BRORBY, Circuit Judge.
These consolidated appeals stem from three separate challenges to the Department of Interior's ("Department") final rules governing the reintroduction of a nonessential experimental population of gray wolves in Yellowstone National Park ("Yellowstone") and central Idaho. The district court consolidated the challenges and struck down the wolf reintroduction rules, concluding they (1) are contrary to Congress' clear intent under section 10(j) of the Endangered Species Act, 16 U.S.C. § 1539(j), to prevent lessening the protection afforded to naturally occurring, individual members of the same species; (2) are contrary to the Department's own regulations extending Endangered Species Act protections to all individual animals within an area where experimental and nonexperimental populations may overlap; and (3) conflict with section 4 of the Endangered Species Act, 16 U.S.C. § 1533, by operating as a de facto "delisting" of naturally occurring wolves. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F.Supp. 1349, 1372-76 (D.Wyo.1997). The district court ordered the reintroduced non-native wolves and their offspring removed from the identified experimental population areas, but stayed its own judgment pending this appeal. Id. at 1376. Discerning no conflict between the challenged experimental population rules and the Endangered Species Act, we reverse the district court's order and judgment.
A. Factual Summary
Detailed facts underlying this appeal are set forth in Wyoming Farm Bureau Fed'n v. Babbitt, 987 F.Supp. 1349 (D.Wyo.1997); hence, we provide only a summary of salient facts.
The Secretary of Interior ("Secretary") listed the Northern Rocky Mountain Wolf, an alleged subspecies of the gray wolf, as an endangered species under the Endangered Species Act of 1973. 43 Fed.Reg. 9607 (March 9, 1978) ("Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota"). In 1978, the Secretary listed the entire gray wolf species as endangered in the lower forty-eight states, except Minnesota.
Based on the 1987 recommendation, and at Congress' direction, the Fish and Wildlife Service, in cooperation with the National Park Service and the United States Forest Service ("Forest Service"), prepared an environmental impact statement in accordance with the National Environmental Policy Act, 43 U.S.C. § 4332(2)(C). The final environmental impact statement analyzed the environmental effects of five wolf recovery alternatives. The proposed
In June 1994, Secretary Bruce Babbitt adopted the proposed action alternative subject to certain conditions intended to "minimize or avoid the environmental impacts and public concerns identified during the environmental review process." One condition was the promulgation of nonessential experimental population rules to implement a wolf management program under section 10(j). The Department published its final experimental population rules in November 1994. 59 Fed.Reg. 60252 (Nov. 22, 1994). The Recovery Plan and final rules prescribe the release of 90-150 wolves from Canada into designated areas of Yellowstone and central Idaho over a three- to five-year period, id. at 60254-255, 60266, 60269, notwithstanding the Department's acknowledgment (1) a colony of naturally occurring wolves exists in Montana which, as the number of wolves increases, eventually will recolonize areas of Yellowstone and Idaho; and (2) lone wolves have been confirmed to exist in or near the designated experimental population areas in Yellowstone and Idaho. The final experimental population rules expressly authorize persons coming into contact with wolves to take actions otherwise prohibited under the Endangered Species Act. For example, a livestock producer can "take" any wolf caught in the act of killing, wounding or biting livestock on his land so long as the incident is reported within twenty-four hours. Id. at 60264, 60279. The rules also provide a framework within which the Fish and Wildlife Service can manage "problem" wolves. Id. at 60265, 60279.
B. The Parties
Appearing as Defendants/Appellants in this matter are the various governmental departments, agencies and their officials responsible for wolf and wolf habitat management, including the Department of Interior, its agencies the Fish and Wildlife Service and National Park Service, and the Department of Agriculture and its agency the Forest Service (hereafter the "Agencies"). On appeal, the National Audubon Society, which originally appeared as a plaintiff, realigns itself and joins in the Agencies' briefs. The National Wildlife Federation, Defenders of Wildlife, Wyoming Wildlife Federation, Idaho Wildlife Federation, and the Wolf Education and Research Center appear as Intervenors on behalf of the Agencies. Collectively, these parties advocate the legal validity of the wolf reintroduction rules, and any reference to the Agencies' arguments or contentions generally reflects those of the Intervenors.
