Update: June 1, 2010

It has been brought to my attention that commercial guides and outfitters who plan to use the National Forests are required to obtain special use permits from the National Forest Service.

I have an update for you contrasting conditions leading to Wisconsin closing their bear season in 1985, and conditions in Michigan’s Upper Peninsula right now, in 2010.

Wisconsin’s bear season was closed in 1985 due to over harvest from 1981 through 1984. According to former Wisconsin Department of Natural Resources Wildlife Manager, Mike Gappa…biologists were concerned over the high percentage of bears 3 years of age and younger (48.5%) being harvested. Baits used for bear population census also identified a serious decline in the state’s bear numbers. They estimated the statewide population to be less than 7,000 bears. With full support from the Wisconsin Bear Hunters Association, WDNR went to the state legislature and got approval to close the bear season and revamp the state’s bear management program.

Contrast between Wisconsin in 1985 and Michigan in 2010 is alarming. Less than a year ago MDNRE estimated the statewide bear population to be about 19,000 including cubs. CCARE (Concerned Citizens Against Resource Exploitation…a pro hunting, fishing & trapping organization) received a letter from MDNRE’s lead fur bearer biologist, Adam Bump on 1/28/10 advising the statewide bear population had been revised down to 11,100 bears excluding cubs. The 11,100 was the estimate prior to the 2009 bear season. 2,026 bears were harvested in 2009…further reducing the estimate to 9,074 excluding cubs. Back in 1985 Wisconsin’s estimated statewide bear population was at about .5 bears per square mile. In 2010, Michigan’s estimated bear population in the Upper Peninsula, using the very generous number of 9,000 bears in the UP… figures out to be .5 bears per square mile. In Michigan’s Upper Peninsula the percentage of bears 3 years and younger being harvested is currently at 68.6%! Wisconsin’s DNR was alarmed when bears 3 and under was at 48.5%. To quote one of Wisconsin’s bear biologist’s, “that ought to throw up a red flag to somebody.” Yet, MDNRE’s Wildlife Division proposes issuing 12,375 kill tags for a bear population of 9,074 bears excluding cubs (cubs are not fair game in Michigan).

Concerned Michigan sportsmen need to contact the Natural Resources Commissioner representing their region and tell them to get back to managing the state’s natural resources using sound science.

Rich Hare
Ontonagon, Mi

Photo from fOTOGLIF

The Natural Resource Commission, at their monthly meeting scheduled for March 4, 2010, will make the final decision.

According to CCARE spokesman, Charles Markham, “This proposal is not based on sound science.” In a letter received by CCARE last month, the lead bear biologist for DNRE stated the MI black bear population was 11,100 prior to the 2009 bear season, a revision from the 19,000 bear estimate in the bear management plan signed by Director Humphries in June 2009.

DNRE records reflect that 2026 bears were harvested in 2009 leaving around 9,000 bear. 12,300 kill tags is a proposed increase over the previous year!

Markham explains, “The proposed 12,300 harvest tags is unsustainable “Even factoring cub numbers, DNRE has proposed the issuance of more kill tags than the total estimated number of bears in Michigan.”

CCARE urges all those concerned about Michigan bear populations to contact the Natural Resource Commission through Teresa Gloden at glodent@michigan.govprior to March 4 and express your outrage. Ask the NRC to reject this proposal and base wildlife management decisions on sound science.

For more information, visit the CCARE website at www.ccare.ws

The 2009 RMEF grants will affect Cheboygan, Delta, Montmorency, Muskegon, Oakland, Otsego, Ottawa and Presque Isle counties.

“Our volunteers in Michigan devoted themselves to the 2008 fundraisers that made these grants possible. This is where Elk Foundation banquets, auctions and other events transform into on-the-ground conservation work, and it’s part of the payday for all of our supporters who are passionate about giving something back to the outdoors,” said David Allen, RMEF president and CEO.

RMEF has been a major supporter of the Pigeon River Habitat Initiative in each of the past four years and in 2003. Contributions have helped secure conservation easements, develop forest stewardship management plans, provide technical assistance for landowners, offer cost-share programs to help with wildlife plantings, and more.

Collectively, these efforts have impacted hundreds of acres for elk and other wildlife.

