December 17, States Fish and Wildlife Service 4401 N. Fairfax Drive Arlington, VA 22203

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1 December 17, 2013 States Fish and Wildlife Service 4401 N. Fairfax Drive Arlington, VA Re: Docket No. FWS-HQ-ES ; Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife and Maintaining Protections for the Mexican Wolf (Canis lupus baileyi) by Listing It as Endangered Dear United States Fish and Wildlife Service: Adirondack Wild: Friends of the Forest Preserve writes to express our disapproval of the proposed delisting in the Gray Wolf (Canis Lupus) from the list of Endangered and Threatened Wildlife. As such, we would like to add our voice to that of Earth Justice, the Center for Biological Diversity and the Sierra Club and the Defenders of Wildlife who submitted formal comment in October 2013 that states the following included in its entirety: The United States Fish and Wildlife Service s ( FWS ) Proposed Rule Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife, 78 Fed. Reg (June 13, 2013)( Proposed Rule ) is contrary to the fundamental principles of the Endangered Species Act ( Act ). The Proposed Rule completely departs from the long-accepted taxonomic classification of the gray wolf, C. lupus, and the wellaccepted understanding of the gray wolf s current and historical range. With the exception of the Mexican wolf, call. baileyi, FWS concludes that wolves in the United States no longer merit the protections of the Act. As set forth in this letter, FWS s proposed course of action is contrary to the mandate of the Act, and is arbitrary and capricious. See, Tucson Herpetological Soc. v. Salazar, 566 F.3d 870, 875 (9th

2 2 Cir. 2009). In crafting the Proposed Rule, FWS has departed from the accepted definition of the significant portion of its range language of the Act, has failed to rely on the best available science, and has been driven by the political goal of delisting the gray wolf, rather than a comprehensive assessment of the best available science. FWS has also acted arbitrarily and capriciously in determining that the Northwest population of gray wolves and the population of Eastern wolves do not warrant the protections of the Act. This letter is submitted on behalf of the Center for Biological Diversity, Defenders of Wildlife, and the Sierra Club. 1. FWS Interpretation of Significant Portion of Its Range Is Contrary to the Purpose of the Endangered Species Act The Proposed Rule departs from well-established legal precedent and fails to protect C. lupus and its subspecies throughout their historic range. While FWS acknowledges that the gray wolf and various subspecies are no longer distributed throughout their historic range, it improperly concludes that continued Endangered Species Act protections are no longer needed. The Proposed Rule also contravenes the purpose of the Endangered Species Act and established legal precedent, with its interpretation of significant portion of the range. Finally, the Proposed Rule is contrary to the purpose of the Endangered Species Act, since it looks to areas outside the United States when assessing whether the species requires the protection of the Endangered Species Act. a. The Endangered Species Act Requires Protection of Species in Their Historic Range The Endangered Species Act defines an endangered species as one which is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C. 1532(6). The Ninth Circuit has held the phrase significant portion of its range should be interpreted with the historical range of the species in mind: [w]e conclude, consistently with the Secretary s historical practice, that a species can be extinct throughout a significant portion of its range if there are major geographical areas in which it is no longer viable but once was. Defenders of Wildlife v. Norton, 258 F.3d 1136, 1145 (9th Cir. 2001).

3 3 The Ninth Circuit s interpretation of this language has been followed by a number of other courts and remains well-accepted legal precedent. See, Defenders of Wildlife v. Department of the Interior, 354 F. Supp. 2d 1156, 1167 (D. Or. 2005)(final rule downlisting wolves in Eastern and Western DPSs vacated, since Secretary failed to take into account historic range outside of core recovery areas, where the wolf was once viable); National Wildlife Federation v. Norton, 386 F. Supp. 2d 553 (D. Vt. 2005)(final rule downlisting wolves in Eastern and Western DPSs vacated, since Secretary failed to take into account historic range); Defenders of Wildlife v. Norton, 239 F. Supp. 2d 9 (D.D.C. 2002), vacated on other grounds, 89 Fed. Appx. 273 (D.C. Cir. 2004) (holding that FWS acted arbitrarily and capriciously when it failed to consider key areas of lynxes historic range). Throughout the Proposed Rule, FWS has acknowledged that the gray wolf, Canis lupus, and the three subspecies of gray wolf, C.l. nubilis, C.l. occidentalis and C.l. baileyi, no longer occupy large portions of their historic range. 1 Further, FWS acknowledges that 1 According to FWS, the historical range of the gray wolf was the central and western United States, including portions of the western Great Lakes region, the Great Plains, portions of the Rocky Mountains, the Intermountain West, the Pacific states and portions of the Southwest. 78 Fed. Reg. at C. lupus nubilis used to occur throughout coastal southeastern Alaska, western Canada, the contiguous United States from the Pacific to the Great Lakes region, and eastern Canada, except the extreme southeast, and west central Greenland. 78 Fed. Reg. at C. lupus nubilis no longer occupies its historical range in the United States, with the exception of areas in the Western Great Lakes region, southeastern Alaska, and a small area in the Pacific Northwest, where few wolves exist. 78 Fed. Reg. at The historic range of C.l. occidentalis spanned Alaska, except for the southeastern Coast, interior western Canada, and the northern Rocky Mountains. 78 Fed. Reg. at In the continental United States, C.l. occidentalis now exist in the northern Rocky Mountains, and only a few members of the subspecies have been observed outside of the region, in the Pacific Northwest. Id. at C.l. baileyi historically inhabited portions of Arizona, New Mexico and Texas. 78 Fed. Reg. at There is now only a single wild population in the United States, of approximately 75 individuals, in central Arizona and New Mexico. 78 Fed. Reg. at FWS has also acknowledged that wolves were historically distributed across most of the Pacific Northwest. 78 Fed. Reg. at

