Full Title Name:  Regulation for Nonessential Experimental Populations of the Western Distinct Population Segment (DPS) of the Gray Wolf

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Krista Cotter Place of Publication:  Animal Legal & Historical Center Publish Year:  2005 Primary Citation:  Michigan State University College of Law

This overview compares the proposed regulation (68 FR 15879) and the changes made in the recent final rule (70 F.R. 1286) that concerns the Western Distinct Population Segment for the Gray Wolf (Canis lupus).



Endangered and Threatened Wildlife and Plants; Regulation for Nonessential Experimental Populations of the Western Distinct Population Segment (DPS) of the Gray Wolf (click here to go directly to final rule)

Action:   FINAL RULE

Effective:   2/7/05



This final rule ( 70 F.R. 1286 ) was written in response to a notice of proposed rulemaking issued by the Fish and Wildlife Service (FWS) on 4/1/03 ( 68 FR 15879 ) that announced the intent to remove the western Distinct Population Segment (DPS) of the gray wolf ( Canis lupis ) from the list of Endangered and Threatened Wildlife.   The agency was prompted to de-list the wolf because the population of gray wolves in the Yellowstone and central Idaho nonessential experimental population (NEP) areas has exceeded agency determined numerical recovery goals.   This rule pertains to only western DPS States or Tribal reservations with FWS-approved wolf management plans and it grants additional flexibility within experimental population areas. In other words, because the western DPS gray wolf population is treated as experimental, certain rules, like this rule, can be adopted for that population that would not be allowed if the animal was listed as endangered. The primary issue of this rule is whether the state or a private person can take or kill a member of the gray wolf population of the western DPS.   This rule clarifies when private parties will be allowed to take a wolf and provides landowners in states with FWS approved wolf management plans to take additional to protect their dogs and livestock, which were not available prior to this rule.   Also, the rule provides for State and Tribal lead transition for wolf management in those States or reservations with FWS approved wolf management plans, with the exception of lands managed by the National Park Service or the FWS.



Western Distinct Population Segment – an area consisting of Montana , Idaho , and Wyoming in which the gray wolf is protected while the population recovers through its listing as endangered and, in some portions of the DPS, as a nonessential population segment.

Nonessential Experimental Population
- under this designation, the rules protecting the endangered species living in this population are must less stringent than outside the population designation.  These species are reintroduced populations of the listed species.

- harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or attempt to engage in any such conduct



-          Gray wolves were eliminated from Montano , Wyoming , Idaho , and southwestern Canada by the 1930’s as a result of human caused mortality (Young and Goldman 1944).

-          Gray wolves were listed as endangered in 1974

-          The Endangered Species Act was revised in 1982 by adding designations of specific reintroduced populations of listed species as "experimental populations.”

-          In 1994, the agency enacted special rules in relation to the re-introduction of the gray wolf ( 50 CFR 17.84 ) which established two NEPs:   one in central Idaho and the other in Yellowstone and the rules outlined management practices and protective measures to ensure the population’s conservation and recovery.

-          Wolf populations in both NEPs exceeded expectations and prompted the FWS to reclassify the gray wolves out side of the NEP in the Western DPS as threatened ( 68 FR 15804 ).   The FWS published an advance notice to delist the gray wolves in the Western DPS in the future ( 68 FR 15879 ).

o        This advance notice of delisting prompted the FWS to promulgate this rule to describe the management of NEP wolves in the Western DPS while the FWS awaits delisting and transfer of management for wolves in the WPDS to States and Tribes.  

-          3/9/04 – the FWS issued the proposed rule ( 69 FR 10965 ) for the final rule of which this document is speaking.


Reason for the Rule

o        While the FWS, States and Tribes await the delisting of the wolf the transfer of management, this rule establishes the guidelines on how to the FWS will manage the wolf population until that time.

o        This rule provides for additional flexibility within the experimental population areas in recognition of the fact that wolves are numerous in those areas and may pose a risk to private landowners in the NEP’s with dogs or livestock.   This rule gives additional flexibility for the take of gray wolves by private owners in response to that risk.

o        The rule provides for State and Tribal lead transition for wolf management in those States or reservations with FWS approved wolf management plans, with the exception of lands managed by the National Park Service or the FWS.

