DRAFT
Public Comments Processing
Attn: FWS-R2-ES-2013-0056 and FWS-HQ-ES-2013-0073
Division of Policy and Directives Management
U. S, Fish and Wildlife Service
4401 N. Fairfax Drive
MS 2042-PDM
Arlington, VA 22203
November 5, 2013
The New Mexico Wilderness Alliance (NMWA) appreciates the opportunity to
comment on the Proposed Revision to the Nonessential Experimental Population of the
Mexican Wolf (Docket FWS-R2-ES-2013-0056) and on 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 (Docket FWSHQ-ES-2013-0073)
NMWA submits these comments in accordance with its mission to further the
conservation of New Mexico’s public lands in general, and in particular, lands that
support populations of Mexican Gray Wolves. NMWA is a non-profit organization
dedicated to the protection, restoration, and enjoyment of New Mexico’s wild lands and
wilderness areas, and many of its more than 5,000 members recreate on public lands in
the state.
First, we remind the Fish and Wildlife Service (FWS) that the goal of the National
Environmental Policy Act (NEPA) is for federal agencies to make informed decisions.
This requires accumulating and evaluating all relevant data, and using that data to make
the best plan for public lands and wildlife. Every authority governing FWS orders the
agency to use the best scientific information in their planning efforts. For example:
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NEPA regulations require that, in an environmental analysis, “The information
must be of high quality. Accurate scientific analysis, expert agency comments,
and public scrutiny are essential to implementing NEPA.” 40 C.F.R. § 1500.1(b);
The Endangered Species Act (ESA) requires the agency to make its
determinations on endangered species “solely on the basis of the best scientific
and commercial data available…after conducting a review of the status of the
species.” 16 U.S.C. 1533 (b)(1)(A).
The Interagency Policy on Information Standards Under the ESA states that it is
the policy of FWS to require documented scientific analysis in order to, “ensure
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that any information used by the Services to implement the Act is reliable,
credible, and represents the best scientific and commercial data available”
Executive Order 13563 (2011), affirming Executive Order 12866 (1993) states
that, “Our regulatory system…must be based on the best available science”
FWS admits that the existing Mexican Wolf Recovery Plan (FWS 1982) does not
comply with current ESA requirements, and does not set forth criteria for full recovery of
the Mexican gray wolf. Without question the science available prior to 1982 is no longer
the “best available” science. Yet the 1982 Recovery Plan remains the only approved
recovery plan for Mexican wolves and the guiding document for this proposed rule. This
is wrong and misguided, and could lead to decisions and established regulations that
would preclude the implementation of future recovery actions.
We are concerned that this proposed rule is not guided by a scientifically-based
recovery plan. FWS has disbanded Recovery teams (studying both the scientific and
legal aspects of the Mexican Wolf recovery plan) without providing any valid reasons.
FWS should use this opportunity to draft a meaningful plan including strong mandates
which will actually and practically further Mexican wolf recovery in the Southwest.
The population of Mexican wolves in the Blue Range Wolf Recovery Area is essential to
the continuation of the subspecies in the wild
We assert that the Blue Range Wolf Recovery Area (BRWRA) population of
Mexican Wolves is essential to the continued existence of that subspecies in the wild.
FWS has declared that the BRWRA will continue to be classified as a nonessential
experimental population (NEP) under Section 10(j) of the ESA.
The NEP classification (for both wild and captive populations of Mexican
Wolves) is not supported by the best available science. At a minimum we implore FWS
to reclassify the existing wild population as an Essential Experimental Population (EEP)
under section 10(j) of the ESA.