4 4 threats to a species in a significant portion of its range will provide a separate basis for listing under the Act. 78 Fed. Reg. at Yet, FWS departs from well-accepted legal precedent and interprets the phrase significant portion of its range to mean that a portion of the range of a species is significant if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction. Id. FWS departure from the accepted legal interpretation of significant portion of its range is arbitrary and capricious, since examination of whether a species warrants listing under the Act must include consideration of the historic range of that species. b. The Definition of Significant Portion of its Range Proposed By the Agency is Otherwise Contrary to the Purposes of the Endangered Species Act The Proposed Rule also utilizes a definition of significant portion of its range that is contrary to the intent and prior interpretation of the Endangered Species Act. FWS has stated that the Act provides two situations under which a species would qualify for protection under its provisions: (a) the species is endangered or threatened throughout all of its range, and (b) the species is endangered or threatened in only a significant portion of its range. 78 Fed. Reg. at FWS interprets the phrase significant portion of its range to mean significance should be evaluated based on a region s biological contribution to the conservation of the species. Id. It concludes that a portion of the range is significant if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction. Id. FWS relies on an erroneous interpretation set forth in a draft policy it issued on December 9, 2011 (76 Fed. Reg ). As previously noted in comments to that draft policy, FWS interpretation of significant portion of its range is contrary to the intent and purpose of the Endangered Species Act. 2 2 See Letter from Eric R. Glitzenstein, President, Wildlife Advocacy Project to U.S. Fish and Wildlife Service (undated), Attached as Exhibit ; Letter from Noah Greenwald, Endangered Species Program Director, Center for Biological Diversity to Tina Campbell, Division of Policy and Directives Management, U.S. Fish and Wildlife Service (March 8, 2012), Attached as Exhibit.

5 5 The Act sets forth two separate grounds for qualifying as an endangered or threatened species a species may be in danger of extinction or threatened in all or a significant portion of its range. 16 U.S.C. 1532(6), (20) (emphasis added). The significant portion of its range language was added to the Act in order to provide greater protection for species, and was intended to be treated as a separate grounds entitling a species to protection. See S. Rep. No (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2992 (noting that amended language provides a broadened concept of endangered species). The Ninth Circuit has also recognized that this language must be treated as creating two separate and distinct grounds which entitle a species to protection. See Defenders of Wildlife, 258 F.3d at By setting a high threshold for biological significance, which requires a region to be necessary for the survival of the species in order for the protections of the Act to apply, FWS effectively collapses the distinction between the two grounds for qualifying as an endangered or threatened species. FWS interpretation of significant portion of its range is arbitrary and capricious, since it is contrary to the plain language and purpose of the Act, as well as established legal precedent. c. The Act Requires Protection of Species Within the United States Furthermore, even accepting arguendo FWS interpretation of the significant portion of its range language, FWS analysis of whether C. lupus and the various subspecies are endangered or threatened in a significant portion of its range is contrary to the purposes underlying the Act. In assessing whether the gray wolf is at risk in a significant portion of its range, FWS looks at the gray wolf s range, not only in North America, but also in areas such as Europe, North, Central and South Asia, the Middle East, and North Africa. 78 Fed. Reg. at FWS concludes that while certain regional populations are at risk, the species large population levels elsewhere, high reproductive rate, dispersal capabilities, and expansive range relative to any of the threatened regional populations, makes any threats to certain U.S. regional populations insignificant. Id. FWS global view of the gray wolf s range is contrary to key principles underlying the Endangered Species Act, the primary purpose of which was to create a conservation framework to protect species within the United States.