“RMEF has been a great partner and supporter for this project. There is no way we could accomplish the goals of this project without partners such as RMEF. Funding from RMEF also helps us leverage additional funding for conservation efforts in Pigeon River country,” said Eric Nelson, habitat specialist for Huron Pines, which manages the Pigeon River Habitat Initiative.

Elk Foundation 2009 grants for Michigan, totaling $19,544, will help fund the following projects, listed by county:

Delta County Sponsor the Delta Youth Archery Initiative to introduce young people to archery instruction, equipment, competition, safety, sportsmanship, ethics and leadership.

Montmorency County Renovate an elk display with a new life-sized mount of a bull elk to be used for educational purposes by the City of Atlanta, ?Elk Capital of Michigan.?

Oakland County Sponsor the Sherman Middle School National Archery in the Schools Program to introduce youth to archery in a school environment.

Otsego County Promote long-term land protection, improve habitat for wildlife, discourage invasive species and develop sustainable forestry management as part of the Pigeon River Habitat Initiative (also affects Cheboygan, Montmorency and Presque Isle counties).

Ottawa County Sponsor the Ottawa County 2009 Youth Hunter Safety program (also affects Muskegon County).

Partners for 2009 projects in Michigan include Atlanta Chamber of Commerce, Huron Pines, Michigan Department of Natural Resources, other agencies, schools and organizations.

Since 1984, the Elk Foundation and its partners have completed more than 80 conservation projects in Michigan with a value of more than $4.6 million.

Before a move such as delisting, the USFWS must provide a 60-day public comment period and evidently this was not done. Because of that, the U.S. Government and the HSUS, et. al., reached an agreement that puts the wolves in Minnesota back under a “threatened” status and the rest of the wolves return as endangered. Wolves in Idaho and Montana that have be removed from the list, are not affected.

According to the news source that can’t be named or linked to, the agreement states that “if the Fish and Wildlife Service tries again to remove the wolves from the endangered list, it will hold a 60-day comment period.”

A spokesperson for HSUS said that this gives the USFWS the opportunity to reconsider their “failed wolf-management policies” and put an end to what they called “reckless plans” to start hunting wolves as part of the management plans.

The USFWS says it plans to regroup and attempt to delist the Western Great Lakes wolf population again.

Tom Remington

The process of attempting to get the wolf delisted has been a confusing mess, mired in lawsuits, twisted out of shape by frustrating and puzzling rulings by judges and just as disturbing was the direction or seemingly lack thereof, the Feds took in dealing with the issue.

When looking at the whole picture of wolf delisting that includes both the Western Great Lakes and Northern Rocky Mountains regions, according to court rulings there were three distinct issues the Feds had to address in order for the courts to be satisfied (perhaps) and allow delisting – Wyoming’s wolf management plan, genetic connectivity/exchange and the USFWS being able to create a Distinct Population Segment and delist a species simultaneously. Let’s address them one at a time.

Create and Delist

This past September 2008, in a federal court in the District of Columbia, Judge Paul Friedman told the U.S. Fish and Wildlife Service that because the Endangered Species Act was unclear about the use and definition of Distinct Population Segment, he felt the Service did not have the legal authority to create a DPS while simultaneously changing the status of the species recognized within that DPS.

Consequently and for no other obvious reason, Judge Friedman ordered the wolf placed back under federal protection and required the Service to provide a better explanation of the use of DPS.

What is expected to be part of the Final Rule next week is a complete history of the Service’s use of Distinct Population Segments. The preliminary information I have indicates several pages of analysis and history of DPS. Included in that explanation will be examples of other species where the Service created and delisted or changed status of certain species. Examples of that are the grizzly bear, Colombian whitetail deer, brown pelican, American crocodile, among others.

We can only assume this will satisfy the courts.

Wyoming, the Lone Wolf

Further out west, on February 27, 2008, the USFWS published its Final Rule and officially removed the Northern Rocky Mountains population of gray wolves from the protected species list of the Endangered Species Act. It was short lived as was expected. On July 18, 2008, Judge Donald Molloy issued a preliminary injunction placing the gray wolf back under protection of the federal government.

One of the two issues expressed by Judge Molloy was that Wyoming’s Wolf Management Plan, approved by the state and approved by the feds, was inadequate to sustain a viable wolf population.

With the recent announcement to delist the wolf, Wyoming has been left out of the delisting process. This is how the USFWS handled the Wyoming wolf management plans they had approved of previously.

