NPS EA for Proposed Alaska Hunting Rule Change is Deeply Flawed

 

November 5, 2018

National Park Service
Regional Director, Alaska Regional Office 240 West 5th Avenue
Anchorage, AK 99501

Subject: RIN 1024-AE38 – Environmental Assessment for Sport Hunting and Trapping in National Preserves in Alaska

Dear Regional Director Frost:

I am writing to you on behalf of over 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.

As background on our interest in this issue, we previously commented on the following NPS proposals related to hunting and trapping in National Preserves in Alaska:

• September 2014 Environmental Assessment on “Wildlife Harvest on National Park System Preserves in Alaska”(1) (hereafter “2014 EA”). Here is a link to our comments on the 2014 EA: https://protectorg/documents/alaska-hunting-and-trapping-in-national-preserves/
• 2014 Proposed Rule on “Alaska; Hunting and Trapping in National Preserves”(2), which was reopened for public comment on January 15, 2015, (3) then issued as a Final Rule on October 23, 2015 (4) (the latter document is hereafter referred to as “2015 Final Rule”). Here is a link to our comments on the Proposed Rule: https://protectnps.org/documents/alaska-hunting-and-trapping-in-national-preserves/
• May 2018 Proposed Rule “Alaska: Hunting and Trapping in National Preserves” (5) (hereafter “2018 Proposed Rule”). Here is a link to our comments on the 2018 Proposed Rule: https://protectnps.org/coalition-condemns-cynical-proposal-to-repeal-nps-alaska-hunting-regulations/

We hereby submit the following comments on the August 2018 Environmental Assessment on “Sport Hunting and Trapping in National Preserves in Alaska” (hereafter “EA” or “2018 EA”) posted at: https://parkplanning.nps.gov/document.cfmparkID=1&projectID=83079&documentID=90507

INTRODUCTION

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, the Alaska National Interest Lands Conservation Act (ANILCA), 16U.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 users authorized by Title VIII of ANILCA.

While we support sport and subsistence hunting and trapping as described above, the Coalition strongly opposes the handful of specific “liberalized” hunting practices analyzed in the 2018 EA that are currently prohibited in paragraphs (f) and (g) of 36 CFR §13.42. These practices are NOT consistent with NPS mandates; will result in unacceptable impacts to park resources and values; and therefore we strongly oppose the proposed action, which would repeal those prohibitions and allow those practices to occur in national preserves. Furthermore, the EA is a fundamentally flawed document that fails to consider legitimate concerns about the proposed action. In other words, the EA fails to take a “hard look” at its potential impacts as required by the National Environmental Policy Act (NEPA).

GENERAL COMMENTS

We offer the following comments to describe our primary concerns with the 2018 EA.

1. The EA fails to describe NPS’s statutory responsibilities for managing wildlife in national preserves in Alaska and therefore lacks critical context for analyzing potential environmental impacts of the proposed action.

It is simply astounding that the EA in no place mentions the NPS Organic Act or related regulations and management policies. Absent such information as context, the EA cannot and does not adequately consider or analyze the potential environmental impacts of the proposed action.

In stark contrast to the absence of such information in the 2018 EA, Section 1.1.1 “Background” (pp. 2 – 3) of the 2014 EA contained the following appropriate summary of applicable authorities:

• 1.1.1 Background – The NPS relies on three basic laws for the management of National Park System areas in Alaska; the NPS Organic Act of 1916 as amended by the NPS General Authorities Act of 1970 and the Redwoods Act (1978), and The NPS Organic Act states: “The NPS shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations … to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” In the General Authorities Act as amended by the Redwood Act, Congress declared a national park system composed individually and collectively of these areas to be “preserved and managed for the benefit and inspiration of all the people of the United States; . . . and the protection, management, and administration of these areas shall be conducted in the 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 the various areas have been established[.]” In passing ANILCA, Congress recognized “certain lands and waters in the State of Alaska (SOA) contain nationally significant natural, scenic, … wilderness, cultural, recreational, and wildlife values….” (ANILCA, Pub. L. 96-487, Dec. 2 1980, Sec. 101(a)). ANILCA Section 101(b) states in part: “It is the intent of Congress in this Act to . . .provide for the maintenance of sound populations of, and habitat for, wildlife species of inestimable value to the citizens of Alaska and the Nation, . . . to preserve in their natural state extensive unaltered arctic tundra, boreal forest, and coastal rainforest ecosystems; . .

ANILCA directs the Secretary of Interior, through the NPS, to administer Alaska NPS units in accordance with the NPS Organic Act as amended (ANILCA 201, 203) and specifically 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). Title II of ANILCA describes the key purposes and values for each area established under the Act (see Appendix A, II Evaluation Process) and identified species addressed in these regulations whose habitat and populations shall be protected.

NPS Management Policies of 2006 interpret the NPS Organic Act as amended and the policies provide direction to NPS managers on implementing the Organic Act. Section 4.4.1 of NPS Management Policies describes general principles the NPS follows to manage biological resources, including: “Preserving and restoring the natural abundances, diversities, dynamics, distributions, habitats, and behaviors of native plants 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.” Section 4.4.3 specifically states: “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.”

Prior to the passage of ANILCA, the Senate Committee on Energy and Natural Resources stated “[i]t 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” (Alaska National Interest Lands, Report of the Senate Committee on Energy and Natural Resources, Report No. 96-413 at page 171).

In the last several years, the SOA has adopted an increasing number of liberalized methods of hunting and trapping wildlife and extended seasons to increase opportunities to harvest predator species. Following are predator harvest practices recently authorized on lands in the state, including several National Preserves:

• hunting black bears, including sows with cubs, with artificial light at den sites;
• harvesting brown bears over bait (which often includes 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

These state authorized harvest practices conflict with the legal and policy framework (discussed above) for NPS managed lands, which call for managing for natural systems and processes, including natural abundance and diversity of native wildlife populations, while minimizing human impacts. ANILCA provides the NPS, through the Secretary of the Interior, authority to restrict taking wildlife for sport purposes for reasons of public safety, administration, floral and faunal protection, or public use and enjoyment (ANILCA § 1313). While the NPS prefers a state solution to these conflicts, the SOA has not been willing to exclude NPS Preserves from these harvest practices. In response to the state authorizations listed above, the NPS adopted temporary restrictions that prohibit harvest under these state regulations in NPS Preserves (36 CFR 13.40 and 13.50). Rulemaking is required to make these restrictions permanent (36 CFR 13.50).

Although NPS Categorical Exclusion 3.4 A.8 (promulgation of new regulations for NPS administered areas) applies, the NPS has prepared this Environmental Assessment (EA) in order to inform agency decision-making pursuant to 40 CFR 1501.3(b) and to fully disclose any potential for environmental effects.

The above excerpt from the 2014 EA demonstrates that NPS does, in fact, understand its core mission and conservation mandate under applicable statutes. Given that there have been no changes in the NPS Organic Act, ANILCA, or in related NPS management policies since the 2014 EA was prepared, a similar summary of background information could also be in 2018 EA to frame the analysis. Instead, NPS has failed to include any such information or provide proper statutory, regulatory, and policy context for the analysis of its proposal.

