2010-26765. Endangered and Threatened Wildlife and Plants; Reinstatement of Protections for the Gray Wolf in the Northern Rocky Mountains in Compliance With a Court Order

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are issuing this final rule to comply with a court order that has the effect of reinstating the regulatory protections under the Endangered Species Act of 1973, as amended (ESA), for the gray wolf (Canis lupus) in most of the northern Rocky Mountains. Pursuant to the District of Montana court order dated August 5, 2010, this rule corrects the gray wolf listing for the northern half of Montana, the northern panhandle of Idaho, the eastern third of Washington and Oregon, and north-central Utah as endangered and reinstates the former special rules designating the gray wolf in the remainder of Montana and Idaho as nonessential experimental populations. Because ESA protections were not removed in Wyoming by our April 2, 2009 (74 FR 15123), final delisting rule, Wyoming is not impacted by this final rule.

DATES:

This action is effective October 26, 2010. However, the court order had legal effect immediately upon its filing at 2:43 p.m. Mountain Daylight Time on August 5, 2010.

ADDRESSES:

This final rule is available on the Internet at http://www.regulations.gov. It will also be available for inspection, by appointment, during normal business hours at U.S. Fish and Wildlife Service, Office of the Western Gray Wolf Recovery Coordinator, 585 Shepard Way, Helena, Montana 59601. Call [phone] to make arrangements.

FOR FURTHER INFORMATION CONTACT:

For information on wolves in the northern Rocky Mountains, contact Edward E. Bangs, Western Gray Wolf Recovery Coordinator, U.S. Fish and Wildlife Service, at our Helena office (see ADDRESSES) or telephone [phone], extension 204. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 1-800-877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION:

Background

On April 2, 2009, we published a final rule to remove ESA protections across most of the concurrently designated northern Rocky Mountain (NRM) gray wolf Distinct Population Segment (DPS) (74 FR 15123). Additional background information on the NRM gray wolf population and on this decision, including previous Federal actions, can be found in our April 2, 2009, final rule.

Lawsuits challenging our final rule were filed in U.S. District Court for the District of Montana and U.S. District Court for the District of Wyoming. On August 5, 2010, the U.S. District Court for the District of Montana vacated and set aside our 2009 delisting rule (Defenders of Wildlife et al. v. Salazar et al., 9:09-cv-00077-DWM).

The decision reinstates Federal protections that were in place prior to our 2009 delisting. Therefore, wolves are listed as endangered throughout the former NRM DPS (43 FR 9607, March 9, 1978; 50 CFR 17.11(h)), except where they are classified as experimental populations (i.e., southern Montana, Idaho south of Interstate 90, and all of Wyoming) (59 FR 60252, November 22, 1994; 59 FR 60266, November 22, 1994; 70 FR 1286, January 6, 2005; 73 FR 4720, January 28, 2008; 50 CFR 17.84(i) and (n)). Thus, take of wolves may be authorized only by an experimental population rule, a permit obtained under section 10 of the ESA, or if exempted by an incidental take statement within a biological opinion issued by the Service pursuant to section 7 of the ESA. We notified all State, Federal, and Tribal partners of the decision and its impact shortly after the order was released. We also took steps to ensure the public was aware of the decision.

This action is independent of any decision by the United States or any interveners in the case to appeal the August 5, 2010, Montana District Court ruling.

Administrative Procedure

This rulemaking is necessary to comply with the August 5, 2010, court order. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d), that the agency has good cause to make this rule effective upon publication.

Effects of the Rule

As of the filing of the court order, delisted wolves in Washington, Oregon, Utah, the Idaho panhandle, and northern Montana were again listed as endangered (50 CFR 17.11(h)). Wolves in southern Montana and Idaho south of Interstate 90 are again listed as nonessential experimental populations under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). Furthermore, the NRM gray wolf DPS established by our April 2, 2009, final rule is set aside. Wolves in Wyoming were not delisted by our 2009 final rule (74 FR 15123, April 2, 2009) and, thus, their listed status under the ESA is not impacted by this final decision. Wolves in Wyoming remain listed as a nonessential experimental population under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). The maps in the rule portion of this document illustrate the boundaries of the nonessential experimental population areas.