6 6 The Act explicitly sets forth a concern that various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation, and the intention that the Act should safeguard, for the benefit of all citizens, the Nation s heritage in fish, wildlife, and plants. 16 U.S.C. 1531(a)(1),(5). Congress recognized that preserving species within the United States is important for preserving healthy, functioning ecosystems: many of these animals perform vital biological services to maintain a balance of nature within their environments, as well as to promote the need for biological diversity for scientific purposes. S. REP. NO (1973), reprinted in 1973 U.S.C.C.A.N. 2989, In analyzing whether the gray wolf is at risk in a significant portion of its range, FWS must confine its analysis to gray wolf populations within the United States, and cannot look to populations in other nations to conclude that protections are not needed in the United States. FWS conclusion that the gray wolf and its subspecies are not threatened in a significant portion of their ranges is arbitrary and capricious. One of the fundamental purposes of the Act is to preserve healthy ecosystems within the United States, and to protect threatened and endangered species that bring balance to these ecosystems. FWS cannot write off domestic protections for the gray wolf by concluding that there are healthy populations in Canada or elsewhere in the world. 2. The Proposed Rule Is Based on Unreliable Evidence Which Fails to Meet the Endangered Species Act s Best Available Science Standard FWS acted arbitrarily and capriciously, and departed from the scientific standard mandated by the Act, when it relied on a selfcommissioned study which was not submitted to a legitimate peer review process, in proposing the taxonomic scheme set forth in the Proposed Rule. FWS must make ESA listing determinations solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species. 16 U.S.C. 1533(b)(1)(A); 50 C.F.R (b). In applying the best available science standard, FWS may not disregard available scientific evidence that is in some way better than the evidence [it] relies on. Southwest Ctr. For Biological Diversity v. Babbitt, 215 F.3d 58, 61 (D.C. Cir. 2000)(stating agency under an obligation to consider contrary evidence supporting listing); see also, Ctr. for Biological Diversity v. Lubchenco, 758 F. Supp. 2d 945, (N.D. Cal.

7 7 2010). Furthermore, when changing a taxonomic classification, FWS must rely on multiple sources to support its taxonomic classification and must base its decision on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group. 50 C.F.R (a); 12-month Finding on a Petition to List the Mountain Whitefish in the Big Lost River, 75 Fed Reg , (Apr. 6, 2010). a. The Proposed Rule Is Based on A Publication Which Has Not Undergone Proper Peer Review In the Proposed Rule, FWS relies on single study Steven M. Chambers, et. al., An Account of the Taxonomy of North American Wolves From Morphological and Genetic Analysis, 77 North American Fauna 1 (October 2012) to reach its conclusions regarding the appropriate species and subspecies classifications of wolves in North America. 78 Fed. Reg. at FWS contends that the Chambers study is the only peer-reviewed synthesis of the literature on wolf taxonomy, and that it summarizes and synthesizes the best available scientific information on the issue. 78 Fed. Reg. at FWS does acknowledge that new data on wolf taxonomy is constantly being generated, and that we do not view this issue as resolved and scientific opinion on what represents the current best available science could well shift over time. 78 Fed. Reg. at The Chambers 2012 study does not meet the best available science standard, as it was authored by a FWS scientist, and published in a FWS-sponsored publication, without undergoing typical rigorous peer-review procedures. The main author of the study, Steve Chambers, is a FWS staff scientist. The study was published in the journal North American Fauna, a scientific journal administered by FWS, and revived for the purposes of publishing the Chambers 2012 monograph. Indeed, in an editorial prefacing the Chambers article, the editor noted that the publication has not been active since 1991, and that he was pleased to announce the resurrection of the monograph series North American Fauna from a prolonged period of dormancy. The author guidelines for North American Fauna indicate that articles submitted to the journals are peer-reviewed by at least two experts in the relevant discipline. 3 However, unlike a traditional peer-review process, there is no assurance here that the 3

8 8 review process served to elevate legitimate scientific issues, and independently resolve them in a way that promotes critical, independent review. As noted in the Office of Management and Budget s ( OMB ) peer review guidelines, executive agencies are encouraged to subject important scientific information to peer review prior to disseminating it to the public. 4 The guidelines provide that agencies must be transparent during the peer review process, disclosing the peer reviewers names and findings; and addressing the reviewers potential conflicts of interest and independence from the agency. 5 The peer review process is intended to ensure that the quality of the published information meets the standards of the scientific technical community, and the peer review process provides an opportunity to evaluate the clarity of the author s hypotheses, the validity of the research design, the robustness of the research methods employed, the extent to which the conclusions follow from the analysis, and the stregnths and limitations of the final product. 6 Peer review should result in filtering out an author s biases, and identification of oversights, omissions, and inconsistencies. 7 There is no indication that the procedures utilized in the publication of the Chambers study meet OMB s criteria for peer review. In other contexts where the reliability of evidence is at issue, such as in evaluation of the admissibility of expert evidence, the absence of a true peer review has weighed against the admissibility of evidence. Research may be presumed reliable when it has been subjected to a traditional peer review process, [t]hat the research is accepted for publication in a reputable scientific journal after being subjected to the usual rigors of peer review is a significant indication that it is taken seriously by other scientists, i.e., that it meets the minimal criteria of good science. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995)(emphasis added). 4 Office of Management and Budget, Final Information Quality Bulletin for Peer Review (Dec. 16, 2004); available at 5 Id. at 2. 6 Id. at Id.

