September 24, 2018
Herbert C. Frost, Regional Director
Alaska Regional Office
240 West 5th Avenue
Anchorage, AK 99501
Subject: National Park Service Proposed Rule: Hunting and Trapping in National Preserves in Alaska
Regulation Identifier Number (RIN) 1024-AE38
Dear Regional Director Frost:
I am writing to you on behalf of nearly 1,600 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, or current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System (System). As a group, we collectively represent more than 35,000 years of experience managing and protecting America’s most precious and important natural and historic places.
We count among our members many former NPS employees of national parks and preserves in Alaska.
The Coalition also counts among its members NPS retirees who served on the Alaska Task Forces in 1979 and 1980. Early on, we came to understand the history and the special challenges of conservation of the national parks and preserves in Alaska. And so we are very concerned about the harmful precedent and potential adverse impacts of the NPS proposal to amend its regulations for sport hunting and trapping in the national preserves. We hereby submitting the following comments on the proposed rule posted at: https://www.federalregister.gov/documents/2018/05/22/2018-10735/alaska-hunting-and-trapping-in-national-preserves
The NPS explanation and justification for revising the 2015 Final Rule is provided in the preamble to the proposed rule, which states in part:
The proposed rule would remove a regulatory provision issued by the NPS in 2015 that prohibited certain sport hunting practices that are otherwise permitted by the State of Alaska. Specifically, on October 23, 2015, the NPS published a final rule (Final Rule) to amend its regulations for sport hunting and trapping in national preserves in Alaska (80 FR 64325) by removing paragraphs (f) and (g) of 36 CFR 13.42. The Final Rule codified prohibitions on certain types of harvest practices that are otherwise permitted by the State of Alaska. The practices are: Taking any black bear, including cubs and sows with cubs, with artificial light at den sites; harvesting brown bears over bait; taking wolves and coyotes (including pups) during the denning season (between May 1 and August 9); taking swimming caribou; taking caribou from motorboats under power; taking black bears over bait; and using dogs to hunt black bears. In addition, the proposed rule would remove the definitions of “Big game”, “Cub bear”, “Fur animal”, and “Furbearer” from section 13.1 because those terms are only used in paragraphs (f) and (g).
On March 2, 2017, Secretary Zinke signed Secretarial Order 3347, Conservation Stewardship and Outdoor Recreation. Part of the stated purpose of Secretarial Order 3347 is to increase outdoor recreation and improve the management of game species and their habitat. Secretarial Order 3347 directs the Department of the Interior to identify specific actions to (1) expand access significantly for recreational hunting and fishing on public lands; and (2) improve recreational hunting and fishing cooperation, consultation, and communication with state wildlife managers.
On September 15, 2017, Secretary Zinke signed Secretarial Order 3356, Hunting, Fishing, Recreational Shooting, and Wildlife Conservation Opportunities and Coordination with State, Tribes, and Territories. Part of the stated purpose of Secretarial Order 3356 is to increase outdoor recreation opportunities for all Americans in greater collaboration with state partners, including opportunities to hunt. Secretarial Order 3356 directs the NPS to (1) identify whether hunting opportunities on Department lands could be expanded; (2) work cooperatively with state wildlife agencies to enhance their access to Department lands for wildlife management actions; (3) work cooperatively with state wildlife agencies to ensure that hunting regulations for Department lands and waters complement the regulations on the surrounding lands and waters; and (4) work in close coordination and cooperation with the appropriate state wildlife agency to begin the necessary process to modify regulations in order to advance shared wildlife conservation goals/objectives that align predator management programs, seasons, and methods of take permitted on all Department-managed lands and waters with corresponding programs, seasons, and methods established by state wildlife management agencies.
The purpose of this proposed rule is to align sport hunting regulations in national preserves in Alaska with State of Alaska regulations and to enhance consistency with harvest regulations on surrounding non-federal lands and waters in furtherance of Secretarial Orders 3347 and 3356.
The 2015 Final Rule prohibited certain hunting practices otherwise permitted by the State of Alaska because NPS found those practices: (1) To have intent or potential to alter or manipulate natural predator-prey dynamics, and associated natural ecological processes for the purpose of increasing harvest of ungulates by man; (2) to adversely impact public safety; or (3) to be inconsistent with federal law authorizing sport hunting in national preserves in Alaska.
In stark contrast to the very limited information provided above in the proposed rule’s preamble we are providing a summary (below) of the relevant legislative and administrative history of the respective Federal and State mandates for NPS management of wildlife in Alaska. Such information, we believe is very important to provide necessary context for consideration of this proposal.
Portions of this summary are taken directly from the preamble to the 2015 Final Rule, which is supplemented by information from other sources:
In enacting the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 410hh–410hh-5; 3101–3233) in 1980, Congress’s stated purpose was to establish in Alaska various conservation system units that contain nationally significant values, including units (Parks, Monuments and Preserves) of the National Park System, in order to preserve them “for the benefit, use, education, and inspiration of present and future generations[.]” 16 U.S.C. 3101(a). Included among the express purposes in ANILCA are preservation of wildlife, wilderness values, and natural undisturbed, unaltered ecosystems while allowing for recreational opportunities, including sport hunting. 16 U.S.C. 3101(a)-(c) [ANILCA §101 (a-c)].
It is worth noting that only two years prior, in 1978, Congress amended the NPS’s responsibilities with the Redwood National Park Expansion Act, which states in part (emphasis added to underlined sections):
Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. 92 Stat 166 (1978)
As described by Julie Lurman & Sanford P. Rabinowitch in “Preemption of State Wildlife Law in Alaska: Where, When, and Why,” Alaska Law Review 145-172 (2007) (p. 148), “This statement [in the Redwoods Act] reaffirms and strengthens Congress’s earlier direction on NPS’s duties because it requires that the agency’s actions be consistent with the conservation purpose of the parks.”
The legislative history of ANILCA reinforces the purpose of the National Park System units to maintain natural, undisturbed ecosystems. “Certain units have been selected because they provide undisturbed natural laboratories—among them the Noatak, Charley …watersheds.” Alaska National Interest Lands, Report of the Committee on Energy and Natural Resources, United States Senate, Report No. 96-413 at page 137 [hereafter Senate Report]. Further, the congressional designation of “national preserves” in Alaska is for the specific and sole purpose of allowing sport hunting and commercial trapping, unlike areas designated as national parks or monuments. 126 Cong. Rec. H10549 (Nov. 12, 1980) (Statement of Rep. Udall). 16 U.S.C. 3201 (ANILCA 1313) directs that national preserves shall be managed “in the same manner as a national park… except that the taking of fish and wildlife for sport purposes and subsistence uses, and trapping shall be allowed in a national preserve[.]”
Importantly, the legislative history of ANILCA reflects that Congress did NOT intend to modify the NPS Organic Act or its implementing policies. “[T]he Committee recognizes that the policies and legal authorities of the managing agencies will determine the nature and degree of management programs affecting ecological relationships, population’s dynamics, and manipulations of the components of the ecosystem.” Senate Report, at pages 232-331. NPS policy states that “activities to reduce… native species for the purpose of increasing numbers of harvested species (i.e. predator control)” are not allowed on lands managed by the NPS. NPS Management Policies 2006 § 4.4.3.
In addressing wildlife harvest, the legislative history provided “the Secretary shall manage National Park System units in Alaska to assure the optimum functioning of entire ecological systems in undisturbed natural habitats. The standard to be met in regulating the taking of fish and wildlife and trapping, is that the preeminent natural values of the Park System shall be protected in perpetuity, and shall not be jeopardized by human uses.” 126 Cong. Rec. H10549 (Nov. 12, 1980) (Statement of Rep. Udall). This is reflected in the statutory purposes of various national preserves that were established by ANILCA, which include the protection of populations of fish and wildlife, including specific references to predators such as brown/grizzly bears and wolves and to prey such as moose and caribou.
More specifically, ANILCA Title II clearly describes the congressional intent for these Preserve units:
ANILCA § 201 (1) Aniakchak National Preserve (ANIA) “shall be managed for the following purposes … and assure continuation of the natural process of biological succession; to protect habitat for and populations of fish and wildlife, including but not limited to brown/grizzly bears, moose, caribou…”
ANILCA § 201 (2) Bering Land Bridge National Preserve (BELA) ““shall be managed for the following purposes…to protect habitat for and populations of fish and wildlife, including… but not limited to brown/grizzly bears, moose, and wolves…”
ANILCA § 201 (4) Gates of the Arctic National Park and Preserve (GAAR) “Shall be managed… and the natural environmental integrity… and to protect habitat for and populations of, fish and wildlife, including but not limited to caribou, grizzly bears…moose, wolves …”
ANILCA § 201 (7) Lake Clark National Park and Preserve (LACL) “Shall be managed…to protect the watershed necessary for perpetuation of the red salmon fishery in Bristol Bay, to maintain unimpaired the scenic beauty and quality of portions of the Alaska Range and the Aleutian Range…; and to protect habitat for and populations of fish and wildlife including but not limited to caribou, Dall sheep, brown/grizzly bears…”
ANILCA § 201 (8) Noatak National Preserve (NOAT) “Shall be managed…To maintain the environmental integrity of the Noatak River and adjacent uplands…to assure the continuation of …biological processes unimpaired by adverse human activity, to protect habitat for and populations of wildlife…caribou, grizzly bears, Dall sheep, moose, wolves…and in a manner consistent with the foregoing, to provide opportunities for scientific research.”
ANILCA § 201 (9) Wrangell-St. Elias National Park and Preserve (WRST) “Shall be managed to maintain … lakes, streams, valleys, and coastal landscapes in their natural state; to protect habitat for and populations of fish and wildlife…caribou, brown/grizzly bears, Dall sheep, moose, wolves,…”
ANILCA § 201 (10) Yukon-Charley Rivers National Preserve (YUCH) “Shall be managed…To maintain the environmental integrity of the entire Charley River basin, including streams, lakes…in its undeveloped natural condition…to protect habitat for and populations of fish and wildlife, including but not limited to peregrine falcons…caribou, Dall sheep, grizzly bears, and wolves…”
ANILCA § 202 (1) Glacier Bay Park and Preserve – (GLBA) “Shall be managed …to protect a segment of the Alsek River, fish and wildlife habitats and migration routes…”
ANILCA § 202 (2) Katmai National Park and Preserve (KATM) “Shall be managed…to protect habitat for and populations of fish and wildlife…high concentrations of brown/grizzly bears and their denning areas…”
ANILCA § 202 (3) Denali National Park and Preserve (DENA) “Shall be managed…to protect habitat for and populations of fish and wildlife…brown /grizzly bears, moose, caribou, Dall sheep, wolves…”
After ANILCA’s passage, activities related to taking wildlife remain subject to other federal laws, including the mandate of the NPS Organic Act (54 U.S.C. 100101), which is “to conserve the scenery, natural and historic objects, and wild life” in units of the National Park System and to provide for visitor enjoyment of the same for this and future generations. Implementing the NPS Organic Act requires the NPS to protect natural ecosystems and processes, including the natural abundances, diversities, distributions, densities, age-class distributions, populations, habitats, genetics, and behaviors of wildlife.
Additionally, NPS regulation 36 CFR 13.42 (a), which applies specifically to Alaska, directs that “Hunting and trapping are allowed in national preserves in accordance with applicable Federal and non-conflicting State law and regulation” (emphasis added). The NPS demonstrated in writing its concern with State management actions as early as 1982 with the Master Memorandum of Understanding between the NPS and the Alaska Department of Fish & Game. As early as 1984 Alaska Regional Director Contor expressed such concerns in testimony to the Alaska Board of Game on related wildlife management issues when he spoke about NPS legal authorities and management policies.
In 1994, the State enacted its “Intensive Management” (IM) law and thereafter its implementing regulations. This action significantly changed the goals of State management of wildlife and sharpened the conflict in legal mandates. That law requires the Board of Game to “provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals of the board (emphasis added).” (AS 16. 05.255 (e).
