June 19, 2020
The Honorable Rob Wallace
Assistant Secretary for Fish and Wildlife and Parks
U.S. Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
Subject: National Park Service Final Rule on Hunting and Trapping in National Preserves in Alaska (RIN 1024-AE38)
Dear Assistant Secretary Wallace:
We write to you on behalf of over 1,800 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, and current employees of the National Park Service (NPS). As a group, the Coalition represents over 40,000 years of experience managing and protecting America’s most precious and important natural, cultural, and historic resources.
Those of us signing this letter have extensive experience managing national parks, monuments, preserves or NPS programs including many challenging years of duty in Alaska since passage of the Alaska National Interest Lands Conservation Act (ANILCA) of 1980 greatly expanded the national parklands in Alaska some forty years ago.
We write to you now to express our grave concerns about the NPS final rule on Hunting and Trapping on National Preserves in Alaska, RIN: 1024 – AE38, published in the Federal Register on June 9, 2020 (the “Final Rule”). This awful rule is an affront to the Park Service mission and all NPS employees who have served during the past 40 years to administer and protect the resources and values of national preserves in Alaska in accordance with that mission and ANILCA’s mandates.
For reasons we will describe in this letter, we request that NPS abandon implementation of the Final Rule in its entirety. At the very least, NPS should suspend the effective date of the Final Rule and open a new public comment period so that: a) the “new harvest data” that NPS relies upon so heavily in its decision can be fully presented to the public for comment; and b) NPS can revise and more accurately describe its authority under the NPS Organic Act and ANILCA to regulate hunting in Alaska’s national preserves. Promulgation of the Final Rule was legally deficient under NEPA for failure to consider significant new information regarding Alaska’s large predator management and wildlife harvest monitoring system, as well as the APA for reliance on irrelevant and inaccurate data, and failure to adequately consider and address timely submitted expert comments on the agency’s proposal.
To proceed with this Rule, ignoring the scientific information and significant legal and policy concerns expressed in this letter, would be unconscionable.
The Coalition – which includes many hunters among its members – supports lawful sport hunting and subsistence hunting in Alaska’s national preserves consistent with ANILCA and the 1916 NPS Organic Act, and other applicable federal laws, regulations and policies, as well as compatible and non-conflicting State of Alaska laws and regulations. We recognize that, in general, States are the primary managers of wildlife in our country. However, under applicable federal laws this role is not absolute on or within any unit of the National Park System where hunting is authorized.
Our primary concern with the Final Rule is that, throughout its preamble, NPS grossly understates and mischaracterizes its legitimate authority to regulate hunting and trapping activities on national parklands in Alaska under ANILCA and the NPS Organic Act. This is a complete reversal from the well-crafted 2015 final rule where the governing NPS laws, regulations and policies were accurately presented. In doing so, NPS ignores decades of precedent, including legislation, legislative reports, written agreements and communication between NPS and the Alaska, as well as NPS and DOI rulemakings relevant to this issue dating back almost 40 years.
Furthermore, in straining to justify its questionable non-impairment determination (which is necessary under the NPS Organic Act for NPS to approve the final rule), NPS relies heavily on Alaska’s interpretation of “new harvest data from 2012–2016.” This data is an inadequate basis for decision making for several reasons elaborated below, including that it is unclear whether any of the data was collected within the national preserves. From 2012 through 2016, the NPS preserve areas were largely if not fully closed to the hunting practices at issue, meaning hunters are unlikely to have reported harvesting within the NPS boundaries during that period. This is an intuitive shortfall in the agency’s reasoning that renders the Final Rule arbitrary and capricious.
NPS’s repetitious references to the harvest data (i.e., that “there will be no meaningful adverse population-level impacts”) obscures the real reasons why the 2015 rule was published. The preamble to the 2015 rule was clear when it said (emphasis added): “However, neither the temporary restrictions nor this rule are based on particular wildlife population levels, and do not require the preparation of such scientific data. The basis of the compendium provisions, as well as the rule, is the NPS legal and policy framework, which has been communicated [to Alaska officials] verbally and in writing several times.”NPS’s failure to address comments on this significant issue, including August 23, 2018 comments of scientists and natural resource management professionals and decision makers with significant experience in Alaska, violated basic tenets of notice and comment rulemaking under the APA.
As a result, the Final Rule is an extraordinary and completely unjustified reversal from the previous NPS decision regarding management of sport hunting in Alaska’s national preserves. Moreover, this decision risks creating a harmful precedent that could have serious consequences affecting NPS authority to manage hunting, when authorized, in park units in many other states.
Legislative and Administrative History
An extensive legislative and administrative history documents that NPS has the clear authority to regulate uses of NPS managed lands, including sport hunting and trapping on national preserves in Alaska. We summarized this information in great detail in our September 2018 comment letter on the proposed rule and will briefly reiterate key points here.
Under ANILCA, Congress established the national preserves “as units of the National Park System [that] shall be administered by the Secretary under the laws governing the administration of such lands and under the provisions of this Act.” (emphasis added) (ANILCA § 201). The principal law governing the management of all park units of the National Park System is the NPS Organic Act (16 U.S.C. l 2 3, and 4), which consists of the Act of Aug. 25, 1916 (39 Stat. 535) and amendments thereto.
The Organic Act establishes NPS authority to regulate sport hunting and trapping when such activity is authorized by Congress by virtue of the following language:
The Secretary, acting through the Director of the National Park Service, shall promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which … is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. (54 U.S.C. § 100101(a) (emphasis added).)
