities while retaining authority
for program direction, oversight, guidance, and authorization of
Mexican wolf removals.
(118) Comment: In both Arizona and New Mexico, describe how Mexican
wolf management on tribal and non-tribal lands will be coordinated to
ensure that neither positive nor negative impacts of Mexican wolf
reintroduction will fall disproportionately on Tribes or on non-tribal
interests.
Our response: In this final rule, we have established additional
take provisions for non-Federal land, which is any private, State-
owned, or tribal trust land, because we expect the burden of Mexican
wolf recovery to be on Federal land. In addition, Tribes have the
ability to request the removal of Mexican wolves from their tribal
trust lands. During the preparation of this rule, the Service met with
affected Tribes on numerous occasions. We believe this rule reflects
the input and requirements of the Tribes.
(119) Comment: The rule should contain an escape clause, so that if
excessive take results or limits on
[[Page 2546]]
dispersal constrain population growth, the provisions can be quickly
cancelled.
Our response: The Service has the flexibility and discretion to
consider the status of the population when issuing take permits to
manage Mexican wolves in the MWEPA. Some form of Mexican wolf
management is usually necessary when wolves prey on livestock or engage
in nuisance behavior. Accordingly, we recognize the importance of
obtaining an appropriate balance between enabling Mexican wolf
population growth and minimizing nuisance and depredation impacts on
local communities, and we understand that removal of wolves to address
conflicts with livestock (depredation) or humans (nuisance) is an
essential component of reintroduction efforts.
(120) Comment: One commenter stated that the Service should
demonstrate its commitment to recovering the Mexican wolf by including
a provision that the annual Mexican wolf population growth is at least
10 percent before any lethal take or removal of Mexican wolves from the
wild is authorized. And this provision should remain in effect until
the Mexican wolf population reaches at least 350, or until an approved
Mexican Wolf Recovery Plan establishes some other numerical population
objective for the expanded experimental population.
Our response: The Service has the flexibility and discretion to
consider the status of the population when issuing take permits to
manage Mexican wolves in the MWEPA. Some form of Mexican wolf
management is usually necessary when wolves prey on livestock or engage
in nuisance behavior. Accordingly, we recognize the importance of
obtaining an appropriate balance between enabling Mexican wolf
population growth and minimizing nuisance and depredation impacts on
local communities, and we understand that removal of wolves to address
conflicts with livestock (depredation) or humans (nuisance) is an
essential component of reintroduction efforts.
(121) Comment: A streamlined process needs to be identified to
address responses to predation by Mexican wolves on Sonoran pronghorn.
Such streamlining may include establishing metrics in advance that
identify unacceptable impact to Sonoran pronghorn and the outlining of
rapid response protocols and procedures.
Our response: Sonoran pronghorn occur within Zone 3 of the MWEPA,
which is an area of less suitable Mexican wolf habitat. We do not
expect Mexican wolves to occupy these areas of less suitable habitat
because ungulate populations are inadequate to support them. Even so,
we have included provisions allowing for take of Mexican wolves in
response to impacts to wild ungulates in accordance with certain
stipulations. If the States of Arizona or New Mexico determine that
Mexican wolf predation is having an unacceptable impact to a wild
ungulate herd (pronghorn, bighorn sheep, deer, elk, or bison), the
respective State may request approval from the Service that Mexican
wolves be removed from the area of the impacted ungulate herd. Upon
written approval from the Service following a peer and public review of
the data and information supporting the State's request, the State
(Arizona or New Mexico) or any designated agency may be authorized to
remove (capture and translocate in the MWEPA, move to captivity,
transfer to Mexico, or lethally take) Mexican wolves. Because Tribes
are able to request the capture and removal of Mexican wolves from
their tribal trust land at any time, take in response to wild ungulate
impacts is not applicable on tribal trust lands.
(122) Comment: The provision should be removed that exonerates
Wildlife Services agents who may take a Mexican gray wolf during
control measures for other predators. The apparent misidentification
and shooting of a Mexican wolf by a Wildlife Services agent has already
occurred. A blanket dismissal of culpability in all future such cases
is not a reasonable response.
Our response: Take of Mexican wolves by Wildlife Services employees
while conducting official duties associated with predator damage
management activities for species other than Mexican wolves may be
considered unintentional if it is coincidental to a legal activity and
the Wildlife Services employees have adhered to all applicable Wildlife
Services' policies, Mexican wolf standard operating procedures, and
reasonable and prudent measures or recommendations contained in
Wildlife Service's biological and conference opinions. Take of Mexican
wolves by Wildlife Services employees will be investigated by the
Service and USDA-APHIS.
(123) Comment: The Service continues to assume a direct
relationship between authorized taking of Mexican wolves and increased
public tolerance of wolves. There is no science-based evidence that
new, more permissive take provisions will achieve the conservation
mandate of section 10(j) of the Act. Scientific proof of such a
relationship does not exist and the papers cited in support of this
claim present only unfounded opinions.
Our response: Our intention in revising the regulations to the
experimental population is to effectively manage Mexican wolves in a
manner that furthers the conservation of the Mexican wolf while being
responsive to the needs of the local communities and minimizing wolf-
human conflict. By providing more management flexibility, we believe
that management of Mexican wolves under this final rule will improve
the effectiveness of the reintroduction project in minimizing and
mitigating wolf-human conflict while increasing public tolerance
(Service 2014, Appendix E p.2).
(124) Comment: If the Service insists on maintaining take
provisions in the final rule to allow domestic animal owners or their
agents to take any Mexican wolf that is present on non-federal land, at
a minimum the Service should include a verification process, ensure
transparency in permitting decisions, and put a cap on the number of
discretionary permits of this type that may be granted on the
landscape. The Service sets forth no criteria to delimit when such
permits may be granted, or to specify how many wolves may be killed or
harmed in each permit.
Our response: This final rule authorizes the issuance of permits to
domestic animal owners or their agents on non-Federal lands to assist
the Service or designated agency in completing a control action. The
issuance of permits will be at the Service's or designated agency's
discretion, and thus, analyzed on a case-by-case basis. Also, we have
established additional take provisions for non-Federal land, which is
any private, State-owned, or tribal trust land, because we expect the
burden of Mexican wolf recovery to be on Federal land.
Comments on National Environmental Policy Act
We received several comments that we did not adequately address the
social, economic, or environmental impacts in accordance with NEPA.
However, we have carefully reviewed the requirements of NEPA and its
regulations (Council on Environmental Quality 40 CFR 1502.9), and this
final rule, as well as the process by which it was developed and
finalized, complies with all provisions of the Act, NEPA, and
application regulations. Please see the final EIS for a detailed
description of public comments related to NEPA and our responses.
Comments Not Germane to This Rulemaking
Some of the comments went beyond the scope of this rulemaking, or
beyond the authority of the Service or the Act.
[[Page 2547]]
Because these issues do not relate to the action we proposed, they are
not addressed here. These comments include support of or opposition to
this rulemaking. For example, some comments indicated that Mexican wolf
reintroduction usurped States' rights or that the current propagated
population of Mexican wolves are not genetically pure wolves. We also
received comments expressing support for, and opposition to, Mexican
wolf recovery without further explanation.
Summary of Changes from the June 13, 2013, Proposed Revision to the
Regulations for the Nonessential Experimental Population of the Mexican
Wolf
On June 13, 2013 (78 FR 35719), we published a proposed rule to
revise the regulations for the experimental population designation of
the Mexican wolf. That proposal had a 90-day comment period ending
September 11, 2013. Based on information received during that first 90-
day public comment period ending on September 11, 2013, we proposed new
revisions to the regulations for the experimental population of the
Mexican wolf, and announced the availability of a draft EIS on the
proposed revisions on July 25, 2014 (79 FR 43358). The changes from the
June 13, 2013 (78 FR 35719), proposed rule that were part of the July
25, 2014 (79 FR 43358), revised proposed rule are described below.
Revisions and Considerations from the June 13, 2013, Proposal That Will
Not be Carried Forward into the Final Rule
In the June 13, 2013 (78 FR 35719), proposed rule to revise the
regulations for the experimental population designation of the Mexican
wolf, we proposed that Mexican wolves on State-owned lands within the
boundaries of the MWEPA be regulated in the same manner as on lands
owned and managed by other public land management agencies. In this
final rule, we remove any reference that the Service will consider
State-owned lands within the boundaries of the MWEPA in the same manner
as we consider lands owned and managed by other public land management
agencies. In the 1998 Final Rule that established the Mexican wolf
experimental population (63 FR 1752, January 12, 1998) (1998 Final
Rule), management of Mexican wolves on all State-owned lands within the
boundary of the MWEPA, but outside of designated wolf recovery areas,
were subject to the provisions of private lands. Henceforth, the
Service will consider the management of Mexican wolves on State-owned
lands within the boundaries of the MWEPA in the same manner and subject
to the same provisions of this rule as on non-Federal lands, which is
consistent with the 1998 Final Rule.
Additionally in the June 13, 2013 (78 FR 35719), proposed rule, we
proposed to modify the allowable take by livestock owners or their
agents under paragraph (k)(6)(iii) from ``six breeding pairs'' to a
requirement that at least 100 Mexican wolves must be present in the
MWEPA before a permit to take Mexican wolves can be issued to livestock
owners or agents on public land grazing allotments. The 1998 Final Rule
included a definition of breeding pair as one of the conditions for
take of Mexican wolves by livestock owners or agents on public land
grazing allotments (i.e., that there must be six breeding pairs present
in order for a permit to take wolves to be issued by the Service). In
the June 13, 2013 (78 FR 35719), proposed rule we considered overall
population size to be a better metric for evaluating the
appropriateness of providing such permits because it provided a more
consistent measure of the overall population's status. However, based
on information that was submitted during public comment, we are no
longer using 6 breeding pairs or at least 100 Mexican wolves as
conditions for issuing a permit to livestock owners or their agents on
Federal lands. The information presented suggested that using 6
breeding pairs or at least 100 Mexican wolves were arbitrary conditions
for issuing permits. Therefore, in this final rule, we allow livestock
owners or their agents to take (including intentional harassment or
killing) any Mexican wolf that is in the act of biting, killing, or
wounding livestock on Federal land based on the Service's or a
designated agency's discretion and in conjunction with a removal action
that has been authorized by the Service.
Also in the June 13, 2013 (78 FR 35719), preamble to our proposed
rule we considered several additional revisions. One of the
considerations was to change the term ``depredation'' to ``depredation
incident'' and revise the definition to mean, ``The aggregate number of
livestock killed or mortally wounded by an individual Mexican wolf or
single pack of Mexican wolves at a single location within one 24-hour
period, beginning with the first confirmed kill or injury.'' We
considered this change in order to provide consistency with terms used
in our management documents (standard operating protocol, management
plans, etc.), in which we consider all of the depredations that occur
within one 24-hour period as one incident in our determination of what
management actions to apply to a given situation. However, we received
public comment that this term does not appropriately communicate
individual depredations (e.g., a wolf may have depredated three times
in one 24-hour period). In addition, we are using the term
``depredation'' only in our definition of problem wolves. Therefore, we
are no longer considering changing the term ``depredation'' to
``depredation incident'' and in this final rule will use the term
``depredation'' only as defined in the rule portion of this document.
Below, we discuss the additional modifications to our proposed
revision to the regulations for the experimental population of the
Mexican wolf.