We understand that the classification of the BRWRA population of Mexican
Wolves as a nonessential population may have been appropriate in 1998, but we believe
such classification is now outdated given current circumstances and the availability of
appropriate scientific data. FWS has always relied on the existence of the captive
population in order to justify the non-essential designation for the wild population. But
in 1998 FWS stated that, “[r]eleasing captive-raised Mexican wolves furthers the
objective of the Mexican Wolf Recovery Plan”, and that, “[t]his reintroduction will
establish a wild population of at least 100 Mexican wolves and reduce the potential
effects of keeping them in captivity in perpetuity. If captive Mexican wolves are not
reintroduced to the wild within a reasonable period of time, genetic, physical, or
behavioral changes resulting from prolonged captivity could diminish their prospects for
recovery.”
Respected research, including a study entitled Genetic Adaptation to Captivity in
Species Conservation Programs (Frankham 2007), indicates the urgent need to return
species to the wild as quickly as possible to minimize the number of generations in
captivity, thus averting the impact of disadvantageous evolutionary and behavioral
changes associated with captivity. As noted in §17.80(b) of the Code of Federal
Regulations (CFR), endangered species recovery takes place in the wild, not in captivity.
FWS has recognized the genetic consequences of captivity in Mexican wolves for
many years, and consequently, has elaborated on the dire genetic status of wild and
captive populations in scientifically-supported studies, including a section entitled
Inbreeding, Loss of Heterozygosity, and Loss of Adaptive Potential—Canis lupus baileyi
(FWS 2013a; Docket No. FWS- HQ-ES-2013-0073). Although FWS confirmed that
“intensive management of genetic variation is an integral component of the recovery
effort” (FWS 2010; p. 73), the agency’s continual, well-documented squandering of
opportunities to implement such management undermines such pronouncements (Hedrick
and Fredrickson 2010). In summary, FWS’s refusal to follow earlier critical
recommendation precipitated the current BRWRA population’s genetic crisis.
Additionally, the most recent research suggests many more wolves are needed in
the wild before recovery can have taken place. The current Mexican Wolf Recovery
Team’s Science and Planning Subgroup (SPS) determined that the BRWRA population is
essential to the survival and recovery of Mexican gray wolves in the wild (SPS 2011).
The leaked recommendations of the SPS indicate support for “essential experimental
population” (EEP) classification (SPS 2011). Indeed, FWS admits in this proposed rule
on pages 35732-35733 (USFWS 2013b) that the BRWRA population is essential to
Mexican wolf recovery, saying, “achieving the objective of at least 100 wolves for this
population serves as a fundamentally necessary component of Mexican wolf recovery”
(emphasis added).
The SPS scientists, appointed by the FWS Regional Director for their recognized
expertise in scientific disciplines relevant to Mexican wolf recovery, recommended that a
minimum of three, naturally connected subpopulations of at least 200 individuals each
contributing to a metapopulation of at least 750 wolves, including the BRWRA
population, are essential to the survival and recovery of Mexican gray wolves in the wild
(SPS 2011). Since the BRWRA is the only existing subpopulation, a credible assumption
is that the SPS considers the BRWRA population “essential” to the survival and recovery
of Mexican gray wolves in the wild.
NMWA, along with other advocates, cannot find any argument grounded in facts
or the best available science which suggests that the current population of 75 BRWRA
Mexican Wolves is not essential to the continued existence of Canis lupis baileyi. It is
clear that the current “nonessential” designation has not resulted in the conservation of
the BRWRA population, and furthermore, has left the population vulnerable to
extinction. FWS has admitted that the current designation has put “the population at risk
for failure” (FWS 2010). We believe reclassifying the population as “essential” is the
only viable option, until FWS adopts a more comprehensive recovery plan or establishes
another wild population of Mexican Grey Wolves.
In its draft proposal, FWS has simply reiterated its 1998 determination in stating
that, “even if the entire population died, this situation would not appreciably reduce the
prospects for future survival of the subspecies because Mexican wolves are still
maintained in the captive-breeding program.” This statement is not supported by any
credible facts, much less, the best available science. We urge FWS to reconsider such a
drastic determination in light of more objective and scientifically supported standards.