Appendix 1 of these comments provides a thorough review of relevant NPS authorities and policies and legislative and administrative history applicable to hunting and trapping in national preserves in Alaska. This review confirms that NPS has an 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; and has the clear authority to prohibit State-authorized hunting practices if those practices are in conflict with NPS statutes, regulations, or policies.

2. The 2018 EA fails to analyze if the proposed action is “nonconflicting” or otherwise consistent 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 federal wildlife laws and regulations preempt conflicting State wildlife laws and regulations on federal land. 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 now authorized by the State of Alaska 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 federal authority by NPS and in full compliance with the decisions 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 rulemaking that concluded with the 2015 Final Rule. In addition, the legislative history of ANILCA also demonstrates that Congress did not intend to modify the NPS Organic Act or its implementing policies. NPS’s attempt to make such modification now in the 2018 proposed rule is contrary to the clear Congressional intent for the national preserves.

The NPS Organic Act provides the basis for many of the policies in the 2006 edition of the NPS Management Policies that are particularly relevant to NPS management of hunting and trapping in Alaska’s national preserves. These policies 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 1.4.3.1 – 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 Appendix # 1), 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.” (emphasis added).

Further, ANILCA itself is clear: this statute repeatedly 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 must be limited, not the natural processes. This proposed rule is in direct conflict with the statutory language in ANILCA, specifically Title II. The legislative history of ANILCA further supports this view.

In addition, a 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; Secretarial Order 3356 Section 4; Secretarial Order 3447 Section 4; and the 2006 edition of the NPS Management Policies, Section 8.2.2.6.

These precedents and mandates are well established and have not changed since the 2014 EA was prepared or the 2015 Final Rule went into effect. Put simply, 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 current proposed rule or in the 2018 EA; and fails to determine that applicable Alaska regulations are non-conflicting with the above guidance. As a result, NPS’s proposal to adopt State hunting regulations that are inconsistent with and in conflict with NPS wildlife management policies is not supported. We believe that such action is a clear abrogation of NPS duties under the Organic Act and ANILCA and related regulations and policies.

3. An Environmental Impact Statement (EIS) is required based on the Proposed Rule’s significant departure from well-established NPS statutory and policy guidance and due to the highly controversial nature of NPS’s embrace of inhumane and widely condemned hunting practices.

A review of the National Environmental Policy Act of 1969, as amended (6) (NEPA), related case law, Council on Environmental Quality (CEQ) NEPA-implementing regulations, and NPS NEPA policies support that an EIS, rather than an EA, is warranted for the Proposed Rule.

a. Failure to prepare an EIS is contrary to the purposes of NEPA.
The purposes of NEPA, as described in 42 USC §4321, are as follows:

“To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the   ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” In addition, §4332(2)(E) (7) of the Act states that “all agencies of the Federal Government shall…study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” (emphasis added).

Given this statutory guidance, the lack of a range of action alternatives in the EA is striking. In fact, the only action proposed by NPS is a complete repeal of paragraphs (f) and (g) of the 2015 Final Rule, which is the most environmentally damaging option presented in the EA. The NPS proposal neither “prevents nor eliminates damage to the environment.” The 2018 EA also does not include “appropriate alternatives” to address the longstanding and ongoing “unresolved conflicts” between the NPS’s and the State of Alaska’s respective wildlife management policies. As described in Appendix 1, the conflicts originate in the respective federal and state statutes and related policies “concerning uses of available [wildlife] resources” in the national preserves. The nature of the conflict warrants that NPS prepare an EIS to “study, develop, and describe [a broader range of action] alternatives” than just Alternative 1.

a. NEPA case law undercuts the adequacy of the 2018 EA and directs that an EIS is required.

The concept of “significance” is central to the level of review required under NEPA. If an action has the potential to result in significant adverse impacts and applying mitigation measures cannot ensure that significant adverse impacts will be avoided, an EIS must be prepared. A variety of federal court rulings are instructive in evaluating whether an EA is adequate or an EIS is required under NEPA. As discussed on the CEQ website, (8) these cases include (emphasis added in quotations):

Calvert Cliffs’ Coordinated Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972) – The court reviewed rules promulgated by the Atomic Energy Act on NEPA implementation. This was one of the first cases interpreting NEPA, and set the tone for all subsequent NEPA cases. The court made several important points regarding NEPA and federal agency compliance with the statute: The general substantive policy in Section 101 of NEPA is flexible. “It leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances.” However, the procedural provisions in NEPA Section 102 are not as flexible. Agencies are “not only permitted, but compelled, to take environmental values into account. Perhaps the greatest importance of NEPA is to require [all] agencies to consider environmental issues just as they consider other matters within their mandates.” To insure that an agency balances environmental issues with its other mandates, Section 102 of NEPA requires agencies to prepare a “detailed statement” to aid in the agencies’ own decision making process and to advise other interested agencies and the public of the environmental consequences of the planned action. The procedural duties imposed by NEPA are to be carried out by the federal agencies “to the fullest extent possible.” “This language does not provide an escape hatch for foot-dragging agencies; it does not make NEPA’s procedural requirements somehow ‘discretionary’. NEPA requires that an agency – to the fullest extent possible – consider alternatives to its actions that would reduce environmental damage.”

Comment: The 2018 EA considers only one action alternative – one that would, in fact, cause the most adverse impacts of any alternative analyzed, and thus fails to consider a “range of alternatives” that “would reduce environmental damage.” In essence, NPS has failed to follow the procedural duties imposed by NEPA “to the fullest extent possible,” which in the case of the proposed rule would include the preparation of an EIS.

Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972) – The case involved an EIS prepared by the Department of the Interior for a proposed oil and gas lease sales off the coast of Louisiana. While the EIS dealt adequately with the environmental impacts of the proposed sale, the court found that an agency must look at “reasonable” alternatives, but this is not limited to measures which the agency itself can adopt. When the proposed action is an integral part of a coordinated plan to deal with a broad problem, the range of alternatives that must be evaluated is broadened. While the court acknowledged that the range of alternatives need not be exhaustive, there must be sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned that may include alternatives not within the scope of authority of the responsible agency.

Comment: The 2018 EA fails to consider an adequate range of alternatives, including potential collaborative measures “not [solely] within the scope of authority” of the NPS that could be developed in cooperation with the BOG and ADFG. Ideally, such alternative(s) would include a conflict resolution process to address and resolve legitimate concerns about the fundamental differences between State and federal hunting regulations applicable to national preserves. Given the inevitable and ongoing nature of conflicting vs. non-conflicting State vs. federal hunting regulations in Alaska, the range of alternatives should be “broadened” as described in Natural Resources Defense Council v. Morton. It is most appropriate that an expanded range of alternatives be evaluated in an EIS.

Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908 (1973) – The case involved a challenge to an EA prepared by the General Services Administration (GSA) for construction of a jail and other facilities in New York City. GSA issued an EA that concluded the project was not an action significantly affecting the quality of the human environment. The court found that determination of whether an EIS was required turned on the meaning of “significantly.” CEQ guidelines suggest that an EIS should be prepared where the impacts are “controversial,” referring not to the amount of public opposition, but to where there is a substantial dispute as to the size, nature, or effect of the major federal action. The court said that in deciding whether a major federal action will “significantly” affect the environment, an agency should be required to review the proposed action in light of the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it. Agencies in doubtful cases should prepare EISs rather than risk the delay and expense of protracted litigation on what is “significant.” Agencies must affirmatively develop a reviewable environmental record for the purposes of a threshold determination under §102(2)(C) of NEPA. Before a threshold determination of significance is made, the agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency’s threshold decision.