Plaintiffs/Appellees include: the Wyoming Farm Bureau Federation, the Montana Farm Bureau Federation, the Idaho Farm Bureau Federation, the American Farm Bureau Federation, James R. and Cat D. Urbigkit, the Predator Project, Sinapu, and the Gray Wolf Committee. The Urbigkits and the Predator Project also raise issues on cross-appeal. Collectively, these parties represent the educational, economic, and social interests of individuals who reside, recreate, farm, and/or ranch in or near the designated experimental population areas. All participated in the administrative proceedings related to the wolf recovery/reintroduction program. For different reasons, all dispute the legal validity of the wolf reintroduction rules.
The following individuals and entities filed amicus briefs: the Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League, Idaho Conservation League, Wolf Recovery Foundation, and the Center for Marine Conservation (collectively referred
C. Pending Motions
The parties filed a number of preliminary motions, which were referred to this panel for resolution. We conclude none is dispositive and rule as follows: All motions to dismiss are denied. The Agencies' motion to file missing administrative record documents is granted. The National Audubon Society's motions to dismiss, realign, and join defendants' and amici briefs are granted. The Wyoming Farm Bureau's Second Motion to Strike is denied. The Farm Bureaus' motion to expedite is denied as moot.
D. The Issues
At the outset of litigation, the Defendant Agencies challenged the Audubon Society's and the Urbigkits' standing to bring any claims. The Agencies also challenged the Farm Bureaus' standing to assert their Endangered Species Act and National Environmental Policy Act claims. The district court held both the Audubon Society and the Urbigkits have standing. Wyoming Farm Bureau Fed'n, 987 F.Supp. at 1361. The court further held the Farm Bureaus lack standing to assert a National Environmental Policy Act claim. Id. The court determined, sua sponte, that Mountain States Legal Foundation lacks standing to pursue its action altogether. Id. at 1355 n. 10. Mountain States Legal Foundation did not submit briefs on appeal. The remaining parties do not raise the standing issue in their briefs. Accordingly, we do not address this issue, and the district court's rulings pertaining to standing remain unaffected.
Statutory Notice and Procedural Rights
The Agencies unsuccessfully sought dismissal of the first two counts of the Farm Bureaus' complaint for failure to provide sufficiently specific notice pursuant to the Endangered Species Act, 16 U.S.C. § 1540(g). Id. at 1362-63. They do not challenge the district court's ruling on appeal; therefore, we do not address it and the district court's ruling on this issue stands.
The Farm Bureaus' contention the Agencies did not afford them certain Endangered Species Act procedural rights provided under 50 C.F.R. § 17.81(d) was similarly unsuccessful in district court. Id. at 1365-66. Because the Farm Bureaus do not pursue this claim on appeal, the district court's ruling stands.
The Wolf Reintroduction Rules
The crux of this case, and hence this opinion, is the validity of the final rules governing the introduction of a nonessential experimental population of gray wolves in the entirety of Yellowstone and in central Idaho. The district court struck down the challenged rules as violative of section 4(f) and section 10(j) of the Endangered Species Act, 16 U.S.C. §§ 1533(f), 1539(j). Id. at 1373-76. However, the district court found no violation of the National Environmental Policy Act. Id. at
II. Legal Analysis
A. Standard of Review
Our review of the rules and record is governed by the Administrative Procedure Act, 5 U.S.C. § 706. Essentially, we must determine whether the Agencies: (1) acted within the scope of their authority, (2) complied with prescribed procedures, and (3) took action that was neither arbitrary and capricious, nor an abuse of discretion. Olenhouse, 42 F.3d at 1574. Within this context, we will set aside the Agencies' factual determinations only if they are unsupported by substantial evidence. "The substantial-evidence standard does not allow a court to displace the [Agencies'] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir.1999) (quotation marks and citations omitted).