Then, in 2004, the Department of the Interior (DOI) updated its regulations at 43 CFR §24 regarding state-federal relationships. Specifically, section 24.4(f) applies to units of the National Park System. It states, in part (emphasis added to underlined sections):
Units of the National Park System contain natural, recreation, historic, and cultural values of national significance as designated by Executive and Congressional action. Specific enabling legislation has authorized limited hunting, trapping or fishing activity within certain areas of the system. As a general rule, consumptive resource utilization is prohibited. Those areas which do legislatively allow hunting, trapping, or fishing, do so in conformance with applicable Federal and State laws. The Superintendent may, in consultation with the appropriate State agency, fix times and locations where such activities will be prohibited.
Like other DOI agencies NPS has acted in a manner consistent with the Departmental regulations since they were promulgated. NPS has also acted in a manner consistent with its own policies, see Management Policies 2006 §§ 4.1, 4.4.1, 220.127.116.11, 4.4.2.
In significant contrast to NPS’s wildlife management mandates and objectives described above, the State’s legal framework for managing wildlife in Alaska is based on sustained yield, which is defined by the State’s 1994 Intensive Management (IM) statute to mean “the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game[.]” AS § 16.05.255(k)(5). To that end, the Alaska Board of Game (BOG) is required to “adopt regulations to provide for intensive management programs to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals” (AS § 16.05.255(e)) in areas that they have determined to be Intensive Management areas under 5 AAC 92.108.
In reviewing a 2014 NPS map of BOG-declared Intensive Management areas, one can see that most of the lands in NPS Preserves have been so designated. An update of the map would show no change based upon our recent review of the State statute. “Allowances” (such as” liberalized” hunting practices) that manipulate natural systems and processes to achieve these goals, including actions to reduce or increase wildlife populations for harvest, directly conflict with laws and policies applicable to NPS areas that require preserving natural wildlife populations. For example, see NPS Management Policies 2006 §§ 4.1 and 4.4.3. The Secretary of the Interior also unambiguously stated this perspective in a 2006 letter to Gerald Nicole, Chairman Eastern Interior Regional Advisory Council (advisory to the Federal Subsistence Board): “To summarize, undertaking intensive management practices, including predator control activities as conducted by the State of Alaska is not allowed on NPS lands.” (Attachment # 1)
It is noteworthy that prior to the passage of ANILCA, the potential for conflict between federal and State regulations and policies was anticipated by the Senate Committee when the Committee stated, “It is contrary to the National Park Service concept to manipulate habitat or populations to achieve maximum utilization of natural resources. Rather, the National Park System concept requires implementation of management policies which strive to maintain natural abundance, behavior, diversity and ecological integrity of native animals as part of their ecosystem, and that concept should be maintained.” Senate Report at page 171.
In the last few decades the State of Alaska has allowed an increasing number of “liberalized” methods of hunting and trapping wildlife and extended seasons to increase opportunities to harvest predator species. For example, retired ADFG employees Sterling D. Miller, John W. Schoen, and Charles C. Shultz evaluated “Trends in brown bear reduction efforts in Alaska, 1980–2017.” Their findings were published in Ursus, a publication of the International Association for Bear Research and Management (November 2017). The Abstract for the article summarizes their findings (emphasis added to underlined sections):
For >35 years Alaska, USA, has attempted to reduce brown bear (Ursusarctos) abundance through adoption of progressively more liberal hunting regulations. We document these changes in a portion of Alaska we term the Liberal [brown bear] Hunting Area (LHA) constituting 76% of Alaska’s area. In most instances, regulation liberalizations were intended to reduce brown bear abundance in the expectation this would reduce predation by bears on wild ungulates and thereby increase hunter harvests of these ungulates…We also document the expansion of regulations pertaining to brown bear population reduction to the small and isolated population on Alaska’s Kenai Peninsula (outside the LHA) that resulted in a 25-fold harvest increase in the year of regulation liberalization…In the LHA during 1995–2017, we tabulated 222 regulatory changes in Game Management Subunits making brown bear hunting regulations more liberal and 4 changes making regulations more conservative. Since 2000, the State of Alaska has reported no research in the LHA that would permit evaluation of the impacts of these regulatory changes and correlated harvest increases on bear abundance or demographics.
In recent years, the State has authorized additional “liberalized” predator harvest practices that are of significant concern to the NPS and park advocates alike. These practices include:
- Taking any black bear, including cubs and sows with cubs, with artificial light at den sites:
- Adding black bears to the list of animals that are furbearers so they could, if further authorized, be taken under trapping regulations;
- Harvesting brown bears over bait (which may include dog food, bacon/meat grease, donuts, and other human foods); and
- Taking wolves and coyotes (including pups) during the denning season when their pelts have little trophy, economic, or subsistence value
Such practices are obviously intended or reasonably likely to manipulate wildlife populations for harvest purposes; they are in clear conflict with the NPS’s implementation of ANILCA’s authorization of sport hunting and trapping in national preserves. It is a well-established biological fact that manipulating predators and prey can alter populations, population dynamics, and often their habitat. Examples of disruptions to ecosystems in the lower 48 states are numerous and costly to the federal government as it often pays the restoration costs, later in time.
The history of the Alaska IM statute’s implementation is that more ”liberalized” hunting and trapping practices have been added over time; harvest seasons have been expanded and then expanded again; and harvest limits have been increased and then increased again. Given this pattern of implementation, it is predictable that additional IM liberalizations will be proposed and authorized by the BOG in the future that will directly affect NPS Preserves and potentially adjacent Parks and Monuments. In essence, predator control under Alaska’s IM statute is nothing more than the most aggressive form of intensive management (see AS 16.05.255 (e)-(g) (Regulations of the Board of Game management requirements); 5 AAC 92.106 (Intensive management of identified big game prey populations); 5 AAC 92.108 (Identified big game prey populations and objectives), 5 AAC 92.110 (Control of predation by wolves) and 5 AAC 92.115 (Control of predation by bears). Such was the case in 2010 following a decision by the NPS to limit wolf harvest in (YUCH) when the State of Alaska authorized the take of an unusually large number of wolves adjacent to the Preserve.
16 U.S.C. 3201 of ANILCA provides that “within national preserves the Secretary may designate zones where and periods when no hunting, fishing, trapping, or entry may be permitted for reasons of public safety, administration, floral and faunal protection, or public use and enjoyment.” In order to comply with federal law and NPS policy, the NPS adopted temporary restrictions under 36 CFR 13.40(e) to prevent the application of the above listed predator harvest practices to national preserves in Alaska. As background, between 1994 and 2009, NPS wrote at least 15 letters to the BOG regarding proposed State hunting regulations that conflicted with NPS policies. When that did not resolve the conflicts, NPS started with limited restrictions to conflicting State regulations in various Superintendent’s Compendiums (e.g., 2010 compendium for Yukon-Charley Rivers National Preserve (YUCH) and Denali National Preserve (DENA); 2012 for Lake Clark National Preserve (LACL); 2013 compendium for Denali National Preserve; and again in 2015 for Denali National Preserve). By 2015, an additional 15 letters had been sent to the BOG about proposals before that body.
The various NPS restrictions imposed via the respective compendiums were established to protect fauna and provide for public use and enjoyment consistent with ANILCA and basic NPS legal authorities. While the NPS has stated numerous times that it prefers a State solution to these conflicts, usually to simply “exclude NPS lands” from the particular change, the State has been mostly unwilling to accommodate the requests and thus has created, repeatedly, the conflicting regulations between State and federal laws. Again, NPS Alaska Regional Director Contor spoke directly to the BOG about NPS management as early as 1984. In fact, during the last ten years, the NPS has objected to more than fifty proposals to liberalize predator harvest in areas that included national preserves; and each time the BOG has been unwilling to exclude national preserves from State regulations designed to manipulate predator/prey dynamics for human consumptive use goals. In 2013 the NPS’s Alaska Associate Regional Director Deb Cooper filed an Agenda Change Request and testified to the BOG (in effect, requesting reconsideration) to again ask the State to exclude NPS lands and offered NPS staff time to assist the State in working out the details. This request was also denied.
The BOG has the authority to treat NPS lands differently from State lands under state law (AS 16.05.255 (f) (1) (B)) if such actions (i.e., harvest regulations) are “inappropriate due to land ownership patterns.” However, the BOG suggested the NPS was responsible for ensuring that taking wildlife complies with federal laws and policies applicable to NPS areas; and the NPS could use its own authority to ensure national preserves are managed in a manner consistent with federal law and NPS policy. See statement of BOG Chairman Judkins to Superintendent Dudgeon, BOG Public Meeting in Fairbanks, Alaska (February 27, 2010) where NPS was testifying in opposition to allowing the take of black bear cubs and sows with cubs with artificial light in national preserves. In the absence of State action excluding national preserves, the 2015 rulemaking was necessary to make the temporary restrictions permanent under 36 CFR 13.50(c) Rulemaking Requirements. In essence, the 2015 rule responded to the BOG’s suggestion by promulgating NPS regulations to ensure national preserves are managed consistent with federal law and policy and to prevent historically prohibited sport hunting practices, those conflicting with NPS law and policy, from being authorized in national preserves.
Contrary to those who allege the 2015 rule is “federal overreach,” the NPS has, in fact, been working closely with and communicating with the State since 1982 on this topic. The NPS has written letter after letter, by our count at least 36 letters through 2017; and Alaska Regional Directors have gone to the BOG to speak, as have Preserve Superintendents and other technical staff on numerous occasions. The NPS has shown extraordinary effort to accommodate to State laws and goals that conflict with federal laws, seeking to work out the details of conflicting mandates. In all this time, and specifically in the 2015 final rule, the NPS is doing the job they are supposed to do, managing the National Park System for “all” the people of the Nation in a manner consistent with federal law, regulation, and policy. By refusing to address well-documented NPS concerns through the BOG process, the State of Alaska seeks to position itself as the sole arbiter of wildlife management policies in Alaska, regardless of federal land ownership, jurisdiction, and federal laws. A substantial body of law simply does not support this position; nor does the legislative and administrative history of federal and state wildlife law and management.
The scope of the 2015 rule is, in fact, very limited. It does not affect ANILCA Title VIII subsistence harvest; it does not broadly affect sport hunting or trapping; and the vast majority of State sport hunting and trapping regulations continue to apply in Alaska’s national preserves because they are consistent with applicable federal law and policy.
A detailed analysis of the preemption of Federal wildlife law over State law in Alaska is provided by Julie Lurman and Sanford P. Rabinowitch, in “Preemption of State Wildlife Law in Alaska: Where, When, and Why,” 24 Alaska Law Review 145-172 (2007). As stated in their analysis: “What is now also clear is that the Alaska’s Intensive Management statute meets the criteria for direct conflict with federal laws specifically the Organic Act and the ANILCA, as well as derivative regulations and policies, and must be preempted in favor of wildlife management goals and techniques that are in line with the mandates established by Congress.”
To supplement our review of relevant authorities and related legislative and administrative history, we hereby incorporate by reference the attached Lurman & Rabinowitch 2007 article (cited above) into our comments. (Attachment # 2)
All of the information provided above, taken collectively, documents the significant differences and inevitable conflicts between NPS wildlife management mandates and objectives under the NPS Organic Act and ANILCA and Alaska’s “intensive management” mandate under the State statute. It is clear that under ALL applicable federal laws, regulations, and policies, NPS may only adopt “non-conflicting” State hunting regulations; and therefore NPS cannot adopt conflicting State regulations such as the practices currently prohibited in paragraphs (f) and (g) of the 2015 Final Rule. In essence, the proposed rule, if implemented, would violate the NPS’s own lawful authorities, principles, and precedents that govern sport hunting and trapping in Alaska’s national preserves.
First, let us be clear that, in general, the Coalition supports sport and subsistence hunting and trapping in national preserves in Alaska consistent with applicable authorities and polices, including the NPS Organic Act and ANILCA. However, these statutes do not prescribe or allow unconstrained NPS adoption of ALL State hunting regulations; only those that are consistent with NPS laws, regulations, and policies. For example, ANILCA, 16 U.S.C. 3201, states that national preserves shall be managed “in the same manner as a national park… except that the taking of fish and wildlife for sport purposes and subsistence uses, and trapping shall be allowed in a national preserve[.]” Under ANILCA and in this rule, the term “subsistence” refers only to subsistence activities authorized by Title VIII of ANILCA, which must comply with the federal subsistence regulations and are restricted to rural Alaska residents.