Additional or Revised Definitions from the Proposal to Revise the
Regulations for the Experimental Population of the Mexican Wolf
We add or revise several definitions to provide additional
clarification; definitions for these terms are laid out in the rule
portion of this document:
Active den
Cross-foster
Designated agency
Disturbance-causing land-use activity
Domestic animal
Federal land
Feral dog
In the act of biting, killing, or wounding
Initial release
Intentional harassment
Non-Federal land
Service-approved management plan
Translocate
Tribal trust land
Wild ungulate herd
Wounded
Zone 1
Zone 2
Zone 3
Revisions to the Geographic Area of the Mexican Wolf Experimental
Population
We expand the MWEPA by moving the southern boundary from Interstate
Highway 10 to the United States-Mexico international border across
Arizona and New Mexico (Figure 2). Expanding the MWEPA was a
recommendation in the Mexican Wolf Blue Range Reintroduction Project 5-
Year Review (AMOC and IFT 2005, p. ARC-3). We make this modification
because the reintroduction effort for Mexican wolves now being
undertaken by the Mexican Government has established a need to manage
Mexican wolves that may disperse into southern Arizona and New Mexico
from reestablished Mexican wolf populations in Mexico. An expansion of
the MWEPA south to the international border with Mexico allows
[[Page 2548]]
us to manage all Mexican wolves in this area, regardless of origin,
under the experimental population 10(j) rule. The regulatory
flexibility provided by our revisions to the 1998 Final Rule allows us
to take management actions within the MWEPA that further the
conservation of the Mexican wolf while being responsive to needs of the
local community in cases of problem wolf behavior.
Also, we identify Zones 1, 2, and 3 as different management areas
within the MWEPA and discontinue the use of the term BRWRA. These
different zones are based on areas of habitat suitability and dispersal
corridors. Areas of less suitable Mexican wolf habitat will be where
Mexican wolves are more actively managed under the authorities of this
rule to reduce conflict with the potentially affected public.
Zone 1 is where Mexican wolves may be initially released or
translocated, and where they can occupy and disperse, and includes all
of the Apache, Gila, and Sitgreaves National Forests; the Payson,
Pleasant Valley, and Tonto Basin Ranger Districts of the Tonto National
Forest; and the Magdalena Ranger District of the Cibola National
Forest. Zone 2 is where Mexican wolves will be allowed to naturally
disperse into and occupy, and where Mexican wolves may be translocated.
On Federal land in Zone 2, initial releases of Mexican wolves are
limited to pups less than 5 months old, which allows for the cross-
fostering of pups from the captive population into the wild, as well as
enables translocation-eligible adults to be re-released with pups born
in captivity. On private and tribal land in Zone 2, Mexican wolves of
any age, including adults, can also be initially released under a
Service- and State-approved management agreement with private
landowners or a Service-approved management agreement with tribal
agencies. Translocations in Zone 2 will be focused on suitable Mexican
wolf habitat that is contiguous to occupied Mexican wolf range. Zone 3
is where neither initial releases nor translocations will occur, but
Mexican wolves will be allowed to disperse into and occupy. Zone 3 is
an area of less suitable Mexican wolf habitat where Mexican wolves will
be more actively managed under the authorities of this rule to reduce
conflict.
Elimination of the BRWRA and the primary and secondary recovery
zones within it, and our expansion of Zone 1 to include the entire
Sitgreaves and three Ranger Districts of the Tonto National Forests in
Arizona and one Ranger District of the Cibola National Forest in New
Mexico is consistent with recommendations in the Mexican Wolf Blue
Range Reintroduction Project 5-Year Review (AMOC and IFT 2005, p. ARC-
4). These revisions provide additional area and locations for initial
release of Mexican wolves to the wild from captivity beyond that
currently allowed by the 1998 Final Rule, which will enable us to
improve the genetic variation of the experimental population.
Clarification of Take Provisions From the 1998 Final Rule for the
Mexican Wolf Experimental Population
In the rule portion of this document, we clarify take provisions
provided in the 1998 Final Rule for intentional harassment,
opportunistic harassment, take for research purposes, take by Service
personnel or designated agency, and unintentional take. We also revise
the due care criteria in regard to trapping activities. And we provide
language to clarify that personnel of the USDA-APHIS Wildlife Services
will not be in violation of the Act or this rule for take of a Mexican
wolf that occurs while conducting official duties associated with
predator damage management activities for species other than Mexican
wolves. These changes do not directly authorize an increase in the
amount of take. However, an increase in the Mexican wolf population in
the MWEPA could result in an increase in the amount of take authorized
over time because more situations could result in take.
Furthermore, we revise provisions in the 1998 Final Rule to allow
for removal of Mexican wolves in response to impacts to wild ungulates.
Under this provision, if Arizona or New Mexico game and fish agencies
determine that Mexican wolf predation is having an unacceptable impact
to a wild ungulate herd (pronghorn, bighorn sheep, deer, elk, or
bison), the respective State may request approval from the Service that
Mexican wolves be removed from the area of the impacted ungulate herd.
Upon written approval from the Service, the State (Arizona or New
Mexico) or any designated agency may be authorized to remove (capture
and translocate in the MWEPA, move to captivity, transfer to Mexico, or
lethally take) Mexican wolves.
Additional Take Provisions to the Mexican Wolf Experimental Population
One of the additional provisions we are now allowing is take of a
Mexican wolf on non-Federal lands anywhere within the MWEPA by domestic
animal owners or their agents when any Mexican wolf is in the act of
biting, killing, or wounding a domestic animal provided that evidence
of a freshly wounded or killed domestic animal by Mexican wolves is
present. We define a domestic animal as livestock as defined in
paragraph (k)(3) of this final rule and non-feral dogs. We are making
this change to mitigate the potential impacts of Mexican wolves on
landowners, recreational users, and local communities. These management
actions must occur in accordance with 50 CFR 17.84(k)(7)(iv)(A).
We are also finalizing provisions for the issuance of permits,
based on the Service's or a designated agency's discretion and in
conjunction with a removal action authorized by the Service, on non-
Federal land anywhere within the MWEPA, and under particular
circumstances, to allow domestic animal owners or their agents to take
(including intentional harassment or kill) any Mexican wolf that is
present on non-Federal land where specified in the permit. Permits
issued under this provision specify the number of days for which the
permit is valid and the maximum number of Mexican wolves for which take
is allowed. Take by permittees under this provision will assist the
Service or designated agency in completing control actions. Domestic
animal owners or their agents must report this take to the Service's
Mexican Wolf Recovery Coordinator or a designated agency of the Service
within 24 hours.
Lastly, we are adding reporting requirements which clarify that,
unless otherwise specified in this rule or in a permit, any take of a
Mexican wolf must be reported to the Service or our designated agency
within 24 hours.
Summary of Changes From the July 25, 2014, Proposed Revisions to the
Regulations for the Nonessential Experimental Population of the Mexican
Wolf
In this final rule, based on information received during the July
25, 2014, to September 23, 2014, public comment period, we make several
modifications from our July 25, 2014, proposal to revise the
regulations for the experimental population of the Mexican wolf. These
modifications represent an agreement with Arizona and New Mexico's
State game and fish agencies in accordance with 50 CFR 17.81(d). As
explained further below, we find that these recommended modifications
are commensurate with the conservation of the Mexican wolf. First, we
added a definition for Unacceptable impact to a wild ungulate herd.
Second, we established a population objective of 300 to 325 Mexican
wolves throughout the MWEPA, in both Arizona and New
[[Page 2549]]
Mexico. Last, we have provided for a phased approach to Mexican wolf
management within the MWEPA in western Arizona.
In our revised proposed rule, our language under paragraph
(k)(7)(vi) stated that ``If Arizona or New Mexico determines, based on
ungulate management goals, that Mexican wolf predation is having an
unacceptable impact to a wild ungulate herd (pronghorn, bighorn sheep,
deer, elk, or bison), the respective State may request approval from
the Service that Mexican wolves be removed from the area of the
impacted ungulate herd.'' Based on information that we received from
the State game and fish agencies, an unacceptable impact to a wild
ungulate herd will be determined by a State game and fish agency based
upon ungulate management goals, or a 15 percent decline in an ungulate
herd as documented by a State game and fish agency, using their
preferred methodology, based on a preponderance of evidence of bull:cow
ratios, cow:calf ratios, hunter days, and/or elk population estimates.
The process outlined in paragraph (k)(7)(vi) for Service approval
remains the same.
We received comments from numerous agencies, organizations, and
individuals requesting that we include a population objective for the
MWEPA. In accordance with best available information, we included a
population objective of 300 to 325 Mexican wolves throughout the MWEPA
in both Arizona and New Mexico (see Population Objective for Wolves in
the MWEPA). This range will be based on end-of-year counts. So as not
to exceed this population objective, we will exercise all management
options with preference for translocation to other Mexican wolf
populations to further the conservation of the subspecies. The Service
may change this population objective as necessary to accommodate a new
recovery plan.
In regard to the phased approach to Mexican wolf management in
western Arizona, in consultations with the Arizona Game and Fish
Department, they expressed concern that elk populations, west of
Highway 87 are generally smaller in number and isolated from each other
compared to elk populations east of Highway 87. Also, areas west of
Highway 87 tend to be drier, and, therefore, elk herds have greater
fluctuations in population size than herds in more mesic areas to the
east. As such, Arizona's most dense and productive elk populations are
found in the eastern part of the State, generally east of Highway 87.
Therefore, we have included a phased approach to translocations,
initial releases, and occupancy of Mexican wolves west of Highway 87.
As part of the phased-approach, Phase 1 will be implemented for the
first 5 years following the effective date of this rule (see DATES),
and under this phase, initial release and translocation of Mexican
wolves can occur throughout Zone 1 with the exception of the area west
of State Highway 87 in Arizona (Figure 3). No translocations can be
conducted west of State Highway 87 in Arizona in Zone 2. Mexican wolves
can disperse naturally from Zones 1 and 2 into, and occupy, the MWEPA
(Zones 1, 2, and 3). However, during Phase 1 dispersal and occupancy in
Zone 2 west of State Highway 87 will be limited to the area north of
State Highway 260 and west to Interstate 17.
In Phase 2, initial releases and translocation of Mexican wolves
can occur throughout Zone 1 including the area west of State Highway 87
in Arizona. No translocations can be conducted west of Interstate
Highway 17 in Arizona. Mexican wolves can disperse naturally from Zones
1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3) with the
exception of those areas west of State Highway 89 in Arizona (Figure
4).
If determined to be necessary by the 8-year evaluation and Phase 2
has already been implemented, Phase 3 will be initiated (Figure 5). In
Phase 3, initial release and translocation of Mexican wolves can occur
throughout Zone 1, including the area west of State Highway 87 in
Arizona. No translocations can be conducted west of State Highway 89 in
Arizona. Mexican wolves can disperse naturally from Zones 1 and 2 into,
and occupy, the MWEPA (Zones 1, 2, and 3).
While implementing this phased approach, two evaluations will be
conducted: (1) Covering the first 5 years and (2) covering the first 8
years after the effective date of this rule in order to determine if we
will move forward with the next phase. Each phase evaluation will
consider adverse human interactions with Mexican wolves, impacts to
wild ungulates, and whether or not the Mexican wolf population in the
MWEPA is achieving a population number consistent with a 10 percent
annual growth rate based on end-of-year counts, such that 5 years after
the effective date of this rule the population is at least 150 Mexican
wolves, and 8 years after the effective date of this rule the
population is at least 200 Mexican wolves. The phasing may be expedited
with the concurrence of participating State game and fish agencies.
Regardless of the outcome of the two evaluations, by the beginning of
year 12 from the effective date of this rule, we will move to full
implementation of this rule throughout the MWEPA, and the phased
management approach will no longer apply. The phasing may be expedited
with the concurrence of participating State game and fish agencies.
Findings
As discussed in the Statutory and Regulatory Framework section,
several findings are required before establishing an experimental
population. Below are our findings.
Is the experimental population wholly separate geographically from
nonexperimental populations of the same species?
Prior to the first release of Mexican wolves in 1998, the Service
ensured that no population of naturally occurring wild wolves existed
within the recovery areas under consideration (in the United States) or
in Mexico. Currently, no populations or individuals of the Mexican wolf
subspecies are known to exist in the United States outside of the
MWEPA. Due to the active reestablishment effort Mexico initiated in
2011, as of October 2014, seven confirmed Mexican wolves were known to
exist in the wild approximately 130 mi (209 km) south of the United
States-Mexico international border. The seven wolves consist of two
adults and their five pups, and are approximately 100 mi (161 km)
straight-line distance south from the United States-Mexico
international border. Thus, the two areas are neither adjacent to nor
overlapping each other.