In light of the July 18, 2008, U.S. District Court order, we reexamined Wyoming law, its management plans and implementing regulations, and now determine they are not adequate regulatory mechanisms for the purposes of the Act.

Genetic Connectivy

The second issue Judge Molloy had difficulty dealing with is known as genetic connectivity or genetic exchange. This is when wolves from one area disburse into the areas of other wolves and undertake breeding, believed by some to be essential to the long term sustainability of a wolf population.

The preliminary information I have indicates that the Feds will offer a lengthy explanation about what role genetic exchange/connectivity had in the scientific approach to wolf recovery. In their explanation they will tell us that genetic exchange was discussed and that the evolution of the importance of genetic exchange changes very little from 1987 to present. They also intend to show that from the beginning, the Service has said all along that they believed genetic exchange would be verified by showing natural dispersal of the animals and if that wasn’t occurring then they would resort to man-assisted dispersal.

We explicitly stated the required genetic exchange could occur by natural means or by human-assisted migration management and that dispersal of wolves between recovery areas was evidence of that genetic exchange (Service et al. 1994, Appendix 8, 9).

The Final Rule to be published more than likely will reaffirm the Feds’ commitment to ensuring genetic exchange.

Development of the Service’s recovery goal clearly recognized that the key to wolf recovery was establishing a viable demographically and genetically diverse wolf population in the core recovery areas of the NRM. We would ensure its future connectivity by promoting natural dispersal and genetic connectivity between the core recovery segments and/or by human-assist migration management in the unlikely event it was ever required.

Essentially what we see is that the U.S. Fish and Wildlife Service really hasn’t changed anything in regards to genetic connectivity. They’ve only clarified, and in my opinion beefed up, what role genetic exchange/connectivity has in wolf recovery in hopes of satisfying the courts.

This shows me one thing very clearly. When the USFWS went to court, it was no secret that one of the issues being discussed at length on more than one occasion was genetic connectivity, yet the USFWS was ill prepared to explain and present what they will attempt to explain in the upcoming Final Rule.

Let’s hope they are better prepared this time because we know the lawsuits will begin and every aspect discussed in the past and any new ones the animal rights and environmentalist can dig up, will be dragged before the judge.

Personally, I look for nothing to change.

Tom Remington

“Information gathered from bears will assist biologists in managing the black bear population,” said DNR Wildlife Biologist Mark Boersen. Currently, three female bears are being monitored from the air and ground in the Northern Lower Peninsula through the use of radio tracking equipment.

After locating a denned bear, DNR biologists will determine if the animal is a good candidate for radio-collaring. Bears that are selected will be sedated by a biologist and fitted with a radio-tracking collar and ear tags. Hair samples will be taken for DNA analysis and a small non-functional tooth will be collected to determine the bear’s age. Upon completion of the short procedure, biologists will carefully return the bear to their den where it will sleep through the remainder of the winter months.

People who encounter bear dens are asked to record the location, with a GPS unit if possible, and contact Mark Boersen at the DNR Roscommon Operations Center at 989-275-5151 for bears in the Northern Lower Peninsula; or Dwayne Etter at 517-373-9358, ext. 256, for bears in the southern Lower Peninsula. The public is reminded that it is illegal to disturb a bear den or disturb, harm, or molest a bear in its den.

Contact:  Mark Boersen 989-275-5151
Agency: Natural Resources

SUMMARY: We, the U.S. Fish and Wildlife Service (Service) are issuing this final rule to comply with three court orders which have the effect of reinstating the regulatory protections under the Endangered Species Act of 1973, as amended (ESA), for the gray wolf (Canis lupus) in the western Great Lakes and the northern Rocky Mountains. This rule corrects the gray wolf listing at 50 CFR 17.11 to reinstate the listing of wolves in all of Wisconsin and Michigan, the eastern half of North
Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, the northwestern portion of Ohio, the northern half of Montana, the northern panhandle of Idaho, the eastern third of Washington and Oregon, and in north-central Utah as endangered, and reinstate the listing of wolves in Minnesota as threatened. This rule also reinstates the former designated critical habitat in 50 CFR 17.95(a) for gray wolves in Minnesota and Michigan, special regulations in 50 CFR 17.40(d) for the gray wolf in Minnesota, and special rules in 50 CFR 17.84 designating the gray wolf in the remainder of Montana and Idaho and all of Wyoming as nonessential experimental populations. This action revises the CFR to comply with three court orders. In addition, this final rule takes additional
administrative action that removes archaic provisions from the gray wolf special regulation at 50 CFR 17.84(i) and makes corrections to the gray wolf special regulation at § 17.84(n) by removing language referring to a Western DPS.