The Blue Range Wolf Recovery Area should be expanded and wolves should be allowed
to establish new territories
We support expanding the direct release area to include the entire BRWRA and
we strongly support both the proposed expansion of the BRWRA and allowing natural
dispersal from the BRWRA into the Mexican Wolf Experimental Population Area
(MWEPA).
Controlling where wolves will be allowed to disperse while concurrently listing
Mexican wolves as endangered “wherever found” does not make sense. How could a
non-10j Mexican wolf ever be found outside the MWEPA when wolves dispersing
outside that area will be required to be captured and returned? No other Mexican wolves
exist anywhere except those in captivity.
We would support unrestricted dispersal from the current BRWRA while listing
the Mexican wolf as endangered wherever found. This would eliminate the need to
establish a MWEPA. The only way that expanding the MWEPA to the U.S. / Mexico
border would support Mexican wolf recovery according to the best available science is if
the MWEPA were also expanded northward to Interstate Highway 70. This would
facilitate dispersal among all presently conceived locations for subpopulations in the
United States and Mexico.
Two of the geographic areas recommended by the SPS for the establishment of
subpopulations of Mexican wolves lie well outside the proposed MWEPA boundary
delineated in the proposed rule, but the proposed rule requires that such wolves be
captured and returned. Such dispersal restrictions and capture requirements would
prevent Mexican wolves from establishing their own “range” thus restricting and
controlling where they can be “found”, and would also prevent the three populations the
SPS believes are necessary for wolf recovery. In the end, Mexican Wolves would only be
found in defined areas or places where the FWS has allowed them to exist. Such
subjective and potentially contentious determinations are not grounded in the best
available science, and further frustrate the purpose of Mexican Wolf recovery.
Illegal Mexican wolf shootings and the McKittrick Policy
A more significant analysis of illegal wolf killings and their affect on Mexican
wolf recovery should be completed before any final rule is created, along with an analysis
of how FWS might use the planning process to counteract the Department of Justice’s
McKittrick Policy. Since reintroduction, at least 50 Mexican wolves have been illegally
shot: by far the highest cause of mortality for Mexican wolves in the wild.
The impact of illegal killings, combined with the complete lack of prosecution on
the part of the Justice Department, is likely to have a significant effect on the wolf
population. FWS acknowledges this in a way by saying, “[w]e expect that, absent the
protection of the Act, killing of wolves would continue at current levels or, more likely,
increase significantly because Federal penalties would not be in place to serve as a
deterrent.” Until the McKittrick policy can be reversed, which we sincerely hope is soon,
there are no federal penalties (effectively), and FWS should not make it easier or more
forgivable to kill wolves unnecessarily.
One way FWS could combat the effects of the McKittrick Policy is to use its
authority under Section 4(e) of the ESA (Similarity of Appearance) to extend protection
to coyotes in wolf habitat. Section 4(e) states that FWS may:
treat any species as an endangered species or a threatened species even though it
is not listed pursuant to Section 4 of this Act if…(A) such species so closely
resembles in appearance, at the point in question, a species which has been listed
pursuant to such section that enforcement personnel would have substantial
difficulty in attempting to differentiate between the listed and unlisted species;
(B) the effect of this substantial difficulty is an additional threat to an endangered
or threatened species; and (C) such treatment of an unlisted species will
substantially facilitate the enforcement and further the policy of this Act.
In nearly every documented case of an illegal wolf killing not prosecuted by the
Department of Justice, the person in question claimed he thought the animal was a
coyote. FWS puts out pamphlets in the BRWRA showing people the minute differences
in the animals because the difficulty is well-known. Indeed, the Wildlife Services
employee who killed a wolf in 2013 claimed he thought the animal was a coyote as well.
There is ample evidence that people have difficulty determining the difference and that
this difficulty is leading to higher numbers of wolf kills. We believe FWS should
consider this option, as it would remove the excuse of mistaken identity and the use of
the McKittrick policy where Mexican wolves are concerned.