Comment: The voluminous number of public comments on the Proposed Rule (over 180,000 to date), with the vast majority opposing the Proposed Rule, indicates the high level of public interest and concern regarding the NPS proposal. Under NEPA, numbers of comments opposing a proposal alone do not  determine “controversy.” However, it is abundantly clear from the content of those comments that a majority of reviewers believe the NPS has grossly underestimated or ignored the potential extent and significance of adverse impacts to national preserve resources and values that would be caused by the proposed action. At the same time, NPS has similarly undervalued the conservation benefits to a variety of preserve resources and values of the 2015 Final Rule that would be lost if the proposed rule is implemented. In brief, there is clearly “a substantial dispute as to the size, nature, or effect” of the proposed action; obviously, the proposal is highly controversial and an EIS is warranted.

Sierra Club v. Watkins, 808 F.Supp. 852 (D.D.C. 1991) – The case involved a challenge to the adequacy of an EA prepared by the Department of Energy (DOE) for the importation of spent nuclear fuel rods from Taiwan to the United States. The court found the EA to be inadequate, despite finding that plaintiffs had failed to demonstrate that the proposed action would have a significant environmental impact and upholding the agency’s finding of no significant impact. The court premised its decision on a discussion of the purpose and function of EAs. The court relied on that portion of the CEQ regulations that states that an EA serves to aid an agency’s compliance with NEPA when no EIS is necessary (40 CFR §1508.9(a)(2)) and on

• 102(2)(E) of NEPA which requires agencies to study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. The court noted that the examination of alternatives was bounded by the rule of reason and that the level of analysis should be commensurate with the severity of impacts. However, the court found the agency’s choice of alternatives and analysis of cumulative risks of radiation exposure to be inadequate.

Comment: As discussed in Appendix 1, there is longstanding, ongoing, and undeniable unresolved conflict between the NPS and the State of Alaska (e.g., BOG and ADF&G) regarding appropriate management, including hunting and trapping, of wildlife resources in the national preserves of Alaska. The conflict is unavoidable given the significant differences between the NPS “conservation mandate” under the Organic Act and ANILCA, and the State’s “sustained yield” and “priority for human consumption” mandates under its IM statute and related implementing regulations. However, the 2018 EA fails to analyze the implications of these differences and fails to propose or consider an appropriate range of alternatives. As a result, addressing this “unresolved conflict” is clearly one of the primary reasons that an EIS, not an EA, is the appropriate level of NEPA analysis for the proposed repeal of the 2015 Final Rule.

c. A review of applicable CEQ NEPA-implementing regulations supports that an EIS is required.

Although evaluation of “significance” often relies on subjective judgment, CEQ regulations for implementing NEPA at 40 CFR §1508.27 (9) require that evaluations of significance consider both an impact’s context and intensity. Impacts that must be evaluated may be direct, indirect, or cumulative (§1508.25(c)). “Intensity” refers to the severity of an impact; and, when evaluating intensity, the CEQ regulations require responsible officials to consider a variety of factors. Paragraph 1508.27 states, in part (emphasis added to underlined sections below):

Significantly as used in NEPA requires considerations of both context and intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action… Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity (a partial list of factors described in this paragraph is provided that seem most relevant to the proposed rule):

(4) The degree to which the effects on the quality of the human environment are likely to be highly control

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future

(7) Whether the action is related too there actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

In terms of “context,” the proposed action would impact ten national preserves in Alaska that, by law, are to be managed as units of the National Park System. Yet the 2018 EA fails to provide even the most basic legislative, administrative, and policy context applicable to the proposal. Our thorough review of the legislative and administrative history of NPS management of national preserves in Alaska described in Appendix 1 reveals just how far of a departure the proposed action is.

In addition, an analysis of the “intensity” of the proposed action reveals it crosses the threshold of at least five factors identified at 40 CFR §1508.27(b) (4-7 and 10) to determine whether a proposal is “significant” or not. These factors are addressed as follows:

• Controversy – There is no dispute that the NPS proposal is highly controversial. As of November 1, 2018, NPS had received over 180,000 public comments on the Proposed Rule; the vast majority strongly opposing the action. Under NEPA, numbers of comments opposing a proposal alone do not determine “controversy.” However, it is abundantly clear from the content of these comments that many reviewers believe the NPS has grossly underestimated the extent and therefore the significance of adverse impacts to national preserve resources and values that would be caused by the proposed action. At the same time, NPS has similarly undervalued the conservation benefits to a variety of preserve resources and values of the 2015 Final Rule that would be lost if the proposed rule is implemented. In brief, there is “a substantial dispute as to the size, nature, or effect” of the proposed action, the proposal is therefore highly controversial and an EIS is warranted
• Degree of uncertainty of possible effects – As discussed in our Proposed Rule comments, paragraphs (f) and (g) of the 2015 final rule provided clear guidance as to which State-sanctioned “liberalized” predator hunting practices are in conflict with applicable federal guidance and therefore not appropriate activities within the national Paragraph (f) correctly provided 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 the region-wide standards created by these two paragraphs, as proposed, will create tremendous future uncertainty about which BOG and ADF&G predator hunting practices NPS considers “non-conflicting” (and therefore “appropriate”) or “conflicting” (and therefore “inappropriate”), whichever the case may be. This lack of guidance would also return the burden to individual preserve superintendents to use their respective compendiums to close or restrict such activities within individual preserves.

Furthermore, as discussed further below, NPS bases its impact analysis on the illogical assumption that because the numbers of hunters using the specific hunting practices were low in the past (prior to those methods being prohibited by NPS), the numbers of future practitioners will also remain low. Yet the NPS provides no rationale for this assumption. Our collective experience is that as hunters learn of expanded means to take game their numbers and their harvest may well increase. Other factors like fur markets prices, availability of other food sources and costs of hunting (i.e. fuel) will also affect future hunting and harvest. The reality is that, if the proposed rule is enacted, the BOG and ADF&G will have full control over the future numbers of hunters allowed to use “liberalized” hunting practices that target predators in national preserves, as well as control over the decisions to allow new and/or expanded liberalized practices. The 2018 EA makes no mention and provides no analysis of these real possibilities. This uncertainty makes it impossible for NPS to effectively identify and analyze future effects of its proposal in what amounts to a very cursory EA.

(6) Precedent for future actions – As described in Appendix 1, since the enactment of ANILCA in 1980 the NPS (not the BOG or ADF&G) has determined the appropriateness of State-authorized hunting methods within the Alaska national preserves and taken decisive steps, when necessary, to prohibit those methods it deems in conflict with NPS laws and policies. The current proposal would effectively violate well-established precedent of NPS exercising its lawful wildlife management authority in these preserves and create a reckless new precedent of NPS deferring, in effect abdicating, its wildlife management authority to the BOG and ADF&G. This violates foundational authority and jurisdiction principles laid out by Congress in the Redwoods and General Authorities amendments to the NPS Organic Act.