Congress supplemented and clarified the above provisions through enactment of the General Authorities Act in 1970, and again through a 1978 amendment to that act referred to as the “Redwood amendment.” The key parts of these amendments are 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. [T]hese areas… are united through their inter-related purposes and resources into one national park system… preserved and managed for the benefit and inspiration of all the people of the United States. [T]he promotion and regulation of the various areas of the National Park System…shall be consistent with… the purpose established by section 1 of [the Organic Act]… to the common benefit of all the people of the United States. The authorization of activities [in these areas] … 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 U.S.C. § 1a-1) (emphasis added)
With regard to the “values and purposes” identified in the Redwoods amendment, NPS Management Policies 2006uses the term “resources and values” to refer to the attributes or characteristics of park units that are to be conserved. As described in §1.4.6 of the policies, “resources and values” that are to be conserved include (emphasis added):
- the park’s scenery, natural and historic objects, and wildlife, and the processes and conditions that sustain them, including, to the extent present in the park: the ecological, biological, and physical processes that created the park and continue to act upon it; scenic features; natural visibility, both in daytime and at night; natural landscapes; natural soundscapes and smells; water and air resources; soils; geological resources; paleontological resources; archeological resources; cultural landscapes; ethnographic resources; historic and prehistoric sites, structures, and objects; museum collections; and native plants and animals;
- appropriate opportunities to experience enjoyment of the above resources, to the extent that can be done without impairing them;
- the park’s role in contributing to the national dignity, the high public value and integrity, and the superlative environmental quality of the national park system, and the benefit and inspiration provided to the American people by the national park system; and
- any additional attributes encompassed by the specific values and purposes for which the park was established.
Building off the foundation of the NPS Organic Act’s conservation mandate and ANILCA § 201’s establishment clause for the natural preserves, Congress further reinforced that national preserves were to be managed as units of the National Park System in ANILCA §1313, which states (emphasis added):
[a] National Preserve in Alaska shall be administered and managed as a unit of the National Park System 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 applicable State and Federal law and regulation… [W]ithin 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 [i.e., wildlife], or public use and enjoyment. Except in emergencies…such restrictions…shall be put into effect only after consultation with the appropriate State agency having responsibility over hunting, fishing, and trapping activities.
The plain language of § 1313 gives the Secretary (and, by delegation of the Secretary’s authority, the NPS) the authority to restrict or prohibit hunting and trapping at certain locations and times based on the “reasons” or general criteria identified in this section. The “reasons” articulated – public safety, administration, plant and wildlife protection, or public use and enjoyment – relate directly to the “resources and values” that NPS is mandated to conserve under the Organic Act. In essence, the closure authority allows NPS to override State hunting regulations within the national preserve when NPS determines that preserve resources and values are at risk.
It is important to recognize that ANILCA § 1313 does not establish a specific threshold or “high bar” that must be met in order for NPS to exercise this authority. For example, it is neither mandated nor implied that wildlife impacts must result in “population-level wildlife impairment” before NPS can exercise its authority to restrict or prohibit hunting to protect wildlife.
Importantly, the legislative history of ANILCA reflects that Congress did NOT intend to modify the NPS Organic Act or its implementing policies. The congressional record reflects that the designation of “national preserves” in Alaska was for the specific and sole purpose of allowing sport hunting and commercial trapping, unlike areas designated as national parks. (126 Cong. Rec. H10549 (Nov. 12, 1980) (Statement of Rep. Udall).) In addressing wildlife harvest, the record also provided that “the Secretary shall manage National Park System units in Alaska to assure the optimum functioning of entire ecological systems in undisturbed natural habitats.” (126 Cong. Rec. H10549 (Nov. 12, 1980) (Statement of Rep. Udall).) This, in turn, 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.
The Senate Committee on Energy and Natural Resources recognized the potential for conflict between State and Federal wildlife management objectives and practices prior to the passage of ANILCA, stating: “[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.” (Senate Report No. 96-413, at page 171).
Potential conflicts in their respective wildlife management goals was also recognized early on by both the NPS and the State, and preserved in the 1982 Master Memorandum of Understanding (MMOU) between the Alaska Department of Fish and Game (ADF&G) and the NPS. That document states that the ADF&G agrees, among other things (emphasis added):
- To recognize the Service’s responsibility to conserve fish and wildlife and their habitat and regulate the human use on Service lands in Alaska, in accordance with the National Park Service Organic Act, ANILCA, and other applicable laws.
- To manage fish and resident wildlife populations in their natural species diversity on Service lands, recognizing that nonconsumptive use and appreciation by the visiting public is a primary factor.
- To recognize that National Park Service areas were established, in part, to “assure continuation of the natural process of biological succession” and “to maintain the environmental integrity of the natural features found in them.”
In brief, as directed by the explicit wording of ANICLA § 1313, activities related to taking of wildlife on national preserves remain subject to other applicable federal laws and regulations, including the Organic Act and NPS regulations. And the NPS has the clear authority to restrict or prohibit hunting activities for any of the “reasons,” including “administration” and “faunal protection,” cited in this section. Since 1981, NPS ANILCA-implementing regulations consistently assert the preemption of federal over state laws and regulations, for example, 36 CFR Part 13 (e.g., promulgated in 1981, § 13.21(d)(1) stated: “Hunting and trapping are allowed in national preserves in accordance with applicable Federal and non-conflicting State law and regulation.” (emphasis added). All subsequent revisions of Part 13 have used similar language.