We review matters of law de novo. Id. at 1102. When reviewing the Agencies' interpretation and implementation of the Endangered Species Act, we give strict effect to the unambiguous intent of Congress if Congress has clearly spoken to the issue before us. However, if Congress is silent on the issue and has delegated authority over the subject matter to the Agencies, we defer to the Agencies' construction, unless, in context of the Act, the Department's construction is unreasonable or impermissible. Hoyl v. Babbitt, 129 F.3d 1377, 1385 (10th Cir.1997) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). "[W]e must consider the language of the relevant statutory scheme as illuminated by `the provisions of the whole law, and . . . its object and policy.'" Arco Oil & Gas Co. v. EPA, 14 F.3d 1431 (10th Cir.1993) (quoting Aulston v. United States, 915 F.2d 584, 589 (10th Cir.1990), cert. denied, 500 U.S. 916, 111 S.Ct. 2011, 114 L.Ed.2d 98 (1991)).
B. Statutory Context
Congress enacted the Endangered Species Act in 1973 to "provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." S.Rep. No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N. 2989 (emphasis added); see also 16 U.S.C. § 1531(b). Toward that end, the Endangered Species Act authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened. 16 U.S.C. § 1533(a)—(b). Once a species is so listed, it is afforded certain protections, and federal agencies assume special obligations to conserve, recover and protect that species. For example, section 4(f), 16 U.S.C. § 1533(f), directs the Secretary to develop and implement recovery plans for the "conservation and survival" of listed species "unless he finds that such a plan will not promote the conservation of the species." In addition, section 7(a)(1) authorizes the Secretary to "live" trap and "transplant" (reintroduce) rare species, if necessary, to bring an endangered or threatened species to the point at which the protective measures of the Endangered Species Act are no longer necessary. See 16 U.S.C. §§ 1536(a)(1) and 1532(3) (definition of "conservation").
Congress added section 10(j) to the Endangered Species Act in 1982 to address the Fish and Wildlife Service's and other affected agencies' frustration over political opposition to reintroduction efforts perceived to conflict with human activity. Although the Secretary already had authority
Section 10(j), 16 U.S.C. § 1539(j), provides:
As the language of this provision makes clear, Congress contemplated the Secretary would promulgate special rules to identify each experimental population. As Congress explained:
H.R. Conf. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2875. In other words, Congress purposely designed section 10(j) to provide the Secretary flexibility and discretion in managing the reintroduction of endangered species. By regulation, the Secretary can identify experimental populations, determine whether such populations are essential or nonessential, and, consistent with that determination, provide control mechanisms (i.e., controlled takings) where the Act would not otherwise permit the exercise of such control measures against listed species.
C. Alleged Violations
1. Geographic Separation
The Agencies do not dispute individual wolves may leave (and, from time to time, have left) Canada and Montana and enter the experimental population areas in central Idaho and Yellowstone. The Farm Bureaus and the Urbigkits argue, and the district court agreed, that this possibility establishes an overlap of wolf "populations," or the overlap of the experimental areas and the "current range" of naturally occurring wolf populations in contravention of the requirement in section 10(j)(1) that experimental populations of an endangered species must be wholly separate geographically from nonexperimental populations of the same species. We do not accept that contention.
Plaintiffs base their argument on a single piece of legislative history they claim demonstrates Congress never intended section 10(j) to lessen the Endangered Species Act protections afforded individual members of a natural population of a listed species, or to create law enforcement problems. See Wyoming Farm Bureau Fed'n, 987 F.Supp. at 1372-73. The 1982 House Report they rely on states the House Committee:
H.R.Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. According to the Farm Bureaus, this passage "specifically prohibits the overlap of `individuals' and/or `specimens' of a species, not just the overlap of entire populations of a species," and demonstrates Congress' intent that an "experimental population" should exist "only when there is no possibility that members of the `experimental population' could overlap with members of naturally occurring populations." They claim the Agencies erroneously fail to recognize that populations are necessarily made up of individuals; thus, the wolf reintroduction rules reflect an impermissible construction of section 10(j).