The Mexican wolves in Mexico do not meet the definition of a
population that we have consistently used in our gray wolf experimental
population rules, which is at least two breeding pairs of gray wolves
that each successfully raised at least two young annually for two
consecutive years (59 FR 60252, November 22, 1994). This definition
represents what we have determined to be the minimum standards for a
gray wolf population (Service 1994). The courts have supported this
definition and thus upheld our interpretation that pairs must breed to
have a ``population'' (Wyoming Farm Bureau Federation v. Babbitt, 199
F.3d 1224, 1234 (10th Cir. 2000); U.S. v. McKittrick, 142 F. 3d 1170,
1175 (9th Cir. 1998), cert. denied, 525 U.S. 1072 (1999)). Based on the
results of Mexico's efforts from 2011 through 2013, we can only
speculate that the number of Mexican wolves in Mexico will fluctuate
over the next few years from zero to several wolves or packs of wolves
depending on
[[Page 2550]]
mortalities, future releases, and successful breeding (in the wild) of
released wolves. Therefore, we consider it unlikely for a population
that meets our definition to be established in northern Mexico any time
soon and certainly no such population exists currently.
Based on the fact that there are currently no populations of
Mexican wolves in the United States or Mexico other than the existing
experimental population in the United States, we find that the
experimental population is wholly geographically separate. If a
population is successfully established in the future due to Mexico's
efforts, it is possible that an occasional Mexican wolf from Mexico may
disperse into the United States. Interconnectivity between Mexican
wolves in Mexico and in the MWEPA in the future could benefit recovery
of the Mexican wolf by providing genetic interchange between
populations.
Is the experimental population area in suitable natural habitat outside
the species' current range, but within its probable historical range?
The experimental population area is within suitable natural habitat
in its probable historical range. Because Mexican wolves were
extirpated from the wild prior to protection by the Act, there is no
current range in the United States except that which is occupied by
this experimental population. The MWEPA is considered to be within the
probable historical range (Parsons 1996, p. 106; Bogan and Mehlhop
1983, p. 17).
Designation of Experimental Population as Essential or Nonessential
Our finding of whether a population is essential or nonessential is
made with our understanding that Congress enacted the provisions of
section 10(j) of the Act to address fears that reestablishing
populations of threatened or endangered species into the wild could
negatively impact landowners and other private parties. Congress also
recognized that flexible rules could encourage recovery partners to
actively assist in the reestablishment and hosting of such populations
on their lands (H.R. rep. No. 97-567, at 8 (1982)). Although Congress
allowed experimental populations to be identified as either essential
or nonessential, they noted that most experimental populations would be
nonessential (H.R. Conference Report No. 835, supra at 34; Service
1984)).
We make all determinations on essentiality as part of the
rulemaking to reestablish a population of endangered or threatened
species under section 10(j). It is instructive that Congress did not
put requirements in section 10(j) to reevaluate the determination of
essentiality after a species has been reestablished in the wild. While
our regulations require a ``periodic review and evaluation of the
success or failure of the release and the effect of the release on the
conservation and recovery of the species (50 CFR 17.81(c)(4))'', this
does not require reevaluation and reconsideration of a population's
nonessential experimental status (Service 1991, 1994, 1996b).
In 1998, we designated the Mexican wolf experimental population. At
that time, we determined that the experimental population was not
essential to the survival of the species in the wild. In this final
rule, we are not revisiting the issue of whether or not the
experimental population is essential to survival of the species in the
wild, and nothing in the rule changes the designation of the
population. The 1998 Rule is being changed only to improve the
effectiveness of the reintroduction project in managing the
experimental population in particular ways that have been previously
described. Making these management changes does not require the Service
to revisit the 1998 designation's determination regarding whether the
population is essential or not.
Reestablishing a species is by its very nature an experiment for
which the outcomes are uncertain. However, it is always our goal to
successfully reestablish a species in the wild so that it can be
recovered and removed from the endangered species list. This is
consistent with the Act's requirements for section 10(j) experimental
populations. Specifically, the Act requires experimental populations to
further the conservation of the species. Conservation is defined by the
Act as the use of all methods and procedures which are necessary to
bring any endangered or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary. In
short, experimental populations must further a species' recovery.
The importance of an experimental population to a species' recovery
does not mean the population is ``essential'' under section 10(j) of
the Act. All efforts to reestablish a species are undertaken to move
that species toward recovery. If importance to recovery was equated
with essentiality, no reestablished populations of a species would
qualify for nonessential status. This interpretation would conflict
with Congress' expectation that ``in most cases, experimental
populations will not be essential'' (H.R. Conference Report No. 835,
supra at 34; Service 1984) and our 1984 implementing regulations, which
indicated an essential population will be a special case and not the
general rule (Service 1984).
In addressing essentiality, the Act instructs us to determine
whether a population is essential to the continued existence of an
endangered or threatened species in the wild. Our regulations define
essential experimental populations as those ``whose loss would be
likely to appreciably reduce the likelihood of the survival of the
species in the wild (50 CFR 17.80(b)).'' The Service defines
``survival'' as the condition in which a species continues to exist in
the future while retaining the potential for recovery (Service and
National Marine Fisheries Service 1998). Inherent in our regulatory
definition of essential is the impact the potential loss of the
experimental population would have on the species as a whole (Service
1984). All experimental populations not meeting this bar are considered
nonessential (50 CFR 17.80(b)).
The Service has previously determined that this experimental
population of Mexican wolves was nonessential in the 1998 Final Rule.
The Mexican wolf population that is in the wild in Arizona and New
Mexico today is the experimental population that was designated in the
1998 Final Rule. The 1998 Final Rule stated that ``The Service finds
that even if the entire experimental population died, this would not
appreciably reduce the prospects for future survival of the subspecies
in the wild. That is, the captive population could produce more surplus
wolves and future reintroductions still would be feasible if the
reasons for the initial failure were understood (63 FR 1754).''
Does the establishment of the experimental population and release of
Mexican wolves further the conservation of the species?
(1) Are there any possible adverse effects on extant populations of
the Mexican wolf as a result of removal of individuals for introduction
elsewhere?
The Mexican wolves in the captive-breeding program and the seven
wolves in the wild in Mexico (which do not constitute a population) are
the only extant Mexican wolves other than those in the existing
experimental population. The primary purpose of the captive-breeding
program is to supply wolves for reestablishing Mexican wolves into the
wild. Mexican wolves selected for release from the captive-breeding
program are genetically well-
[[Page 2551]]
represented in the captive population, thus minimizing any adverse
effects on the genetic integrity of the remaining captive population.
The Mexican Wolf SSP has detailed lineage information on each captive
Mexican wolf and establishes annual breeding objectives to maintain the
genetic diversity of the captive population (Siminski and Spevak 2014,
p. 2). This rule allows for more captive Mexican wolves to be released
to the wild, which can be accommodated by the captive-breeding program.
We find that the continuation of the experimental population and
specifically the expansion of the area into which initial releases can
be conducted will not have adverse effects on the captive-breeding
program. Such releases benefit the captive-breeding program by freeing
up space for additional breeding of Mexican wolves, which helps slow
the loss of genetic diversity. Mexican wolf dispersal throughout the
MWEPA will further the conservation of the species by allowing wolves
access to additional habitat for reestablishment.
(2) What is the likelihood that any such experimental population
will become established and survive in the foreseeable future?
In our 1998 Final Rule we stated, ``The Service finds that, under
the Preferred Alternative, the reintroduced experimental population is
likely to become established and survive in the wild within the Mexican
wolf's probable historic range (63 FR 1754, January 12, 1998).'' We
have been reestablishing Mexican wolves into the BRWRA since 1998, and
the population has consistently demonstrated signs of establishment,
such as wolves establishing home ranges and reproducing. The progress
in meeting the population objective of at least 100 wild Mexican wolves
has been slower than projected, but we anticipate that the revisions in
this rule will support progress toward our objective. At the end of
2013, all of the Mexican wolves in the wild in Arizona and New Mexico
were born in the wild. This marked the twelfth consecutive year in
which wild-born Mexican wolves bred and raised pups in the wild. We
have also modified our management procedures related to depredation
response and other recommendations from the Mexican Wolf Blue Range
Reintroduction Project 5-Year Review to ensure the success of the
experimental population (Service 2010, p. 29). To promote survival of
the wild population we have used an adaptive management framework to
modify our approach to depredation management by removing fewer Mexican
wolves, focusing on proactive measures, and tasking the Mexican Wolf/
Livestock Coexistence Council to develop a comprehensive program to
fund proactive conflict avoidance measures, depredation compensation
and payments for presence of Mexican wolves.
(3) What are the relative effects that establishment of an
experimental population will have on the recovery of the Mexican wolf?
The recovery and long-term conservation of the Mexican wolf in the
southwestern United States and northern Mexico is likely to depend on
establishment of a metapopulation or several semi-disjunct populations
spanning a significant portion of its historic range in the region
(Carroll et al. 2014, entire). Continuing the effort to reestablish the
experimental population, and making modifications to improve it, will
substantially contribute to the recovery of the species, as it is
currently extirpated in the wild except for the existing experimental
population in the United States and a fledgling reestablishment effort
in Mexico. We recognize that the reestablishment of a single
experimental population of Mexican wolves is inadequate for recovery,
and we are fully cognizant that a small isolated Mexican wolf
population, such as the existing experimental population, can neither
be considered viable nor self-sustaining (USFWS 2010 entire, Carroll et
al. 2014 entire). The continued successful reestablishment of an
experimental population of Mexican wolves in the MWEPA is envisaged as
the first step toward, and will contribute to, recovery.
(4) What is the extent to which the introduced population may be
affected by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area?
Now, as in the 1998 Final Rule (63 FR 1752, January 12, 1998), we
do not foresee that the introduced population would be affected by
existing or anticipated Federal or State actions or private activities.
Wolves are considered habitat generalists that can occupy areas where
prey populations and human tolerance support their existence (Mech
1970, p. 334; Mech 1995, entire; Fritts et al. 2003, pp. 300-301;
Fuller et al. 2003, pp. 170-171; Oakleaf et al. 2006, p. 560). We
expect Mexican wolves in the MWEPA to primarily occupy forested areas
on Federal lands due to the availability of prey in these areas and
supportive management regimes, although we recognize that wolves may
disperse through or occasionally occupy less-suitable habitat. We also
recognize that Mexican wolves may seek to inhabit tribal or private
lands with suitable habitat.
Zone 1, the area where Mexican wolves may be initially released
from captivity or translocated as established in this final rule,
comprises the Apache, Gila, and Sitgreaves National Forests; the
Payson, Pleasant Valley, and Tonto Basin Ranger Districts of the Tonto
National Forest; and the Magdalena Ranger District of the Cibola
National Forest that are administered by the Forest Service. The Forest
Service manages these areas to sustain the health, diversity, and
productivity of the Nation's forests and grasslands to meet the needs
of present and future generations. The National Forests are responsible
for developing and operating under a Land and Resource Management Plan,
which outlines how each of the multiple uses on the forest will be
managed. The Forest Service is a partner in the management and recovery
of the Mexican wolf.
The MWEPA covered by this final rule contains a mixture of many
land ownerships, including Federal (e.g., Forest Service, Bureau of
Land Management, Department of Defense), State, private, and tribal
lands. A variety of actions and activities may occur throughout the
MWEPA, such as recreation, agriculture and ranching, development, and
military operations. Although we expect the majority of the Mexican
wolf population to occur on Federal lands within Zones 1 and 2 of the
MWEPA due to habitat suitability, we also anticipate that the
experimental population may be affected by actions and activities
occurring on private or tribal land, such as ranching operations,
because wolves that depredate livestock or display nuisance behavior
may be hazed or removed. We will establish management actions in
cooperation with private landowners and tribal governments to support
the recovery of the Mexican wolf on private and tribal lands and will
continue our efforts to support the Mexican Wolf/Livestock Coexistence
Council and proactive management activities aimed at reducing wolf-
livestock conflicts.