By consistently referring to the applicability of both “Federal and State” laws and regulations regarding hunting in Alaska’s national preserves, ANILCA and subsequent NPS regulations recognized the inevitable tension that would occur from time to time between the State’s wildlife management objectives and those of the NPS. As a result, the clear operating principles laid out in these legal directives are:
- Hunting on national preserves must be consistent with NPS wildlife management policies and values;
- NPS has the clear authority to “fix times and locations where such [hunting] activities [allowed by the State] will be prohibited (i.e., the authority to limit or preclude the application of State hunting regulations); and
- If/when NPS exercises its authority to regulate hunting activities in the national preserves, “consultation” (not absolute “consistency”) is required between NPS and ADF&G before NPS implements a federal regulatory decision. In this case, the NPS has a long written record of consultation with the State and specifically with the Alaska Board of Game to achieve this goal.
In 1994, Alaska enacted its “Intensive Management” (IM) law and thereafter its implementing regulations. This action significantly changed the process and goals of State wildlife management, in part by favoring specific prey species (moose, caribou and deer) over specific predator species (including but not limited to bears and wolves) and expanded the gap in legal mandates between State and Federal agencies. Specifically, the IM 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).” (Alaska Stat. § 16.05.255 (e).) The IM designations listed in 5 Alaska Admin. Code § 92.106-108 lay out the implementation guidelines as well as the geographic areas where this is to apply. In the 2014 NPS Environmental Assessment (EA) for the 2015 rule, NPS mapped out the geographic areas to be included. Any viewer can see that almost every NPS preserve in Alaska is in whole or part included. This map has been removed from the 2019 revised EA.
The intent of the IM statute – that predator populations be manipulated or controlled in order to increase big game prey populations for human consumption – obviously conflicts with the NPS Organic Act, which specifically promotes conservation of natural processes. Under NPS management policies wildlife may only be managed for healthy populations, not to “achieve human consumptive use goals.” Further, “the Service does not engage in activities to reduce the number of native species for the purpose of increasing the number of harvest species (i.e. predator control), nor does the Service permit others to do so on land managed by the National Park Service.”
Similarly, the Acting Assistant Secretary for Fish and Wildlife and Parks unambiguously stated this perspective in a 2006 letter 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.” (emphasis added)
Since the enactment of the Intensive Management statute in 1994, Alaska has repeatedly enacted a variety of hunting and trapping regulations which seek to manipulate wildlife to accomplish intensive management goals and thereby dramatically changed how it “manages” wildlife. Intensive management is an institutionalized process as is mandated by existing state statutes in Alaska. Conflicts and concerns between NPS and Alaska regarding its “liberalized” predator hunting practices have since intensified and are well documented. Between 1994 and 2009, NPS wrote at least 15 letters to the Board of Game (BOG) regarding proposed State hunting regulations that conflicted with NPS policies. With few exceptions, the State has failed to yield to the NPS’s requests, which usually were to “exclude NPS lands” from the regulation(s) that were of concern.
During that period, some of these new rules that were authorized by the State, which were in clear conflict with NPS policies, included: taking any black bear, including cubs and sows with cubs, with artificial light at den sites; harvesting brown bears over bait; taking wolves and coyotes (including pups) during the denning season (between May 1 and August 9); taking swimming caribou from motorboats under power; taking black bears over bait; and, using dogs to hunt black bears.
By 2010, it became clear that extensive communication and consultation was not going to resolve the conflicts. In response, and under the authority of ANILCA § 1313, national preserve superintendents began restricting or prohibiting those few but critical State-authorized hunting practices that NPS deemed to be in conflict with NPS wildlife management objectives. New restrictions were articulated in the respective superintendent’s compendiums, such as the 2010 compendiums for Yukon-Charley Rivers National Preserve and Denali National Preserve; the 2012 compendium for Lake Clark National Preserve; the 2013 compendium for Denali National Preserve; and again in 2015 for Denali National Preserve.
In 2013 the NPS consolidated many of these issues and filed a formal Agenda Change Request (essentially a re-consider request) to the Alaska Board of Game for the purpose of resolving the issue using the State’s process and procedures. It was quickly rejected. Left with no other avenues of communication or appeal, NPS, in late 2014, issued a proposed rule to, among other things, prohibit in national preserves a limited number of State-sanctioned hunting practices that targeted predator species. The final rule, issued in 2015, prohibited the State-allowed hunting practices listed above.
Legal and Regulatory Background
In general, there is a long history of court-supported NPS preemption of state wildlife laws where those laws conflict with the NPS’s mission or regulations. In New Mexico State Game Commission v. Udall, the Tenth Circuit Court of Appeals found that the NPS had the authority to remove deer from Carlsbad Caverns National Park for research purposes without seeking a permit from the state as required under New Mexico law. Similarly, in United States v. Moore, the U.S. District Court for the Southern District of West Virginia, citing New Mexico State Game Commission, stated that “the power of the United States to regulate and protect wildlife living on the federally controlled property cannot be questioned.” In that case, the court found that the NPS had the authority to prevent the state from spraying pesticides to eliminate black flies in the New River Gorge National River because the NPS’s regulations prohibited the taking of wildlife—including black flies. A final example can be found in United States v. Brown, where Minnesota wanted to assert the dominance of state hunting laws on waters adjacent to and surrounded by Voyageurs National Park. Here, the court stated bluntly that “[w]here the State’s laws conflict with the . . . regulations of the National Park Service . . . the local laws … must recede.”