The Farm Bureaus further argue the reintroduction program creates law enforcement
We begin our analysis by reviewing the statute itself, the extent to which Congress expressly defined relevant terms or otherwise clearly spoke to this issue, and conversely, the degree to which Congress delegated authority over the matter to the Agencies, in particular the Department of Interior. See Chevron U.S.A., 467 U.S. at 842-43, 104 S.Ct. 2778; see also United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 806, 142 L.Ed.2d 667 (1999). As the district court recognized, the Endangered Species Act does not define the relevant terms or otherwise address the precise question at issue—whether the phrase "wholly separate geographically from nonexperimental populations" means that a reintroduced population of animals must be separate from every naturally occurring individual animal. Wyoming Farm Bureau Fed'n, 987 F.Supp. at 1371-74. Instead, as the statutory language and legislative history make clear, Congress deliberately left the resolution of this type management/conservation issue to the Department. See McKittrick, 142 F.3d at 1174 ("Congress' specific purpose in enacting section 10(j) was to give greater flexibility to the Secretary. Thus, each experimental population has its own set of special rules so that the Secretary has more managerial discretion. This flexibility allows the Secretary to better conserve and recover endangered species." (Quotation marks and citations omitted.)); see also H.R.Rep. No. 97-567 at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. We therefore defer to the Department's interpretation of the phrase "wholly separate geographically from nonexperimental populations," so long as its interpretation does not conflict with the plain language of the Endangered Species Act. See Hoyl, 129 F.3d at 1385. We perceive no conflict.
The Department defines "population" as a potentially self-sustaining group "in common spatial arrangement,"
This interpretation of the "geographic separation" requirement of section 10(j) is consistent with the language and objectives of the Endangered Species Act as a whole. Congress defined "species," as used throughout the Act, to represent subspecies or "any distinct population segment" of an interbreeding species. 16 U.S.C. § 1532(16). This reference to species vis à vis populations or population
Plaintiffs' argument the Agencies failed to release the Canadian wolves outside the "current range" of naturally occurring wolves is similarly flawed since Plaintiffs rigidly define "current range" as it is used in section 10(j) to be that territory occupied by an individual wolf. The plain language of the statute does not support their interpretation. Although the statute does not define "current range," section 10(j)(2)(A) requires that an "experimental population" must be established "outside the current range of such species." 16 U.S.C. § 1539(j)(2)(A) (emphasis added). As discussed above, Congress defined "species," consistent with its broad conservation and recovery goals, to constitute distinct, interbreeding population segments or subspecies, not individual animals. By definition, then, an individual animal does not a species, population or population segment make. Therefore, the Department, exercising its discretion under section 10(j), reasonably interpreted the phrase "current range" to be the combined scope of territories defended by the breeding pairs of an identifiable wolf pack or population.
2. Protection of Naturally Occurring Wolves
The district court determined, at the behest of the Farm Bureaus and the Predator Project, that the Department must accord full endangered species protections to any naturally occurring wolf found within the experimental areas.
Pursuant to section 10(j)(2)(B), 16 U.S.C. § 1539(j)(2)(B), the Secretary must, prior to authorizing a release, identify by regulation the population to be deemed experimental. As discussed above, this statutory requirement confers broad discretion to the Secretary to manage populations to better conserve and recover endangered species. Based on the facts (1) there were no reproducing wolf pairs and no pack activity within the designated experimental areas, (2) wolves can and do roam for hundreds of miles, and (3) it would be virtually impossible to preclude naturally occurring individual gray wolves from intermingling with the experimental population, 59 Fed.Reg. at 60256, 60261, the Secretary intentionally identified the experimental population as all wolves found within the experimental areas, including imported wolves and any lone dispersers and their offspring. The Department determined it could best manage the wolf reintroduction program to achieve
In particular, we do not read section 10(j)(1) to restrict the Secretary's authority to identify an experimental population solely on the basis of animal origin as opposed to geographic location. While the language of section 10(j)(1), read in isolation, might suggest an experimental population can only be comprised of those particular animals physically relocated (and any offspring arising solely therefrom), such a narrow interpretation is not supported by the provision, or the Endangered Species Act, read as a whole. Indeed, section 10(j)(1) expressly references the Secretary's broad discretion to identify and authorize the release of an experimental population under section 10(j)(2). Moreover, as illustrated above, when drafting section 10(j) Congress deliberately provided the Secretary with the flexibility to address the specific circumstances of any given endangered population, including the authority to identify an experimental population "on the basis of location, migration pattern, or any other criteria that would provide notice as to which populations of endangered or threatened species are experimental." H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. at 34 (1982), reprinted in 1982 U.S.C.C.A.N. at 2875 (emphasis added). For these reasons, we interpret the plain language of section 10(j)(1) as an expression of Congress' intent to protect the Secretary's authority to designate when and where an experimental population may be established, not as a limitation on the Secretary's flexibility.