While we support subsistence hunting and trapping as described above, the Coalition strongly opposes the handful of specific “liberalized” hunting practices that are currently prohibited in paragraphs (f) and (g) of 36 CFR §13.42. These practices are NOT consistent with NPS mandates; and therefore we strongly oppose the proposed rule, which would repeal those prohibitions and allow those practices to occur in national preserves. We urge NPS to reconsider its ill-advised proposal and, instead, leave paragraphs (f) and (g) intact. We offer the following comments to describe our primary concerns.
1) The preamble to the proposed rule fails to describe or adequately address NPS’s statutory responsibilities for managing wildlife on national preserves in Alaska – Given that there have been no changes in the NPS Organic Act, ANILCA, or in related NPS management policies since the 2015 Final Rule was promulgated, one could reasonably expect the 2018 proposed rule to contain a similar description of the “Federal and State Mandates for Managing Wildlife” as was presented in the preamble to the 2015 Final Rule, which stated, in part (emphasis added to underlined sections):
These practices are not consistent with the NPS’s implementation of the 1980 Alaska National Interests Lands Conservation Act’s (ANILCA’s) authorization of sport hunting and trapping in national preserves. To the extent such practices are intended or reasonably likely to manipulate wildlife populations for harvest purposes or alter natural wildlife behaviors, they are not consistent with NPS management policies implementing the NPS Organic Act or the sections of ANILCA that established the national preserves in Alaska. Additional liberalizations by the State that are inconsistent with NPS management directives, policies, and federal law are anticipated in the future.
In contrast, the preamble to the 2018 proposed rule contains NO mention of the NPS Organic Act or ANILCA or related NPS management policies, or how those statutes and policies relate to the proposed repeal of paragraphs (f) and (g) of 36 CFR §13.42. On the other hand, a diligent review of relevant authorities and policies (as provided in the Background section above) confirms that the NPS has the clear authority and, in fact, the affirmative duty under the NPS Organic Act and ANILCA to manage wildlife in Alaska national preserves in a manner consistent with those Acts and related NPS management policies. Absent similar information in the preamble to the proposed rule, NPS has failed to provide proper context for its proposal.
2) The proposed rule is inconsistent with well-established precedents and mandates that NPS must conserve resources and values in the national preserves in accordance with the NPS Organic Act and ANILCA – First, it is well established under the Property and Supremacy Clauses of the U.S. Constitution that State wildlife laws that conflict with NPS’s efforts to carry out its statutory mandate are preempted. See, e.g. Kleppe v. New Mexico, 426 U.S. 529 (1976); Hunt v. United States, 278 U.S. 96 (1928); New Mexico State Game Comm’n v. Udall, 410 F.2d 1197 (10th Cir.), cert. denied, New Mexico State Game Comm’n v. Hickel, 396 U.S. 961 (1969); United States v. Brown, 552 F.2d 817 (8th Cir. 1977). Certain State-authorized hunting and trapping practices are, in fact, NOT consistent with NPS implementation of the NPS Organic Act and ANILCA. Consequently, the 2015 final rule is an appropriate exercise of the authority affirmed by the cases cited above.
The specific references in ANILCA to the NPS Organic Act and to the Secretary’s authority to regulate hunting in Alaska’s national preserves are significant and support the NPS’s legal authority for the 2015 rulemaking. Importantly, the legislative history of ANILCA also reflects that Congress did NOT intend to modify the NPS Organic Act or its implementing policies. For NPS to attempt such modification now, with its 2018 proposed rule, is to act in defiance of the clear Congressional intent for the national preserves.
Furthermore, the NPS Organic Act provides the basis for many of the policies (in NPS Management Policies 2006) that are particularly relevant to NPS management of hunting and trapping in Alaska’s national preserves. These include (emphasis added to underlined sections):
Section 1.4.3 – The NPS Obligation to Conserve and Provide for Enjoyment of Park Resources and Values, which states in part: “…when there is a conflict between conserving resources and values providing for enjoyment of them, conservation is to be predominant.”
Section 18.104.22.168 – Park Purposes and Legislatively Authorized Uses, which states in part: “In addition to park purposes, in the many cases the enabling legislation or proclamation for a park unit may also identify uses that are either mandated or authorized (e.g., ANILCA authorizes and mandates hunting in national preserves). In the administration of mandated uses, park managers must allow the use; however, they do have the authority to and must manage and regulate the use to ensure, to the extent possible, that impacts on park resources from that use are acceptable.”
Section 4.4.1 – General Principles for Managing Biological Resources, which states in part: “The National Park Service will maintain as parts of the natural ecosystems of parks all plants and animals native to park ecosystems…The Service will successfully maintain native plants and animals by: preserving and maintaining the natural abundances, diversities, dynamics, distribution, habitat, and behaviors of native plant and animal populations and the communities and ecosystems in which they occur.”
Section 4.4.3 – Harvest of Plants and Animals by the Public, which states in part: “Public harvest of designated species of plants and animals, or their components, maybe allowed in park units when hunting, trapping, subsistence use, or other harvesting is specifically authorized by statute or regulation and not subsequently prohibited by regulations. (e.g., ANILCA authorizes and mandates hunting in national preserves.)…The Service does not engage in activities to reduce the numbers of native species for the purpose of increasing the numbers of harvested species (i.e., predator control), nor does the Service permit others to do so on lands managed by the National Park Service.”
Second, as stated by NPS in the preamble to the 2015 Final Rule (cited in the “Background” section above), the prohibited hunting practices “are not consistent with the NPS’s implementation of ANILCA’s authorization of sport hunting and trapping in national preserves. To the extent such practices are intended or reasonably likely to manipulate wildlife populations for harvest purposes or alter natural wildlife behavior, they are not consistent with NPS management policies implementing the NPS Organic Act or the sections of ANILCA that established the national preserves in Alaska.”
Further, the statute (ANILCA) itself is clear – repeatedly it emphasizes protecting natural processes and wildlife protection; human uses such as federal subsistence and state subsistence and sport hunting are allowed as long as they operate and are managed within the boundaries of these principles. If conflict arises, the human use is limited, not the natural processes. This proposed rule is in direct conflict with the statutory language in ANILCA, specifically Title II. The legislative history further supports this view.
Finally, these precedents and mandates are well established and have not changed after the 2015 Final Rule went into effect. As a result, NPS’s proposal to adopt State hunting regulations that are inconsistent with and in conflict with NPS wildlife management policies is inexplicable. We believe that such action is a clear abrogation of NPS duties under the Organic Act and ANILCA.
3) The proposed rule is inconsistent with 36 CFR §2.2(b)(4) and 36 CFR §13.42(a) by adopting conflicting State law and regulation for implementation in the national preserves – 36 CFR §2.2(b)(4) states: “Where hunting and trapping or both are authorized, such activities shall be conducted in accordance with Federal law and the laws of the State within whose exterior boundaries a park area or a portion thereof is located. Nonconflicting [sic] State laws are adopted as a part of these regulations” (emphasis added). 36 CFR §13.42(a) states: “Hunting and trapping are allowed in national preserves in accordance with applicable Federal and non-conflicting State law and regulation” (emphasis added).
As discussed previously, most of the hunting practices prohibited by NPS, but allowed by the State, target predator species and have the intent or potential to alter natural ecosystems or processes (including natural predator/prey dynamics, distributions, densities, age-class distributions, populations, genetics, or behavior of a species). As a result, such practices are inconsistent and IN CONFLICT with the laws and policies applicable to NPS areas and should not be allowed on NPS lands in Alaska.
4) The proposed rule is inconsistent with well-established NPS prohibitions of specific hunting practices in national preserves in Alaska that existed prior to the 2015 Final Rule – Prior to the promulgation of the 2015 final rule, superintendents used their authority under 36 CFR §1.5(a) and 36 CFR §13.40(e) to temporarily close Alaska national preserves on a year-to-year basis to many of the same predator hunting practices that were permanently prohibited in the 2015 rule. Such prohibitions were specified in the respective national preserve’s Superintendent’s Compendium. Examples of such closures are briefly summarized below:
A. 2010 Gates of the Arctic National Park & Preserve (GAAR) Final Compendium – Under section 13.40(e), Temporary closures or restrictions to the taking of fish and wildlife, the NPS prohibited the following: From October 15 through April 30, artificial light may not be used to take a black bear at a den site except to retrieve a dead bear or dispatch a wounded bear as authorized by state law. From October 15 through April 30, a person may not take a cub bear or a female bear accompanied by a cub bear at a den site. As explained, in part, by NPS in Comment/Response # 7 of the Compendium (emphasis added to underlined sections below):
ADFG has stated that they generally do not take positions or actions based on user conflicts or values. Rather, they say the actions or positions they take are based on wildlife populations. Consequently, when an NPS concern is based on user conflicts or public use and enjoyment, ADFG has been reluctant to address these concerns, suggesting those issues should be addressed through consultation with the BOG. However, at the BOG meeting that concluded March 6, 2010, the BOG clearly stated that implementing Federal land management objectives should be handled by the Federal agencies, not the BOG. This action [i.e., the compendium restriction] is consistent with the BOG’s stated position.
B. 2010 Yukon Charlie National Park & Preserve (YUCH) Final Compendium – Under section 13.40(e), Temporary closures or restrictions to the taking of fish and wildlife, the NPS prohibited the following: From April 14, 2010 through May 31, 2010, the taking of wolves is prohibited except in accordance with Federal Subsistence Regulations located at 50 CFR Part 100. As explained, in part, in the “YUCH Wolf Closure Determination of Need” dated 4-12-2010 (emphasis added to underlined sections below):
On NPS lands, natural processes are expected to maintain native animal species including natural fluctuations in those populations. Consistent with NPS Management Policies, if the impact of an activity is not fully understood, the NPS must err on the side of protecting resources. Predator/wolf control activities intended to decrease wolf populations below normal levels are in direct conflict with NPS policy. While predator/wolf control activities are occurring outside NPS lands, they have potential implications for wolves with home ranges in the Preserve. The robustness of the wolf population that uses the Preserve is inextricably linked to what is happening to the wolf population outside the Preserve.
C. 2012 Lake Clark National Park & Preserve (LACL) Final Compendium – Under section 13.40(e) Temporary closures or restrictions to the taking of fish and wildlife, the NPS prohibited the following hunting practices within Aniakchak, Katmai, and Lake Clark National Preserves: “Within these NPS Preserves, a person may not take a wolf by hunting between May 1 and Aug 9. Within these NPS Preserves, a person may not take a wolf by trapping between May 1 and Sep 30.” As explained, in part, by NPS in the response to comments section of the final Compendium (emphasis added to underlined sections below):
Under federal law and policy applicable in NPS units, conservation, the underlying objective in managing park lands, means more than maintaining a viable population. NPS Management Policies call for the conservation of natural abundance, behavior, distribution, and ecological integrity of native wildlife species. We recognize this differs from state regulations developed to implement intensive management objectives under state law. The NPS disagrees that these actions are inconsistent with the MMOU provisions cited above. In the proposed compendium, the NPS determined that State authorized practices as described in this proposal are not compatible with the purposes of NPS units, and the policy framework that guides NPS management.
NPS consistently comments on BOG proposals that affect NPS units in writing and occasionally testifies in person and both attends and tracks (through livestreaming) BOG meetings. During a public meeting, the BOG expanded a proposal to include park lands. Upon notification, the NPS sent a letter to the BOG and ADF&G to explain the revised proposal is not consistent with NPS wildlife management objectives. The BOG declined to modify the proposal or exempt the NPS, which is why this restriction was proposed.
D. 2013 Denali National Park & Preserve (DENA) Final Compendium – Under section 13.40(e) Temporary closures or restrictions to the taking of fish and wildlife, the NPS prohibited the following hunting practices within the national preserve:
- Black Bears – From October 15 through April 30, artificial light may not be used to take a black bear at a den site except to retrieve a dead bear or dispatch a wounded bear as authorized by state law. From October 15 through April 30, a person may not take a cub bear or a female bear accompanied by a cub bear at a den site.