At the very least, because there is already so much take of Mexican wolves, we
strongly oppose any laxness when issuing incidental take permits, when dealing with
trapping, or with interactions with pets.
People can and should be expected to act responsibly when using public land.
Trappers should not get a free pass to “accidentally” kill whatever happens by when
placing violent machines all over the forest. There is no way to set a trap for a coyote or
bobcat and somehow think it is not also being set for a wolf. It should be part of any
wolf recovery plan that traps are not allowed in the wolf recovery area, and it should
certainly not be the case that FWS actually relaxes the responsibility of the trapper. Any
trappers concerned that they might incidentally take an endangered Mexican wolf should
trap elsewhere or modify their methods to ensure they do not take a Mexican wolf.
Similarly, people should keep their pets on leashes in the forest if they do not
want to run the risk of injury, and they, like everyone else, should know there are
endangered wolves in the area.
Management removal
FWS should reevaluate, in conjunction with its analysis of the impact of illegal
killings, its policy on when wolves should be removed due to livestock conflicts. If the
goal is actual recovery and compliance with the ESA, wolves should take precedence
over cows.
Public land is held in public trust for the use and enjoyment of all citizens and
future generations. When the endeavors of a private entity conflict with the goals of
having a healthy functioning ecosystem on public land for future generations, the public
trust doctrine should come first. It has been well established, both in case law and in US
Forest Service policy, that grazing on public land is a privilege, not a right (see Forest
Service Manual 2230.3 (2)). Additionally, the United States Supreme Court has stated
and confirmed many times that the Endangered Species Act is the highest priority for
federal agencies (TVA v. Hill, 437 U.S. 153 at 174 (1978)). In other words, people who
graze cattle on public land do so with the understanding that it is a loan, not a gift, and
that it is subject to reasonable regulation to reach the objectives outlined above.
The conflicts between different types of forest users over wolves have been welldocumented and have often reached levels of hysteria and paranoia. Sadly, it has also led
to wolf “baiting” on the part of some ranchers by the abandonment of cattle carcasses in
the field and the failure to repair fencing, which habituates wolves to cattle. This
habituation in turn allows “management removal” of wolves for killing livestock.
Behaviors like this should not be further incentivized by lowering the thresholds for when
wolves can be “removed.”
The provision to issue take permits for livestock owners or their agents on public
lands throughout the MWEPA when 100 wolves are established within the MWEPA
cannot be supported by the best available science. This provision could trigger a
substantial increase in authorized take of Mexican wolves at a population threshold which
the FWS admits could leave the Mexican wolf “in danger of extinction.” Based on the
best available science, and in keeping with the “Precautionary Principle,” NMWA
recommends this threshold be raised to at least 350 wolves.
Elimination of wolves should be the action of last resort after all other non-lethal
options to resolve conflict have been exhausted. And even then there may be overriding
factors in favor of keeping a wolf in the wild population.
Wildlife Services
The proposal states that Wildlife Services personnel will not be in violation of the
Act or this rule for the take of a Mexican wolf that occurs while conducting official
duties.” We question why this specific language occurs for Wildlife Service when
similar language occurs previously for “Federal agencies.” Wildlife Services is a Federal
agency. Some months ago a Wildlife Services agent shot a Mexican wolf and claimed he
thought it was a coyote. If a similar incident would be excused by this specific language,
then NMWA is strongly opposed to this provision.
Additionally, we sincerely believe that all decision-making authority about the
wolf recovery plan and its implementation at all levels should rest with FWS and the best
available science: not with Wildlife Services or the states.
Mexican wolves should be designated as fully endangered wherever found
The document states “[w]e have carefully assessed the best scientific and
commercial data available regarding the past, present, and future threats to C. l. baileyi
and have determined that the subspecies warrants listing as endangered throughout its
range.” NMWA fully supports this determination provided the term “range” is not
defined by FWS to mean “current range.” Otherwise, as noted above, without dispersal
being allowed outside the recovery area, the new endangered designation would,
practically speaking, mean nothing to any existing population of wolves, since the 10j
population would continue to be non-essential and wolves from that population would be
brought back to the recovery area if they disperse.