An even greater concern is the immeasurable harm such a precedent would cause if it were expanded and applied to other park areas in the “lower” 49 states. If such a precedent is established by this NPS action in Alaska, it is highly likely that other states will take action to require that NPS defer its wildlife management authority in national preserves, recreation areas, seashores, etc. where some types of hunting are authorized by enabling legislation. The ripple effect of such a precedent could produce far-reaching and lasting adverse impacts that could cause irreparable harm to the more than 30 units of the National Park System outside of Alaska. The 2018 EA fails, completely, to address any such effects.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts – As discussed later in this letter, the 2018 EA incorrectly dismisses the “significance” of cumulative effects of the proposal based on the flawed premise that the numbers of practitioners of liberalized, but now prohibited, hunting methods were low prior to 2010, will remain low in the future, and therefore future impacts of reinstating those methods would likewise remain sm There simply is no logical basis for NPS to rely on such an assumption. The reality is that the BOG and/or ADFG would control future decisions about the numbers of practitioners of these methods and about adding new liberalized hunting methods that target predators in national preserves. For that reason, the possibility of significant cumulative impacts exists and NPS must disclose that possibility while taking a “hard look” at that potential both short-term and especially long-term.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment – The Coalition and many other individuals and organizations that are knowledgeable of applicable NPS management mandates assert that the proposed action does, in fact, violate the NPS Organic Act, ANILCA, and related implementing regulations and management policies. For example, in addressing wildlife harvest, ANILCA’s legislative history provided (emphasis added to underlined sections): “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). Further, the administrative history described in Appendix 1 documents longstanding NPS concerns about State of Alaska hunting “allowances” (i.e., “liberalized” hunting methods) that target predator species and have the intent or potential to alter or manipulate natural ecosystems or processes, including natural  predator/ prey dynamics, distributions, densities, age-class distributions, populations, genetics, or behavior of a species. The basis for this longstanding concern is obvious – such actions are inconsistent with the laws and policies applicable to NPS areas.

In sum, the proposed rule meets or exceeds at least five of the factors identified in 40CFR§1508.27 that must be considered to determine “significance.” NPS proposals, such as this one that could cause “significant impacts” and set “a precedent for future actions,” clearly require an EIS. Yet NPS has prepared only an EA to “determine whether [the rule] will have any significant impacts on wildlife or other resources.” To be clear: the 2018 EA is so superficial in its analysis of potential impacts and lacking in its range of appropriate action alternatives that legal challenge is inevitable.

d. A review of NPS NEPA guidance supports the need for an EIS.

In addition to relevant case law and CEQ regulatory guidance discussed above, the NPS NEPA Handbook10 provides that an EIS is the appropriate NEPA approach where, among other reasons, a proposal “is expected to, or has the potential to result in significant adverse environmental impacts” or where “there is a high  degree of controversy over the environmental impacts of a proposed action.” NPS NEPA Handbook §1.5(D). “Controversy” can mean both opposition to the proposal, or where a “substantial dispute exists as to the nature of the environmental consequences of a proposed action.” And as described in Section 1.6 of the handbook (under “Context”), “[a]n impact’s significance is influenced by the importance of the resource or value being impacted, the geographic location and timing, and other relevant factors that provide context for more fully understanding the severity of the impact.” (emphasis added) (11)

The currently prohibited hunting practices (e.g., killing black bear cubs and sows 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 only inconsistent with the NPS governing laws, regulations and principles of public stewardship, but also unsportsmanlike and repugnant to the vast majority of hunters. The EIS should consider not only the broader impacts of the proposed rule to Alaska units, but also the more pointed impacts of these widely- condemned hunting practices.

While we generally support subsistence hunting and trapping consistent with applicable federal statutes and regulations, the Coalition strongly opposes the handful of specific hunting practices that are currently prohibited in paragraphs (f) and (g) of 36 CFR § 13.42. These practices are inconsistent with NPS mandates and are obviously intended or reasonably likely to manipulate wildlife populations for harvest purposes. Manipulating predators and prey can alter populations, population dynamics, and often their habitat. There is abundant literature on the importance of large carnivores to naturally functioning ecosystems. There is also abundant literature on the impacts of hunting on naturally functioning populations of wild animals including potential adverse genetic consequences. The potential environmental impacts of this proposed rule are significant, as evidenced by disruptions to ecosystems from similar practices in the lower 48 states.

All things considered, NPS should acknowledge that an EIS is, in fact, required in light of the rule’s significant, some would say reckless, departure from well-established NPS statutory mandates, such as the Organic Act and ANILCA, and related regulations and management policies. It is clear from NPS’s own analysis that the proposed rule would increase adverse impacts to wildlife of the Alaska units, including impacts on individual animals as a result of inhumane and widely condemned hunting practices, making this one of the least defensible and most controversial NPS proposals we have seen in the past 40 years.

The level of controversy here should come as no surprise to NPS. The weight of sound science and public opinion supports leaving the 2015 Final Rule “as is.” NPS has received over 180,000 comments so far, many of which strongly dispute the “size, nature, and effect” of the proposed action, consistent with the applicable definition of “controversy” under NPS NEPA guidance. Based on this high level of controversy alone, NPS must fully consider the impacts of its proposal by preparing an EIS.

4. 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 2018 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 to ensure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts” 40 CFR §1501.2 (emphasis added). 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 Handbook12 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 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 regulation and NPS NEPA guidance:

• The proposed rule was posted on regulations.gov13 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 announced14 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 co” The notice did NOT mention the EA nor explain why it had not yet been released for public review. However, interested parties could again 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 Commenters, such as the Coalition, were faced with the dilemma of submitting proposed rule comments without ever having seen the EA. As a result, the Coalition wrote to the NPS asking for a last-minute extension of the comment period (see comment letter to Regional Director Frost dated September 5, 2018).
• Later on September 5, NPS announced15 a 60-day extension of the proposed rule comment period until November 5, NPS also announced the release of the EA, with a 60-day public comment period, on the NPS PEPC website. (16)

It took 106 days, well over 3 months after the publication of the proposed rule on May 22, 2018, for NPS 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 once NPS 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.

5. The NPS Preferred Alternative would clearly be detrimental to national preserve resources and values.

While the NPS claims that the proposed action is needed “to more closely align sport hunting regulations in national preserves in Alaska with State regulations,” the fact remains that the overriding legal duty of NPS management is to assure that decisions regarding stewardship of all park resources must be consistent with the NPS Organic Act and related management policies that prioritize resource conservation over visitor “use.” Yet, as described in Chapter 3 of the EA, the NPS Preferred Alternative would be detrimental to multiple resources and values at ten national preserves; and 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; and
• 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 other 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, the EA remarkably states, “The State has assured the NPS that if harvests were to increase beyond sustainable levels the ADF&G 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. This conclusion lacks evidence in the record to support what is at most speculation. It has not explained how any in-season hunt reports would be timely to allow this to occur, nor how long it now takes to attain such information with the existing regulations. 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) (17); 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 conservation 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 unprecedented attempt by NPS to replace its longstanding federal mandates and policies with State policy of a different and substantially lower conservation standard is unlawful and unacceptable, and is 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:

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 OrganicAct], 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) (emphasis added).