9 9 Courts have held that evidence is unreliable when it has circumvented the procedures associated with a traditional peer review process. See, Powell v. Tosh, 2013 WL , *17 (W.D. K.Y. Mar. 8, 2013)( nonacademic, non-peer reviewed swineindustry publication did not constitute reliable evidence); Johns v. Bayer Corp., 2013 WL , *28 (S.D. Cal. Apr. 10, 2013)(evidence unreliable when based on studies commissioned by party); In re Zicam Cold Remedy Marketing, Sales Practices and Products Liability Litigation, 2011 WL , *7 (D. Ariz. Feb. 24, 2011)(same); Prest v. Jermstad, 2009 WL , *4 (S.D. Cal. Oct. 2009)(evidence unreliable when based on self-published texts). The 2012 Chambers study does not constitute the best available science as it was not subjected to a rigorous peer review, which fostered a critical examination of the hypotheses, methods, and conclusions derived from the study. Consequently, FWS reliance on this evidence in the Proposed Rule is arbitrary and capricious. b. FWS Attempts to Remedy the Lack of a Peer Review Process Are Inadequate FWS engaged in a last-minute attempt to shore up the science supporting the 2012 Chambers study. However, its efforts failed to remedy the absence of a robust peer review process, and have highlighted how the agency is driven to reach a prescribed outcome. In around July 2013, FWS hired a private consultant, AMEC, to conduct an accelerated post-publication peer review of the science underlying the Chambers study. While a peer review is supposed to remain impartial, in early August, FWS blocked three of the reviewers designated by AMEC from the peer-review panel Dr. Roland Kays of North Carolina State University, Dr. Jon Vucetich of Michigan Technological University, and Dr. Robert Wayne of the University of California-Los Angeles. 8 These three scientists have published extensively on the gray wolf, and are considered leading experts in the field. They also signed a letter criticizing FWS proposed rule because of their scientific concerns with the agency s reliance on the Chambers study on wolf taxonomy. In mid-august, the Department of the Interior decided to halt the peer review process, stating that it doesn t meet the standard for 8 See, Public Employees for Environmental Responsibility (PEER), Press Release: Gray Wolf Peer Review Panel Purged by Agency (August 8, 2013). Attached as Exhibit.

10 10 independent peer review selections, since FWS had been able to determine which scientists were nominated by AMEC to review the delisting proposal. 9 To date, the peer-review process has not been completed. This episode is emblematic of how FWS has not relied on the best available science in drafting the Proposed Rule, but rather, has been driven by a desire to reach its pre-determined goal of delisting the gray wolf. c. The Proposed Rule Is Based on A Theory Which Is Not Generally Accepted Within the Scientific Community Members of the scientific community have commented extensively on FWS new taxonomic proposal and have challenged the validity of the conclusions made by the proposal and the reliance on the Chambers study. For example, wolf scientists have noted that there is not sufficient information to support recognition of the C. lycaon species and the range reduction of C. lupus in the eastern United States. 10 The Proposed Rule deviates from the standard taxonomic distinctions generally accepted within the scientific community. In other contexts where the reliability of evidence is at issue, such as in evaluation of the admissibility of expert evidence, courts have held that the absence of general acceptance of a scientific theory weighs against the reliability of such evidence. See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594 (1993); In re Bausch & Lomb, Contact Lens Solution Products Liability Litig., 2009 WL (D.S.C. Aug. 26, 2009)( general acceptance lacking when absence of published, peer-reviewed or scientific 9 Phil Taylor, E&E Reporter, Interior Halts Selection of Scientists For Peer Review of Wolf Delisting Proposal (August 12, 2013). Attached as Exhibit. 10 See Letter from James H. Lister, Counsel for U.S. Sportsmen s Alliance Foundation, to Daniel Ashe, Director of U.S. Fish and Wildlife Service (September 26, 2011)(FWS should not recognize distinct C. lupus and C. lycaon populations), attached as Exhibit ; Letter from Andrew Wetzler, Director, Land and Wildlife Program of Natural Resources Defense Council ( NRDC ), to U.S. Fish and Wildlife Service (July 5, 2011), attached as Exhibit ; Letter from Sylvia Fallon, Senior Scientist NRDC, to U.S. Fish and Wildlife Service (September 23, 2011), attached as Exhibit ; Letter from Bradley Bergstrom, et. al. to Secretary Sally Jewell, Department of the Interior (May 21, 2013)( Bergstrom Letter ), attached as Exhibit ; Letter from Edward Heske, President American Society of Mammologists, to Secretary Sally Jewell, Department of the Interior (May 22, 2013)( Heske Letter ), attached as Exhibit.