- Brown Bears – A person may not take a brown bear at a bait station from April 15 through June 30 in the Preserve.
- Wolves and Coyotes – The take of wolves or coyotes under state regulations is prohibited from May 1 through August 9 in the Preserve. This provision does not affect season start dates after August 9; the latter start date will apply. For example, if the state season is September 1, taking wolves under the state regulations would be authorized on September 1. If the state season starts on August 1, then the taking of wolves is not authorized in Preserves until August 10. See applicable State of Alaska harvest regulations. Hunting is prohibited in the former Mt. McKinley National Park.
As explained, in part, in the response to comments section of DENA’s final Compendium (emphasis added to underlined sections below):
The NPS remains committed to managing park resources and values in a way that avoids unnecessary interference with State management of wildlife resources. The vast majority of State general hunting regulations remain applicable in the preserves. The NPS has consulted with the State of Alaska, including through the Board of Game (BOG) process, and requested the State to exempt NPS Preserves from these authorizations [i.e., the specific hunting practices that target predator species]. The NPS prefers a State regulatory solution to this conflict rather than annual restrictions or permanent closure or restrictions. Using the temporary closure process affords the State the opportunity to resolve the conflict in lieu of a Federal rulemaking. If that were to happen, the NPS would not need to act.
It is well documented that the BOG and Federal Subsistence Board (FSB) processes are used for nearly all wildlife harvest regulation in NPS areas. The wildlife provisions listed in the compendium are a tiny fraction of – and a last resort – for actions relating to NPS areas. Disagreement is not the same as failing to listen to or respect other’s views. The NPS is following the legal and policy framework applicable to NPS areas.
While ANILCA authorizes the take of wildlife for sport and for subsistence uses by rural residents, it does not follow that ALL means, methods, seasons, or bag limits adopted by the State are appropriate in all portions of NPS Preserves. Such hunting and trapping activities must be consistent with the legal and policy framework for NPS areas.
The state manages wildlife for “sustained yield” under the state constitution (Alaska Constitution, Article VIII, §4), which is further defined by state statute as “the ability to support a high level of human harvest of game” (A.S. 16.05.255(k)(5)). State management is further guided by state statutes to restore the abundance or productivity of identified big game prey populations as necessary to achieve human consumptive use goals (A.S. 16.05.255(e)). Further, according to the state‘s written comments, state wildlife management actions are designed to influence the reproduction and survival of [wildlife] populations. The NPS manages neither for abundance nor sustained yield. Management actions designed to support a high level of human harvest are inconsistent with the legal and policy framework for NPS areas. Wildlife stewardship on National Park Service managed lands in Alaska is to maintain natural processes, provide for subsistence opportunity by rural residents, and allow taking of wildlife for sport in preserves as provided by ANILCA. The NPS must balance consumptive uses of wildlife with other uses and values.
The State claims that the allowances [i.e., the specific hunting practices] at issue here do not constitute “predator control” or are not likely to have that effect. Transcripts from BOG meetings reflect frequent and consistent discussions as to whether the take of brown bears over bait, longer seasons on coyotes or longer seasons on wolves would help elevate the survival rate of moose or caribou calves. As acknowledged by the state, such actions are designed to influence populations. Whether labeled predator control, intensive management, abundance-based management or another term, the practical effects of manipulating one population to affect another are contrary to the NPS legal and policy framework.
E. 2015 Denali National Park & Preserve (DENA) Final Compendium – Under Section 13.40(e) Temporary closures or restrictions to the taking of fish and wildlife (wolves/coyotes), the NPS prohibited the following:
(Black bears) From October 15 through April 30, artificial light may not be used to take a black bear at a den site except to retrieve a dead bear or dispatch a wounded bear as authorized by state law in Denali and Gates of the Arctic National Preserves. From October 15 through April 30, a person may not take a cub bear or a female bear accompanied by a cub bear at a den site Denali and Gates of the Arctic National Preserves. The reasons for these restrictions are: During the 2008 Southeast Region Board of Game (BOG) meeting, the BOG made an exception to two long standing general prohibitions regarding the take of black bears. The BOG authorized all state residents to use artificial light to take black bears at den sites and to take black bear cubs and sows with cubs at den sites under customary and traditional use activities from October 15 to April 30 in Unit 19A, portions of Unit19D, and in Units 21B, 21C, 21D, 24, and 25D. The NPS did not immediately recognize that two NPS preserves were included and consequently did not comment on these proposals. When the regulation was promulgated, the NPS identified small portions of two national preserves in Units 19D and 24 that were included in these authorizations.
(Wolves and coyotes) The take of wolves or coyotes under state regulations is prohibited from May 1 through August 9 in Alagnak Wild River and Aniakchak, Bering Land Bridge, Denali, Gates of the Arctic, Katmai, Lake Clark, Noatak, Wrangell-St. Elias, and Yukon-Charley Rivers National Preserves.”
As explained, in part, in the response to comments section of DENA’s final Compendium (emphasis added to underlined sections below):
The State of Alaska is the primary entity responsible for managing wildlife in accordance with State mandates. At the same time, the NPS is charged with the responsibility for assuring that the take of fish and wildlife is consistent with the fundamental purposes of the park system and individual park units. The NPS Organic Act is a Federal law that provides the fundamental purpose of national park areas is conservation of park resources and values, including the scenery, the natural and historic objects, and wild life therein, and prohibits impairment of park resources or values. Policies implementing this mandate require the NPS to protect natural systems, processes, and wildlife populations, including the natural abundances, diversities, distributions, densities, age-class distributions, populations, habitats, genetics, and behaviors of wildlife.
ANILCA, the Federal law specifically applicable to Alaska NPS areas, does not alter these expectations. ANILCA directs the Secretary of the Interior to administer Alaska NPS units in accordance with the NPS Organic Act. ANILCA provides that national preserves are to be managed in the same manner as national parks with the exception that sport hunting and trapping are allowed. (ANILCA, sec. 1313).
The legislative history of ANILCA reaffirms that Congress did not absolve the National Park Service from operating within the legal, regulatory, and policy framework applicable across the National Park System. The Senate Energy and Natural Resources Committee (S. Rpt. 96-413) stated “It is contrary to the National Park Service concept to manipulate habitat or populations to achieve maximum utilization of natural resources.” A further statement in the Congressional Record on ANILCA provides that “[t]he standard to be met in regulating the taking of fish and wildlife and trapping is that the preeminent natural values of the Park System shall be protected in perpetuity and shall not be jeopardized by human uses. These are very special lands and this standard must be set very high[.]”
The State’s general hunting program applies in NPS preserves to the extent that it is consistent with NPS laws, regulations and policies. The NPS may close or restrict the take of wildlife for sport purposes in preserves pursuant to ANILCA section 1313 and federal regulations at 36 CFR 13.40 and 13.50.
We could go on listing examples. Our point is that under applicable authorities and polices, NPS wildlife management objectives differ considerably from the State’s intensive management program, which is intended to sustain and increase harvestable ungulate populations. While the vast majority of ADFG hunting regulations are, in fact, compatible with NPS wildlife management objectives and thus applicable with the national preserves, NPS has had longstanding concerns with a very few specific hunting practices allowed by ADFG (i.e., those identified in the 2015 final rule), primarily those targeting predator species. These practices are in direct conflict, in principle and effect, with NPS wildlife management mandates under the Organic Act, ANILCA, and related NPS management policies.
It has been our experience that State fish and game departments in other states often work cooperatively with the NPS regarding hunting regulations at park units where recreational or sport hunting is authorized. Such coordination typically involves the State modifying a few specific hunting regulations that would otherwise apply within the park (e.g., by adjusting hunting zones in or near the park units) to accommodate NPS concerns about certain State hunting regulations that may conflict with NPS wildlife management policies and objectives. In essence, the modification(s) requested by NPS are incorporated into the respective State regulation (in effect, excluded from or zoned out of the park), so there is clear and consistent information (about the restriction) provided to all State-licensed hunters; and there is no need for NPS to institute additional temporary closures or restrictions through the Superintendent’s Compendium.
Sadly, such collaboration has not consistently occurred between the Alaska BOG and the NPS. As described above, the NPS has repeatedly raised concerns about these few hunting practices to the BOG on numerous occasions. NPS has requested that national preserves be exempted from these practices; and the BOG has repeatedly declined to act on most of the requests. Since at least 2010, the NPS has correctly and responsibly exercised its authority under the Organic Act and ANILCA, first acting through the respective Superintendent’s Compendiums, to annually, but temporarily, close national preserves to these practices. Lacking cooperation from the BOG in resolving these ongoing concerns through the BOG process (e.g., by the State excluding national preserves from the objectionable hunting practices), NPS found it necessary to codify the annual closures in the 2015 final rule.
5) The proposed rule is NOT consistent with NPS Management Policy 4.4.3 despite what the NPS claims in the preamble – In the “Background” section of the proposed rule, NPS makes the following claim:
Allowing these practices is consistent with NPS Management Policy 4.4.3 which provides that NPS does not allow activities to reduce the numbers of native species for the purpose of increasing the numbers of harvested species. The discussion in the 2015 rule of an action’s “intent or potential” to manipulate predator dynamics goes beyond the plain language of section 4.4.3 of Management Policies.
The above NPS statement is made without justification, and might appropriately be labeled as utter nonsense. The proposed rule (by allowing the prohibited hunting practices to occur) would clearly “reduce the numbers of native [predator] species for the purpose of increasing the numbers of harvested species.” See Comment # 6 below for a more detailed analysis of the “intent” of State’s hunting regulations. Furthermore, under NPS Management Policy 1.4.3 NPS has an affirmative “obligation to conserve and provide for the enjoyment of park resources and values.” Section 1.4.3 states, in part (emphasis added to underlined sections):
The fundamental purpose of the national park system, established by the Organic Act and reaffirmed by the General Authorities Act, as amended, begins with a mandate to conserve park resources and values. This mandate is independent of the separate prohibition on impairment and applies all the time with respect to all park resources and values, even when there is no risk that any park resources or values may be impaired. NPS managers must always seek ways to avoid, or to minimize to the greatest extent practicable, adverse impacts on park resources and values…
The fundamental purpose of all parks also includes providing for the enjoyment of park resources and values by the people of the United States. The enjoyment that is contemplated by the statute is broad; it is the enjoyment of all the people of the United States and includes enjoyment both by people who visit parks and by those who appreciate them from afar…Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act.
In this case, there is/was a clear conflict between the “liberalized” State hunting regulations that target predators for the purpose of increasing the numbers of harvestable prey species and NPS wildlife management mandates and policies. The specific State hunting regulations that have been prohibited by NPS clearly have the “intent or potential” to manipulate predator dynamics and NPS therefore is/was obligated under the Organic Act to take action before unacceptable impacts occur that could lead to impairment of park resources and values. This is exactly what NPS has done since 2010 by prohibiting certain hunting practices in various national preserves via the Superintendent’s Compendium(s); and in 2015 via the Final Rule. “Conservation is to be predominant” and NPS must err on the side of conserving the affected resources and values.
6) In contrast to NPS wildlife management objectives under the Organic Act and ANILCA, the intent and effect of ADFG predator hunting regulations clearly includes “reducing predator numbers to mitigate predation on ungulates” – As addressed in the “Background” section above, Alaska Department of Fish and Game (ADFG) predator hunting and trapping regulations, carried out by the BOG are based, in large part, on Alaska’s 1994 “Intensive Management Law.” That law requires the BOG to designate areas where human consumption is the highest priority use of wildlife prey populations such as caribou, moose, and deer. If wildlife harvest objectives are not met, the BOG must consider intensive management actions to sustain the availability of prey species for human harvest. Such actions could include, among other things, liberalizing hunting and trapping regulations for predator species such as bears and wolves. If predation is determined by the State to be a key limiting factor of prey populations for harvest by people, the BOG may consider a more active form of intensive management, which is predator control. ADFG’s predator management program is fully described at: http://www.adfg.alaska.gov/static/research/programs/intensivemanagement/pdfs/predator_booklet.pdf
As stated in the booklet (emphasis added to underlined sections):
In 1994, the Alaska State Legislature enacted the “Intensive Management Law,” requiring the Board to designate areas where human consumptive use is the highest priority use of wildlife, and then set prey population and harvest objectives for these areas. If management objectives are not met, the Board must consider intensive management actions, including: 1) reducing or eliminating non-resident hunting; 2) reducing or eliminating resident hunting; 3) liberalizing hunting and trapping regulations for wolves and bears; and 4) implementing habitat improvement projects (primarily prescribed fires). If these actions do not or are unlikely to result in higher levels of prey for food for people, and predation is the key limiting factor, the Board may consider predator control.