Road and human densities have been identified as potential limiting
factors for colonizing wolves in the Midwest and Northern Rocky
Mountains due to the mortality associated with these landscape
characteristics (Mladenoff et al. 1995, entire; Oakleaf et al. 2006,
pp. 558-561). Vehicular collision, in particular, is not identified as
having a significant impact on the Mexican wolf population, although it
may contribute to the overall vulnerability of the population due to
its small population size and the cumulative effects of
[[Page 2552]]
multiple factors, including inbreeding and illegal shooting of wolves.
We recognize that human and road densities in the MWEPA are within
recommended levels for Mexican wolf colonization, and are expected to
remain so in the future; therefore, we see the impact to the population
from actions related to human development as minimal within the areas
we expect Mexican wolves primarily to inhabit. More information about
vehicular collisions and other threats can be found in the final rule
determining endangered status for the Mexican wolf, which published
elsewhere in this Federal Register.
Both Arizona and New Mexico protect the Mexican wolf under State
law. In Arizona, Mexican wolves are managed as Wildlife of Special
Concern (Arizona Game and Fish Commission Rules, Article 4, R12-4-401)
and are identified as a Species of Greatest Conservation Need (Tier 1a,
endangered) (Species of Greatest Conservation Need 2006, pending). In
New Mexico, Mexican wolves are listed as endangered under the State's
Wildlife Conservation Act (NMSA 1978, pp. 17-2-37 through 17-2-46).
Based on these protective designations and regulations, we do not
foresee that actions on State land will significantly negatively affect
the experimental population.
We will continue to work with other agencies, tribes, and
landowners to ensure that their activities will not adversely affect
the experimental population of Mexican wolves. Based on our intent to
capture and return to the MWEPA Mexican wolves that disperse outside of
the MWEPA, we do not expect actions and activities adjacent to the
MWEPA to have a significant impact on the experimental population.
Consultation With State Game and Fish Agencies, Local Governments,
Federal Agencies, and Private Landowners in Developing and Implementing
This Rule
In accordance with 50 CFR 17.81(d), to the maximum extent
practicable, this rule represents an agreement between the Service, the
affected State and Federal agencies, and persons holding any interest
in land that may be affected by the establishment of this experimental
population. We invited 84 Federal and State agencies, local
governments, and tribes to participate as cooperating agencies in the
development of the EIS, 27 of which signed a Memorandum of
Understanding (MOU). The purpose of this MOU was for the signatory
entities to contribute to the preparation of the EIS that analyzes the
proposed revisions to the regulations for the Mexican Wolf Experimental
Population. We have maintained a list of individual stakeholders, as
well as a Web site, since the initiation of the EIS development to
ensure that interested and potentially affected parties received
information on the EIS and notices of opportunities for public
involvement. As previously mentioned, numerous parts of this rule
directly reflect the input and desires of State game and fish agencies,
local governmental entities, affected Federal agencies, and affected
private landowners.
In June 2013, we notified the tribal governments of all the Native
American tribes in Arizona and New Mexico of our intent to prepare an
EIS. We held Tribal Working Group meetings to provide opportunity for
input, discuss the current status of the EIS development, and address
issues raised by the Tribes. We met with affected Federal agencies;
several State, county, and tribal governments; as well as Forest
Service livestock permittees, several Natural Resource Conservation
Districts, and organizations representing interested parties to discuss
the proposed rule and draft EIS. We met with the Arizona Game and Fish
Department and New Mexico Department of Game and Fish to collect data
and develop the analyses of effects to native species, particularly
ungulates and economic impacts associated with hunting in Arizona and
New Mexico. We also met with the two State game and fish agencies to
discuss issues and recommendations they may have with the proposed
rules. The New Mexico State Game Commission suspended the involvement
of the New Mexico Department of Game and Fish in the Mexican Wolf
Recovery Program on June 9, 2011, but they have participated as a
Cooperating Agency for the development of the EIS. Throughout the
course of drafting this rule, the Arizona Game and Fish Department has
made numerous comments on the rule. Some of those comments have been
incorporated into this rule as explained earlier. Numerous other
entities and individuals have provided suggestions on the draft rule
that have not always reflected the best available scientific and
commercial information available or met our purpose and need for
revising this rule and therefore do not contribute to the conservation
of the species. Therefore, it is not practicable for this final rule to
represent an agreement between the Service and all agencies and persons
holding any interest in land that may be affected by the establishment
of this experimental population. We held four public hearings and three
public information sessions in Arizona and New Mexico prior to
developing this final rule and EIS. We reviewed and considered
approximately 48,131 public comments submitted on the June 13, 2013,
and July 25, 2014, proposed rules prior to finalizing this rule and the
EIS.
Management of Wolves Inside and Outside the Mexican Wolf Experimental
Population Area
For Mexican wolves that occur outside the MWEPA, the Act (16 U.S.C.
1531 et seq.) prohibits activities that ``take'' endangered and
threatened species unless a Federal permit allows such ``take.'' Along
with our implementing regulations at 50 CFR part 17, the Act provides
for permits and requires that we invite public comment before issuing
these permits. A permit issued by us under section 10(a)(1)(A) of the
Act authorizes activities otherwise prohibited by section 9 for
scientific purposes or to enhance the propagation or survival of the
affected species, including acts necessary for the establishment and
maintenance of experimental populations. Our regulations regarding
implementation of section 10(a)(1)(A) permits are found at 50 CFR 17.22
for endangered wildlife species.
We have developed a section 10(a)(1)(A) permit to allow for certain
activities with Mexican wolves that occur both inside and outside the
MWEPA. Please note that if Mexican wolves travel outside the MWEPA, we
intend to capture and return them to the MWEPA or put them in
captivity. In compliance with NEPA (42 U.S.C. 4321 et seq.), we have
included analysis of the environmental effects of the permit as part of
our EIS. In accordance with both the Act and NEPA, we invited local,
State, tribal, and Federal agencies and the public to comment on the
draft section 10(a)(1)(A) permit during the July 25, 2014, to September
23, 2014, open comment period (79 FR 43358; July 25, 2014).
Required Determinations
Regulatory Planning and Review--Executive Order 12866
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote
[[Page 2553]]
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
This final rule promotes predictability and reduces uncertainty because
it clearly tells the affected public what is necessary to promote the
conservation of Mexican wolves in the MWEPA. It is the most innovative
approach because it improves upon the 1998 Final Rule. Section 10(j) of
the Act provides a less burdensome tool for reintroducing threatened
and endangered species into the wild.
Executive Order 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. This new rule provides added
flexibility regarding how the public may deal with Mexican wolves. This
flexibility is found in this rule's new ``take'' provisions. Executive
Order 13563 emphasizes further that regulations must be based on the
best available science and that the rulemaking process must allow for
public participation and an open exchange of ideas. As explained
earlier in this rule, the Service has consistently involved the public
in this decisionmaking process through public meetings and public
comment periods. We believe we have used the best scientific
information available in drafting this rule. For these reasons, we have
developed this rule in a manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C
801 et seq.), 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 effect 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
an agency certifies that 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 the rule will not
have a significant economic impact on a substantial number of small
entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
considered the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the impacts of a rule must be both significant and
substantial to prevent certification of the rule under the RFA and to
require the preparation of a regulatory flexibility analysis. If a
substantial number of small entities are affected by the proposed rule,
but the per-entity economic impact is not significant, the Service may
certify a rule. Likewise, if the per-entity economic impact is likely
to be significant, but the number of affected entities is not
substantial, the Service may also certify.
In the 1998 Final Rule, we found that the experimental population
would not have significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act. The 1998 Final
Rule set forth management directions and provided for limited allowable
legal take of Mexican wolves within the MWEPA. We concluded that the
rule would not significantly change costs to industry or governments.
Furthermore, the rule produced no adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. enterprises to compete with foreign-based enterprises in domestic
or export markets. We further concluded that no significant direct
costs, information collection, or recordkeeping requirements were
imposed on small entities by the action and that the rule was not a
major rule as defined by 5 U.S.C. 804(2) (63 FR 1752, January 12,
1998).
In this final rule revising the regulations for the experimental
population of the Mexican wolf, the area affected by this rule includes
the portion of the States of Arizona and New Mexico from Interstate
Highway 40 south to the United States-Mexico international border. This
rule expands many of those activities that were already taking place
within the BRWRA to larger portions of the MWEPA in both States.
Because of the regulatory flexibility for Federal agency actions
provided by the 10(j) designation and the exemption for incidental take
in the special rule, we do not expect this rule to have significant
effects on any activities within Federal, State, or private lands
within the experimental population. In regard to section 7(a)(2) of the
Act, except on National Park Service and National Wildlife Refuge
system lands, the population is treated as proposed for listing, and
Federal action agencies are not required to consult on their
activities. Section 7(a)(4) of the Act requires Federal agencies to
confer (rather than consult) with the Service on actions that are
likely to jeopardize the continued existence of a species. However,
because a nonessential experimental population is, by definition, not
essential to the survival of the species, conferencing will unlikely be
required within the MWEPA. Furthermore, the results of a conference are
strictly advisory in nature and do not restrict agencies from carrying
out, funding, or authorizing activities. In addition, section 7(a)(1)
of the Act requires Federal agencies to use their authorities to carry
out programs to further the conservation of listed species, which would
apply on any lands within the experimental population area. As a
result, and in accordance with these regulations, some modifications to
the Federal actions within the experimental population area may occur
to benefit the Mexican wolf, but we do not expect projects on Federal
lands to be halted or substantially modified as a result of these
regulations.
However, this revision to the regulations for the experimental
population will allow Mexican wolves to occupy the MWEPA, which has the
potential to affect small entities involved in ranching and livestock
production, particularly beef cattle ranching (business activity code
North American Industry Classification System (NAICS) 112111), sheep
farming (business activity code NAICS 112410), and outfitters and
guides (business activity code NAICS 114210). Small
[[Page 2554]]
entities in these sectors may be affected by Mexican wolves depredating
on, or causing weight loss of, domestic animals (particularly beef
cattle), or preying on wild native ungulates, respectively. We have
further assessed these impacts to small entities in the EIS. We also
consider impacts to the tourism industry.
Small businesses involved in ranching and livestock production may
be affected by Mexican wolves depredating on domestic animals,
particularly beef cattle. Direct effects to small businesses could
include foregone calf or cow sales at auctions due to depredations.
Indirect effects could include impacts such as increased ranch
operation costs for surveillance and oversight of the herd, and weight
loss of livestock when wolves are present. Ranchers have also expressed
concern that a persistent presence of wolves may negatively impact
their property and business values. We do not foresee a significant
economic impact to a substantial number of small entities in the
ranching and livestock production sector based on the following
information:
The small size standard for beef cattle ranching entities and sheep
farms as defined by the Small Business Administration are those
entities with less than $750,000 in average annual receipts (http://www.sba.gov/content/summary-size-standards-industry-sector). We
consider close to 100 percent of the cattle ranches and sheep farms in
Arizona and New Mexico to be small entities. The 2012 Census of
Agriculture reports that there were 6,029 cattle and calf operations
and 7,447 sheep farms in Arizona and 12,796 cattle and calf operations
and 3,385 sheep farms in New Mexico.
Of the approximately 18,825 cattle ranches in Arizona and New
Mexico, 12,275 occur in counties in the MWEPA (2012 Census of
Agriculture data by county). This estimate was derived by subtracting
the number of milk cow farms and inventory and feeder farms and
inventory from the total cattle and calf farms and inventory for the
project area counties. The actual number of ranches within the project
area is less than this estimate because several counties extend beyond
the borders of the project area. The Agricultural Census does not
report sub-county farms or inventory, so relying on the county numbers
is the best available data for estimating the number of potentially
affected small ranching operations.
Cattle ranches vary significantly in herd size, with
classifications ranging from a herd of 1-9 animals, to those with more
than 2,500 animals (2012 Census of Agriculture). For the purposes of
this analysis, we consider all of the ranches to be small entities.