This rule will not affect the status of the gray wolf in the NRM under State laws or suspend any other legal protections provided by State law. This rule will not affect the gray wolf's Appendix II status under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

List of Subjects in 50 CFR Part 17

• Endangered and threatened species
• Exports
• Imports
• Reporting and recordkeeping requirements
• Transportation

Regulation Promulgation

In order to comply with the court order discussed above, we amend part 17, subchapter B of chapter I, title 50 of the CFR, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend § 17.11 by revising the entry in the table at paragraph (h) for “Wolf, gray” as follows:

§ 17.11

[Amended]

* * * * *

(h) * * *

Species		Historic range	Vertebrate population where endangered or threatened	Status	When listed	Critical habitat	Special rules
Common name	Scientific name
MAMMALS
*         *         *         *         *         *         *
Wolf, gray	Canis lupus	Holarctic	U.S.A., conterminous (lower 48) States, except MN and where listed as an experimental population below; Mexico	E	1, 6, 13, 15, 35	17.95(a)	N/A
Do	......do	......do	U.S.A. (MN)	T	35	17.95(a)	17.40(d)
Do	......do	......do	U.S.A. (portions of ID and MT, WY—see § 17.84(i) and (n))	XN	561, 562	N/A	17.84(i). 17.84(n).
Do	......do	......do	U.S.A. (portions of AZ, NM, and TX—see § 17.84(k))	XN	631	N/A	17.84(k)
*         *         *         *         *         *         *

3. Amend § 17.84 by:

a. Revising paragraphs (i)(7)(i) and (i)(7)(ii) and adding new paragraph (i)(7)(iii); and

b. Revising the first sentence of paragraph (n)(1) and all of paragraphs (n)(9)(i) and (n)(9)(ii) and adding new paragraph (n)(9)(iii) to read as set forth below.

§ 17.84

Special rules—vertebrates.

* * * * *

(i) * * *

(7) * * *

(i) The central Idaho area is shown on the following map. The boundaries of the nonessential experimental population area will be those portions of Idaho that are south of Interstate Highway 90 and west of Interstate 15, and those portions of Montana south of Interstate 90, Highway 93 and 12 from Missoula, Montana, west of Interstate 15.

(ii) The Yellowstone Management Area is shown on the following map. The boundaries of the nonessential experimental population area will be that portion of Idaho that is east of Interstate Highway 15; that portion of Montana that is east of Interstate Highway 15 and south of the Missouri River from Great Falls, Montana, to the eastern Montana border; and all of Wyoming.

(iii) All wolves found in the wild within the boundaries of this paragraph (i)(7) after the first releases will be considered nonessential experimental animals. In the conterminous United States, a wolf that is outside an experimental area (as defined in paragraph (i)(7) of this section) would be considered as endangered (or threatened if in Minnesota) unless it is marked or otherwise known to be an experimental animal; such a wolf may be captured for examination and genetic testing by the Service or Service-designated agency. Disposition of the captured animal may take any of the following courses:

(A) If the animal was not involved in conflicts with humans and is determined likely to be an experimental wolf, it will be returned to the reintroduction area.

(B) If the animal is determined likely to be an experimental wolf and was involved in conflicts with humans as identified in the management plan for the closest experimental area, it may be relocated, placed in captivity, or killed.

(C) If the animal is determined not likely to be an experimental animal, it will be managed according to any Service-approved plans for that area or will be marked and released near its point of capture.

(D) If the animal is determined not to be a wild gray wolf or if the Service or agencies designated by the Service determine the animal shows physical or behavioral evidence of hybridization with other canids, such as domestic dogs or coyotes, or of being an animal raised in captivity, it will be returned to captivity or killed.

* * * * *

(n) * * *

(1) The gray wolves (wolf) identified in paragraphs (n)(9)(i) and (ii) of this section are nonessential experimental populations. * * *

* * * * *

(9) * * *

(i) The central Idaho NEP area is shown on the following map. The boundaries of the NEP area are those portions of Idaho that are south of Interstate Highway 90 and west of Interstate 15, and those portions of Montana south of Interstate 90, Highways 93 and 12 from Missoula, Montana, west of Interstate 15.

(ii) The Yellowstone NEP is shown on the following map. The boundaries of the NEP area are that portion of Idaho that is east of Interstate Highway 15; that portion of Montana that is east of Interstate Highway 15 and south of the Missouri River from Great Falls, Montana, to the eastern Montana border; and all of Wyoming.

(iii) All wolves found in the wild within the boundaries of these experimental areas are considered nonessential experimental animals.

* * * * *

Dated: October 7, 2010.

Daniel M. Ashe,

Acting Director, Fish and Wildlife Service.