As described in Appendix 1, the BOG operates under a sustained yield mandate spelled out by Alaska’s constitution and statutes. 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 (18).

6. The EA fails to disclose that the proposed rule is a reckless departure from well-established precedents related to NPS statutory mandates and management policies that could harm the national preserves for decades to come.

As described in Appendix 1, the 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 evidence in the proposed rule and in the EA and references to the key federal laws, including the NPS Organic Act, and related regulations and policies that guide NPS management of wildlife on national preserves in Alaska and the inappropriate reliance on the recent Secretarial Order’s to override longstanding NPS mandates and precedents is revealing. Repeal of paragraphs (f) and (g) of the 2015 Final Rule is not something the NPS would normally undertake, as such an action is clearly incongruous with a variety of NPS statutes, regulations, and policies. For instance, in a memorandum dated July 14, 2017,

Acting Assistant Secretary for Fish Wildlife and Parks Virginia Johnson (Department of the Interior) directed the Acting Director of the NPS to undertake this rulemaking. (19) In our collective experience over the past 40  or more years, that memo demonstrates improper political coercion.

If the rule is promulgated as written, it will be a reckless departure from over 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 and possibly other NPS units in other states as well. As discussed in Comment # 3 above, setting a “precedent for future actions” is one of the factors identified in CEQ regulations that triggers the requirement for an EIS.

In brief, the proposed rule is vastly inferior to the existing rule with regards to preserving naturally functioning ecosystems with healthy populations of all wildlife. As a result, competition for park resources among local rural residents is likely to increase; public use and “enjoyment” will be adversely affected in locations and opportunities for visitors to observe large predators like bears and wolves will be diminished. Finally, Wilderness character will be degraded with regards to untrammeled qualities due to bear bait stations, the possibility of food conditioned bears and other animals who will visit bear bait stations, and reductions in predators relative to prey species.

SECTION-BY-SECTION COMMENTS

1. 1. Chapter 1: Need for Action and Issues Analyzed

While Section 1.1 of the EA states a purported “need” for taking action, it fails to identify the “purpose” for the action. In contrast, the 2014 EA stated both a “purpose” and a “need,” which is consistent with guidance in the NPS NEPA Handbook on page 47, which states in part (emphasis added to underlined sections):

A. Identifying Purpose, Need, and Objectives: A key part of the scoping process is the development and refinement of the purpose and need for taking action… For EAs, the [CEQ] regulations require a discussion of the need for taking action, however, in some cases development of a purpose statement can be helpful (1508.9; 46.310). The regulations do not require that you distinguish purpose from need… However, it may be helpful for you to do so in order to better convey why the NPS is proposing an action and what that action is meant to achieve…Put another way, purpose answers the question of what the NPS intends to accomplish through taking action, while need answers the question of why the NPS is proposing an action.

Apparently lacking a purpose for the proposed action, the EA cites only Secretarial Orders 3347 and 3356 as the need for the proposed action. However, the Secretarial Orders alone are a highly flawed basis for NPS’s controversial proposal. To put the Secretarial Orders into proper perspective relative to well-established NPS mandates, consider the general hierarchy of Federal authorities, as described elsewhere by NPS (20):

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 Secretarial Orders]; which supersede NPS management policies and Director’s Orders.

Obviously, based on this hierarchy of authorities, the Secretarial Orders cannot and do not override the mandates of the NPS Organic Act or ANILCA) or 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.

Given the preeminence of law over policy, it is remarkable that the EA never mentions the NPS Organic Act or its “conservation mandate” that defines the NPS mission. Also missing in the 2018 EA is any information or discussion regarding Alaska’s 1994 “Intensive Management Law” (IM), the law upon which the hunting regulations in question are derived. A brief summary of the practical implications of the IM law is provided in ADF&G’s predator management handbook (21), which states in part (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.

A thorough discussion of applicable federal statutes, regulations, and polices is provided in Appendix 1. Absent any such information regarding the significant differences between the NPS’s and the State of Alaska’s respective statutory guidance applicable to wildlife management, the EA fails to identify critical context needed to effectively analyze the legality and appropriateness of the proposed actions as well as the potential adverse impacts to federally protected resources and values. In essence, the EA fails to explain why or how the proposed action contributes to NPS management objectives or is even legally permissible under the applicable statutes, regulations, and policies upon which NPS must base it management actions. As a result, NPS’s basis for the proposed rule appears to be arbitrary and capricious, based primarily on narrow political interests and very inappropriate top-down directives rather than on legitimate statutory mandates, sound scientific principles, or NPS management objectives.

2. Chapter 2: Alternatives.

The EA briefly describes the Proposed Action/Preferred Alternative (Repeal Paragraphs (f) and (g) of the 2015 Final Rule) and the No Action Alternative (Leave the 2015 Final Rule intact). In essence, the No Action Alternative and NPS Preferred Alternative are the exact opposite of what they were in the 2014 EA when NPS proposed to prohibit the various State-sanctioned “liberalized” hunting methods that NPS proposes to reinstate now.

Given the high level of controversy, as well as longstanding and ongoing “unresolved conflicts” between  NPS and State of Alaska wildlife management mandates, NPS must consider a broader range of action alternatives. This should include potential collaborative measures “not [solely] within the scope of authority” of the NPS that could be developed in cooperation with the BOG and ADF&G. Ideally, such alternative(s) would include a conflict resolution process to address and resolve legitimate concerns about the fundamental differences between State and federal hunting regulations applicable to national preserves. It is most appropriate that an expanded range of alternatives be evaluated in an EIS.

It is also notable that the 2014 EA in Section 2.3 identified an Environmentally Preferable Alternative, which was the NPS Preferred Alternative (that became the 2015 Final Rule) since it would, in fact, reduce adverse impacts to preserve wildlife and enhance visitor experience opportunities and Wilderness character. Given the stark contrast between the two alternatives, it is not surprising that NPS has not also identified an Environmentally Preferable Alternative in the EA. The choice would be obvious – this time the No Action Alternative (i.e., the 2015 Final Rule) would certainly be the Environmentally Preferable Alternative.

The NPS NEPA Handbook 2015 (22), Section 4.3 D states (emphasis added):

The environmentally preferable alternative is the alternative developed and analyzed during the NEPA process that causes the least damage to the biological and physical environment and best protects, preserves, and enhances historical, cultural, and natural resources (46.30). An environmentally preferable alternative must be identified in a ROD and may be identified in EAs, FONSIs, and draft and final EISs (1505.2(b); 46.450).

In other words, NPS is not technically required to (but may) identify an Environmentally Preferable Alternative in an EA and for obvious reasons chosen not to do so in this EA. However, in order to improve the public’s understanding of the NPS’s decision making process on such a controversial proposal, NPS should identify the Environmentally Preferable Alternative or explain why it has chosen not identify one.

Last but not least, the 2014 EA contained “Summary Tables of the Alternatives,” but such tables are not presented in the EA here. The tables concisely summarized and contrasted the alternatives and their summary effects. We recommend that NPS add such tables to the EA, as they would clearly show that the proposed new “preferred alternative” would result in more negative impacts to NPS-managed resources and the purposes for which those areas were established.