More than 80 percent of the ranches in Arizona and New Mexico have
fewer than 50 head of cattle (in Arizona, 5,367 out of 6,029 ranches,
and in New Mexico, 11,165 out of 12,796). Nearly 50 percent of Arizona
operations and 40 percent of New Mexico operations had a herd size of
less than 10. While these ranches represent the majority of the number
of ranches in the two States, they account for only about 10 percent of
the States' total cattle and calf inventory (in Arizona, 76,712 out of
911,334 cattle and in New Mexico, 268,438 out of 1,354,240 cattle)
(2012 Census of Agriculture). The largest operations, those with an
inventory greater than 500 cattle, account for more than 80 percent of
the total cattle inventory in Arizona and 66 percent of the total
inventory in New Mexico.
The Department of Agriculture reported a national estimate of 90.0
million cattle and calves in 2013, which implies that together, Arizona
and New Mexico contribute approximately 2.5 percent to the overall
national supply (National Agriculture Statistics Service's Web site at
http://quickstats.nass.usda.gov).
We assessed whether a substantial number of entities would be
impacted by this rule by estimating the annual number of depredations
we expect to occur within the project area when the Mexican wolf
population will be at its largest. Between 1998 and 2013, on average
there were 62 total depredations (confirmed and unconfirmed) by Mexican
wolves in any given year, which equates to 1.3 cow/calves killed for
every Mexican wolf. Based on this, we estimate the average number of
cattle killed (both confirmed and unconfirmed) in any given year will
be 130.8 per 100 Mexican wolves). We expect the experimental population
to grow from its current minimum population estimate of 83 wolves to a
maximum population of not more than 300 to 325 wolves under the
proposed action within 13 years; accordingly, we expect the annual
number of depredations (both confirmed and unconfirmed) to increase
from 119 to approximately 412 cows/calves. Assuming that one cow is
depredated per ranch, 412 of 12,275 ranches would experience
depredation events annually, or 3.4 percent of the cattle ranches.
To the extent that some cattle ranches will most likely not be
impacted by wolf recovery because they are not located in suitable
habitat but are included in the total estimate of potentially affected
ranches because the Agricultural Census does not provide data at a sub-
county level, this estimate could understate the percentage of ranches
potentially affected. However, for other reasons, this estimate could
very well overstate the percentage of cattle ranches affected as we
recognize that annual depredation events have not been, and may not be,
uniformly distributed across the ranches operating in occupied wolf
range. Rather, wolves seem to concentrate in particular areas, and to
the extent that livestock are targeted by the pack for depredations,
some ranch operations will be disproportionately affected. Therefore,
it is more likely that fewer than 412 ranches may experience more than
one depredation, rather than each of 412 ranches experiencing one
depredation.
Compared to the 2012 total inventory of estimated ranch cattle
(97,686) for the five-county area of the BRWRA (Graham, Greenlee, and
Apache Counties in Arizona; and Catron and Grant Counties in New
Mexico), both confirmed and unconfirmed depredations per 100 Mexican
wolves account for less than 0.4 percent of the herd size. The economic
cost of Mexican wolf depredations in this time period has been a small
percentage of the total value of the livestock operations. With a
population objective of 300 to 325 Mexican wolves in the MWEPA, the
expected value of 412 cattle (130.8 cattle killed per 100 Mexican
wolves on average for any year) at auction using 2013 prices (National
Agriculture Statistics Service's Web site at http://quickstats.nass.usda.gov; the most current data available at the time
of the analysis) would be about $430,553.
Small businesses involved in ranching and livestock production
could also be indirectly affected by weight loss of livestock due to
the presence of Mexican wolves. For example, livestock may lose weight
because wolves force them off suitable grazing habitat or away from
water sources. Livestock may try to protect themselves by staying close
together in protected areas where they are more easily able to see
approaching wolves and defend themselves and their calves. A
consequence of such a behavioral change would likely be weight loss,
especially if the wolves are allowed to persist in the area for a
significant amount of time because the cattle would be afraid to spread
out to find more lucrative forage areas. Weight loss could also occur
if the presence of wolves causes the herd to move around more rapidly
as they try to keep away from wolves. Based on Ramler et al. 2014,
[[Page 2555]]
weight loss of cattle is associated with the ranches that have suffered
depredations. Therefore, we would expect the same ranches--that is, 412
ranches or fewer--that were impacted by depredations to potentially be
impacted by weight loss of their cattle. Because wolves' tendency to
prey on cattle is localized, we would not expect all 412 ranches and
their associated herds to be impacted.
Using a mid-point estimate of 6 percent weight loss for calves at
the time of auction (Service 2014, Chapter 4, p. 43-44), we calculated
the impact on 2012 model ranches assuming that wolf presence pressures
were allowed to persist throughout the foraging year. Based on 2013
market prices, a 6 percent weight loss for the herd at the time of sale
could result in a profit loss of $2,393 to $12,226 depending on the
size of the ranch (Service 2014, Chapter 4, p. 44, Table 4-10). This is
likely an overestimate of impacts that would occur, as once wolves are
detected in an area, a variety of proactive and reactive management
tools are available to the landowner or the Service and our designated
agencies such that wolf presence would not persist throughout a
foraging year.
This final rule is based on Alternative One in our environmental
impact statement. This alternative minimizes the potential impact to
small ranching entities in several ways relative to the other action
alternatives and the no action alternative. First, the rule offers
several forms of harassment and take of Mexican wolves on Federal and
non-Federal land that are not offered in Alternatives Three or Four.
Second, Alternative One maximizes our ability to conduct initial
releases in areas of high-quality habitat (relative to Alternatives Two
and Four) in order to minimize nuisance events associated with initial
releases. In addition to the minimization measures provided by the
rule, one or more sources of compensation may be available to ranchers
to further mitigate impacts. If the Mexican Wolf/Livestock Trust Fund
continues to be funded, we would expect the Mexican Wolf/Livestock
Coexistence Council (Coexistence Council) to compensate 100 percent of
the market value of confirmed depredated cattle and 50 percent of
market value for probable kills with payments to affected ranchers
(Mexican Wolf/Livestock Coexistence Plan 2014). We would also expect
the Coexistence Council to continue to provide funding for proactive
conservation measures to decrease the likelihood of depredation and
Payments for Presence of Mexican wolves to offset indirect costs.
Another possible source of mitigation funding is the USDA Livestock
Indemnity Program, part of the 2014 Farm Bill, which provides (among
other benefits) benefits to livestock producers for livestock lost due
to attacks by animals introduced into the wild by the Federal
Government or protected by Federal law, including wolves. This program
may pay a livestock owner 75 percent of the market value of the
applicable livestock (http://www.fsa.usda.gov/Internet/FSA_File/lip_long_fact_sht_2014.pdf).
Based on the preceding information, we find that the impact of
direct and indirect effects of Mexican wolf depredations on livestock
is not both significant and substantial. That is, if impacts are evenly
spread, less than 3.4 percent of small ranches in Arizona and New
Mexico will be impacted, which we do not consider to be a substantial
number. If impacts are disproportionately felt (several ranchers bear
the burden of the depredations), the number of affected ranches will be
even less (not substantial), but the impact to those affected may be
significant depending on the number of cattle on the ranch and other
characteristics.
Small businesses ($5.5 million or less in operating income)
associated with hunting in Arizona and New Mexico could also be
affected by implementation of our action. Direct effects to small
businesses in this section could occur from impacts to big game
populations due to Mexican wolf predation (primarily on elk), loss of
hunter visitation to the region, or a decline in hunter success,
leading to lost income or increased costs to guides and outfitters.
However, we do not have information suggesting that these impacts will
occur. Based on a review of available survey data between 1998 and
2012, the Arizona Game and Fish Department determined the impact that
Mexican wolves have had on deer and elk populations in the BRWRA. The
Arizona Game and Fish Department found that, while Mexican wolves do
target elk as their primary prey source, including elk calves during
the spring and summer season, there was no discernible impact on the
number of elk calves that survive through early fall periods. A similar
finding was made for mule deer. The Arizona Game and Fish Department
also reported that, while the number of elk permits authorized has
varied since Mexican wolves were reintroduced into Arizona, the
variation is attributable to a variety of management-related objectives
unrelated to elk availability for hunters.
At a population of 300 to 325, we expect the Mexican wolf density
in the MWEPA to be no higher (and more likely, lower) than it is
currently because the area where wolves can occur is larger. We also
expect wolf to elk ratios (an indicator of predation pressure) to occur
at levels resulting in less than significant biological impacts,
suggesting that ungulate populations will not be impacted by Mexican
wolves (Service 2014, Chapter 4, p. 12-15). Furthermore, information
suggests that wolves tend to prey on unproductive calf elk and older
cow elk, whereas hunters are seeking elk with high reproductive
potential. Trends in hunter visitation and success rates since 1998 in
the areas occupied by Mexican wolves are stable or increasing based on
the number of licensed hunters and hunter success rates. We do not have
information suggesting these trends would change during the project
time period. Further, our final rule allows for the take of Mexican
wolves due to unacceptable impacts to wild ungulate herds, which will
serve as mitigation for any herds that may suffer heavier predation
impacts. Therefore, we do not foresee a significant economic impact to
a substantial number of small entities associated with hunting
activities.
We also considered impacts to the tourism industry from
implementation of our proposed action (Service 2014, Chapter 4, p. 52).
In this case, impacts to small businesses would be positive, stemming
from increased profits associated with wolf-related outdoor recreation
opportunities, such as providing eco-tours in Mexican wolf country.
However, we do not have information suggesting that wolf presence will
create significant (positive) economic impacts to a substantial number
of small entities, as very few eco-tours or other ventures have been
identified since 1998. Therefore, we do not foresee a significant
economic impact to a substantial number of small entities associated
with tourism activities.
We further conclude that no significant direct costs, information
collection, or recordkeeping requirements are imposed on small entities
by the action and that the rule is not a major rule as defined by 5
U.S.C. 804(2).
In summary, we have considered whether this final rule would result
in a significant economic impact on a substantial number of small
entities. Information for this analysis was gathered from the Arizona
Game and Fish Department, cooperating agencies, the New Mexico Game and
Fish Department, stakeholders, published
[[Page 2556]]
literature and reports, and information in our files. For the above
reasons and based on currently available information, we certify that
this final rule to revise the regulations for the Mexican wolf
experimental population would not have a significant economic impact on
a substantial number of small business entities. Therefore, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not ``significantly or uniquely'' affect small
governments. We have determined and certify pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this
rulemaking would not impose a cost of $100 million or more in any given
year on local or State governments or private entities. A Small
Government Agency Plan is not required. As explained above, small
governments would not be affected because the experimental population
designation would not place additional requirements on any city,
county, or other local municipalities.
(2) This rule would not produce a Federal mandate of $100 million
or greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act).
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
this rule does not have significant takings implications. When
reestablished populations of federally listed species are designated as
nonessential experimental populations, the Act's regulatory
requirements regarding the reestablished listed species within the
experimental population are significantly reduced. In the 1998 Final
Rule, we stated that one issue of concern is the depredation of
livestock by reintroduced Mexican wolves, but such depredation by a
wild animal would not be a taking under the 5th Amendment. One of the
reasons for the experimental population is to allow the agency and
private entities flexibility in managing Mexican wolves, including the
elimination of a wolf when there is a confirmed kill of livestock.
A takings implication assessment is not required because this rule
will not effectively compel a property owner to suffer a physical
invasion of property and will not deny all economically beneficial or
productive use of the land or aquatic resources. Damage to private
property caused by protected wildlife does not constitute a taking of
that property by a government agency that protects or reintroduces that
wildlife. This rule substantially advances a legitimate government
interest (conservation and recovery of a listed species) and does not
present a barrier to all reasonable and expected beneficial use of
private property.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), we have
considered whether this final rule has significant Federalism effects
and have determined that a Federalism assessment is not required. This
rule will not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this final
rule with the affected resource agencies in New Mexico and Arizona.
Achieving the population objective for the MWEPA will help to ensure a
stable population of Mexican wolves in the MWEPA in the future. This
stable population will then contribute to the range-wide recovery of
the species, which will contribute to its eventual delisting and its
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 or directly affected. This final rule operates to
maintain the existing relationship between the State and the Federal
Government. Therefore, this rule does not have significant Federalism
effects or implications to warrant the preparation of a Federalism
Assessment under the provisions of Executive Order 13132.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (February 7, 1996; 61 FR
4729), the Office of the Solicitor has determined that this rule will
not unduly burden the judicial system and meets the requirements of
sections (3)(a) and (3)(b)(2) of the Order.