In other words, the BOG makes a rather fuzzy distinction between “liberalizing hunting and trapping regulations for wolves and bears,” which allows sport hunters to participate in the targeted removal of such predators in order to benefit prey species desired by hunters; and a formal “predator control” program, which may involve State employees or volunteers who act as agents of the State to increase the numbers of wolves and bears killed. Regardless of who conducts them, such practices are clearly not consistent with the NPS’s implementation of ANILCA’s authorization of sport hunting and trapping in national preserves. To the extent such practices are intended or reasonably likely to manipulate wildlife populations for harvest purposes or alter natural wildlife behaviors, they are not consistent with NPS management policies implementing the NPS Organic Act or the sections of ANILCA that established the national preserves in Alaska. Additional “liberalizations” by the State that are inconsistent with NPS management directives, policies, and federal law are anticipated in the future.
Furthermore, in the preamble to the proposed rule, NPS makes the questionable assertion that “The State of Alaska disputes that the hunting methods and seasons (allowed by the State but prohibited by current NPS regulations) are intended to function as a predator control program.” The State may disavow these methods as “predator control,” but they are certainly “intensive management” consistent with the State’s IM law. Regardless, the State’s claim is disingenuous because the BOG’s own management policies clearly indicate the intent of the ADFG predator hunting regulations.
For example, consider the State Board of Game’s (BOG’s) two most recent “Bear Conservation, Harvest, and Management Policies” (2012-98-BOG, expiration date June 30, 2016; and 2016-214-BOG, expiration date June 30, 2021). As described in these policies, the intent and effect of the AK predator hunting regulations includes “reducing predator numbers to mitigate predation on ungulates.” Under Guiding Principle # 8, it states the BOG will work with the ADFG to develop “innovative ways of increasing bear harvests if conventional hunting seasons and bag limits are not effective at reducing bear numbers to mitigate predation on ungulates.” Apparently, ADFG and the BOG consider “taking any black bear, including cubs and sows with cubs, with artificial light at den sites; harvesting brown bears over bait; taking black bears over bait; and using dogs to hunt black bears” to be “innovative.” We view these typically shunned hunting practices to be not only an obvious form of intensive management and predator control, but also unsportsmanlike and repugnant to the vast majority of hunters.
The BOG bear management policies go on to say (emphasis added to underlined sections):
In order to comply with the AS 16.05.255 the Board and Department may implement management actions to reduce bear predation on ungulate populations…The Board and the Department may also need to reduce bear predation on ungulates to provide for continued sustained yield management or conservation of ungulates. In some cases the Board may direct the Department to prepare a Predation Control Areas Implementation Plan (5 AAC 92.106 – 127) or in other cases the Board may authorize extensions of conventional hunting seasons, or implement trapping seasons to aid in managing predation on ungulates. .. the Board may selectively consider changes to regulations allowing the public to take bears, including allowing the following:
- Baiting of bears
- Trapping, using foot-snares, for bears under bear management or predator control programs.
- Incidental takes of brown or grizzly bears during black bear management or predator control programs. Use of communications equipment between hunters or trappers.
- Sale of hides and skulls as incentives for taking bears.
- Diversionary feeding of bears during ungulate calving seasons.
- Use of black bears for handicraft items for sale, except gall bladders.
- Use of grizzly bears for handicraft items for sale, except gall bladders.
- Taking of sows accompanied by cubs and cubs.
- Same-day-airborne taking.
- Aerial shooting of bears by department staff
- Suspension or repeal of bear tag fees.
- Use of helicopters.
The Board intends that with the exception of baiting, the above-listed methods and means will be authorized primarily in situations that require “active control” of bear populations, and only for the minimum amount of time necessary to accomplish management objectives. The Board allows baiting of black bears as a normal method of take in broad areas of the state, and will consider allowing brown bear baiting as a normal method of take in select areas.
BOG wolf management policies also make it clear that the questionable wolf hunting practice of “taking wolves and coyotes, including pups, during the denning season” (that was properly prohibited by NPS in national preserves) is, in fact, part of the State’s “wolf control program” and required under the Intensive Management statute. Again, a review of the two most recent BOG Wolf Management Policies is revealing. The policies are 2016-215-BOG (duration through June 30, 2021); and its predecessor policy 185-2011-BOG. The BOG policies state, in part (emphasis added to underlined sections):
The Board… recognizes that when conflicts arise between humans and wolves over the use of prey, wolf populations may have to be managed more intensively to minimize such conflicts and comply with existing statutes (e.g. AS 16.05.255). Under some conditions, it may be necessary to greatly reduce wolf numbers to aid recovery of low prey populations or to arrest undesirable reductions in prey populations.
In some other areas, including national park lands, the Board also recognizes that non-consumptive uses of wolves may be considered a priority use.
Wolf Management and Wolf Control: The Board and the Department have always distinguished between wolf management and wolf control. “Wolf management” involves managing seasons and bag limits to provide for general public hunting and trapping opportunities. These seasons provide for both subsistence and other traditional economic harvest opportunities and, as a side benefit, allow for participants to directly aid in mitigating conflicts between wolves and humans or improving ungulate harvest levels. In most cases trapping seasons will be kept to times when wolf hides are prime. However, some hunters are satisfied to take wolves during off-prime months including August, September, April, and May. Opportunity may be allowed for such harvest.
“Wolf control” is the planned, systematic regulation of wolf numbers to achieve a temporarily lowered population level using aerial shooting, hiring trappers, denning, helicopter support, or other methods which may not normally be allowed in conventional public hunting and trapping.
Decisions by the Board to Undertake Wolf Control: Generally, there are two situations under which the Board will consider undertaking wolf control (implementing extraordinary measures outside normal hunting and trapping). In rare cases, control may be implemented where sustained yield harvests of ungulates cannot be maintained or where extirpation of ungulate populations may be expected. More commonly, the Board may implement wolf control to comply with Alaska Statutes (AS 16.05.255) where ungulate populations are declared “depleted” or where ungulate harvests must be significantly reduced and these populations have been found by the Board to be important for “high levels of human harvest.” In most cases when “wolf control” is implemented, the Board will favor and promote an effective control effort by the public. Experience has shown that often a joint effort by the public and the Department has been most effective.
Methods the Board Will Consider When Implementing Wolf Control Programs:
- Expanding public hunting and trapping into seasons when wolf hides are not prime.
- Use of baiting for hunting wolves.
- Allowing same-day-airborne hunting of wolves when 300 ft from aircraft.
- Allowing land-and-shoot by the public.
- Allowing aerial shooting by the public.
- Allowing use of Department staff and helicopters for aerial shooting.
- Encouraging the Department to hire or contract with wolf trappers and other agents who may use one or more of the methods listed here.
- Allowing denning by Department staff and use of gas for euthanasia of sub-adults in dens.
Clearly, the State’s “liberalized” sport hunting program for wolves, which allows hunting during “expanded seasons” (e.g., during the denning season) is, in fact, consistent with the first method the Board “will consider when implementing wolf control programs.”
Considering both the BOG bear and wolf management policies together, the State’s claim that the hunting methods and seasons (allowed by the State but prohibited by current NPS regulations) are NOT intended to function as a predator control program is without basis and does NOT withstand scrutiny, or even the common sense test. The BOG’s assertion is explicitly contradicted by its own current bear and wolf management policies. Again, we remind NPS of your words from the preamble to the 2015 Final Rule (emphasis added to underlined sections):
Activities or management actions involving predator reduction efforts with the intent or potential to alter or manipulate natural ecosystems or processes… are inconsistent with the laws and policies applicable to NPS areas. The rule clarifies in regulation that these activities are not allowed on NPS lands in Alaska.
7) The Secretarial Orders (SO’s) are not a valid basis for overriding the wildlife conservation mandates of the NPS Organic Act, ANILCA, and NPS regulations in order to repeal paragraphs (f) and (g) of 36 CFR 13.42 – NPS states in the preamble, “The purpose of this proposed rule is to align sport hunting regulations in national preserves in Alaska with State of Alaska regulations and to enhance consistency with harvest regulations on surrounding non-federal lands and waters in furtherance of Secretarial Orders 3347 and 3356.” Then NPS provides a brief summary of each SO.
In contrast, we again urge your focus on the detailed summary of the federal statutory authorities, regulations, management policies, and administrative history described in the “Background” section above. That information provides a compelling and detailed explanation of the legal and policy basis for the NPS prohibiting a few specific hunting practices that mostly target predator species on Alaskan national preserves, practices which are otherwise allowed by the State outside the national preserves under a completely different set of statutory mandates and wildlife management objectives.
Lacking such information as context for the current rulemaking, the NPS has simply ignored its own administrative history in Alaska and made a complete 180 degree reversal of its previous, well-reasoned 2015 Final Rule. In brief, the NPS “justification” for the current proposed rule is arbitrary and capricious.
While the Coalition has no particular objection to the principles and objectives espoused in the SO’s, a careful review of their text suggests that NPS has significantly misinterpreted and misapplied the SO’s in using them as the basis for repealing of paragraphs (f) and (g) of 36 CFR §13.42. We believe this to be the case for the following reasons:
A. In principle, a secretarial order (or orders) cannot (and does not) trump applicable federal statutes, such as the Organic Act and ANILCA, and related federal regulations – In fact, both orders say “To the extent there is any inconsistency between the provisions of this Order and any Federal laws or regulations, the laws and regulations will control” (emphasis added). In brief, the secretarial orders do, in fact, CONFLICT with the laws and regulations we have identified in this letter.
To put the SO guidance into proper perspective relative to longstanding NPS mandates, first let’s consider the general hierarchy of Federal authorities, as described elsewhere by NPS:
The U.S. Constitution (e.g., the Property Clause and the Supremacy Clause) supersedes Public Laws; which supersede Executive Orders; which supersede federal regulations; which supersede Interior Department policies (such as the SO’s); which supersede NPS management policies and Director’s Orders.
In other words, based on the hierarchy of authorities, the SO’s cannot and do not override the mandates of the Public Laws (the NPS Organic Act or ANILCA) related to the conservation of national preserve resources and values. And the SO’s cannot and do not override the related DOI and NPS regulations (43 CFR §24, 36 CFR § 2.4, and 36 CFR §13.42) related to hunting and trapping on the national preserves. Therefore, the SO’s are not a valid basis for the proposed rule.
B. The plain wording of the Secretarial Orders preclude NPS from adopting State hunting and trapping regulations that CONFLICT with NPS wildlife management mandates under existing federal statutes and regulations – As written, the SO’s contain the usual, but important, caveat language that inherently limits how far the bureaus can or should go toward aligning the federal wildlife management programs with the respective State programs. For example, SO 3356, Section 4, begins with the following language: “The following actions are to be taken consistent with governing laws, regulations, and principles of responsible public stewardship” (emphasis added). Similarly, SO 3447, Section 4, Conservation Stewardship and Outdoor Recreation Directive, paragraph c., states, in part: “(1) Identify specific actions to expand access significantly for recreational hunting and fishing on public lands as may be appropriate; (5) Encourage, promote, and facilitate greater public access to all Department lands consistent with applicable laws” (emphasis added).