Differences Between the Proposed Rule and the Final Rule



Proposed Rule

  • 1. Only landowners and public land permittees were allowed to non-injuriously harass wolves


Final Rule

  • 1. Anyone is allowed to harass the wolf at any time for any reason


  • Reason 1: by allowing anyone to harass the wolf at any time, it may make wolves more wary of people and it will provide people an extra means to protect livestock and pets


  • 2. Allowed the take of wolves attacking any domestic animal on private land or when there was a “reasonable belief” that such attack was eminent
  • 2. Authorizes a take if the wolf is attacking, or engaged in any action that would lead a reasonable person to believe that an attack was eminent.   On private land a wolf can be taken without written take authorization when attacking livestock or dogs.   On public land, the wolves can be taken if they are attacking livestock, without a permit, only by a permittee with a federal land-use permit.   On both private and public land, evidence of an attack or evidence that a reasonable person would have believed an attack was likely to occur must be presented to investigators.


  • Reason 2 :   “reasonable belief” is too vague and would invite abuse and killing of non-problem wolves.   By eliminating “reasonable belief,” the rule does not require a determination of the taker’s state of mind, but the rule now requires evidence to support the claim that a reasonable person would belief that there was or would have been an attack.


  • 3. On private land, a wolf attacking any domestic animal was subject to take
  • 3. Only allows take on private land of a wolf attacking livestock or dogs.


  • Reason 3 :   this is more protective than the proposed rule.   If take were allowed for the attack on any domestic animal, abuse would likely occur.


  • 4. Grazing permittees on public land were allowed to take wolves attacking livestock as long as there was a prior confirmed attack on the livestock, resulting in a Federal take authorization


  • 4. Some public land permittees can take wolves attacking livestock without written take authorization


  • Reason 4 :   less protective than the proposed rule.   One should be allowed to take an attacking animal at the time of attack, not have to wait for authorization.


  • 5. Private landowners, adjacent neighbors, and public land grazing permittees are allowed issuance of written take authorization, allowing them to shoot on sight wolves on private property or adjacent property as long as 1) there was at least one confirmed wolf attack, and 2) the FWS determines that wolves are routinely present and are a significant risk there
  • 5. Private landowners or public land grazing permittees with a confirmed attack on that land have written take authorization to shoot wolves on sight on their private property after 1) there was at least on confirmed wolf attack there, 2) the FWS determines that wolves are routinely present and are a significant risk there, and 3) the FWS is authorized to do lethal control.


  • Reason 5 :   shoot on sight authorization should be issued only when the agency is also trying to remove lethally problem wolves.   This will reduce the potential for abuse.


  • 6. Allowed States or Tribes to lethally remove wolves causing high impact to ungulate herds, after consulting the FWS and looking into possible alternatives and remedies, and only if the take would not inhibit wolf recovery
  • 6. States and Tribes can lethally remove wolves negatively impacting ungulate herds after 1) developing a science-based plan, 2) making the plan available for peer and public review, 3) finalizing the plan, and 4) submitting the plan to the FWS for written concurrence.   The FWS would approve the plan if it is scientifically-based on would not inhibit the wolf recovery.


  • Reason 6 : an open, science-based process will lessen public mistrust of lethally removing wolves for State ungulate management objectives.


  • 7. Any breeding female and pups were required to be released if caught on public land before Oct. 1 during an initial agency wolf control action
  • 7. the FWS and designated agents have the discretion to decide whether to remove any depredating wolf, including breeding females and pups on public land after the first confirmed livestock attack.  


  • Reason 7 :   allows more FWS management on a case-by-case basis and wolf control may begin earlier in the year than it previously had.


  • 8. States with accepted wolf management plans were allowed to petition the Secretary of FWS to assume wolf management authority and implement wolf management strategies beyond those identified in the proposed rule.   The Secretary would have to respond within 30 days of receipt of the petition.
  • 8.   Both States and Tribes with approved wolf management plans are allowed to petition the Secretary to lead implementation of this rule.   Under an MOA, the States and Tribes could conduct and authorized all wolf management activities that the FWS currently conducts and implement their own portions of their FWS approved management plans within their respective state or reservation.   The Secretary will approve the petition as soon as possible, but only after they determine if all applicable policies and laws were appropriately addressed.   States and Tribes cannot implement additional strategies beyond this rule without a proposed amendment to the rule and an opportunity for public comment.  
  • Reason 8:   Tribes should be included because they have unique wildlife management authorities and treaties separate from the States.


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