ANILCA established the national preserves as units of the National Park System to be managed in accordance with the NPS Organic Act and related policies. To better understand the Organic Act’s conservation mandate with regard to wildlife, one must turn to NPS Management Policies 2006, which provides guidance for interpreting the Act. Key sections relevant to this issue include (emphasis added):
Section 4.4.1 – General Principles for Managing Biological Resources, which states in part: “ 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 hunting and trapping 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.”
ANILCA makes it lawful to take wildlife for sport hunting and trapping purposes in preserves and for subsistence purposes in most parks, monuments and all preserves in Alaska. However, as described previously, under ANILCA the State’s authority to freely regulate hunting and trapping practices in national preserves is not absolute; and when conflicts arise there can be Federal constraint. Such hunting and trapping practices can only occur if not in conflict with “applicable State and Federal law and regulation,” which importantly includes the NPS Organic Act as an overarching directive. ANILCA’s remedy for addressing situations in which State hunting and trapping regulations conflict with NPS purposes and values is 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 [i.e., wildlife] protection, or public use and enjoyment.” (ANILCA § 1313) (emphasis added)
Based on the plain language of § 1313, the Secretary’s authority to restrict or prohibit State-authorized, hunting, fishing, or trapping practices in national preserves is broadly based on general “reasons” including public safety, administration, plant and wildlife protection, or public use and enjoyment. The statute sets no specific threshold or “high bar” for those “reasons.” For example, there is no requirement that “meaningful adverse population-level effects” (a novel phrase coined by NPS in the 2019 Revised EA and the 2019 FONSI) or “impairment” of preserve resources and values occur before the Secretary can restrict or prohibit such activities.
In contrast to the State’s significant change in game management objectives under the 1994 Intensive Management statute, the detailed instructions provided by Congress in ANILCA never contemplated the use of intensive wildlife management techniques as a means of favoring one species over another on federal lands. Instead, the statute makes clear that traditional NPS wildlife management objectives should prevail over conflicting State objectives.
This distinction between Federal and State authority to regulate hunting in national preserves is reflected in the original NPS ANILCA-implementing regulations, at 36 CFR Part 13, which were promulgated in 1981 as section 13.21(d) Hunting and Trapping, which stated as follows (emphasis added):
- Paragraph (d)(1) states: “Hunting and trapping are allowed in national preserves in accordance with applicable Federal and non-conflicting State law and regulation.”
- Paragraph (e) Closure Restrictions states: “The Superintendent may prohibit or restrict non-subsistence taking of fish or wildlife in accordance with § 13.30 of this chapter (see Closing Procedures). Except in emergency conditions, such restrictions shall only take effect after the Superintendent has consulted with the appropriate State agency having responsibility over fishing, hunting, or trapping and representatives of affected users.”
Similar language to paragraph (d)(1) above has been used in all subsequent revisions of the NPS Part 13 regulations since 1981. The current regulation is found at §13.42, Taking of wildlife in national preserves, which states: “(a) Hunting and trapping are allowed in national preserves in accordance with applicable Federal and non-conflicting State law and regulation.” (emphasis added.) And similar regulations regarding NPS authority to restrict or prohibit hunting activities remain in effect to this day, albeit with more detailed notification requirements, at § 13.50(e) Restrictions on taking fish and wildlife.
Since 1981, NPS has judiciously exercised its regulatory authority to prohibit or restrict State-authorized hunting practices that are in conflict with Federal wildlife management policies and objectives under the Organic Act. In addition to the 2015 final rule, we cite the following examples:
- In 1981, in the initial ANILCA-implementing regulations promulgated by NPS, NPS established a definition of “trap” at 36 CFR § 13.1(u) that did not include a “firearm” as a “trap” allowed by the State. Under the use of a trapping license, the State’s regulation allowed, and still does, an individual with only a trapping license to use a firearm to take a free-ranging “furbearer.” In effect, the NPS rule prohibited that specific trapping activity, which was allowed by the State. This longstanding NPS definition still excludes “firearm” from the definition of “trap.” See 36 CFR § 13.1.
- In 1994 NPS promulgated regulations at 36 CFR § 13.42(d) to prohibit use of a firearm or other weapon for “same-day-airborne” take for all species (i.e., shooting wildlife on the same day that the hunter/trapper has flown into a park, monument or preserve area), a practice otherwise allowed to this day, in some areas for some species, under State regulations. This NPS prohibition remains in effect today at 36 CFR § 42(d).
- In 2010 NPS superintendents at Yukon-Charley Rivers National Preserve and Denali National Preserve used their closure authority to prohibit certain State-authorized hunting practices (i.e., in general, the prohibited practices that were specified in the 2015 final rule) from occurring in these preserves. The prohibitions were documented in the respective preserve’s compendium.
- In 2012 the superintendent at Lake Clark National Preserve prohibited such practices in the preserve’s compendium.
- In 2013 the superintendent at Denali National Preserve prohibited such practices in the preserve’s compendium.
- In 2015 the superintendent at Denali National Preserve prohibited such practices in the preserve’s compendium.
In addition to NPS regulations relevant to this discussion, in 2004 the Department of the Interior (DOI) updated its regulations at 43 CFR §24 regarding state-federal relationships. Specifically, section 24.4(f) applies to units of the National Park System. It states, in part (emphasis added):
Specific enabling legislation has authorized limited hunting, trapping or fishing activity within certain areas of the system…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.