Gray wolves should not be delisted nationally
We disagree with the proposal to delist gray wolves nationally. While we
understand there may be evidence that listing Canus lupus as a whole may be
taxonomically incorrect and that gray wolves may be more correctly categorized as
several subspecies, we do not believe that must mean wolves as a whole should be
delisted. Rather, we wonder why FWS has not alternatively proposed changing the Canus
lupus endangered classification to a separate classification of each subspecies as
endangered. There is ample evidence that even if Canus lupus is a taxonomically
inappropriate listing, all the gray wolves still warrant listing.
The gray wolf was listed through the ESA in 1974 largely because it was nearly
hunted out of existence, and the threats to its survival still linger. An undercurrent of
American culture carries the view that wolves are evil, child-snatching predators. This
view literally goes back through thousands of years of human history, and can be seen
today in fairy tales like Red Riding Hood and the Big Bad Wolf, fears and myths of
werewolves, and notably in our own Congressional Representatives. In 2007, during a
House Committee Hearing, US Congressman Steve Pearce stated on the record that
nothing is more attractive to a wolf than the sound of a laughing baby, and warned that
wolves would snatch babies from their cradles. He then told a fellow Congressman
during the hearing that the blood of those children would “be on his hands” for
supporting the wolf reintroduction project. See Congressional Record, June 26, 2007,
page H7170.
This fear, hatred, and misunderstanding of wolves has been perpetuated in the
southwest (and we assume elsewhere) by a public anti-wolf campaign in areas where
wolves occur. In the Gila region for example, signs are posted featuring caricatures of
vicious looking wolves warning people to watch their children, and “shelters” have been
constructed at elementary school bus stops.
In areas where wolf populations have already been delisted, states have
immediately put in place unsustainable hunting levels. FWS acknowledges in its proposal
that 70% of wolf mortality in Minnesota is likely due to illegal shooting, along with 24%
of wolf mortality in the Northern Rocky Mountain population and over 50% of Mexican
wolf mortality in the southwest. FWS also acknowledges that 2/3 of total poaching
incidents may be unaccounted for. These numbers are ridiculously high, and are the
statistics with listing still in place. Killings will almost certainly increase if protection is
entirely removed.
It seems fairly predictable that delisting the wolf will result in the same cycle
which required the wolf listing in the first place, and that FWS is only setting itself up for
another long and hard fight to re-list the wolf sometime in the future when populations
succumb to hunting and poaching pressure.
Conclusion
We support a plan which would expand the BRWRA by including several
national forests, allow the wolves to expand their range into the area proposed by SPS,
provide for more direct releases into the BRWRA in order to reach actual recovery levels,
reclassify the 10j population as “essential”, remove the “capture and return” policy, and
classify any wandering Mexican wolves as fully endangered. Additionally, we do not
believe incidental take permits or “passes” for take should be easily handed out to
trappers, landowners, pet owners, or ranchers.
We strongly believe that the nonessential experimental population classification is
not supported by the best available science and would not adequately protect the
BRWRA population of Mexican Wolves. However, NMWA continues to respect and
support the stated objective of the rule in establishing a viable, self-sustaining population
of Mexican gray wolves within the BRWRA (or an expanded BRWRA). NMWA
implores FWS to draft a rule that will further the rule’s stated objective, a rule that will in
the end, substantially contribute to the eventual recovery and delisting of the Mexican
gray wolf.
Sincerely,
Judy Calman
Staff Attorney
New Mexico Wilderness Alliance
142 Truman St. NE #B-1
Albuquerque, NM 87108
505-843-8696 x 102
judy@nmwild.org
www.nmwild.org