The restrictive interpretation the Predator Project and Farm Bureaus advocate could actually undermine the Department's ability to address biological reality (i.e., wolves can and do roam for hundreds of miles and cannot be precluded from intermingling with the released experimental population), and thus handicap its ability to effectuate species recovery. The Endangered Species Act simply does not countenance that result. To the contrary, Congress' overriding goal in enacting the Endangered Species Act is to promote the protection and, ultimately, the recovery of endangered and threatened species.
3. Protection of Distinct Subspecies
The Urbigkits claim on cross-appeal there exists a genetically distinct subspecies of wolf in Yellowstone and Wyoming, Canis lupus irremotus. They further claim the Agencies failed to adequately consider the impacts of the reintroduced "Canadian" wolves on that naturally occurring subspecies, in violation of section 7 of the Endangered Species Act, 16 U.S.C. § 1536. According to the Urbigkits, the Agencies ignored their own expert, Dr. Ron Nowak, a Fish and Wildlife Service taxonomist, who commented that "[a] big part of the conservation of a full species is to insure that its component subspecies and populations remain intact and in place," that there is a "subspecific distinction" between the original Yellowstone wolf and the reintroduced wolves, and that "[i]f there were actually a surviving population of the original Yellowstone wolf, every effort should be made to maintain its purity and to avoid bringing in other wolves." The Urbigkits contend that because the subspecies irremotus was originally listed in 1973 and not specifically delisted or declared extinct in 1978 when Endangered Species Act protection was extended to all wolf subspecies, irremotus is still a legally listed endangered species entitled to full protection under the Act, like Canis lupus baileyi, the Mexican wolf subspecies.
The Agencies decided to reintroduce gray wolves from Canada without reference to subspecific differences. They based this decision on (1) the lack of evidence any wolf population existed in the reintroduction areas at the time of reintroduction; (2) scientific evidence that most of the historically recognized subspecies of Canis lupus (including irremotus) do not warrant recognition under modern taxonomic classification methods; and (3) the
The factual, scientific determination that the subspecies irremotus no longer exists is supported by evidence in the record comparing older taxonomic studies to more recent and sophisticated studies. The more recent studies conclude there is very little differentiation between the many subspecies of gray wolf previously recognized. This determination is further supported by a lack of physical evidence demonstrating the presence of any wolf population, let alone a genetically distinct wolf population, in either the Yellowstone or central Idaho reintroduction areas. In rebuttal, the Urbigkits proffer the statements of Dr. Nowak, who opined there is "a subspecific distinction" between the original Yellowstone wolf and the reintroduced wolves that would be worthy of protection "[i]f there were actually a surviving population of the original Yellowstone wolf." While we appreciate the relevance of Dr. Nowak's opinion on the issue of genetic variation and the importance of subspecies conservation where an identifiable subspecies exists, we fail to see how it refutes the Agencies' conclusion the subspecies irremotus does not exist. Applying the arbitrary and capricious standard of review, we cannot displace the Defendants' choice between two fairly conflicting views, and must defer to the agencies' view on scientific matters within their realm of expertise. Trimmer, 174 F.3d at 1102; National Cattlemen's Ass'n v. EPA, 773 F.2d 268, 271 (10th Cir.1985). Because this is a scientific matter within the Agencies' expertise, and because there is ample evidence in the administrative record to support the Defendants' position, we uphold their subspecies conclusions.
4. National Environmental Policy Act
The Urbigkits further argue on cross-appeal the district court erred in rejecting their claim the Defendants violated the National Environmental Policy Act by failing to adequately analyze the impacts of wolf reintroduction on naturally occurring wolf populations, including distinct subspecies, or to investigate the need for additional research. Having studied the arguments and administrative record, we agree with the district court the Urbigkits' National Environmental Policy Act claims boil down to a disagreement over scientific opinions and conclusions. The fact the Urbigkits disagree with the Defendants concerning the existence of a distinct subspecies of wolf in Yellowstone National Park and the impacts of the reintroduction program on that subspecies and other naturally occurring wolves, and cite evidence in the record they believe supports their position, simply does not constitute a National Environmental Policy Act violation.