11 11 literature on subject); In re TMI Litigation Cases Consolidated II, 911 F.Supp. 775, 796 (M.D. Pa. 1996)(expert s opinions were unreliable, since he had disregarded, without justifiable explanation, standard mathematical computer models ). The absence of general acceptance for the taxonomic theory presented in the 2012 Chambers study highlights how the Proposed Rule fails to follow the standard taxonomic distinctions accepted within the scientific community, and is not based on the best available science. 3. The Proposed Rule Is the Product of a Politically Motivated Listing Decision And Does Not Rely on the Best Available Science The rule-making process leading to the issuance of the Proposed Rule has been driven by FWS unbending desire to render a nationwide rule delisting the gray wolf. FWS failed to properly consider scientific literature challenging its taxonomic conclusions and conclusions regarding the recovery status of various wolf populations. By using a pre-determined political goal to drive the rule-making process, FWS acted arbitrarily and capriciously in issuing the Proposed Rule. FWS is required to make ESA listing determinations solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species. 16 U.S.C. 1533(b)(1)(A); 50 C.F.R (b). Listing determinations must be made without reference to possible economic or other impacts of such determination. Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015, 1024 (9th Cir. 2011); 50 C.F.R (b). An agency may not use political concerns or predetermined policy goals to drive its scientific process. See, Earth Island Institute v. Hogarth, 494 F.3d 757 (9 th Cir. 2007); Northwest Environmental Advocates v. E.P.A., 855 F. Supp. 2d 1199, (D. Or. 2012). In Earth Island Institute, the court held that NOAA s conclusion that dolphin populations were not adversely affected by purse seine fishing was arbitrary and capricious, and not supported by the best available science. 494 F.3d at The record showed that NOAA did not rely solely on science, and instead took international policy concerns into account, as it was concerned about political relations with Mexico an internal memorandum reiterated these political concerns, and stated that [a] finding of no significant adverse impact would satisfy the Mexican government s concerns. Id. at 769. Similarly, in Northwest Environmental Advocates, the court held that a biological opinion prepared by FWS

12 12 was arbitrary and capricious, since a series of s between FWS and EPA showed that the agencies did not rely solely on science, and were concerned about the feasibility of implementing the most protective standard (i.e., that the standard was too conservative, might set unattainable expectations, and ultimately could undermine the credibility of the water quality standards program ). 855 F. Supp. 2d at Documents produced in response to a recent Freedom of Information Act request submitted by Public Employees for Environmental Responsibility ( PEER ) show that FWS was motivated by political and economic considerations when reaching its decision to delist the gray wolf, and that it did not rely on the best available science. In August 2010, FWS held a series of closed-door Structured Decision Making ( SDM ) workshops with representatives from FWS and the fish and game representatives of 13 states. During the workshop, FWS stated that one of the key aspects of Structured Decision Making is a focus on values where the participants would [d]etermine objectives (values) first, and let them drive the analysis. 11 According to a flow-chart prepared by FWS, structured decision making would entail first consideration of the problem, then the objectives, then the alternatives, then the consequences, then the tradeoffs and optimization and finally to decide & take action. It is only during the evaluation of the consequences that FWS would consider data. 12 FWS made a number of statements during SDM workshops, which highlight how the process was driven by developing science to fit the desired political outcome of delisting the gray wolf: During one workshop, FWS raised the following questions to the group: Where can wolves exist? Where should wolves exist? What does the ESA require? What does the public want? What can the public tolerate? U.S. Fish and Wildlife Service, Michael C. Runge, USGS Patuxent Wildlife Research Center, Wolf SDM Workshop: Methods (August ) at Id. at U.S. Fish and Wildlife Service, Micahel C. Runge, USGS Patuxent Wildlife Research Center, SW Wolf SDM Workshop: Background & Purpose, Wolf SDM Project, SW Webinar (June 10, 2011) at 12.