As already discussed, the prohibited hunting practices (killing black bears with cubs, using artificial light, at den sites; killing brown bears over bait killing wolves and coyotes and pups during the denning season; killing swimming caribou from a moving motorboat, etc.) that would be reinstated by the proposed rule are NOT “consistent with governing laws, regulations, and principles of responsible public stewardship,” as required by SO 3356. These are also NOT “appropriate” practices on NPS lands nor “consistent with applicable [Federal] laws,” as required by SO 3447. Clearly, the proposed rule goes well beyond what is described in the plain language of the SO’s and the NPS proposal cannot be justified by the SO’s.
C. NPS has provided no meaningful review or analysis as to what extent the 2015 Final Rule conforms to the objectives and intent of the SO’s – The lack of such analysis is surprising since the SO’s clearly limit NPS actions to those that are “consistent with applicable laws.” In fact, the SO’s direct that NPS cannot adopt even a limited few State hunting regulations (such as specific “liberalized” predator hunting practices) if those “allowances” are clearly in CONFLICT with Federal regulations and wildlife management objectives. We offer the following analysis of the 2015 Final Rule’s conformance with the intent and objectives of the SO’s.
First, as context, let us briefly list some of the key sections of the SO’s, which direct Interior agencies to do the following (emphasis added to underlined sections):
- Expand access for recreational hunting and fishing on public lands;
- improve cooperation, consultation, and communication with state wildlife managers;
- ensure that hunting regulations for Department lands and waters complement the regulations on the surrounding lands and waters; and
- begin the process to modify regulations in order to advance shared wildlife conservation goals/objectives that align predator management programs, seasons, and methods of take permitted on all Department-managed lands and waters with corresponding programs, seasons, and methods established by state wildlife management agencies.”
Second, a careful review of the “2017-2018 Alaska Hunting and Trapping Regulations,” vis a vis the 2015 Final Rule (36 CFR § 13.42 “Taking of wildlife in national preserves”), provides a proper perspective regarding how many Alaska regulations are “non-conflicting” vs. “conflicting” with the NPS rule. Out of 144 pages of Alaska’s hunting regulations, the vast majority do, in fact, apply in national preserves. And the preserves do, in fact, offer a wide variety of access and opportunities for recreational hunting, consistent with State regulations and, hence, consistent with the SO’s.
Only a limited few State rules, primarily hunting practices targeting predator species, do NOT apply in the national preserves because of paragraphs (f) and (g) of the 2015 Final Rule. However, these few NPS prohibitions are, in fact, consistent with the guidance of the SO’s because they are “consistent with governing laws, regulations, and principles of responsible public stewardship.” It is the specific State “allowances” (i.e., the harvest practices), which have been prohibited by NPS, that are, in fact, INCONSISTENT with “governing laws, regulations, and principles of responsible public stewardship.” And, to use the language of SO 3447, on these few items the NPS and the State clearly do NOT “share the same wildlife conservation goals/objectives.”
In essence, the 2015 Final Rule is highly consistent with State hunting regulations and with the intent of the SO’s; the only exceptions are the few prohibited hunting practices that are fundamentally inconsistent with NPS wildlife goals and objectives under applicable laws, regulations, and policies.
For all the reasons described above, we assert that the SO’s are NOT a valid basis for overriding the NPS Organic Act, ANICLA, and NPS regulatory guidance.
8) The Secretarial Orders, which NPS says are the basis for the proposed rule, cite Teddy Roosevelt as their inspiration; yet the unsportsmanlike hunting practices the rule would allow are completely antithetical to Roosevelt’s “conservation ethos” – It is ironic that in both SO’s, which NPS identifies as the basis for the proposed rule, Secretary Zinke cites Teddy Roosevelt as the inspiration for the Order. For example, SO 3447 refers to Roosevelt’s “uniquely American conservation ethos”; and SO 3356 states that Roosevelt recognized “in a civilized and cultivated country, wild animals only continue to exist at all when preserved by sportsmen.”
Roosevelt’s philosophies about the connection between sportsmanship and hunting and wildlife conservation are truly inspiring. However, efforts by the Secretary and NPS to link those philosophies with the proposed rule are grossly inaccurate. The reality is the proposed rule would open the Alaska national preserves to widely recognized unsportsmanlike hunting practices that are antithetical to the longstanding “Fair Chase” hunter ethics that Roosevelt espoused as the founder of the Boone and Crockett Club (BCC) in 1887. The “Fair Chase” philosophy is described on the BCC website as follows (emphasis added to underlined sections below):
Fair Chase is the ethical, sportsmanlike, and lawful pursuit and taking of free-ranging wild game animals in a manner that does not give the hunter an improper or unfair advantage over the animal. Fair Chase extends beyond the hunt. It is the very core of outdoor ethics, extending to all who enjoy wildlife and wildlands, or who make use of their resources. Fair Chase has been the Boone and Crockett philosophy since the Club’s beginning. The Club is the oldest organization to champion Fair Chase in North America. [Much of] the hunting and game laws recognized today are a direct result of the statement, philosophies, and efforts of the Club.
Given Roosevelt’s and BCC’s longstanding position on hunter ethics, Secretary Zinke’s invocation of Roosevelt as the basis for opening public lands to unethical hunting practices is simply shameful. Does the Secretary or the NPS actually believe it is “sporting” (or “fair chase”) for hunters to spotlight and kill black bear mothers (sows) with cubs in their dens? “Harvest” brown bears over bait of rotting human food? “Take” wolves and coyotes and their pups during the denning season? Most reasonable people would agree that such hunting methods are inherently unsportsmanlike and deeply offensive, particularly on national preserves managed by the NPS in Alaska.
While there is no specific mention of “Fair Chase” principles in the statutes and policies applicable to NPS management of wildlife or to hunting and trapping, where authorized, on NPS managed lands, we believe the concept of Fair Chase is imminently consistent (and therefore the currently prohibited practices are imminently inconsistent) with the NPS Organic Act, ANILCA, and key sections of NPS Management Policies 2006, including the following sections (emphasis added to underlined sections):
- 1.5 Appropriate Use of the Parks states, in part: An “appropriate use” is a use that is suitable, proper, or fitting for a particular park, or to a particular location within a park… When proposed park uses and the protection of park resources and values come into conflict, the protection of resources and values must be predominant… Appropriate visitor enjoyment is often associated with the inspirational qualities of the parks. As a general matter, preferred forms of enjoyment are those that are uniquely suited to the superlative natural and cultural resources found in the parks and that (1) foster an understanding of and appreciation for park resources and values, or (2) promote enjoyment through a direct association with, interaction with, or relation to park resources. (Comment: We find nothing inspirational or enjoyable about hunters killing black bear mothers (sows) with cubs in their dens; “harvesting” brown bears over bait of rotting human food; “taking” wolves and coyotes and their pups during the denning season; or shooting swimming caribou from motorboats.)
- 4.4.1 General Principles for Managing Biological Resources states, in part: “The National Park Service will maintain as parts of the natural ecosystems of parks all plants and animals native to park ecosystems…The Service will successfully maintain native plants and animals by preserving and restoring the natural abundances, diversities, dynamics, distributions, habitats, and behaviors of native plant and animal populations and the communities and ecosystems in which they occur; and minimizing human impacts on native plants, animals, populations, communities, and ecosystems, and the processes that sustain them.”
- 4.4.3 Harvest of Plants and Animals by the Public states, in part: “Where harvesting is allowed and subject to NPS control, the Service will allow harvesting only when …the Service has determined that the harvesting will not unacceptably impact park resources or natural processes, including the natural distributions, densities, age-class distributions, and behavior of harvested species…The Service does not engage in activities to reduce the numbers of native species for the purpose of increasing the numbers of harvested species (i.e., predator control), nor does the Service permit others to do so on lands managed by the National Park Service. (Comment: We again add that predator control is simply an aggressive form of intensive management as directed by state of Alaska law and regulation.)
- 22.214.171.124 Hunting and Trapping states, in part: “Hunting, trapping, or any other methods of harvesting wildlife by the public will be allowed where it is specifically mandated by federal law.
9) NPS has inexplicably abandoned its prior position that bear baiting is harmful; and, instead, accepted, without any compelling evidence, the State’s questionable assertion that “baiting does not cause bears to become food-conditioned“ or create public safety concerns – Surprisingly, the last sentence of the “Background” section of the preamble to the proposed rule states the following (emphasis added to underlined section):
With regard to NPS’s statement in the 2015 rule that baiting poses an increased public safety risk, the State of Alaska’s position is that baiting does not cause bears to become food-conditioned, and therefore a greater safety concern.
First, we remind you of NPS’s previous well-reasoned position on this topic as stated in the NPS Response to Comment # 31 in the 2015 Final Rule, which stated, in part (emphasis added to underlined sections):
The NPS proposed prohibiting the harvest of brown bears over bait to avoid public safety issues, to avoid food conditioning bears and other species, and to maintain natural bear behavior as required by the NPS legal and policy framework. By design, baiting typically uses human or pet food to alter the natural behavior of bears to predictably attract them to a specific location for harvest… Food-conditioned bears are also believed more likely to cause human injury. To that end, NPS regulations prohibit feeding wildlife and the practice of baiting is at odds with this.
Bait stations tend to be located in accessible areas due to the infrastructure (typically a 55 gallon drum) and quantity (including weight) of bait used to engage in this activity and the frequency with which the stations must be replenished. Because of the accessibility of these areas, they are typically used by multiple user groups, which contributes to the public safety concerns associated with baiting. Although there are State regulations that prohibit bait stations within a certain distance of structures (cabins/residences), roads, and trails, these distances lack biological significance relative to bears, whose home ranges can include tens to hundreds of square miles.
To the information above, we would add that the use of bait stations can adversely impact the entire collection of animals in areas open to baiting, as numerous species can and likely do find and utilize the bait. Thus, not only do the bears come to the bait, but many other animals do also. In effect, this further compounds the problem of food-conditioning animals.
In contrast to the State’s assertion that “baiting does not cause bears to become food-conditioned,” which is made without compelling supporting evidence, the problems with bear baiting and supplemental feeding are well documented:
- Females with cubs are particularly vulnerable to bait and feed sites, and if their mother is killed, cubs who are orphaned are less likely to survive.
- Bait and supplemental feeding sites concentrate bears – putting young bears in harm’s way. Adult bears may prey upon cubs or small bears.
- Spoiled baits are also toxic and even fatal to bears and other wildlife.
- Bait and feeding sites concentrate wildlife of different species and thus increase the potential for disease and parasite transmission between species, especially rabies.
- Baiting is considered unsporting, even among many sportsmen, because it is not “fair chase,” the cornerstone of ethical hunting.
- Bears that become habituated to bait and feed become less shy and more unpredictable. As a result of placing bait and feed in the woods, bears associate food with the smells of humans, and even livestock. Feeding bears with bait increases the likelihood of conflicts.
- Baited and fed bears experience serious behavior modifications, which are sometimes irreversible.
- Food-conditioned bears change their eating habits, home ranges, and movement patterns.
- Bait and feed sites require ease of access and biologists have noted habitat destruction at these places, including the spread of invasive plants.
- Bait piles are smelly and irritating to other outdoor recreationists, and if they are near roadways, can endanger bears that travel near or on roadways to access bait piles.
Finally, the ADFG’s own educational literature, “Living with Bears”, points out the significant problems caused by bears having access to human food, which include the following concerns (emphasis added to underlined sections):
- Feeding bears is dangerous for both people and bears.Bad habits are hard to break and bears are creatures of habit. Bears seek out the same wild foods in the same places year after year. Bears conditioned to eating human food will similarly return to neighborhoods, campgrounds, and dumpsters, until food is no longer available or they are killed. (Comment: For example, bears attracted to garbage in Anchorage and nearby Eagle River are almost annual problems, sometimes resulting in bears being trapped, by the state, and killed because of their learned behavior which results in public safety issues.)
- Remember: Food conditioned bears can be aggressive.Leaving out bear attractants, such as garbage, birdseed or fish waste can draw bears into neighborhoods or campsites. A person who allows bears to feed on improperly stored food or garbage is putting other people at risk.
- Bears like garbage. Garbage can be easy for bears to obtain and is often calorie-rich, which makes it attractive food for bears.