In sum, it is clear that under applicable federal laws, regulations, and management policies summarized above:
- NPS may only adopt “non-conflicting” State hunting regulations in national preserves;
- NPS has the authority to restrict or prohibit State-authorized hunting activities that conflict with NPS mandates; and
- NPS decisions to restrict or prohibit conflicting State-authorized hunting activities must be based on “reasons of public safety, administration, floral and faunal [i.e., wildlife] protection, or public use and enjoyment.” A finding of “impairment” is not required in order for NPS to restrict or prohibit specific hunting practices. (emphasis added)
As a result, in 2015, after decades of communication to highlight differing legal mandates, NPS made a reasoned decision, based on the authorities discussed above, to prohibit a very limited number of Alaska-authorized hunting practices that it deemed to be in conflict with NPS wildlife management objectives under the Organic Act. That was not an arbitrary and capricious decision; rather, it was the rational outcome of many years of communications from NPS to the Board of Game expressing concerns about those specific practices (with the Board largely brushing off concerns).
It is important to note that the scope of the 2015 rule is extremely limited in the number of State sport hunting and trapping regulations that it prohibits. It does not affect ANILCA Title VIII subsistence harvest; nor does it broadly affect sport hunting or trapping. The overwhelming majority of State sport hunting and trapping regulations continue to apply in Alaska’s national preserves because they are reasonably consistent with applicable federal law and policy.
Given the background information summarized above, we have the following primary concerns about the NPS justification for approving the new final rule.
- NPS justifies its final rule on a novel interpretation of ANILCA that the State has full authority to manage hunting in national preserves. In doing so, NPS undercuts its own legitimate and lawful authority to restrict or prohibit State-authorized hunting practices in the national preserves and abandons NPS’s obligation under the Organic Act to protect preserve resources and values.
As summarized earlier in our letter, ANICLA implicitly gave ADF&G primary responsibility for determining sport hunting regulations in national preserves; however, the State’s authority to regulate sport hunting and trapping is not absolute. ANILCA and its subsequent implementing regulations mandate that NPS adopt only those State sport hunting and trapping regulations that are non-conflicting with applicable Federal directives. As an apparent remedy for resolving instances in which State hunting regulations are in conflict with park unit “values and purposes,” ANILCA explicitly reserves the authority of the Secretary of the Interior within national preserves to “designate zones where and periods when no hunting, fishing, trapping, or entry may be permitted for reasons of public safety, administration, floral and faunal [i.e., wildlife] protection, or public use and enjoyment.” (ANILCA § 1313) (emphasis added).
Yet in numerous locations within the preamble to the final rule (Federal Register Vol. 85, No. 111 (June 9, 2020) (FR)), NPS inexplicably indicates or implies that ANILCA mandates NPS to accept and allow all State-authorized hunting practices, even ones that are in clear conflict with NPS wildlife management objectives and resource values. We will list just a few examples of these mischaracterizations (emphasis added):
- (FR p. 35181) “These changes are consistent with Federal law providing for State management of hunting and trappingin Alaska preserves.”)
Comment: This is a grossly incomplete statement implying that applicable “Federal law” (with no citation) fully cedes management of hunting and trapping on national preserves to the State without constraint. In reality, under ANILCA the relationship between the State’s authority to manage sport hunting and trapping and NPS’s authority to manage “activities” is a “checks and balances” system that provides Federal authority under § 1313 to override State decisions on hunting and trapping regulations via imposition of area closures and restrictions. As described in ANILCA and its implementing regulations, State hunting and trapping regulations must be “non-conflicting” with Federal law and regulation in order to be adopted.
- (FR p. 35182) “[T]he NPS has revisited its approach regarding the authorizations that are the subject of this rule, focusing on the statutory scheme that requires the management of hunting and trapping in preserves under State lawand reserves limited closure authority to NPS for enumerated purposes.”
Comment: As we have discussed previously, under ANILCA, the “statutory requirement” that hunting and trapping in preserves must (only) be managed “under State law” is not as absolute as NPS indicates. NPS’s “limited closure authority for enumerated purposes” is much broader than NPS indicates. It actually is quite broad as long as it is exercised “for reasons of public safety, administration, floral and faunal [i.e., wildlife] protection, or public use and enjoyment.”
- (FR p. 35182)“As mandated by [ANILCA], the NPS has consistently deferred to State laws, regulations, and management of hunting and trapping… in national preserves since their establishment in 1980. This rule acknowledges this longstanding deference to State law required by statute in removing the hunting and trapping prohibitions identified in this rule.”
Comment: As discussed in the “Background” section above, ANILCA’s mandate regarding State supremacy for wildlife management in national preserves is not as absolute as indicated by NPS. While it is true that there is a legal hierarchy of NPS deference to State hunting and trapping regulations, adoption of State regulations in national preserve is clearly limited to non-conflicting regulations. Further, ANILCA § 1313 gives NPS broad authority to restrict or prohibit State hunting and trapping regulations in national preserves for a variety of general “reasons.” It would be more accurate to say that NPS has judiciously exercised that authority on a limited number of occasions.
- (FR p. 35185) NPS response to comment # 3: “ANILCA states that ‘‘the taking of fish and wildlife for sport purposes and subsistence uses, and trapping shall be allowed in a national preserve under applicable State and Federal law and regulation.’’