13 13 Throughout the process, FWS made statements that highlighted how it s goal was to create a defensible framework to support its delisting decision: [s]tart by articulating objectives, then think through science and analysis, to arrive at a best course of action, 14 [t]he most important part of a decision analysis is reflection. Does the analysis capture the essence of the decision? 15 FWS also indicated that it intended to take public perception and public support for wolf delisting into account Does the service believe it has the discretion to use social tolerance as an objective under the ESA? (GF Yes, we use it in our basic approach to wolf recovery e.g. wolves which prey on livestock. Not all courts agree with this approach). David there might be a conflict with realworld scenario (i.e., we account for public acceptance in our decision making) and legal outcomes with listing (i.e., this can fall down in court) 16 These statements show that FWS delisting proposal is a departure from the best available science standard, and that the agency acted arbitrarily and capriciously when issuing the Proposed Rule. Here, FWS used non-scientific factors to propel its conclusions regarding whether a species was threatened or endangered. This is exactly the result that Congress sought to prevent by requiring listing decisions to be based on science alone. The documents uncovered by the FOIA request shows that FWS had a certain political goal in mind (i.e., delisting the gray wolf) to appease state wildlife agencies, and that it then tried to create a legally and scientifically justified foundation to achieve that political objective. As in Northwest and Earth Island Institute, political and policy considerations should not dictate the agency s delisting decision, which should be based only on the best available science. 4. FWS Has Irrationally Determined that the Pacific Northwest Wolves Do Not Require Protection as a DPS In the Proposed Rule, FWS has determined that gray wolves in the Pacific Northwest do not qualify for protection as a DPS under the 14 U.S. Fish and Wildlife Service, Michael C. Runge, USGS Patuxent Wildlife Research Center, Wolf SDM Workshop: Methods (August ) at Id. at Wolf Structured Decision Making Workshop Notes, at 2.

14 14 ESA, since they are not a discrete population, but rather an extension of wolf populations in British Columbia and the Northern Rocky Mountains. 78 Fed. Reg. at FWS concludes that gray wolves in the Pacific Northwest do not currently meet their technical definition of population (at least 2 breeding pairs of wild wolves successfully raising at least 2 young each year), and that meeting this definition is fundamental to the identification of a possible DPS. 78 Fed. Reg. at FWS reading of this interpretation of population into the definition of DPS is contrary to the Act, and cases interpreting this language have declined to find that meeting this definition of population is an essential requirement for qualifying for protection as a DPS. 17 FWS own policy on DPS does not include this definition of population, and does not set forth the requirement to meet any particular definition of population as one of the criteria for listing a DPS. 18 Furthermore, the policy notes that [a]ny interpretation adopted should also be aimed at carrying out the purposes of the Act (i.e to provide a program for the conservation of such endangered and threatened species ). 19 FWS should reconsider the criteria it utilizes to evaluate whether wolves in the Northwest qualify for protection as a DPS, and ensure that they are consistent with the purposes of the Act. In the Proposed Rule, FWS also concludes that gray wolves in the Pacific Northwest are not physically or genetically discrete from the gray wolves in the Northern Rocky Mountain DPS. It notes that the outer edge of the NRM wolf population is now very close to the western boundary of the NRM DPS in northeast Washington and Oregon. 78 Fed. Reg. at FWS also notes that Washington packs have been observed in close proximity to the NRM DPS borders, and that there do not appear to be marked genetic differences between wolves on either side of the NRM DPS line. Id. at See Northwest Ecosystem Alliance v. U.S. Fish and Wildlife Service, 475 F.3d 1136, (9th Cir. 2007)(holding that two factors governed evaluation of DPS discreteness of population segment, and significance of population segment). 18 Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg (Feb. 7, 1996) 19 Id.

15 15 In order to be considered a distinct population segment, a population must be both discrete and significant. FWS Distinct Population Segment Policy states that a population will be discrete if it is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors, or it is delimited by international government boundaries. 20 This discreteness standard will be satisfied, even if there is not absolute reproductive or geographic isolation. 21 In fact, FWS acknowledged this in its rule delisting the NRM DPS, stating [t]he DPS policy does not require complete separation of one DPS from other populations [t]hus, if occasional individual wolves or packs disperse among populations, the NRM DPS could still display the required discreteness. 22 Contrary to FWS findings in the Proposed Rule, gray wolves in the Pacific Northwest are discrete from wolves in the NRM DPS and in British Columbia. Evidence shows that there remain physical barriers between wolf habitat in the Pacific Northwest and in the NRM [t]he habitat-suitability map created by Carroll et al. (2006) clearly shows a significant north-south stretch of unsuitable habitat that separates the suitable wolf habitat in the Pacific Northwest from the Northern Rocky mountains. 23 Evidence also shows that gray wolves in the Pacific Northwest are genetically 20 See, Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg (Feb. 7, 1996); Ctr. for Biological Diversity v. Lubchenco, 758 F. Supp. 2d 945, 959 (N.D. Cal. 2010). 21 See, 61 Fed. Reg. at 2724 ( The Services do not consider it appropriate to require absolute reproductive isolation as a prerequisite to recognizing a distinct population segment. This would be an impractically stringent standard, and one that would not be satisfied even by some recognized species that are known to sustain a low frequency of inbreeding with related species. ). See also, Final Rule Designating the Greater Yellowstone Area Population of Grizzly Bears As a Distinct Population Segment, 72 Fed. Reg , (Mar. 29, 2007)( Our DPS policy does not require complete geographic or reproductive isolation among populations, and allows for some limited interchange amount population segments considered to be discrete. )(emphasis supplied). 22 Final Rule Designating the Northern Rocky Mountain Population of Gray Wolf As a Distinct Population Segment, 73 Fed. Reg , (February 27, 2008); see also, Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment, 74 Fed. Reg (April 2, 2009). 23 Letter from Andrew Wetzler, Director, Land and Wildlife Program of NRDC, to Fish and Wildlife Service at 16 (July 5, 2011). Attached as Exhibit.