The reality is that baiting bears is feeding bears, which in the State’s words (cited above), “is dangerous for both people and bears” because “food conditioned bears can be aggressive.” It is common sense supported by experience that bear baiting stations are indiscriminant in attracting various scavengers and predators from the nearby area. A “black bear bait station” will just as likely attract brown/grizzly bears and other predators and scavengers. The only logical explanation for the State’s illogical assertion (that baiting does not lead to food conditioned bears or safety concerns) is that the State may think that baited bears most likely end up as dead bears; therefore, they cannot possibly become food conditioned. However, common sense and experience again tells us that not all bears attracted to bait will be harvested; and some will inevitably become food conditioned with all the problems that entails.
In summary, NPS’s decision in 2015 to prohibit baiting bears, both brown and black, in national preserves was based on sound legal and ecological principles and supported by well-reasoned explanations. The current NPS proposal, which would allow baiting of black as well as brown bears to occur at the whim of the State, is NOT supported by sound principles or explanations, and thus appears to be arbitrary and capricious.
10) The proposed rule is a reckless departure from well-established NPS mandates and management policies that could harm the national preserves for decades to come – As described in the Background section above, NPS has the clear authority and obligation to manage hunting and trapping in the national preserves consistent with applicable federal mandates. Those mandates place a strong priority on conserving national preserve resources and values over visitor use of those resources. The NPS wildlife management mandate is in stark contrast to the State’s priority under the IM statute of managing wildlife to sustain and enhance the availability of wildlife for human consumptive use.
The sheer lack of references in the proposed rule to the key federal laws, regulations, and policies that guide NPS management of wildlife on national preserves in Alaska and the inappropriate reliance on the recent SO’s to override longstanding NPS mandates and precedents is revealing. We understand that the Department of the Interior directed NPS to undertake this rulemaking in a memorandum, dated July 14, 2017, from Acting Assistant Secretary for Fish Wildlife and Parks Virginia Johnson to the Acting Director of NPS. (See Attachment #3.) In our collective experience over the past 40 or more years, that memo is political coercion at its worst.
If the rule is promulgated as written, it will be a reckless departure from 35+ years of NPS decisions and actions in Alaska since the passage of ANILCA. Such a departure will set a precedent that could harm the national preserves for decades to come. There is no doubt the rule will be challenged in court unless there are significant revisions to make it consistent with federal requirements.
NOTE: The comments above were prepared prior to the release of the environmental assessment (EA) for the proposed rule on September 5, 2018. The comments below have been prepared after the release of the EA.
11) The NPS (or DOI) has mishandled the public participation process for the proposed rule with regard to the prolonged delay in the release of the EA – The Council on Environmental Quality (CEQ) regulations for implementing the National Environmental Policy Act (NEPA) require federal agencies to “integrate the NEPA process with other planning at the earliest possible time (emphasis added) to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts” (40 CFR §1501.2). The CEQ regulations further state that NEPA applies to major federal actions including “new or revised agency rules, regulations, plans, policies, or procedures” (40 CFR §1508.18(a)), such as this proposed rule. This guidance is reinforced by the NPS NEPA Handbook Section 1.3A, which states, in part: “NEPA applies to a broad range of federal actions, which include…Adoption of official policy such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 USC 551 et seq.” In addition to the proposed rule itself being “new or revised,” so too are Secretarial Orders 3347 and 3356 new policy (or new interpretations of policy), which NPS states is the basis for the rulemaking.
In other words, when proposing new or revised regulations NPS is required to disclose potential environmental impacts to the public early in the process so the public has the opportunity to fully understand the potential adverse impacts and other implications of the proposal when commenting on the agency action. NPS has fundamentally failed to do that in this case. A chronological review of the public comment opportunities for this planning process demonstrates that NPS’s belated release of the EA violates the intent and the letter, of the related CEQ regulations and NPS NEPA guidance:
- The proposed rule was posted on regulations.gov on May 22, 2018 and open for public comment through July 23, 2018. The posting stated that “NPS will prepare an environmental assessment to determine whether this rule will have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA).” Based on this information, interested parties could reasonably assume that the EA would be released well before July 23. However, such was not the case.
- On July 19, 2018 NPS announced it was extending the comment period for 45 days until September 6, 2018 to “allow more time for the public to review the proposal and submit comments.” The notice did not mention the EA nor explain why it had not yet been released for public review. However, interested parties could reasonably assume that the EA would be released early enough during the extension to allow the public to review of the EA before submitting comments on the proposed rule. However, such was not the case.
- By the morning of September 5, 2018, the EA still had not been released and the public comment period on the proposed rule was scheduled to end the next day without the public having any opportunity to review the EA and its analysis of potential impacts of the proposed action. Commenters, such as the Coalition, were faced with the dilemma of submitting proposed rule comments without ever having seen the EA. This prompted the Coalition to write NPS asking for a last minute extension of the comment period (see comment letter to Reginal Director Frost dated September 5, 2018).
- Later on September 5, NPS announced a 60-day extension of the proposed rule comment period until November 5, 2018. NPS also announced the release of the EA, with a 60-day public comment period, on the NPS PEPC website.
It has taken the NPS 106 days, well over 3 months, since the publication of the proposed rule on May 22 to release the EA on September 5. During that time, as indicated on the www.regulations.gov website for the proposed rule on September 5, over 145,000 people had already submitted comments without having the opportunity to review the related NEPA document that NPS is required to prepare for this process. While the NPS finally synchronizing the respective comment periods for the proposed rule and the EA is appropriate and long overdue, we know of no remedy NPS can provide to the tens of thousands of people who already submitted comments without benefit of seeing the impact analysis information. It simply isn’t reasonable for NPS to expect 145,000 people to submit supplemental comments now that NPS has finally disclosed the variety of adverse environmental impacts that will be caused by the proposed action – a disclosure that NPS is required to do “early in the process” under 40 CFR §1501.2. Has the NPS notified all who have commented that the EA is available? We suggest this is a step that must be taken and that the comment deadline should yet again be further extended to allow that to occur in a manner consistent with the aforementioned guidelines.
12) The belated EA confirms and further demonstrates just how baseless the NPS rationale is for issuing the proposed rule – As discussed in detail under Comment # 7 above, the Secretarial Orders (SO’s) cited as the primary basis for the proposed rule in the preamble to the proposed rule are simply not a valid justification for NPS proposing an action that is clearly in conflict with the NPS Organic Act, ANILCA, and related NPS management policies. Similarly, the EA identifies the SO’s as the sole basis for the “Need for action.” Surprisingly, the EA never mentions the NPS Organic Act nor the “conservation mandate” that defines the NPS mission. That mandate is eloquently described in NPS Management Policies 2006, Section 1.4.3, which states, in part:
Congress, recognizing that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired, has provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant. This is how courts have consistently interpreted the Organic Act.
Taken together, the preamble to the proposed rule and the EA fail to justify why the proposed action contributes to NPS management objectives or is even legally permissible under the applicable statutes, regulations, and polices upon which NPS must base it management actions. The SO’s cited in the preamble do NOT provide a valid basis for the action; and the cursory explanation in the “need for action” in the EA simply confirms just how flimsy the NPS rationale is for its inappropriate proposal. As a result, the NPS justification for the proposed rule appears to be mainly driven by narrow political interests, rather than based on legitimate statutory mandates, sound scientific principles, or NPS management objectives.
13) As described in the EA, the proposed rule would, in fact, increase adverse impacts on wildlife and park values in the national preserves – NPS claims that the proposed action is needed “to more closely align sport hunting regulations in national preserves in Alaska with State regulations.” However, the action would obviously and inevitably increase adverse impacts to a variety of national preserve resources and values. As described in EA Chapter 3 Environmental Consequences, the adverse impacts include the following:
- localized effects on individual animals, family groups, and packs (e.g., direct mortality, increased mortality risk due to loss of family or group members, and food conditioning);
- in specific, localized areas, there could be localized decreases in the number of predators available for federal subsistence harvest over the long term;
- opportunities to conduct research on or observe relatively un-manipulated predator species (bears, wolves) and their relationships with other species and the ecosystem functions would be adversely impacted under the proposed action due to the potential localized impacts to predators and prey;
- some bears attracted to bait stations but not harvested could become conditioned to human-associated foods and pose a nuisance or threat to visitors, as food-conditioned bears are more likely to become a public safety risk relative to bears not conditioned to human foods (Herrero 1970, 1976, 2002);
- the proposal could result in reduced opportunities for some visitors to observe predators in certain locations, especially opportunities to view wolves and bears along access corridors, and a corresponding increase in opportunities to view prey species;
- the proposed action would adversely impact the natural and untrammeled qualities of wilderness by affecting numbers of predator and prey in localized areas and intentionally altering wildlife behavior. In addition, the presence of bear bait stations and associated debris would degrade the undeveloped quality of wilderness.
Also as described in the EA, the primary beneficiary of the proposed action would be a limited number of sport hunters who may experience “increased sport hunting opportunities in certain, localized areas of the preserves.” However, given the abundance of adverse impacts to a variety of user groups and preserve resources compared to the relatively modest benefit for just one user group, it is clear that the proposed rule is in direct conflict with the NPS Organic Act and its conservation mandate.
Furthermore, in several locations the EA mystifyingly states, “The State has assured the NPS that if harvests were to increase beyond sustainable levels the ADFG would close seasons by emergency order if immediate action was necessary, and/or would recommend more conservative seasons, bag limits, and/or methods to the BOG for future hunting seasons.” Yet the EA provides no references (e.g., to written agreements) or other evidence that such a commitment has been made in writing or is binding. In fact, this purported “assurance” is inconsistent with former Alaska Board of Game Chairman’s statement in February 2010 that the NPS (not the State) was responsible for ensuring that taking wildlife complies with federal laws and policies applicable to NPS areas (see statement of BOG Chairman Judkins to Superintendent Dudgeon, BOG Public Meeting in Fairbanks, Alaska, February 27, 2010); and with numerous BOG actions since then.
Additionally, and importantly, the EA indicates in numerous places that the State of Alaska’s management regime of “sustained yield” will, in effect, replace existing NPS standards as prescribed by NPS statues, regulations and policies. The State itself defines “sustained yield” as “the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game…” (AS 16.05.255 (k) (5)). This attempt by NPS to replace longstanding NPS mandates and policies with State policy of a different and substantially reduced conservation standard is unacceptable and in clear conflict with existing federal laws, including the NPS Organic Act and subsequent amendments. For example, in 1970 Congress supplemented and clarified the provisions of the Organic Act through enactment of the General Authorities Act, and again through enactment of a 1978 amendment to that act (the “Redwood amendment,” contained in a bill expanding Redwood National Park), which added the last two sentences in the following provision. The key part of that act, as amended, is as follows (emphasis added to underlined sections):
Congress declares that the national park system, which began with establishment of Yellowstone National Park in 1872, has since grown to include superlative natural, historic, and recreation areas in every major region of the United States, its territories and island possessions; …it is the purpose of this Act to include all such areas in the System and to clarify the authorities applicable to the system. Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System, as defined in section 1c of this title, shall be consistent with and founded in the purpose established by section 1 of this title [the Organic Act], to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. (16 USC 1a-1)
As previously described in the “Background” section of this letter, the State BOG operates under a sustained yield mandate spelled out by Alaska’s IM statute. In contrast, NPS operates under the conservation mandate of the Organic Act. In practice, the BOG has regularly disregarded NPS concerns about the impacts of the State’s “liberalized” hunting methods on wildlife populations, particularly predators, within the national preserves. In fact, the obvious trend for a number of years has been that the BOG has allowed increased use of such methods and in more locations, which is exactly why NPS issued the final rule in 2015 to prohibit such hunting in national preserves. Absent the 2015 prohibitions, which provided clear guidance as to what State-sanctioned hunting practices were in conflict with NPS mandates and policies, it is profoundly unwise for NPS to defer to the BOG to decide what “liberalized” hunting methods, including those targeting predator species, are appropriate for use in national preserves. This equates to an abrogation of NPS wildlife management responsibility in violation of the “general jurisdictional principles” (regarding federal authority) described at 43 CFR §24.3.