Comment: In numerous locations, the preamble cites the wording above (i.e., “under applicable State and Federal law and regulation”).When read in the context of the NPS narrative, however, NPS’s discussion consistently but erroneously implies or indicates that the “mandate” is for NPS to defer to State law and regulation regardless of conflict with Federal law and regulation. As described previously, NPS is offering a novel and erroneous interpretation, perhaps a never-before-seen rationale except in comments to the NPS from the State of Alaska, that ANILCA’s “mandate” is neither valid nor consistent with the 40-year administrative history of the Act’s implementation. Furthermore, NPS ANILCA implementing regulations since 1981 have clarified that hunting is to be managed in accordance with Federal law and regulation and non-conflicting State law and regulation. As defined by law and court decisions, deference is given to a federal agency when interpreting federal law effecting federal land. NPS giving away 100% of the authority to the State of Alaska turns that long precedent upside down.
- (FR p. 35185) NPS response to comment # 3: “In ANILCA Sec. 1314, regarding the ‘Taking of Fish and Wildlife,’ Congress expressly retained the status quo regarding the respective responsibilities and authorities of ‘the State of Alaska for management of fish and wildlife on the public lands’ and ‘the Secretary over the management of the public lands.’ 16 U.S.C. 3202”
Comment: Taken in isolation of other provisions of ANILCA (such as § 201 and § 1313), NPS again implies that the State has unconstrained authority to manage fish and wildlife in national preserves. As we have already demonstrated, this characterization is misleading and, in fact, incorrect as the State’s authority is clearly constrained by other provisions of ANILCA (e.g., § 1313; § 1314(c)). In addition, NPS’s ANILCA implementing regulations since 1981 limit the implementation of State hunting, fishing, and trapping regulations to only those that do not conflict with Federal law and regulation. And § 1313 gives the NPS the authority to restrict or prohibit State-approved hunting activities in national preserves based on a variety of “reasons.”
We could list many similar examples of misleading characterizations of the respective roles and authorities of NPS and the State with regard to wildlife management in the national preserves. Suffice it to say that the above NPS statements are representative of NPS’s fatally incomplete explanations regarding applicable legal mandates.
Again, the key point … NPS’s novel interpretation that the State has unconstrained and absolute authority to determine hunting regulations in national preserves is not only invalid, it clearly undercuts NPS’s legitimate authority to prohibit or restrict conflicting State hunting regulations in Alaska national preserves for a variety of general “reasons” articulated in ANILCA § 1313.
Also of concern, as described in the preamble, NPS bases its rulemaking reversal in large part on the direction provided by two Secretary’s Order # 3347 and # 3356. As described on the “NPS Fundamentals: Law and Policy” website under the heading of “General Hierarchy of Authorities,” Interior Department Policies (such as secretary’s orders) have a lower level of authority than a federal law or regulation. Consistent with basic tenets of federal administrative law, a “departmental policy” does not and cannot supersede a “law” or a “regulation.” In plain terms, the plain terms the secretary’s orders cannot override statutory mandates in the NPS Organic Act or ANILCA.
The experience of our membership has been that there are frequently differences between NPS wildlife management policies and objectives and those of the respective state agencies engaged in cooperative wildlife management programs with the NPS. However, NPS’s authority to regulate, restrict or prohibit certain hunting activities when state regulations conflict with NPS mandates is well established. Throughout the country, there are numerous examples of park areas where hunting is authorized and where superintendents routinely institute hunting restrictions that differ in some form or another from the respective state’s regulations.
To ensure the continued effectiveness of all cooperative wildlife management programs across the System, it is essential that NPS not needlessly compromise its legitimate authority by establishing such a precedent in Alaska.
- NPS bases its NEPA review (revised EA and FONSI) on the simplistic and indefensible rationale that, because there will be “no meaningful adverse population-level impacts” to wildlife, the rule adequately protects resources and values in the national preserves and is therefore consistent with the Organic Act’s conservation mandate and related NPS management policies.
We have multiple concerns about the NPS NEPA review and its primary focus on State wildlife management mandates as opposed to NPS wildlife mandates as well as the repeated emphasis on “population-level impacts.” The NPS, in the 2015 rule, states plainly that population level impacts were not the issue. We believe that is still the case. Our primary concern is not the “body count;” rather, our concern has always been about preservation of the laws, policies, and values of the NPS in the national preserves in Alaska.
NPS’s bizarre focus on “body count” as the primary environmental impact of concern is problematic for a number of reasons:
First, it ignores the NPS obligation under the Organic Act to manage and conserve a broad spectrum of park resources and values described in NPS Management Policies § 1.4.6 (see p. 3 of this letter), not just wildlife.
Second, NPS relies heavily on the State’s interpretation of “new harvest data from 2012-2016.” This data is summarized rather than fully presented in the Environmental Assessment. There is little indication the data was analyzed; the EA is clear that the harvests counted may not have even occurred in the national preserves, only in the larger geographic unit of the State’s GMU; and finally the dates of harvest do not align with the 2015 NPS closure dates in all instances. The State’s 2012-2016 data is obviously flawed – anecdotal, incomplete, and lacking analysis and we think scientifically weak; and it does not appear this “new information” was adequately disclosed or identified to the public in order to solicit public comment. The key flaw is that the hunting practices being evaluated in the EA were typically prohibited in national preserves during that period, either by NPS superintendent compendium closures or by the 2015 final rule. In other words, the State’s data was not likely collected in areas under NPS management; and the assessment of potential impacts of these hunting practices, if implemented in national preserves, is speculative at best. In brief, the data may not be worthy of being a dot on a trend line given its inadequacies.