16 16 distinct from wolves in the Northern Rocky mountains. 24 Under FWS own DPS policy, as well as law interpreting the DPS policy, the fact that there is geographic proximity of wolves in the Pacific Northwest and NRM, and that there might be some interchange between the two populations, is not sufficient to defeat a finding that the Pacific Northwest wolves represent a discrete population. Alternatively, the proximity of Pacific Northwest populations to the NRM DPS boundary could provide a basis for arguing that FWS should redefine the NRM DPS and determine that the entire DPS deserves ESA protection given the vulnerable status of the Pacific Northwest population. In prior rulemakings, FWS defined the boundaries of the NRM DPS as all of Montana, Idaho and Wyoming, the eastern third of Washington and Oregon, and a small part of north central Utah. See Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment, 74 Fed. Reg , (Apr. 2, 2009). FWS now states that Pacific Northwest wolves are in close proximity to the boundaries of the NRM DPS, and concludes that they are essentially an extension of the NRM DPS. 78 Fed. Reg. at FWS also acknowledges that the Pacific Northwest wolves are still struggling to establish a stable population in the region. 78 Fed. Reg. at In light of FWS conception of the NRM DPS, as well as the struggles faced by the Pacific Northwest population, FWS should revisit its listing determination on the NRM DPS, and restore ESA protection for that DPS. FWS cannot draw DPS boundaries in a manner that removes protections for a segment of a species that has yet to recover. 25 Rather than expanding the boundaries of the NRM DPS to include wolves in the Pacific Northwest, thereby reducing protections for the Northwest wolves, FWS should designate the Pacific Northwest wolves as a DPS protected under the Act. 5. FWS Has Irrationally Determined That C. Lycaon Is a Separate Species and Has Declined to Extend the Act s Protection to C. Lycaon 24 Id. 25 See, Defenders of Wildlife v. U.S. Department of the Interior, 354 F. Supp. 2d 1156, (D. Or. 2005)(holding that expansion of DPS boundaries improperly removed protections for wolves in Western states).

17 17 FWS has acted arbitrarily and capriciously when determining that C. Lycaon is a separate species, and when it declined to extend the Act s protections to the species. Under the new taxonomic scheme in the Proposed Rule, FWS concludes that C. lupus did not historically occupy large portions of the eastern United States, as previously thought, and instead, the northeastern United States and portions of the upper Midwest (eastern and western Great Lakes regions) were occupied by the eastern wolf, C. lycaon, which FWS now considers a separate species of Canis, rather than a subspecies of C. lupus. 78 Fed. Reg. at FWS relies primarily on the 2012 Chambers study, as well as a 2012 Rutledge study 26 to conclude that C. lycaon is a separate species, with a range through the Northeast and Midwest. 78 Fed. Reg. at As previously noted, the Chambers study does not meet the best available science standard required by the Act. Furthermore, FWS designation of C. lycaon as a separate species, and its designation of the species range are determinations not generally accepted within the scientific community, and have been broadly criticized in prior comments. 27 Even the Thiel and Wydeven study cited by FWS acknowledges the disputed boundaries of the Eastern wolf s range. 28 Id. While recognizing that C. lycaon is a separate species, FWS declines to make a determination whether the species warrants listing, and has stated that it must first address outstanding science and policy questions. 78 Fed. Reg. at However, courts have held that the simultaneous creation of a new species and 26 Rutledge, L.Y., et al., Conservation Genomics in perspective: A holistic approach to understanding Canis evolution in North America. Biological Conservation 155: (2002). 27 See Letter from New York State Department of Environmental Conservation to U.S. Fish and Wildlife Service (September 26, 2011), Attached as Exhibit ; Letter from Safari Club International to U.S. Fish and Wildlife Service (September 26, 2011), Attached as Exhibit. 28 See Maps accompanying Thiel, R/P. and A.P. Wydeven, Eastern wolf (Canis lycaon) status assessment report: Covering east-central North America. Report prepared for U.S. Fish and Wildlife Service, Midwest Region, Bloomington, MN, Attached as Exhibit.