How I understand this is that the Department of Interior (DOI) has cranked the clock back in time to 1978. My question now becomes, why stop there?

Quick history: In 1978 the United States declared the gray wolf “endangered” in all lower 48 states with the exception of Minnesota. Wolves there were classified as “threatened”, essentially creating the first Distinct Population Segment (DPS) of gray wolves. Map 1 below shows areas shaded in gray as wolf protection areas. As you can see, Minnesota is listed as “threatened”. Map 1 also shows two areas of “nonessential experimental populations”(NEP) for gray wolves.

On November 22, 1994 (period of wolf reintroduction) the feds created the Yellowstone NEP, shown in the dark shaded area of the map. Again on January 12, 1998 a NEP was created in parts of Arizona, New Mexico and Texas.

On July 13, 2000, the USFWS proposed changes to the listing of the gray wolf that would have created 4 Distinct Population Segments. On April 1, 2003 what the USFWS ended up with was 3 DPS as can be seen in Map 3.

February 8, 2007, the USFWS published the final rule creating the Western Great Lakes DPS, in order to remove that segment of the wolf population from federal protection.

On February 27, 2008, the USFWS published the final rule designating the Northern Rocky Mountains DPS, in order to remove federal protection of the gray wolf in that area.

If you’re following along, you will now notice that within the lower 48 states there are no fewer than 5 DPS for gray wolves.

Lawsuits followed all of these actions. On September 29, 2008, Judge Paul Friedman, in a District of Columbia federal court, ordered the gray wolf in the Western Great Lakes (WGL) DPS returned to federal protection. More on this in a moment.

On July 18, 2008, Judge Donald Molloy, in a federal court in Montana, ruled the basis for delisting the wolf incomplete (he demands “genetic connectivity”) and also declared Wyoming’s Wolf Management Plan was inadequate to ensure the sustainability of the gray wolf in that state.

The third lawsuit dates back to 2005 when courts in Oregon and Vermont ruled that the Final Rule of April 1, 2003 (that created the three DPS shown on the maps above) violated the Endangered Species Act. Subsequently the ruling invalidated the three DPS created in that final rule. What isn’t clear is whether these two rulings apply to the two NEPs.

If we take a closer look at Judge Paul Friedman’s ruling, we see that he also believes that the feds’ creation of the Western Great Lakes DPS was an illegal act. Here is what I wrote back in September.

Judge Friedman’s ruling states that the reason he remanded the case was because the USFWS failed to provide a reason, supported by the ESA, to justify removing the gray wolves in the Great Lakes region only. In remanding the case the judge is sending the issue back to the USFWS for an explanation. Judge Friedman said the ESA’s definition of a “Distinct Population Segment” is “silent or ambiguous with respect to the specific issue.

What the Department of Interior has been forced to do is comply with the rulings of the three lawsuits. As a result the USFWS describes what is left for protection of the wolf.

As of the filing of the respective court orders, any and all wolves in the northern Rocky Mountains and western Great Lakes, except in Minnesota, are listed as an endangered species under
the ESA. Any and all wolves in Minnesota are listed as a threatened species under the ESA. The reinstated regulations found at 50 CFR 17.95 designate critical habitat for gray wolves in Minnesota and Michigan, and the reinstated special regulations in 50 CFR 17.40(d) govern the regulation of gray
wolves in Minnesota. The provisions of these regulations are the same as those in the prior regulations that were removed per our February 8, 2007, final delisting rule (72 FR 6052).
The reinstated special rules found at 50 CFR 17.84(i) and (n) designate part of the wolves in the northern Rocky Mountains as nonessential experimental populations. The provisions of the special rules are the same as those in the prior special rules that were removed per our February 27, 2008, final
delisting rule (73 FR 10514).
This means that wolves in Wisconsin, Michigan, North Dakota, South Dakota, Iowa, Illinois, Indiana, Ohio, Washington, Oregon, Utah, the Idaho panhandle, and northern Montana are hereby listed as endangered (50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 17.11(h)). Wolves in southern Montana, Idaho south of Interstate 90, and all of Wyoming are hereby listed as
nonessential experimental populations 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.