To be frank, from our point of view, knowing the lengthy history of ADF&G’s refusal to address NPS’s opposition to the State’s “liberalized” predator hunting regulations, the State does not appear to be an “honest broker” in this process. Using this 2012-2016 data, as presented, is a key flaw in the validity of the 2019 revised EA. It would have been prudent for NPS to seek an objective analysis of the “new harvest data” and presenting it fully before using it as the primary basis for ruling out the possibility of “meaningful” impacts to a spectrum of preserve resources and values.
Third, in preparing the revised EA, NPS largely failed to consider and address in any meaningful way the information needs and analysis recommended by numerous scientists and wildlife management professionals who submitted a group comment letter dated August 23, 2018 on the NPS proposed rule. See Attachment A. The letter was signed by 110 persons, including 65 individuals with Ph.D.s and 33 with MS, JD or equivalent advanced academic degree. All signers have current or former careers in natural resource management, conservation and education, and many are experts in large carnivore management. The signers include a former Alaska Governor (Knowles) and Lt. Governor (Ulmer) who also have expertise in natural resource management. Of the signers, 17 are retired staff with the ADF&G (including a retired Commissioner—Rue—and a retired Director of the Division of Wildlife Conservation—Pamplin), 10 are retired staff with the National Park Service, and 20 are current or former staff of Department of the Interior, Department of Agriculture, or Canadian natural resource agencies. The signers include 46 individuals who were current or former resource management or research professionals in Alaska including 30 who are current Alaskan residents. Signers include 17 individuals with international expertise in large carnivore management ranging geographically from Europe to Asia.
This group of experts made the following recommendations, including recommendations that NPS address particular information and analysis in the EA for the rule:
- Address the role of large carnivores (apex predators) in ecosystem function based on a review of the literature in Alaska and elsewhere;
- The proposed rule states that Alaska “asserts” that their regulations are not “predator control” but the 2015 NPS rule clearly recognizes that predator reduction to increase ungulates is their intent. The EA must clearly recognize that this distinction is based on Alaska narrow definition of “predator control” and justify how predator reduction regulations are consistent with NPS policies and guidelines.
- The scientific (non-anecdotal) bases used to inform and justify the hunting and trapping regulations already adopted or proposed for NPS lands in Alaska;
- The process NPS will use to document changes in harvest numbers of the large carnivore species within the borders of the NPS units where the hunting regulations apply;
- The EA should explain how the proposed new rule is in conformance with NPS law, regulation, and policy and why the findings of the existing 2015 rule with respect to these issues are now found to be incorrect making a new rule necessary.
- A comparison of information available on mortalities of large carnivore species in NPS units in the lower 48 states with the information available in Alaska and explanation of how the disparity in available information is justifiable.
Fourth, despite the recommendations of the scientists described above, continuing inadequacies in the State’s wildlife harvest monitoring system are well documented, including in a recent peer reviewed study that constitutes significant new information bearing on the NPS rule and its environmental impacts. See Attachment B. That study, dated May 22, 2019, raises the following significant concerns with Alaska’s large predator management and wildlife harvest monitoring system and requires supplemental analysis pursuant to NEPA:
- Large carnivore management in Alaska …occurs without effective monitoring programs designed to scientifically evaluate impacts on predator populations.
- The Alaska Intensive Management efforts are occurring without rigorously collected data on the impacts of these management practices on large carnivores and ecosystems
- The state of Alaska also should be candid with the public about the absence of science supporting the efficacy of predator control programs to achieve established objectives with regard to ungulate harvests instead of making unsupported claims of “success” for wolf reduction efforts in publicly distributed booklets about Intensive Management.
- Mechanisms and funding must be in place to ensure science-based management that includes adequate monitoring and research of predator–prey relationships and trends.
Fifth, NPS relies on the same rationalization, that there will be “no meaningful adverse population-level impacts” to wildlife, to conclude that there would be no significant impacts in every single impact topic evaluated in Chapter 3 of the revised EA. Some version of the “body count” explanation is used in every section of Chapter 3, including: § 3.2 Wildlife; § 3.3 Federal Subsistence Use; § 3.4 Public Use and Experience; and § 3.5 Wilderness Character. In taking this approach, NPS substantially fails to take a “hard look” beyond its simplistic quantitative conclusion that the “body count” will be low. In our decades of experience assessing potential effects of proposed actions, qualitative impacts can be of greater importance to consider than simplistic numerical impacts, particularly when assessing adverse effects to park “values” that are inherently experiential in nature, such as public use and enjoyment and wilderness character.
In brief, we have significant concerns about the adequacy of the State’s harvest data and the integrity of the NPS’s environmental analysis. Our concerns are elevated by a recently published study on the use and misuse of science in federal policy development. That study, dated April 23, 2020, found that “federal scientists in some agencies perceived the influence of political officials and the absence of leadership with needed scientific expertise as major barriers to fulfilling their agencies’ science-based mission.” Among the department scientists with the most significant concerns about their agency’s commitment to sound science-based decision making, “[p]erceived loss of integrity in science was greater at the DOI (emphasis added) and EPA where federal scientists ranked incompetent and untrustworthy leadership as top barriers to science-based decision-making.” Sadly, NPS basing its Final Rule decision on the State’s questionable data does nothing to dispel our concerns.
Again, NPS’s superficial impact analysis is based largely on the “body count,” and relies heavily on State, rather than NPS, legal mandates for wildlife management. The net result is that NPS has failed to take a “hard look” in the revised EA at the potential impacts to preserve resources and values as required by NEPA. NPS also failed to include a list of preparers in the document, which is unusual for NPS NEPA documents. In contrast, the 2014 EA that accompanied the 2015 rule contained a well-reasoned explanation of the action, a proper analysis of potential impacts, and it identified the individuals who prepared the document.