Government-to-Government Relationship With Tribes
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 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we will notify the Native American
tribes within and adjacent to the experimental population area about
this final rule. They will be informed through written contact,
including informational mailings from the Service, and were provided an
opportunity to comment on the draft EIS and proposed rule. If future
activities resulting from this rule may affect tribal resources, the
Service will communicate and consult on a Government-to-Government
basis with any affected Native American tribes in order to find a
mutually agreeable solution.
Paperwork Reduction Act
Office of Management and Budget (OMB) regulations at 5 CFR part
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. This rule does
not contain any new collections of information that require approval by
OMB. This rule would not impose recordkeeping or reporting requirements
on State or local governments, individuals, businesses, or
organizations. OMB has approved our collection of information
associated with reporting the taking of experimental populations (50
CFR 17.84) and assigned control number 1018-0095, which expires October
31, 2017. 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 OMB control number.
National Environmental Policy Act
We prepared a draft and final EIS pursuant to the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection
with the revision to the regulations for the experimental population of
the Mexican wolf section 10(j) rule. From October through December
2007, we conducted a public scoping process under NEPA based on our
intent to modify the 1998 Final Rule. We developed a final scoping
report in April 2008, but we did not propose or finalize any
modifications to the 1998 Final Rule at that time. We utilized
information collected during that scoping process in the development of
a draft EIS for the proposed revision to the regulations for the
experimental population of the Mexican wolf. Information about
additional scoping opportunities was available on our Web
[[Page 2557]]
site, at http://www.fws.gov/southwest/es/mexicanwolf/NEPA.cfm. On July
25, 2014 (79 FR 43358), we proposed new revisions to the regulations
for the experimental population of the Mexican wolf, and announced the
availability of the draft EIS on the proposed revisions. After full
consideration of all information and comments received on the proposed
rule and the EIS, we made our final determination based on the best
available information.
The purpose of the draft and final EISs, prepared under NEPA (42
U.S.C. 4321 et seq.), was to identify and disclose the environmental
consequences resulting from the proposed action of revising the
regulations for the experimental population of the Mexican wolf. The
Service has complied with NEPA by completing the final EIS and Record
of Decision. The final EIS and Record of Decision are available
electronically on the Mexican Wolf Recovery Program's Web site at
http://www.fws.gov/southwest/es/mexicanwolf/.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This rule is not expected to significantly affect
energy supplies, distribution, and use because the actions contemplated
in this rule involve the reintroduction of Mexican wolves. Mexican
wolves reintroduced in the MWEPA do not change where, when, or how
energy resources are produced or distributed. Because this action is
not a significant energy action, no Statement of Energy Effects is
required.
References Cited
A complete list of all references cited in this final rule is
available at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-
0056, or upon request from the Mexican Wolf Recovery Program, U.S. Fish
and Wildlife Service, New Mexico Ecological Services Field Office (see
ADDRESSES section).
Authors
The primary authors of this document are the staff members of the
Mexican Wolf Recovery Program (see FOR FURTHER INFORMATION CONTACT).
Authority
The authorities for this action are the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) and the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.).
List of Subjects for 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, 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:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.84 by revising paragraph (k) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(k) Mexican wolf (Canis lupus baileyi). This paragraph (k) sets
forth the provisions of a rule to establish an experimental population
of Mexican wolves.
(1) Purpose of the rule. The U.S. Fish and Wildlife Service
(Service) finds that reestablishment of an experimental population of
Mexican wolves into the subspecies' probable historical range will
further the conservation of the Mexican wolf subspecies. The Service
found that the experimental population was not essential under Sec.
17.81(c)(2).
(2) Determinations. The Mexican wolf population reestablished in
the Mexican Wolf Experimental Population Area (MWEPA), identified in
paragraph (k)(4) of this section, is one nonessential experimental
population. This nonessential experimental population will be managed
according to the provisions of this rule. The Service does not intend
to change the nonessential experimental designation to essential
experimental, threatened, or endangered. Critical habitat cannot be
designated under the nonessential experimental classification, 16
U.S.C. 1539(j)(2)(C)(ii).
(3) Definitions. Key terms used in this rule have the following
definitions:
Active den means a den or a specific site above or below ground
that is used by Mexican wolves on a daily basis to bear and raise pups,
typically between approximately April 1 and July 31. More than one den
site may be used in a single season.
Cross-foster means the removal of offspring from their biological
parents and placement with surrogate parents.
Depredation means the confirmed killing or wounding of lawfully
present domestic animals by one or more Mexican wolves. The Service,
Wildlife Services, or other Service-designated agencies will confirm
cases of wolf depredation on lawfully present domestic animals. Cattle
trespassing on Federal lands are not considered lawfully present
domestic animals.
Designated agency means a Federal, State, or tribal agency
designated by the Service to assist in implementing this rule, all or
in part, consistent with a Service-approved management plan, special
management measure, conference opinion pursuant to section 7(a)(4) of
the Act, section 6 of the Act as described in Sec. 17.31 for State
game and fish agencies with authority to manage Mexican wolves, or a
valid permit issued by the Service through Sec. 17.32.
Disturbance-causing land-use activity means any activity on Federal
lands within a 1-mi (1.6-km) radius around release pens when Mexican
wolves are in them, around active dens between April 1 and July 31, and
around active Mexican wolf rendezvous sites between June 1 and
September 30, which the Service determines could adversely affect
reproductive success, natural behavior, or persistence of Mexican
wolves. Such activities may include, but are not limited to, timber or
wood harvesting, prescribed fire, mining or mine development, camping
outside designated campgrounds, livestock husbandry activities (e.g.,
livestock drives, roundups, branding, vaccinating, etc.), off-road
vehicle use, hunting, and any other use or activity with the potential
to disturb wolves. The following activities are specifically excluded
from this definition:
(A) Lawfully present livestock and use of water sources by
livestock;
(B) Livestock drives if no reasonable alternative route or timing
exists;
(C) Vehicle access over established roads to non-Federal land where
legally permitted activities are ongoing if no reasonable alternative
route exists;
(D) Use of lands within the National Park or National Wildlife
Refuge Systems as safety buffer zones for military activities and
Department of Homeland Security border security activities;
(E) Fire-fighting activities associated with wildfires; and
(F) Any authorized, specific land use that was active and ongoing
at the time Mexican wolves chose to locate a den or rendezvous site
nearby.
Domestic animal means livestock as defined in this paragraph (k)(3)
and non-feral dogs.
[[Page 2558]]
Federal land means land owned and under the administration of
Federal agencies including, but not limited to, the Service, National
Park Service, Bureau of Land Management, U.S. Forest Service,
Department of Energy, or Department of Defense.
Feral dog means any dog (Canis familiaris) or wolf-dog hybrid that,
because of absence of physical restraint or conspicuous means of
identifying it at a distance as non-feral, is reasonably thought to
range freely without discernible, proximate control by any person.
Feral dogs do not include domestic dogs that are penned, leashed, or
otherwise restrained (e.g., by shock collar) or which are working
livestock or being lawfully used to trail or locate wildlife.
Harass means intentional or negligent actions or omissions that
create the likelihood of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns, which
include, but are not limited to, breeding, feeding, or sheltering.
In the act of biting, killing, or wounding means grasping, biting,
wounding, or feeding upon a live domestic animal on non-Federal land or
live livestock on Federal land. The term does not include feeding on an
animal carcass.
Initial release means the release of Mexican wolves to the wild
within Zone 1, as defined in this paragraph (k)(3), or in accordance
with tribal or private land agreements in Zone 2, as defined in this
paragraph (k)(3), that have never been in the wild, or releasing pups
that have never been in the wild and are less than 5 months old within
Zones 1 or 2. The initial release of pups less than 5 months old into
Zone 2 allows for the cross-fostering of pups from the captive
population into the wild, as well as enables translocation-eligible
adults to be re-released in Zone 2 with pups born in captivity.
Intentional harassment means deliberate, preplanned harassment of
Mexican wolves, including by less-than-lethal means (such as 12-gauge
shotgun rubber-bullets and bean-bag shells) designed to cause physical
discomfort and temporary physical injury, but not death. Intentional
harassment includes situations where the Mexican wolf or wolves may
have been unintentionally attracted--or intentionally tracked, waited
for, chased, or searched out--and then harassed. Intentional harassment
of Mexican wolves is only allowed under a permit issued by the Service
or its designated agency.
Livestock means domestic alpacas, bison, burros (donkeys), cattle,
goats, horses, llamas, mules, and sheep, or other domestic animals
defined as livestock in Service-approved State and tribal Mexican wolf
management plans. Poultry is not considered livestock under this rule.
Mexican Wolf Experimental Population Area (MWEPA) means an area in
Arizona and New Mexico including Zones 1, 2, and 3, as defined in this
paragraph (k)(3), that lies south of Interstate Highway 40 to the
international border with Mexico.
Non-Federal land means any private, State-owned, or tribal trust
land.
Occupied Mexican wolf range means an area of confirmed presence of
Mexican wolves based on the most recent map of occupied range posted on
the Service's Mexican Wolf Recovery Program Web site at http://www.fws.gov/southwest/es/mexicanwolf/. Specific to the prohibitions at
paragraphs (k)(5)(iii) and (k)(5)(vii)(D) of this section, Zone 3, as
defined in this paragraph (k)(3), and tribal trust lands are not
considered occupied range.
Opportunistic harassment means scaring any Mexican wolf from the
immediate area by taking actions such as discharging firearms or other
projectile-launching devices in proximity to, but not in the direction
of, the wolf, throwing objects at it, or making loud noise in proximity
to it. Such harassment might cause temporary, non-debilitating physical
injury, but is not reasonably anticipated to cause permanent physical
injury or death. Opportunistic harassment of Mexican wolves can occur
without a permit issued by the Service or its designated agency.
Problem wolves mean Mexican wolves that, for purposes of management
and control by the Service or its designated agent(s), are:
(A) Individuals or members of a group or pack (including adults,
yearlings, and pups greater than 4 months of age) that were involved in
a depredation on lawfully present domestic animals;
(B) Habituated to humans, human residences, or other facilities
regularly occupied by humans; or
(C) Aggressive when unprovoked toward humans.
Rendezvous site means a gathering and activity area regularly used
by Mexican wolf pups after they have emerged from the den. Typically,
these sites are used for a period ranging from about 1 week to 1 month
in the first summer after birth during the period from June 1 to
September 30. Several rendezvous sites may be used in succession within
a single season.
Service-approved management plan means management plans approved by
the Regional Director or Director of the Service through which Federal,
State, or tribal agencies may become a designated agency. The
management plan must address how Mexican wolves will be managed to
achieve conservation goals in compliance with the Act, this
experimental population rule, and other Service policies. If a Federal,
State, or tribal agency becomes a designated agency through a Service-
approved management plan, the Service will help coordinate their
activities while retaining authority for program direction, oversight,
guidance, and authorization of Mexican wolf removals.
Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct (16
U.S.C. 1532(19)).
Translocate means the release of Mexican wolves into the wild that
have previously been in the wild. In the MWEPA, translocations will
occur only in Zones 1 and 2, as defined in this paragraph (k)(3).
Tribal trust land means any lands title to which is either: Held in
trust by the United States for the benefit of any Indian tribe or
individual; or held by any Indian tribe or individual subject to
restrictions by the United States against alienation. For purposes of
this rule, tribal trust land does not include land purchased in fee
title by a tribe. We consider fee simple land purchased by tribes to be
private land.
Unacceptable impact to a wild ungulate herd will be determined by a
State game and fish agency based upon ungulate management goals, or a
15 percent decline in an ungulate herd as documented by a State game
and fish agency, using their preferred methodology, based on the
preponderance of evidence from bull to cow ratios, cow to calf ratios,
hunter days, and/or elk population estimates.