*Note* The Final Rule contains maps that show NEPs as described above.

What is becoming distinctly clear in all of these cases combined is that the DOI and USFWS have no legal authority to create a Distinct Population Segment for any species.

In the Vermont court case, part of the two lawsuits that essentially rendered the three DPS of wolves in the lower 48 states illegal and a violation of the Act, Judge J. Garvan Murtha’s ruling stated the following:

The definition of “species” includes “any distinct population segment of any species.” 16 U.S.C. § 1532(16). The ESA does not define “distinct population segment” (“DPS”), nor is it a term used in scientific literature.

Judge Murtha recognizes that the “DPS Policy” “allows” for the USFWS to protect species based on the Policy Regarding the Recognition of Distinct Vertebrate Population. This policy takes into consideration the “discreetness”, “significance” and “conservation status” of species. But Murtha obviously doesn’t think creating a DPS for management purposes and in this case, delisting purposes, is legal.

Judge Paul Friedman, who ruled that the WGL DPS was illegal, also stated that there is no definition of a Distinct Population Segment.

In 1978, the gray wolf (Canis lupus) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service (FWS), an agency within the Department of the Interior, promulgated a final rule revising the wolf’s listing status. See 72 Fed. Reg. 6052 (Feb. 8, 2007) (the “Final Rule”). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a “distinct population segment” or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS.

Judge Friedman tells us that the Endangered Species Act of 1973 as amended, is ambiguous when it comes to defining a Distinct Population Segment.

(16) The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

Friedman claims that the USFWS has the authority to declare any area a Distinct Population Segment based on the above as described in the ESA. But most telling is that he says the USFWS cannot create another DPS within the broader DPS. Which of course makes no sense at all as would pertain to proper and quality wildlife management. (Note that most states through “best available science” practices, have learned that in order to properly manage wildlife, they must create wildlife management districts.)

As a result of the three court cases discussed above, I have to ask why the Department of Interior stopped their clock rewinding at 1978? Why not go back to pre-ESA. As we have seen by court rulings of Defenders of Wildlife v. Norton, National Wildlife Federation v. Norton, Humane Society of the United States v. Kempthorne and the twelve parties that sued Kempthorne to put the wolf back under federal protection in the NRM DPS, tells us that creating DPSs is an illegal act. Any reasonable person would now question whether the federal government had the authority to create the first Distinct Population Segment of gray wolves in 1978 when it classified wolves in all the lower 48 states.

The confusing mess this has created now extends beyond just the gray wolf. It involves every species in existence in the United States. This is a clear example of the courts having inadequate knowledge of the issues making rulings that have now put the very species we may be wanting to protect in danger as well as stripping management powers from the USFWS.

I wrote recently of the efforts taking place as we speak to list the Atlantic salmon in Maine as endangered or threatened under the ESA. From this information we now ask, can the USFWS and NMFS (National Marine Fisheries Service/NOAA) create a Distinct Population Segment of Atlantic salmon? The feds are attempting to expand the listing and define critical habitat. This, according to the court’s interpretation, is creating a new DPS within a DPS.

Surely the Department of the Interior, in issuing this final ruling to return the gray wolf protection to 1978 levels, is telling us their hands are tied. They should have taken it one step further and rescinded the original declaration of a wolf DPS within the U.S. from the beginning. (Perhaps they knew that would actually get someone’s attention.)

This also raises some very serious issues with regard to the “Nonessential Experimental Population” of gray wolves in the Yellowstone National Park area and Arizona, New Mexico and Texas. Was it a legal act to create these NEPs? The broader question becomes whether the federal government had legal authority to reintroduce wolves into these regions? Surely if they can’t create segmented DPS of a species for management purposes, they have no legal right to dump species into these illegally crafted NEPs.

Obviously the power and authority of the Department of Interior, which includes the U.S. Fish and Wildlife Service, to manage wildlife has evaporated. Any so-called environmental or preservationist organization, with money behind it, can control the courts and get what they want. The Endangered Species Act is only as good as the lawsuits permit it to be. Perhaps it is time for the states to reclaim their sovereignty.

It appears the DOI has lobbed the ball back into the courts, figuratively and literally.

Tom Remington