We have long acknowledged the National Environmental Policy Act "`prescribes the necessary process,'" but "`does not mandate particular results.'" Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir.1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). In other words, the Act "prohibits uninformed—rather than unwise—agency action." Robertson, 490 U.S. at 351, 109 S.Ct. 1835. Accordingly, so long as the record demonstrates the Agencies took a "hard look" at the environmental consequences of the wolf reintroduction program, we will not second-guess the wisdom of their ultimate decision or conclusions concerning the need for additional research or the impacts of wolf reintroduction on naturally occurring populations or subspecies. See Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1171-72 (10th Cir.1999).
The administrative record establishes that the Agencies analyzed the alleged existence of naturally occurring wolves in the experimental population areas, studied the arguments pertaining to subspecies identification and recognition, and catalogued the research studies and scientific sources on which they relied. Because of the lack of evidence of wolf populations in Yellowstone or central Idaho, and the scientific evidence supporting a reduction in the number of recognized subspecies, the Agencies determined to forego additional analysis of these specific issues in the Draft Environmental Impact Statement or Final Environmental Impact Statement. The Agencies further concluded that these issues, which were identified during the public scoping process, would not be impacted significantly by any of the wolf reintroduction alternatives being considered
We appreciate that the Urbigkits patently disagree with the Agencies' conclusions concerning (1) the existence of naturally occurring wolf populations, (2) the existence of an alleged subspecies of wolf unique to Yellowstone National Park, and (3) the significance of any impact the wolf reintroduction program would have on naturally occurring wolves. We also recognize the Urbigkits cite evidence in the administrative record they believe supports their position. However, the mere presence of contradictory evidence does not invalidate the Agencies' actions or decisions. See Trimmer, 174 F.3d at 1102. The Urbigkits fail to show a lack of substantial evidence in the administrative record to support the Agencies' conclusions, or that the Final Environmental Impact Statement was otherwise inadequate to foster informed public participation or informed decision-making. Consequently, we hold the Agencies did not violate the National Environmental Policy Act.
After setting aside the final wolf reintroduction rules as unlawful, the district court ordered Agencies to remove all Canadian wolves and their progeny from both experimental population areas. The Predator Project, Sinapu and the Gray Wolf Committee argue on appeal this remedy is inappropriate and represents an abuse of the district court's discretion. Because we uphold the challenged wolf reintroduction rules as lawful under the Endangered Species Act and the National Environmental Policy Act, we need not address the propriety of the district court's remedy. We
Indeed, the protection afforded the gray wolf itself depends on the geographic location (if an "endangered" wolf in Wisconsin crosses the border into Minnesota it becomes "threatened," and therefore has fewer Endangered Species Act protections, 43 Fed.Reg. at 9611-12, codified at 50 C.F.R. § 17.11(h)(1997)).
The Mexican gray wolf was listed as an endangered subspecies in April 1976. (63 Fed.Reg. 1752 (January 12, 1998)). Like the irremotus listing, this listing was superceded by the 1978 reclassification designating the entire species of gray wolf as endangered. However, unlike irremotus, identifiable, captive populations of the Mexican gray wolf exist and are the subject of an independent reintroduction program in east-central Arizona and west-central New Mexico. See 63 Fed.Reg. 1752, 1753 (January 12, 1998); 50 C.F.R. § 17.84(k).
16 U.S.C. § 1539(j)(2)(B). The only legal impediment this provision creates to the reintroduction of a listed species (or subspecies) is if there is an existing subspecies population within the experimental area. As discussed above, the Agencies reasonably determined there was no such existing population.
For these same reasons, we do not believe the Agencies' actions operate as a de facto delisting of the subspecies irremotus. As discussed above, the 1978 ruling extending Endangered Species Act protections to all gray wolves does not diminish the protection afforded a subspecies, generally, or under a section 10(j) reintroduction program, if a subspecies population is present within the proposed reintroduction area. Indeed, the Fish and Wildlife Service expressly noted in the 1978 ruling it would continue to recognize "valid biological subspecies" for purposes of research and conservation. 43 Fed.Reg. at 9610. The fact remains, however, the Agencies reasonably determined there is no irremotus population within the designated reintroduction area.
Colorado Envtl. Coalition, 185 F.3d at 1172 (alterations, quotation marks and citations omitted).