Endangered and Threatened Wildlife and Plants; Regulation for Nonessential Experimental Populations of the Western Distinct Population Segment of the Gray Wolf, 1286-1311 [05-136]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 4 (Thursday, January 6, 2005)]
[Rules and Regulations]
[Pages 1286-1311]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-136]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

Federal Register / Vol. 70, No. 4 / Thursday, January 6, 2005 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT61


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

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

Previous Federal Actions

    The northern Rocky Mountain wolf (Canis lupus irremotus) was listed 
as endangered in Montana and Wyoming in the first list of species that 
were protected under the 1973 Act, published in May 1974 (U.S. 
Department of the Interior 1974). To eliminate problems with listing 
separate subspecies of the gray wolf and identifying relatively narrow 
geographic areas in which those subspecies are protected, on March 9, 
1978, we published a rule (43 FR 9607) relisting the gray wolf at the 
species level (Canis lupus) as endangered throughout the conterminous 
48 States and Mexico, except Minnesota, where the gray wolf was 
reclassified to threatened. In addition, critical habitat was 
designated in Minnesota and Michigan in that rulemaking.
    On November 22, 1994, we designated areas in Idaho, Montana, and 
Wyoming as NEPs in order to initiate gray wolf reintroduction in 
central Idaho and the Greater Yellowstone area (59 FR 60252, 59 FR 
60266). These experimental population designations contain special 
rules that govern the take of wolves within the geographical areas. The 
1994 rules governing those experimental populations allowed for 
increases in the authority of States and Tribes to manage the wolves 
under a State or Tribal management plan approved by the Service. 
Specifically, the 1994 rules allowed States or Tribes to expand the 
definition of ``livestock'' for purposes of managing conflicts between 
wolves and livestock, and the rules also allowed States and Tribes to 
document adverse effects of wolves on ungulates for the purposes of 
managing those conflicts.
    In January 1995, 15 wolves captured in Alberta, Canada, were 
released in central Idaho. In January 1996, an additional 20 wolves 
from British Columbia were released into the central Idaho experimental 
population area. In March 1995, 14 wolves from Alberta were released 
from holding pens in Yellowstone National Park. In April 1996, this 
procedure was repeated with 17 wolves from British Columbia (Bangs and 
Fritts 1996, Fritts et al. 1997, see Service 2004 for additional 
references).
    On December 11, 1997, we published a proposal to revise the NEP 
rules in central Idaho and the Yellowstone area (62 FR 65237). This 
proposal attempted to clarify ambiguous language regarding wolf control 
options of suspected captive wolves and wolf-dog hybrids found in the 
wild within the experimental population areas. Due to litigation over 
wolf reintroduction, in which the Service ultimately prevailed, and 
other priorities, that proposal was never finalized. This rule resolves 
that ambiguous language (see (xi)(H) in this rule).
    On July 13, 2000, we published a proposal (65 FR 43450) to revise 
the listing of the gray wolf across most of the conterminous United 
States. On April 1, 2003, we published a rule establishing three DPSs 
(Western, Eastern, and Southwestern) and reclassifying the gray wolf 
from endangered to threatened in the Western and Eastern DPSs except 
where NEPs existed (68 FR 15804). We established special rules under 
section 4(d) of the Act for the Western and Eastern DPSs. Also on April 
1, 2003, we published two Advance Notices of Proposed Rulemaking 
announcing our intent to delist the gray wolf in the Eastern (68 FR 
15876) and Western (68 FR 15879) DPSs in the future.

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    We received several petitions during the past decade requesting 
delisting of the gray wolf in all or part of the 48 conterminous 
States. We subsequently published findings that these petitions did not 
present substantial information that delisting gray wolves in all or 
part of the conterminous 48 States was warranted (54 FR 16380, April 
24, 1989; 55 CFR 48656, November 30, 1990; 63 FR 55839, October 19, 
1998).

Recovery Goals

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

Currently Designated Nonessential Experimental Populations of Gray 
Wolves

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

Current Special Regulations for the Western Distinct Population Segment

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

State and Tribal Wolf Management Plans

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

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

Summary of Comments and Recommendations

A. Soliciting Public Comment

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

B. Technical and Editorial Comments

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

[[Page 1290]]

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

[[Page 1291]]

C. Legal Compliance With Laws, Regulations, and Policy

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

[[Page 1292]]

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

D. Lethal Control

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

[[Page 1293]]

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

[[Page 1294]]

indicating the impact by wolf predation on the wild ungulate 
population, what degree of wolf removal will occur, and why it believes 
wolf control is appropriate. The proposal must discuss other potential 
remedies. The Service will review the State's or Tribe's proposal once 
it has undergone peer and public review. The Service will only approve 
wolf take for ungulate management after we determine that the proposal 
scientifically supports wolf removal and does not compromise wolf 
recovery objectives.
    Issue 12: Some comments supported and others were against 
translocation (capturing and releasing at a distant location) of 
problem wolves.
    Response 12: Translocation of wolves to reduce wolf-livestock 
conflicts can be a valuable management tool when wolf populations are 
low and empty habitat is available (Bradley 2003). The Rocky Mountain 
wolf population is well above recovery levels and nearly all suitable 
release sites for translocated wolves are already occupied by resident 
wolf packs. Wolves are territorial, and resident packs may kill strange 
wolves in their territory. Translocating problem wolves is often 
unsuccessful at preventing further problems, because once a wolf has 
learned that livestock can be prey, it can carry that learned behavior 
to its new location, where it can continue being a problem wolf 
(Service 1999). Also, some wolves travel great distances after 
translocation and return to the area where they were captured and begin 
attacking livestock again. As a result, translocated wolves rarely 
contribute to recovery of the Rocky Mountain wolf population (62 FR 
65237). The Service or our designated agent(s) will primarily rely on 
lethal control for management of wolves that attack livestock, if non-
lethal methods appear ineffective, because most habitat in Montana, 
Idaho, and Wyoming that does not have livestock is already occupied by 
resident wolf packs. No wolves have been relocated in Montana, Idaho, 
or Wyoming since 2001. However, in rare instances, translocation may be 
used to resolve conflicts or excessive depredation of native wild 
ungulate populations.
    Issue 13: Some recommended the Service emphasize non-lethal wolf 
control to resolve conflicts, including encouraging ranchers to take 
measures to reduce the risk of wolf depredation.
    Response 13: The Service works with USDA-APHIS-WS, livestock 
organizations, private groups, and individuals to identify and 
publicize ways that livestock producers can reduce the risk of wolf 
depredation. The decision to use any of the tools offered is strictly 
voluntary on the part of the livestock producer, but in the past many 
producers have been willing to take additional steps to reduce the risk 
of wolf predation. To date, a multitude of preventative and non-lethal 
wolf control measures have been used to reduce wolf conflicts with 
livestock. None are always reliable or effective, but some can have 
limited and temporary benefit (Bangs and Shivik 2002, see Service 2004 
for additional references). The Service and our designated agent(s) 
will continue to investigate preventative and non-lethal management 
options to reduce wolf conflicts with livestock, but lethal control 
will continue to be an important option in many situations.
    Wolf populations can remain stable while withstanding 25-35 percent 
human-caused mortality per year (Mech and Boitani 2003). Agency lethal 
control of problem wolves was predicted in the 1994 EIS to remove about 
10 percent of the wolf population annually, and at that level lethal 
control will reduce the overall level of conflicts with livestock 
without reducing the wolf population. To date, agency lethal control of 
wolves has removed an average of less than 5 percent of the wolf 
population annually and the amount of lethal take allowed