Unintentional take means the take of a Mexican wolf by any person
if the take is unintentional and occurs while engaging in an otherwise
lawful activity, occurs despite the use of due care, is coincidental to
an otherwise lawful activity, and is not done on purpose. Taking a
Mexican wolf by poisoning or shooting will not be considered
unintentional take.
Wild ungulate herd means an assemblage of wild ungulates (bighorn
sheep, bison, deer, elk, or pronghorn) living in a given area.
Wildlife Services means the U.S. Department of Agriculture, Animal
and Plant Health Inspection Service, Wildlife Services.
[[Page 2559]]
Wounded means exhibiting scraped or torn hide or flesh, bleeding,
or other evidence of physical damage caused by a Mexican wolf bite.
Zone 1 means an area within the MWEPA in Arizona and New Mexico
into which Mexican wolves will be allowed to naturally disperse and
occupy and where Mexican wolves may be initially released from
captivity or translocated. Zone 1 includes all of the Apache, Gila, and
Sitgreaves National Forests; the Payson, Pleasant Valley, and Tonto
Basin Ranger Districts of the Tonto National Forest; and the Magdalena
Ranger District of the Cibola National Forest.
Zone 2 is an area within the MWEPA into which Mexican wolves will
be allowed to naturally disperse and occupy, and where Mexican wolves
may be translocated.
(A) On Federal land in Zone 2, initial releases of Mexican wolves
are limited to pups less than 5 months old, which allows for the cross-
fostering of pups from the captive population into the wild, as well as
enables translocation-eligible adults to be re-released with pups born
in captivity. On private and tribal land in Zone 2, Mexican wolves of
any age, including adults, can also be initially released under a
Service- and State-approved management agreement with private
landowners or a Service-approved management agreement with tribal
agencies.
(B) The northern boundary of Zone 2 is Interstate Highway 40; the
western boundary extends south from Interstate Highway 40 and follows
Arizona State Highway 93, Arizona State Highway 89/60, Interstate
Highway 10, and Interstate Highway 19 to the United States-Mexico
international border; the southern boundary is the United States-Mexico
international border heading east, then follows New Mexico State
Highway 81/146 north to Interstate Highway 10, then along New Mexico
State Highway 26 to Interstate Highway 25; the boundary continues along
New Mexico State Highway 70/54/506/24; the eastern boundary follows the
eastern edge of Otero County, New Mexico, to the north and then along
the southern and then eastern edge of Lincoln County, New Mexico, until
it intersects with New Mexico State Hwy 285 and follows New Mexico
State Highway 285 north to the northern boundary of Interstate Highway
40. Zone 2 excludes the area in Zone 1, as defined in this paragraph
(k)(3).
Zone 3 means an area within the MWEPA into which Mexican wolves
will be allowed to disperse and occupy, but neither initial releases
nor translocations will occur there.
(A) Zone 3 is an area of less suitable Mexican wolf habitat where
Mexican wolves will be more actively managed under the authorities of
this rule to reduce human conflict. We expect Mexican wolves to occupy
areas of suitable habitat where ungulate populations are adequate to
support them and conflict with humans and their livestock is low. If
Mexican wolves move outside of areas of suitable habitat, they will be
more actively managed.
(B) Zone 3 is two separate geographic areas on the eastern and
western sides of the MWEPA. One area of Zone 3 is in western Arizona,
and the other is in eastern New Mexico. In Arizona, the northern
boundary of Zone 3 is Interstate Highway 40; the eastern boundary
extends south from Interstate Highway 40 and follows State Highway 93,
State Highway 89/60, Interstate Highway 10, and Interstate Highway 19
to the United States-Mexico international border; the southern boundary
is the United States-Mexico international border; the western boundary
is the Arizona-California State border. In New Mexico, the northern
boundary of Zone 3 is Interstate Highway 40; the eastern boundary is
the New Mexico-Texas State border; the southern boundary is the United
States-Mexico international border heading west, then follows State
Highway 81/146 north to Interstate Highway 10, then along State Highway
26 to Interstate Highway 25, the southern boundary continues along
State Highway 70/54/506/24; the western boundary follows the eastern
edge of Otero County to the north and then along the southern and then
eastern edge of Lincoln County until it follows State Highway 285 north
to the northern boundary of Interstate Highway 40.
(4) Designated area. The designated experimental population area
for Mexican wolves classified as a nonessential experimental population
by this rule is within the subspecies' probable historical range and is
wholly separate geographically from the current range of any known
Mexican wolves. The boundaries of the MWEPA are the portions of Arizona
and New Mexico that are south of Interstate Highway 40 to the
international border with Mexico. A map of the MWEPA follows:
BILLING CODE 4310-55-C
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[GRAPHIC] [TIFF OMITTED] TR16JA15.020
BILLING CODE 4310-55-P
(5) Prohibitions. Take of any Mexican wolf in the experimental
population is prohibited, except as provided in paragraph (k)(7) of
this section. Specifically, the following actions are prohibited by
this rule:
(i) No person may possess, sell, deliver, carry, transport, ship,
import, or export by any means whatsoever any Mexican wolf or wolf part
from the experimental population except as authorized in this rule or
by a valid permit issued by the Service under Sec. 17.32. If a person
kills or injures a Mexican wolf or finds a dead or injured wolf or wolf
parts, the person must not disturb them (unless instructed to do so by
the Service or a designated agency), must minimize disturbance of the
area around them, and must report the incident to the Service's Mexican
Wolf Recovery Coordinator or a designated agency of the Service within
24 hours as described in paragraph (k)(6) of this section.
(ii) No person may attempt to commit, solicit another to commit, or
cause to be committed, any offense defined in this rule.
(iii) Taking a Mexican wolf with a trap, snare, or other type of
capture device within occupied Mexican wolf range is prohibited (except
as authorized in paragraph (k)(7)(iv) of this section) and will not be
considered unintentional take, unless due care was exercised to avoid
injury or death to a wolf. With regard to trapping activities, due care
includes:
(A) Following the regulations, proclamations, recommendations,
guidelines, and/or laws within the State or tribal trust lands where
the trapping takes place.
(B) Modifying or using appropriately sized traps, chains, drags,
and stakes that provide a reasonable expectation that the wolf will be
prevented from either breaking the chain or escaping with the trap on
the wolf, or using sufficiently small traps (less than or equal to a
Victor #2 trap) that allow a reasonable expectation that the wolf will
either immediately pull free from the trap or span the jaw spread when
stepping on the trap.
(C) Not taking a Mexican wolf using neck snares.
(D) Reporting the capture of a Mexican wolf (even if the wolf has
pulled free) within 24 hours to the Service as described in paragraph
(k)(6) of this section.
(E) If a Mexican wolf is captured, trappers can call the
Interagency Field Team (1-888-459-WOLF [9653]) as soon as possible to
arrange for radio-collaring and releasing of the wolf. Per State
regulations for releasing nontarget animals, trappers may also choose
to release the animal alive and subsequently contact the Service or
Interagency Field Team.
(6) Reporting requirements. Unless otherwise specified in this rule
or in a permit, any take of a Mexican wolf must be reported to the
Service or a designated agency within 24 hours. We will allow
additional reasonable time if access to the site is limited. Report any
take of Mexican wolves, including opportunistic harassment, to the
Mexican Wolf Recovery Program, U.S. Fish and Wildlife Service, New
Mexico Ecological Services Field Office, 2105 Osuna Road, NE.,
Albuquerque, NM 87113; by telephone 505-761-4704; or by facsimile 505-
346-2542. Additional contact information can also be found on the
Mexican Wolf Recovery Program's Web site at http://www.fws.gov/southwest/es/mexicanwolf/. Unless otherwise specified in a permit, 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) Allowable forms of take of Mexican wolves. Take of Mexican
wolves in the experimental population is allowed as follows:
(i) Take in defense of human life. Under section 11(a)(3) of the
Act and Sec. 17.21(c)(2), any person may take
[[Page 2561]]
(which includes killing as well as nonlethal actions such as harassing
or harming) a Mexican wolf in self-defense or defense of the lives of
others. This take must be reported as specified in accordance with
paragraph (k)(6) of this section. If the Service or a designated agency
determines that a Mexican wolf presents a threat to human life or
safety, the Service or the designated agency may kill the wolf or place
it in captivity.
(ii) Opportunistic harassment. Anyone may conduct opportunistic
harassment of any Mexican wolf at any time provided that Mexican wolves
are not purposefully attracted, tracked, searched out, or chased and
then harassed. Such harassment of Mexican wolves might cause temporary,
non-debilitating physical injury, but is not reasonably anticipated to
cause permanent physical injury or death. Any form of opportunistic
harassment must be reported as specified in accordance with paragraph
(k)(6) of this section.
(iii) Intentional harassment. After the Service or its designated
agency has confirmed Mexican wolf presence on any land within the
MWEPA, the Service or its designated agency may issue permits valid for
not longer than 1 year, with appropriate stipulations or conditions, to
allow intentional harassment of Mexican wolves. The harassment must
occur in the area and under the conditions specifically identified in
the permit. Permittees must report this take as specified in accordance
with paragraph (k)(6) of this section.
(iv) Take on non-Federal lands. (A) On non-Federal lands anywhere
within the MWEPA, domestic animal owners or their agents may take
(including kill or injure) any Mexican wolf that is in the act of
biting, killing, or wounding a domestic animal, as defined in paragraph
(k)(3) of this section. After the take of a Mexican wolf, the Service
must be provided evidence that the wolf was in the act of biting,
killing, or wounding a domestic animal at the time of take, such as
evidence of freshly wounded or killed domestic animals. This take must
be reported as specified in accordance with paragraph (k)(6) of this
section. The take of any Mexican wolf without evidence of biting,
killing, or wounding domestic animals may be referred to the
appropriate authorities for investigation.
(B) Take of Mexican wolves by livestock guarding dogs, when used to
protect livestock on non-Federal lands, is allowed. If such take by a
guard dog occurs, it must be reported as specified in accordance with
paragraph (k)(6) of this section.
(C) Based on the Service's or a designated agency's discretion and
in conjunction with a removal action authorized by the Service, the
Service or designated agency may issue permits to domestic animal
owners or their agents (e.g., employees, land manager, local officials)
to take (including intentional harassment or killing) any Mexican wolf
that is present on non-Federal land where specified in the permit.
Permits issued under this provision will specify the number of days for
which the permit is valid and the maximum number of Mexican wolves for
which take is allowed. Take by permittees under this provision will
assist the Service or designated agency in completing control actions.
Domestic animal owners or their agents must report this take as
specified in accordance with paragraph (k)(6) of this section.
(v) Take on Federal land. (A) Based on the Service's or a
designated agency's discretion and in conjunction with a removal action
authorized by the Service, the Service may issue permits to livestock
owners or their agents (e.g., employees, land manager, local officials)
to take (including intentional harassment or killing) any Mexican wolf
that is in the act of biting, killing, or wounding livestock on Federal
land where specified in the permit.
(1) Permits issued under this provision will specify the number of
days for which the permit is valid and the maximum number of Mexican
wolves for which take is allowed. Take by permittees under this
provision will assist the Service or designated agency in completing
control actions. Livestock owners or their agents must report this take
as specified in accordance with paragraph (k)(6) of this section.
(2) After the take of a Mexican wolf, the Service must be provided
evidence that the wolf was in the act of biting, killing, or wounding
livestock at the time of take, such as evidence of freshly wounded or
killed livestock. The take of any Mexican wolf without evidence of
biting, killing, or wounding domestic animals may be referred to the
appropriate authorities for investigation.
(B) Take of Mexican wolves by livestock guarding dogs, when used to
protect livestock on Federal lands, is allowed. If such take by a guard
dog occurs, it must be reported as specified in accordance with
paragraph (k)(6) of this section.
(C) This provision for take on Federal land does not exempt Federal
agencies and their contractors from complying with sections 7(a)(1) and
7(a)(4) of the Act, the latter of which requires a conference with the
Service if they propose an action that is likely to jeopardize the
continued existence of the Mexican wolf. In areas within the National
Park System and National Wildlife Refuge System, Federal agencies must
treat Mexican wolves as a threatened species for purposes of complying
with section 7 of the Act.