3. Chapter 3: Environmental Consequences

The NPS analysis of environmental impacts raises multiple concerns, including the following:

a. The NPS Preferred Alternative would obviously and inevitably increase adverse impacts to a variety of national preserve resources and values.

The NPS Preferred Alternative would obviously and inevitably increase adverse impacts to a variety of national preserve resources and values, including 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 unmanipulated 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 and rural residents, 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 In addition, the presence of bear bait stations and associated debris would degrade the undeveloped quality of wilderness.

b. The EA also asserts that 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 vast amount of non-NPS lands open to BOG-promoted prey reduction practices in Alaska this relatively modest benefit for just one user group should not prevail.

b. 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 includes harvest data provided by the ADF&G; however, there is an embarrassing lack of specificity as to the location and time period for which the data was collected. What data applies to wildlife killed

within the boundaries of the Preserves? Such an analysis is, in fact, attainable by determining which Uniform Coding Units (UCU) are within the Preserves’ boundaries. This has been done before by the NPS. If some of the predator harvest data was collected in national preserves since 2010, it is highly likely that the data reflects illegal harvest, which is a faulty 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 newly authorized techniques may increase in the future if paragraphs (f) and (g) are repealed. For example, while federal subsistence hunting under ANILCA and related federal regulations is generally limited on federal lands to local rural residents, the State of Alaska hunting regulations open “subsistence hunting” to all Alaska residents. We believe that as hunters learn of these opportunities the number of hunters is likely to increase over time as hunters and commercial guides learn of these new and expanded rules in NPS Preserves. What if the State significantly increases the number of permits it issues for bear baiting stations, as it has for guides over the past 10 years – 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.

c. Section 3.2.2 Effects on Wildlife of Alternative 1.

In general, this section relies heavily on personal communications with ADF&G personnel and less so on peer-reviewed published data. The 2018 EA omits a key reference noted in the 2014 EA by Boertje et al 2012. Boertje, an ADF&G employee, and his team noted caribou in the Forty-Mile Herd showed signs of nutritional stress and moved into Canada from the US. This herd is located near the Yukon-Charley Rivers National Preserve where wolves had been decimated by ADF&G in surrounding areas, including wolf packs collared by the NPS for research. From this paper, it is apparent that overharvest of predators such as wolves under Alaska’s liberalized hunting methods can lead to overgrazing of available browse for caribou and their ultimate need to move or not reproduce. This section of the 2018 EA also omits other references regarding trophic cascades and the effects of adding or removing predators from ecosystems that were noted in the  2014 EA. These are Barber-Meyer et al 2008 and Beschta and Ripple 2010. Because of these omissions, it appears the 2018 EA has intentionally avoided references that would contradict the NPS (and ADF&G) assertions that the State’s liberalized harvest methods of predators in national preserves would have only a minor impact on wildlife and habitat in general.

More specifically, the following language is included in this section’s “Conclusion” statement:

The State manages take of wildlife under a “sustained yield” principle (Alaska Constitution, Article VIII, section 4) and has assured the NPS that in the event harvest were to increase beyond sustainable levels, the ADF&G would close seasons by emergency order if immediate action was necessary, and/or by recommending more conservative seasons, bag limits, and/or methods to the BOG for future hunting seasons (SOA 2014).

While it may be true that ADF&G has made “assurances,” it is also true, but NOT stated, that NPS manages take of wildlife under the “conservation mandate” of the NPS Organic Act. As mentioned previously, the 2018 EA does NOT mention the Organic Act nor evaluate potential adverse impacts using the Act as a frame of reference. Simply put, the NPS cannot adopt the State’s “sustained yield” standard, which is a lower standard in terms of wildlife conservation, while ignoring NPS’s own statutory guidance.

Furthermore, the extensive administrative history described in Appendix 1 provides overwhelming evidence that it is NOT prudent for NPS to rely upon undocumented, non-binding ADF&G’s “assurances” that they will adjust harvest limits if/when they decide such limits are not sustainable under their (lower) standard. As a result, the NPS “conclusion” that everything will be okay (in terms of future adverse impacts to preserve resources and values) simply because ADF&G says everything will be okay is not only indefensible, it is absurd.

d. Section 3.3.2 Effects on Subsistence of Alternative 1.

As context for our comments, and as discussed in the EA in Section 3.3.1 Current General Conditions of Subsistence Use, “ANILCA Section 804 established a rural preference for federal subsistence harvest   (emphasis added) on federal public lands, and allows for restrictions on the taking of populations of fish and wildlife for subsistence uses in order to protect the continued viability of such populations or to continue such uses.” While subsistence hunting under ANILCA and related federal regulations is generally limited on federal lands to local rural residents, the State of Alaska regulations open “subsistence hunting” to many hundreds of thousands additional hunters. As stated on the ADF&G website (23) (emphasis added to underlined sections):

Tier I & II subsistence permits are available to Alaska residents only. All Alaska residents are eligible for subsistence hunting of game populations where subsistence use occurs. A subsistence permit may be issued when there is not enough game for a general season and the population of animals has historically been an important source of human food.

Our primary concern with this section of the EA is that the NPS analysis does NOT acknowledge or evaluate this monumental difference between the federal and State definitions of who is (and how many hunters are) eligible to subsistent hunt under the respective regulations. The scale of adverse impacts could be significantly different between current conditions under the 2015 NPS Final Rule versus the NPS proposal to defer to state regulations that would/could open up subsistence hunting on national preserves to all Alaska residents.

Even so, the NPS impact analysis does correctly find that subsistence fishing and hunting camps could be adversely impacted by brown and black bears conditioned to human foods at state-sanctioned bear bait stations. However, the analysis fails to note that the Federal Subsistence Board passed a resolution to allow the harvest of black bears and cubs in dens in Gates of the Arctic National Park and Preserves by rural residents of GMU 24. Consistent with past practice, other similar rules could accommodate other rural residents who can show a traditional and customary practice of harvesting bears in this manner, especially when they need the food.

e. Section 3.4.2 Effects on Public Use and Experience of Alternative 1.

In the middle of page 14 of the 2018 EA, the State “maintains” that increased hunting seasons of wolves do not ensure increased harvest or reduced potential sightings of wolves. This questionable assertion was also included in an ADF&G comment letter to the NPS proposed rule in 2014. As was determined then and remains true now, the State’s assertion is NOT substantiated by ANY research; there are no peer reviewed publications to support it while there is ample scientific literature suggesting otherwise. For example, see Borg et. al. 2016, a study that is inexplicably missing from the 2018 EA reference list. Similarly, on page 15 of the 2018 EA the State again “maintains,” without proof, that bear baiting does NOT result in detectable bear problems despite a preponderance of scientific evidence to the contrary. Such evidence includes a number of published reports by Herero (1970, 1976, 2002).

f. Section 3.4.3 Effects on Public Use and Experience of Alternative 2.