14) The EA bases its impact analyses and conclusions on the simplistic premise that the number of sport hunters using “liberalized” predator hunting methods in national preserves was low in the past and will (hopefully) be low in the future, yet the proposed rule provides no clear or effective process for ensuring those numbers do, in fact, remain low in the future – The EA presumptively dismisses the potential for the proposal to cause significant adverse impacts based almost entirely on the limited number of hunters who used the specific hunting methods in national preserves in the past, prior to various preserve-specific prohibitions of the specific hunting methods beginning in 2010 and prior to the region-wide prohibitions of 2015 final rule.
The EA describes harvest data provided by the ADFG; however, there is an embarrassing lack of specificity as to the exact location and time period for which the data was collected. If some of the predator harvest data was, in fact, collected in national preserves since 2010, it is highly likely that the data reflects illegal harvest, which is not a sound basis for assessing potential impacts.
In addition, the impact analysis for the NPS preferred alternative fails to consider the potential, perhaps even the likelihood, that the number of hunters using or permitted to use those techniques may increase in the future if paragraphs (f) and (g) are repealed. For example, State regulations are open to all Alaska residents and as hunters learn of these opportunities the number of hunters is likely to increase over time as hunters and commercial guides learn of these opportunities in NPS Preserves. What if the State significantly increases the number of permits it issues for bear baiting stations or for hunting bears with dogs in national preserves? Given the uncertainty of these possibilities, the future protection of preserve resources is completely dependent upon BOG decision-making regarding the numbers of permits that can be issued for any particular activity in any particular place.
15) The proposed rule and EA completely and totally fail to analyze or determine if application of Alaska’s liberalized predator hunting regulations in national preserves are, in fact, “non-conflicting” with applicable federal regulations and policies – As previously mentioned, a substantial number of federal regulations and policies specify that NPS can only adopt “non-conflicting” state regulations, which in this case would be Alaska’s liberalized predator hunting regulations. Such federal guidance includes: 36 CFR §2.2 (b)(4); 36 CFR §13.42; 43 CFR § 24.4; SO 3356 Section 4; SO 3447 Section 4; and NPS Management Policies 2006 Section 126.96.36.199.
In essence, NPS has an affirmative responsibility to ensure that State hunting regulations meet the “non-conflicting” standard before adopting such regulations for implementation in the national preserves. Despite this, NPS provides no information or analysis to that effect in the proposed rule or in the EA; and fails to determine that the Alaska regulations are non-conflicting with the above guidance. Lacking such analysis or determination, any reasonable and prudent person familiar with the NPS Organic Act’s conservation mandate and related NPS management guidance would conclude that many of the State-sanctioned enhanced predator hunting practices, which are currently prohibited by NPS, are, in fact, a prima facie example of State regulations that are in direct conflict with the applicable federal laws and regulations. As a result, those State regulations should not, and legally cannot, be adopted by NPS for implementation in the national preserves in Alaska.
16) Similarly, the proposed rule and EA fail to analyze or determine if Alaska’s liberalized predator hunting regulations are an “appropriate use” in accordance with NPS Management Policies 2006 Section 8.1.2 – This section of management policies provides a clear “process for determining appropriate uses.” Despite this, neither the proposed rule nor EA evaluate or conclude that the State-sanctioned enhanced predator hunting practices (currently prohibited by NPS) meet the standard of an “appropriate use.” Lacking such analysis or determination, any reasonable and prudent person familiar with the NPS Organic Act and related management guidance would conclude that many of the State-sanctioned enhanced predator hunting practices (currently prohibited by NPS) are, in fact, a prima facie example of State regulations that are an “inappropriate use” within the national preserves of Alaska.
17) The proposed rule fails to provide adequate guidance for future NPS decision making as to which new State-sanctioned predator hunting practices would be in conflict with applicable federal laws, regulations, and policies. This creates confusion and uncertainty about how NPS would respond to future changes in Alaska’s “liberalized” predator hunting practices – Paragraphs (f) and (g) of the 2015 final rule provided clear guidance as to which State-sanctioned predator hunting practices NPS believed were in conflict with applicable federal guidance and therefore not appropriate uses within the national preserves.
Paragraph (f) correctly provides general guidance upon which future decisions (about whether State hunting regulations conflicted with federal regulations) could be based: “State of Alaska management actions or laws or regulations that authorize taking of wildlife are not adopted (emphasis added) in park areas if they are related to predator reduction efforts.” In addition, (f) provided a practical definition of predator reduction efforts which is: “Predator reduction efforts are those with the intent or potential to alter or manipulate natural predator-prey dynamics and associated natural ecological processes, in order to increase harvest of ungulates by humans.” Similarly, paragraph (g) prohibited a variety of specific predator hunting methods that NPS determined were in conflict with federal guidance.
Eliminating these two paragraphs, as proposed, will create tremendous uncertainty about which BOG/ADFG predator hunting practices NPS considers “non-conflicting” (and therefore “appropriate”) or “conflicting” (and therefore “inappropriate”), whichever the case may be. Furthermore, this will return the burden to individual preserve superintendents to use their respective compendiums to close or restrict such activities within individual preserves. Eliminating the region-wide standards created by these paragraphs will surely lead to an increased annual administrative workload as ten different superintendents must reconcile this question in their respective compendiums with State regulations that are in conflict with NPS regulations and management policies. It will likely result in continued conflict between the BOG/ADFG and the NPS regarding the applicability of enhanced predator hunting practices on NPS-managed lands. And, last but not least, it will likely lead to future litigation (either by conservation groups or by the State) against NPS over future decisions to allow or not allow State-sanctioned “liberalized” predator hunting practices to occur within the national preserves.
For the many reasons described throughout this letter, the Coalition to Protect America’s National Parks is adamantly opposed to the repeal of paragraphs (f) and (g). However, if NPS insists upon allowing the specific practices that are currently prohibited under paragraph (g), we strongly recommend that NPS revise and retain a modified version of paragraph (f). Retention of this paragraph is necessary to provide adequate guidance for future NPS decisions regarding the adoption of non-conflicting States hunting regulations. Suggested wording for a revised paragraph (f) is as follows:
(f) Notwithstanding the provisions of § 13.50, State of Alaska management actions or laws or regulations that authorize taking of wildlife and are related to predator reduction efforts shall not be adopted in national preserves until the respective Superintendent, or Regional Director as appropriate, has prepared a written determination that the State laws or regulations are “non-conflicting” with applicable Federal law and regulation. Predator reduction efforts are those with the intent or potential to alter or manipulate natural predator-prey dynamics and associated natural ecological processes, in order to increase harvest of ungulates by humans. They are governed primarily by AS 16.05.255 (e-k) and implementing regulations found in Article 5 beginning with Intensive Management and Predator Control regulations beginning at 5 AAC 92.106 and currently ending at 5 AAC92.127.
(1) The written determination will follow the requirements described in § 13.50(d) and (e), and may be subject to review under the National Environmental Policy Act.
(2) The Regional Director will compile a list updated at least annually of State laws and regulations found to be “conflicting” under this paragraph (f).
(3) Taking of wildlife, hunting or trapping activities, or management actions identified as “conflicting” in this paragraph (f) are prohibited. Notice of activities prohibited under this paragraph (f)(2) will be provided in accordance with § 13.50(f).
The 2015 NPS rule and its administrative history demonstrate a longstanding and consistent effort by NPS to work with the State of Alaska to resolve conflicts between ADFG hunting regulations and NPS’s obligations to conserve national preserve resources and values in compliance with pertinent laws. The first such effort was the 1982 MMOU between the Department of Fish & Game and the NPS. Testimony to the BOG started in 1984. Proposals for change were commented upon, numerous times in numerous letters: from 1984-2009, at least 15 letters were written to the BOG; by in 2010, reached a total of 20 letters; and by 2015 a total of 33 letters. NPS also appeared at numerous BOG meetings and testified.
Annual NPS compendium regulations (restrictions/closures) were slowly put into place starting in 2010, but only for one year at a time and in a very measured approach. In 2013 the NPS requested reconsideration of numerous decisions by the BOG regarding “allowances” (i.e., “liberalized” hunting practices that targeted predator species), only to be turned down again. Finally in 2015, the NPS published the Final Rule in question; and the rule itself is a limited response to a decades old conflict of legal mandates.
Now we see the Interior Secretary and his subordinates inappropriately directing the NPS to rescind the 2015 final rule. The 2018 proposed rule is one of the most egregious and cynical NPS-related proposals we’ve seen in the past 40 years. It is ill-considered, poorly justified, and antithetical to the agency mission that is so clearly described in the NPS Organic Act. Judging from the 178,000+ comments submitted on the proposed rule to date, many tens of thousands of Americans wholeheartedly agree with us. To make matters worse, the rather cursory EA that was recently and belatedly released in support of the proposed rule demonstrates just how barren the NPS explanation is for pushing forth such an action. If the rule is implemented as proposed, it will only further sharpen the legal conflicts between NPS and the State and stakeholders on both sides.
As described in ANILCA, the national preserves are full-fledged units of the National Park System designated for “all” the people in the Nation, not just for resident hunters in Alaska. Again, we support legally authorized hunting, for both sport and subsistence purposes, but only when regulated by practices that align with long delineated NPS laws, regulations, and policies.
The Coalition to Protect America’s National Parks strongly opposes the NPS proposed rule that would repeal paragraphs (f) and (g) of 36 CFR §13.42. We urge NPS to reconsider this ill-conceived proposal and leave the 2015 Final Rule intact in its entirety.
Thank you for the opportunity to comment on this important issue.
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
201 I Street, NE #805, Washington, DC 20002
Joel Hard, Deputy Regional Director, NPS Alaska Regional Office
Andee Sears, Law Enforcement Specialist, Alaska Regional Office
State of Alaska Intensive Management Areas, Moose (5 AAC 92.108) Alaska Region GIS Team 1/05/2013, Wildlife Harvest in National Park Service Preserves In Alaska, Environmental Assessment, September, 2014 page 13.
 The Agenda Change Request (ACR) and testimony are on file at the NPS Alaska Regional Office
 Transcript on file at the NPS Alaska Regional Office
 K. V. Noyce and D. L. Garshelis, “Influence of Natural Food Abundance on Black Bear Harvests in Minnesota,”
Journal of Wildlife Management 61, no. 4 (1997); K. D. Malcolm and T. R. Van Deelen,”Effects of Habitat and Hunting Framework on American Black Bear Harvest Structure in Wisconsin,” Ursus 21, no. 1 (2010).
 M. Elfstrom et al., “Ultimate and Proximate Mechanisms Underlying the Occurrence of Bears Close to Human Settlements: Review and Management Implications,” Mammal Review 44, no. 1 (2014)
 Dunkley and Cattet
Inslerman et al., “Baiting and Supplemental Feeding of Game Wildlife Species. The Wildlife Society.,” http://wildlife.org/wp-content/uploads/2014/05/Baiting06-1.pdf , no. Technical Review. 58 p. (2006)
J. Posewitz, Beyond Fair Chase: The Ethic and Tradition of Hunting (Helena, Montana: Falcon Press, 1994); T. L. Teel, R. S. Krannich, and R. H. Schmidt, “Utah Stakeholders’ Attitudes toward Selected Cougar and Black Bear Management Practices,” Wildlife Society Bulletin 30, no. 1 (2002);C.W. Ryan, J.W. Edwards, and M.D. Duda, “West Virginia Residents: Attitudes and Opinions toward American Black Bear Hunting,” Ursus 2, (2009); C. A. Loker and D. J. Decker, “Colorado Black Bear Hunting Referendum: What Was Behind the Vote?,” Wildlife Society Bulletin 23, no. 3(1995).
Inslerman et al.; Dunkley and Cattet
Beck et al.; Inslerman et al.; Dunkley and Cattet
Inslerman et al.
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 Hank Hristienko and Jr. McDonald, John E., “Going in the 21st Century: A Perspective on Trends and Controversies in the Management of the Black Bear,” Ursus 18, no. 1 (2007).
 Transcript on file at the NPS Alaska Regional Office