(vi) Take in response to unacceptable impacts to a wild ungulate
herd. If the Arizona or New Mexico game and fish agency determines that
Mexican wolf predation is having an unacceptable impact to a wild
ungulate herd, as defined in paragraph (k)(3) of this section, the
respective State game and fish agency may request approval from the
Service that Mexican wolves be removed from the area of the impacted
wild ungulate herd. Upon written approval from the Service, the State
(Arizona or New Mexico) or any designated agency may be authorized to
remove (capture and translocate in the MWEPA, move to captivity,
transfer to Mexico, or lethally take) Mexican wolves. These management
actions must occur in accordance with the following provisions:
(A) The Arizona or New Mexico game and fish agency must prepare a
science-based document that:
(1) Describes what data indicate that the wild ungulate herd is
below management objectives, what data indicate that the impact on the
wild ungulate herd is influenced by Mexican wolf predation, why Mexican
wolf removal is a warranted solution to help restore the wild ungulate
herd to State game and fish agency management objectives, the type
(level and duration) of Mexican wolf removal management action being
proposed, and how wild ungulate herd response to wolf removal will be
measured and control actions adjusted for effectiveness;
(2) Demonstrates that attempts were and are being made to identify
other causes of wild ungulate herd declines and possible remedies or
conservation measures in addition to wolf removal;
(3) If appropriate, identifies areas of suitable habitat for
Mexican wolf translocation; and
(4) Has been subjected to peer review and public comment prior to
its submittal to the Service for written concurrence. In order to
comply with this requirement, the State game and fish agency must:
(i) Conduct the peer review process in conformance with the Office
of Management and Budget's most recent Final Information and Quality
Bulletin for Peer Review and include in their proposal an explanation
of how the bulletin's standards were considered and satisfied; and
[[Page 2562]]
(ii) Obtain at least three independent peer reviews from
individuals with relevant expertise other than staff employed by the
State (Arizona or New Mexico) requesting approval from the Service that
Mexican wolves be removed from the area of the affected wild ungulate
herd.
(B) Before the Service will allow Mexican wolf removal in response
to impacts to wild ungulates, the Service will evaluate the information
provided by the requesting State (Arizona or New Mexico) and provide a
written determination to the requesting State game and fish agency on
whether such actions are scientifically based and warranted.
(C) If all of the provisions above are met, the Service will, to
the maximum extent allowable under the Act, make a determination
providing for Mexican wolf removal. If the request is approved, the
Service will include in the written determination which management
action (capture and translocate in MWEPA, move to captivity, transfer
to Mexico, lethally take, or no action) is most appropriate for the
conservation of the Mexican wolf subspecies.
(D) Because tribes are able to request the capture and removal of
Mexican wolves from tribal trust lands at any time, take in response to
impacts to wild ungulate herds is not applicable on tribal trust lands.
(vii) Take by Service personnel or a designated agency. The Service
or a designated agency may take any Mexican wolf in the experimental
population in a manner consistent with a Service-approved management
plan, special management measure, biological opinion pursuant to
section 7(a)(2) of the Act, conference opinion pursuant to section
7(a)(4) of the Act, section 6 of the Act as described in Sec. 17.31
for State game and fish agencies with authority to manage Mexican
wolves, or a valid permit issued by the Service through Sec. 17.32.
(A) The Service or designated agency may use leg-hold traps and any
other effective device or method for capturing or killing Mexican
wolves to carry out any measure that is a part of a Service-approved
management plan, special management measure, or valid permit issued by
the Service under Sec. 17.32, regardless of State law. The disposition
of all Mexican wolves (live or dead) or their parts taken as part of a
Service-approved management activity must follow provisions in Service-
approved management plans or interagency agreements or procedures
approved by the Service on a case-by-case basis.
(B) The Service or designated agency may capture; kill; subject to
genetic testing; place in captivity; or euthanize any feral wolf-like
animal or feral wolf hybrid found within the MWEPA that shows physical
or behavioral evidence of: Hybridization with other canids, such as
domestic dogs or coyotes; being a wolf-like animal raised in captivity,
other than as part of a Service-approved wolf recovery program; or
being socialized or habituated to humans. If determined to be a pure
Mexican wolf, the wolf may be returned to the wild.
(C) The Service or designated agency may carry out intentional or
opportunistic harassment, nonlethal control measures, translocation,
placement in captivity, or lethal control of problem wolves. To
determine the presence of problem wolves, the Service will consider all
of the following:
(1) Evidence of wounded domestic animal(s) or remains of domestic
animal(s) that show that the injury or death was caused by Mexican
wolves;
(2) The likelihood that additional Mexican wolf-caused depredations
or attacks of domestic animals may occur if no harassment, nonlethal
control, translocation, placement in captivity, or lethal control is
taken;
(3) Evidence of attractants or intentional feeding (baiting) of
Mexican wolves; and
(4) Evidence that Mexican wolves are habituated to humans, human
residences, or other facilities regularly occupied by humans, or
evidence that Mexican wolves have exhibited unprovoked and aggressive
behavior toward humans.
(D) Wildlife Services will not use M-44's and choking-type snares
in occupied Mexican wolf range. Wildlife Services may restrict or
modify other predator control activities pursuant to a Service-approved
management agreement or a conference opinion between Wildlife Services
and the Service.
(viii) Unintentional take. (A) Take of a Mexican wolf by any person
is allowed if the take is unintentional and occurs while engaging in an
otherwise lawful activity. Such take must be reported as specified in
accordance with paragraph (k)(6) of this section. Hunters and other
shooters have the responsibility to identify their quarry or target
before shooting; therefore, shooting a Mexican wolf as a result of
mistaking it for another species will not be considered unintentional
take. Take by poisoning will not be considered unintentional take.
(B) Federal, State, or tribal agency employees or their contractors
may take a Mexican wolf or wolf-like animal if the take is
unintentional and occurs while engaging in the course of their official
duties. This includes, but is not limited to, military training and
testing and Department of Homeland Security border security activities.
Take of Mexican wolves by Federal, State, or tribal agencies must be
reported as specified in accordance with paragraph (k)(6) of this
section.
(C) Take of Mexican wolves by Wildlife Services employees while
conducting official duties associated with predator damage management
activities for species other than Mexican wolves may be considered
unintentional if it is coincidental to a legal activity and the
Wildlife Services employees have adhered to all applicable Wildlife
Services' policies, Mexican wolf standard operating procedures, and
reasonable and prudent measures or recommendations contained in
Wildlife Service's biological and conference opinions.
(ix) Take for research purposes. The Service may issue permits
under Sec. 17.32, and designated agencies may issue permits under
State and Federal laws and regulations, for individuals to take Mexican
wolves pursuant to scientific study proposals approved by the agency or
agencies with jurisdiction for Mexican wolves and for the area in which
the study will occur. Such take should lead to management
recommendations for, and thus provide for the conservation of, the
Mexican wolf.
(8) Disturbance-causing land-use activities. For any activity on
Federal lands that the Service determines could adversely affect
reproductive success, natural behavior, or persistence of Mexican
wolves, the Service will work with Federal agencies to use their
authorities to temporarily restrict human access and disturbance-
causing land-use activities within a 1-mi (1.6-km) radius around
release pens when Mexican wolves are in them, around active dens
between approximately April 1 and July 31, and around active Mexican
wolf rendezvous sites between approximately June 1 and September 30, as
necessary.
(9) Management. (i) On private land within Zones 1 and 2, as
defined in paragraph (k)(3) of this section, of the MWEPA, the Service
or designated agency may develop and implement management actions to
benefit Mexican wolf recovery in cooperation with willing private
landowners, including initial release and translocation of Mexican
wolves onto such lands in Zones 1 or 2 if requested by the landowner
and with the concurrence of the State game and fish agency.
(ii) On tribal trust land within Zones 1 and 2, as defined in
paragraph (k)(3)
[[Page 2563]]
of this section, of the MWEPA, the Service or a designated agency may
develop and implement management actions in cooperation with willing
tribal governments, including: occupancy by natural dispersal, initial
release, and translocation of Mexican wolves onto such lands. No
agreement between the Service and a Tribe is necessary for the capture
and removal of Mexican wolves from tribal trust lands if requested by
the tribal government.
(iii) Based on end-of-year counts, we will manage for a population
objective of 300 to 325 Mexican wolves in the MWEPA in Arizona and New
Mexico. So as not to exceed this population objective, we will exercise
all management options with preference for translocation to other
Mexican wolf populations to further the conservation of the subspecies.
The Service may change this provision as necessary to accommodate a new
recovery plan.
(iv) We are implementing a phased approach to Mexican wolf
management within the MWEPA in western Arizona as follows:
(A) Phase 1 will be implemented for the first 5 years following
February 17, 2015. During this phase, initial releases and
translocation of Mexican wolves can occur throughout Zone 1 with the
exception of the area west of State Highway 87 in Arizona. No
translocations can be conducted west of State Highway 87 in Arizona in
Zone 2. Mexican wolves can disperse naturally from Zones 1 and 2 into,
and occupy, the MWEPA (Zones 1, 2, and 3, as defined in paragraph
(k)(3) of this section). However, during Phase 1, dispersal and
occupancy in Zone 2 west of State Highway 87 will be limited to the
area north of State Highway 260 and west to Interstate 17. A map of
Phase 1 follows:
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[[Page 2564]]
[GRAPHIC] [TIFF OMITTED] TR16JA15.021
(B) In Phase 2, initial releases and translocation of Mexican
wolves can occur throughout Zone 1 including the area west of State
Highway 87 in Arizona. No translocations can be conducted west of
Interstate Highway 17 in Arizona. Mexican wolves can disperse naturally
from Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3, as
defined in paragraph (k)(3) of this section). However, during Phase 2,
dispersal and occupancy west of Interstate Highway 17 will be limited
to the area west of Highway 89 in Arizona. A map of Phase 2 follows:
[[Page 2565]]
[GRAPHIC] [TIFF OMITTED] TR16JA15.022
(C) In Phase 3, initial release and translocation of Mexican wolves
can occur throughout Zone 1. No translocations can be conducted west of
State Highway 89 in Arizona. Mexican wolves can disperse naturally from
Zones 1 and 2 into, and occupy, the MWEPA (Zones 1, 2, and 3, as
defined in paragraph (k)(3) of this section). A map of Phase 3 follows:
[[Page 2566]]
[GRAPHIC] [TIFF OMITTED] TR16JA15.023
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(D) While implementing this phased approach, two evaluations will
be conducted: The first evaluation will cover the first 5 years and the
second evaluation will cover the first 8 years after February 17, 2015
in order to determine if we will move forward with the next phase.
(1) Each phase evaluation will consider adverse human interactions
with Mexican wolves, impacts to wild ungulate herds, and whether or not
the Mexican wolf population in the MWEPA is achieving a population
number consistent with a 10 percent annual growth rate based on end-of-
year counts, such that 5 years after February 17, 2015, the population
of Mexican wolves in the wild is at least 150, and 8 years after
February 17, 2015, the population of Mexican wolves in the wild is at
least 200.
(2) If we have not achieved this population growth, we will move
forward to the next phase. Regardless of the outcome of the two
evaluations, by the beginning of year 12 from February 17, 2015, we
will move to full implementation of this rule throughout the MWEPA, and
the phased management approach will no longer apply.
(E) The phasing may be expedited with the concurrence of
participating State game and fish agencies.
(10) Evaluation. The Service will evaluate Mexican wolf
reestablishment progress and prepare periodic progress reports and
detailed annual reports. In addition, approximately 5 years after
February 17, 2015, the Service will prepare a one-time overall
evaluation of the experimental population program that focuses on
modifications needed to
[[Page 2567]]
improve the efficacy of this rule, reestablishment of Mexican wolves to
the wild, and the contribution the experimental population is making to
the recovery of the Mexican wolf.
* * * * *
Dated: January 7, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-00436 Filed 1-15-15; 8:45 am]
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