The impacts of the 2015 Final Rule on visitor use and experience is clearly significantly less than that of Alternative 1. Given the NPS mission under the Organic Act, how can the NPS select Alternative 1, which would degrade public use and enjoyment, over conserving such important visitor experience opportunities for this and future generations?

g. Section 3.5.2 Effects on Wilderness Character of Alternative 1

While this section correctly describes various adverse impacts to Wilderness character that would be caused by the NPS Preferred Alternative, that alternative is erroneously referred to within the narrative as the “no action alternative.” It appears NPS copied and pasted the impact analysis for the No Action Alternative from the 2014 EA without proofreading and amending the text to indicate that adverse impacts apply to the 2018 NPS Preferred Alternative. In addition, the NPS “Conclusion” paragraph contradicts itself raising serious questions about its validity. For example, the first sentence of the paragraph states Alternative 1 “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.” The second sentence states, “In addition, the presence of bear bait stations and associated debris would degrade the undeveloped quality of wilderness.” Despite these impacts, NPS concludes that “wilderness character would continue to exist in a manner similar to current conditions” (emphasis added). This conclusion is fundamentally untrue, given   NPS’s own analysis. The last sentence of the paragraph should be amended to reflect the anticipated adverse impacts to natural and untrammeled qualities.

h. The 2018 EA fails 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 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 8.2.2.6.

Furthermore, the “conflicting” nature of the State’s “liberalized” predator hunting methods was evident to national preserve superintendents years before the promulgation of the 2015 final rule. Since at least 2010, 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 Final Rule. Such prohibitions were specified in the respective national preserve’s Superintendent’s Compendium. Examples of such closures are summarized Appendix 1.

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 2018 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.

Because the predator hunting practices authorized under State regulations are controversial and appear to be in direct conflict with NPS mandates and management objectives, we strongly recommend that NPS prepare  a “regulatory conflict analysis” to include in its NEPA document to evaluate if the State laws and regulations are, in fact, “non-conflicting” or “conflicting” with applicable federal laws, regulations, and policies. Such an analysis would undoubtedly be similar in its findings to those of Julie Lurman & Sanford P. Rabinowitch in “Preemption of State Wildlife Law in Alaska: Where, When, and Why,” Alaska Law Review 145-172 (2007). (24)

i. Similarly, the 2018 EA fails 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.

j. Last, but not least, the EA fails to consider or analyze the precedent-setting nature of NPS, in effect, ceding its statutory authority and responsibility for managing wildlife in the Alaska national preserves by deferring to the State regarding hunting regulations that are clearly in conflict with NPS wildlife management mandates.

As described in Appendix 1, NPS has the clear authority and responsibility for managing wildlife within units of the National Park System. This includes determining what State-sanctioned hunting methods are non-conflicting with applicable NPS mandates. The proposed rule, if implemented, would set a harmful precedent of NPS adopting State-approved hunting and trapping regulations that are clearly in conflict with NPS wildlife management mandates. Such a precedent could ripple throughout the National Park System affecting many if not all NPS units where hunting and/or trapping is authorized. The potential for such far-reaching adverse impacts should be analyzed in an EIS.

4. Chapter 4: Agencies and Persons Consulted

There are numerous significant problems with Chapter 4 of the 2018 EA. First, there is no mention of public scoping, public meetings, or other public involvement opportunities (other than the on-line comment period) in this rulemaking process. It is not appropriate for NPS to propose the repeal of a regulation heavily supported by the public without a public scoping period on the proposed repeal. Such a decision is contrary to the guidance in the NPS NEPA Handbook, page 46, which states, in part (emphasis added):

Public Scoping for Environmental Assessments: The DOI NEPA regulations require that public notification and public involvement be conducted to the “extent practicable” when an EA is being prepared (46.305(a)). Therefore, public scoping for an EA is strongly encouraged. The recommended practice with regard to public scoping for EAs is a [scoping] comment period announced on PEPC and through a press release, direct or electronic mailings, or other effective means of communication. In some instances, public meetings during the scoping period may be helpful or appropriate, but they are not required.”

Second, the 2014 EA included consultation with all potentially affected Native tribes and ANCSA Corporations in Alaska. However, the 2018 EA indicates that NPS only consulted with the Alaska Department of Fish & Game. Such a limited scope of consultation of key stakeholders is profoundly flawed and in clear conflict with Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) and Department of the Interior Secretarial Order 3317.

Lastly, the 2014 EA (Section 4.2) identified the NPS staff members involved in preparing the document.  That list reflects an interdisciplinary team of program managers and other professionals involved in the process. In contrast, the 2018 EA fails to identify any of the individuals involved in the planning process, including any person at the Department of the Interior who may have reviewed and/or edited the draft EA. The glaring lack of acknowledgment of those involved with preparation of the EA raises concerns about the knowledge and expertise of those involved in the planning process, especially given how fundamentally flawed the 2018 EA is.

5. Chapter 5: References.

More than 10 references cited in the 2014 EA were inexplicably NOT included in the 2018 EA and the reader is left to guess why they were eliminated. For example, important references that were omitted include the following:

• Barber-Meyer, M., L.D. Mech, and P.J. White. 2008. Elk calf survival and mortality following wolf restoration to Yellowstone National Park. Wildlife Monographs 169:1-30;
• Beschta, L., and W.J. Ripple. 2010. Mexican wolves, elk, and aspen in Arizona; is there a trophic cascade? Forest Ecology and Management 260:915-922;
• Boertje, D., and C.CL. Gardner, K.A. Kellie, and B.C. Taras, 2012. Fortymile caribou herd: increasing numbers, declining nutrition, and expanding range. Alaska Department of Fish and Game Wildlife Technical Bulletin 14, Juneau, Alaska;
• Borg, al. 2016.

Similarly, more than 5 new references were added to the 2018 EA and it is left un-described what these documents bring to the discussion and evaluation of the alternatives. In addition, the 2014 EA documented, with two maps, the State’s Intensive Management and Predator Control Areas, as defined by state regulation in relationship to NPS managed units. These maps have been omitted in the 2018 EA and by their omission obfuscate the readers understanding of the issue at hand.

6. Appendix F: ANILCA Section 810 Subsistence Evaluation.

In comparison to the 2014 EA’s ANILCA 810 Evaluation and Finding, NPS has omitted in the 2018 EA a number of statements regarding existing NPS statutory authority, as well as more complete descriptions of the respective National Preserve purposes. No explanation is given. Since the NPS Organic Act and ANILCA have not been amended during this time frame, we see no reason for these deletions other than to obscure the underpinnings of NPS law and ultimately its authority and statutory responsibilities. As a result, the current Section 810 analysis is dubious at best. In sum, it fails to articulate: The purposes for which the national preserves in Alaska were established in ANILCA Section 201; additions to existing areas in ANILCA Section 202; and the general provision in ANILCA Section 203 that allow subsistence in national preserves. Given these many omissions, our bottom-line concern with the NPS subsistence evaluation is a highly questionable statement/conclusion articulated in Part VI of the 2018 EA, which states, in part: “The proposed actions are consistent with NPS Mandates in NPS areas in Alaska.” This is false and belied by information in the administrative record supporting the 2015 Final Rule as well as statutes, regulations, and policies that govern the NPS’s actions.