18 18 delisting of that species is not consistent with the Act. 29 Rather than deferring the decision of whether C. lycaon should be protected under the Act, FWS should leave ESA protections in place for C. lycaon, until such time as it is able to conclude that a change in protection of the species is warranted, according to the provisions of the Act. 6. Conclusion The conclusions reached by FWS in its Proposed Rule are a radical departure from the fundamental principles underlying the Endangered Species Act, and arbitrarily and capriciously remove protections for the gray wolf. FWS should reconsider the conclusions reached in its Proposed Rule in light of the comments set forth in this letter, and rationally respond to the scientific critiques of their politically tainted effort to delist the gray wolf. Sincerely, Irene V. Gutierrez Doug Honnold Attorneys for Center for Biological Diversity, Defenders of Wildlife, and Sierra Club Adirondack Wild finds most informative and compelling the arguments of Earth Justice in the above section Points 1 through 6 and their exhaustive background documentation on law, policy, scientific evidence and practice. As a regional organization in New York that acts to advocate, educate and train wild land conservation principles, policies and practices for the Adirondack and Catskill Parks and the Forever Wild New York State Forest Preserve, altogether encompassing some 6.6 million acres in size in terms of protected or regional conserved lands under regional zoning, we support and adopt the position and recommendations of Earth Justice and its partners in this manner. Furthermore, we can state from direct experience that we have recent experiences of Gray Wolves immigrating into the Adirondack Park from numerous sources and our findings in the Park of track, scat and, sadly hunted individual gray wolves on direct information from numerous reliable sources; namely hunters themselves. The in-migration of adult wolves from the Algonquin National Park in Canada to the Adirondacks appears to 29 Humane Society v. Kempthorne, 579 F.Supp. 2d 7, 17 (D.C. Cir. 2008)(holding that FWS simultaneous designation and delisting of DPS not consistent with intent of the Act

19 19 highly probable and an important, potentially critical ecological and species connector over time as the Adirondack Park has become more wild over the past 30 to 120 years or more due to Forever Wild lands acquisition and, more recently, over 800,000 acres being included in protection programs prohibiting development under Conservation Easements that complement the existing state Forest Preserve resources. Hunters have documented wolf kills of canids 80 pounds or more in the central Adirondacks since the late 1950 s, to more recent years in the area of the Great Sacandaga Lake and many hiqh quality sitings have been reported. The challenge comes when and if these individuals are denied protection under the weakening of federal or state protections. This would represent a serious retreat from the US Fish and Wildlife Service s history, practice and obligations to threatened macro-faunal predators that are so essential to healthy ecosystems. On January 21 st of this year, 2013, one author of this submission, Dan Plumley, came across large canid tracks that typified Gray Wolf behavior. The tracks, photographs to follow, may well be representative of a mating pair of male and female animals. The weather at the time was bitter cold, well below zero degrees farenheit over 3 to 4 days or more with a hard pan snowpack and the animals came in at night and were tracked initially the first day thereafter. Track sizes were 3.5 to over 4 inches in, by 3.5 inches in the large paw size and only slightly smaller for the possible female. Stride length measured out at nearly twice the length of even large coyote tracks at 42 and 45 inches in stride length for the two animals. The animals had traveled largely in parallel on a straight course from rural and forested down valley to upland wilderness reaching elevations of around 3,500 feet in elevation. Should wolves and possibly mating pairs be in-migrating from Canada and other locales, it is absolutely critical to insure their protection from hunting and trapping where at all possible. If the ESA listing status of Gray Wolves were lost nationwide and in the Northeast, the potential is that these incredible animals so key historically to our northern hardwood and boreal ecosystems may all be lost. The lack of apex predators and the over-abundance of ungulate in white tail deer and a growing moose population have already lead to overstocked deer herds and declines in native plant life, such as northern hardwood and Sugar Maple understory which is essential our wildlife integrity and cultural identity of both Native Americans and European Americans. And indeed, the potential economic value of wolves being present and protected in the Adirondacks would be a great boon to regional tourism; especially in the slower shoulder seasons and winter timeframes if Yellowstone Park s experience is any guide. Furthermore, land use and wild land studies within the Adirondack Park have long recognized the sizeable wild land integrity of the Adirondack Park, its relatively low road density and seasonal population pressures and its share size at 6.2 million acres within close proximity to Canada as being highly potential ground for wolf survivability to some

20 20 degree. In complementary support to Earth Justice and their national comment partners, and recognizing important and growing weight of evidence that Gray Wolves are traveling into and through the Adirondacks, we implore the US Fish and Wildlife Service to maintain, not delist the Gray Wolf from the Federal List of Endangered and Threatened Wildlife. We also believe that the US Fish and Wildlife Service, in cooperation with the various State Departments of Conservation and Wildlife Management should be doing far more to educate hunters and trappers against the practice of killing Gray Wolves. Thank you for considering our comments. Daniel R. Plumley Dan Plumley, Partner David Gibson Dave Gibson, Partner Photo 1, 2, 3 :Large Canid Paw prints, (3.5 x 4.5 inches, Stride Length 45 inches, Hurricane Mountain Region, Keene (1/21/2013, Dan Plumley, Adirondack Wild)

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