CLOSING COMMENTS

The 2015 Final Rule and its administrative history (described in Appendix 1) demonstrate a longstanding and consistent effort by NPS to work with the State of Alaska to resolve conflicts between ADF&G policies and basic philosophy that guide their hunting regulations and NPS’s obligations to conserve national preserve resources and values in compliance with pertinent federal laws. The first such effort was the 1982 Master Memorandum of Understanding between the Department of Fish & Game and the NPS. Testimony to the BOG began in 1984. Proposals for changes were commented upon numerous times in numerous letters, including: From 1984-2009, at least 15 letters were written to the BOG; by 2010, this communication reached a total of 20 letters; and by 2015 a total of 33 letters. NPS also appeared and provided testimony at numerous BOG meetings.

Annual NPS compendium regulations, which established restrictions/closures that were stricter than those provided by AF&G, 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 between NPS and the BOG regarding legal mandates.

This enduring effort by NPS staff who have worked in Alaska reflect strong commitment to the mandates set forth in ANILCA, the NPS Organic Act, and related federal laws directing that the national preserves are

full-fledged units of the National Park System. The preserves are clearly designated for “all” the people in the Nation, not just for hunters in Alaska. Again, we (the Coalition) support legally authorized hunting in Alaska, for both sport and subsistence purposes, but only when regulated by practices that align with long delineated NPS laws, regulations, and policies.

Unfortunately, we now see the Secretary of the Interior and his subordinates inappropriately directing the NPS to rescind an important 2015 NPS regulation that clearly contributes to the purpose of the preserves as envisioned by Congress when enacting ANILCA in 1980, which is, in part:

“…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).

Instead, the proposed rule is one of the most misbegotten NPS-related proposals we have seen in the past 40 years. It is ill-considered, politically-motivated, poorly justified, and antithetical to the agency mission that is so clearly described in the NPS Organic Act. Judging from the more than 180,000 comments submitted on the Proposed Rule to date, many tens of thousands of Americans wholeheartedly agree with us.

To make matters worse, the NPS waited well over three months (106 days to be exact) after the publication of the proposed rule to issue a deeply flawed and remarkably superficial EA that fundamentally fails to take a “hard look” at potentially significant long-term and cumulative adverse impacts of NPS’s ill-conceived proposal. The weakness of the EA demonstrates just how barren the NPS explanation is for pushing forth such an action. The EA also fails to example a reasonable range of alternatives, artificially limiting the analysis to only the proposed action and the no action alternative.

For the many reasons stated in our letter, the 2018 EA is entirely inadequate and we believe NPS should and, in fact, is required to prepare an EIS (rather than an EA) due to the following factors:

• The Proposed Rule’s high level of controversy;
• The degree of uncertainty regarding long-term effects;
• The potential precedent for future actions, including nation-wide implications of such a precedent;
• Concerns about whether this action is related to other actions (e.g., additional changes in the State’s “liberalized” predator hunting regulations and/or increases in the numbers of permits issued for those activities) that may have individually insignificant but cumulatively significant impacts; and
• Concerns that the proposed action adopts State regulations that are inconsistent with and therefore violate applicable of Federal laws, regulations, and policies, imposed for the protection of the environment

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. However, if NPS insists on proceeding with its appalling proposal, we urge NPS to prepare an EIS to fully consider the potential impacts and implications of its actions.

Thank you for the opportunity to comment on this important issue.

Sincerely,

 

 

 

Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
201 I Street, NE #805, Washington, DC 20002

Appendix 1

cc:
Joel Hard, Deputy Regional Director, NPS Alaska Regional Office
Andee Sears, Law Enforcement Specialist, Alaska Regional Office

---

APPENDIX 1

INTRODUCTION

We are providing the 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.

BACKGROUND

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) (16U.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[.]” 16U.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. 16U.S.C.3101(a)-(c) [ANILCA §101 (a-c)].

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):

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) (25) (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). 16U.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 National 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 wildlife” 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 (26) regarding state-federal relationships. Specifically, section 24.4(f) applies to units of the National Park System. It states, in part (emphasis added):

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, 4.4.1.2, 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 (27) 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 Office of the Secretary of the Interior also unambiguously stated this perspective in a December 19, 2006 letter (28) to Gerald Nicolia, 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.”

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) (29). The Abstract for the article summarizes their findings (emphasis added):

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 the seungulates…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 CFR13.40(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 (30). 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)31 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 CFR13.50(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 Final 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)32. As stated in their analysis: “What is now also clear is that 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.”

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.

---

1. https://parkplanning.nps.gov/document.cfm?parkID=1&projectID=49062&documentID=61261
2. https://www.federalregister.gov/documents/2014/09/04/2014-20881/alaska-hunting-and-trapping-in-national-preserves
3. https://www.federalregister.gov/documents/2015/01/15/2014-30665/alaska-hunting-and-trapping-in-national- preserves-reopening-of-public-comment-period
4. https://www.federalregister.gov/documents/2015/10/23/2015-26813/alaska-hunting-and-trapping-in-national-preserves
5. https://www.regulations.gov/document?D=NPS-2018-0005-0001
6. https://www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/Req-NEPA.pdf
7. https://www.law.cornell.edu/uscode/text/42/4332
8. https://ceq.doe.gov/docs/laws-regulations/Major_NEPA_Cases.pdf
9. https://www.gpo.gov/fdsys/pkg/CFR-2012-title40-vol34/pdf/CFR-2012-title40-vol34-sec1508-27.pdf
10. https://www.nps.gov/subjects/nepa/upload/NPS_NEPAHandbook_Final_508.pdf
11. Id
12. Id
13. https://www.regulations.gov/document?D=NPS-2018-0005-0001
14. https://www.regulations.gov/document?D=NPS-2018-0005-73712
15. https://www.regulations.gov/document?D=NPS-2018-0005-159600
16. https://parkplanning.nps.gov/projectHome.cfm?projectID=83079
17. Transcript on file at the NPS Alaska Regional Office.
18. https://www.gpo.gov/fdsys/pkg/CFR-2011-title43-vol1/xml/CFR-2011-title43-vol1-sec24-3.xml
19. A copy of memorandum was submitted with our September 24, 2018, comments on the proposed rule and should be on file in NPS Alaska Regional Office
20. https://www.nps.gov/training/essentials/html/law_policy_topic.html
21. http://www.adfg.alaska.gov/static/research/programs/intensivemanagement/pdfs/predator_booklet.pdf
22. Id
23. http://www.adfg.alaska.gov/index.cfm?adfg=huntlicense.tier
24. https://scholarship.law.duke.edu/alr/vol24/iss2/2
25. https://scholarship.law.duke.edu/alr/vol24/iss2/2
26. https://www.ecfr.gov/cgi-bin/text-idx?SID=04e8f9d29bcda9b77ab7c8d9cea96a58&tpl=/ecfrbrowse/Title43/43cfr24_main_02.tpl
27. 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.
28. Copy of letter signed by Acting Asst. Secretary for Fish Wildlife & Parks is on file in the NPS Alaska Regional Office.
29. http://www.bioone.org/doi/10.2192/URSU-D-17-00002.1
30. The Agenda Change Request (ACR) and testimony are on file at the NPS Alaska Regional Office.
31. Transcript on file at the NPS Alaska Regional Office.
32. https://scholarship.law.duke.edu/alr/vol24/iss2/2