Last but not least, NPS’s weakly justified reversal of its 2015 final rule appears to violate Section 706(2)(A) of the Administrative Procedure Act (APA), which instructs courts reviewing federal regulation to invalidate any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
It is important to remember that Alaska is the last place in the United States, if not the world, where large intact ecosystems have been designated for protection, so that they function naturally with little to no direct influence from man. ANILCA’s grand vision was to preserve and protect these vast pristine areas for their inherent natural value for the benefit of all Americans, both current and future generations. Alaska is our nation’s last best chance to ever achieve such a lofty goal.
ANILCA’s foundational mandate with regard to the national preserves is that the preserves be managed as units of the National Park System under the NPS Organic Act. Those of us who have served to protect and manage the magnificent resources and values of the preserves are keenly aware of the complexities and nuances of this issue. Many of us dealt with it daily during our years in Alaska. We are keenly aware of the 40 years of legislative and administrative history that firmly established NPS’s role and obligation under ANILCA to work cooperatively with the State to manage preserve wildlife.
We also came to understand the challenges of advocating for national parks, monuments and preserves in Alaska, and came to appreciate the “checks and balances” built into the fabric of ANILCA’s mandates for national preserves. Now, with one stroke of the pen, NPS has seriously eroded that longstanding and delicate balance of authority, which inevitably compromises the same kind of working relationships between the NPS and state fish and game departments wherever hunting in NPS areas is authorized in the United States.
As former practitioners of ANILCA’s mandates for managing national preserves, we are utterly appalled that NPS has adopted this Final Rule, which is so contrary to the Service’s conservation mandate. We appeal to your considerable knowledge and understanding of the National Park Service mission; and ask that you reconsider the profoundly faulty reasoning, described above as Primary Concerns # 1 and 2, that NPS relies upon to “justify” this questionable decision.
In closing and to reiterate, for all the reasons described above, we request that NPS abandon implementation of the Final Rule in its entirety. At the very least, NPS should suspend the effective date of the Final Rule and open a new public comment period so that: a) the “new harvest data” that NPS relies upon so heavily in its decision can be fully presented to the public for comment; and b) NPS can revise and more accurately describe its authority under the NPS Organic Act and ANILCA to regulate hunting in Alaska’s national preserves as it did in the 2015 rule. Promulgation of this Final Rule is legally deficient under NEPA for failure to consider significant new information regarding Alaska’s large predator management and wildlife harvest monitoring system, as well as the APA for reliance on irrelevant and inaccurate data, and failure to adequately consider and address timely submitted expert comments on the agency’s proposal.
We thank you for your consideration of our concerns.
Paul R. Anderson
Former Superintendent, Denali National Park & Preserve
Former Deputy Regional Director, Alaska Region
Former Alaska Regional Director, Alaska Region
Gilbert E. Blinn
Former Superintendent, Katmai National Park & Preserve
James M. Brady
Former Superintendent, Glacier Bay National Park
Paul F. Haertel
Former Superintendent, Lake Clark National Park & Preserve
Former Associate Regional Director of Resources, Alaska Region
John (Jack) Morehead
Former Regional Director, Alaska Region
Richard H. Martin
Former Superintendent, Wrangell-St. Elias National Park & Preserve
Gates of the Arctic National Park & Preserve
Yukon-Charley Rivers National Preserve
Former Superintendent, Katmai National Park & Preserve
Former Superintendent, Lake Clark National Park & Preserves
Richard G. Ring
Former Superintendent, Gates of the Arctic National Park & Preserve
Roger J. Siglin
Former Superintendent, Gates of The Arctic National Park & Preserve
Former Superintendent, Glacier Bay National Park
On behalf of:
Coalition to Protect America’s National Parks
Philip A. Francis, Jr., Chair
Coalition to Protect America’s National Parks
1346 4th Street SE #908, Washington, DC 20003
cc: David Vela, Acting Director, National Park Service
Donald Striker, Acting Director, Alaska Region, National Park Service
 16 U.S.C. §§ 410hh-3233, 43 U.S.C. §§ 1602-1782 (1980), https://www.nps.gov/locations/alaska/upload/ANILCA-Electronic-Version.PDF
 85 Fed. Reg. 35181 (June 9, 2020) (to be codified at 36 CFR pt. 13) https://www.federalregister.gov/documents/2020/06/09/2020-10877/alaska-hunting-and-trapping-in-national-preserves
 See National Park Service, Environmental Assessment, Sport Hunting and Trapping in National Preserves in Alaska (August 2018) at 6, FN 3 (“3 State data show how many black bears were taken per GMU, but not whether bears were taken in national preserve…”)
 80 Fed. Reg. 64,325, 64331 (Oct. 23, 2015).
 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1997); Thompson v. Clark, 741 F.2d 401, 408-09 (D.C. Cir. 1984); see also N.C. Growers’ Ass’n v. United Farm Workers, 702 F.3d 755, 769 (4th Cir. 2012) (“[D]uring notice and comment proceedings, the agency is obligated to identify and respond to relevant, significant issues raised during those proceedings.” (citing South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 885-86 (4th Cir. 1983)).
 NPS, Management Policies 2006: The Guide to Managing the National Park System (Aug. 31, 2006), https://www.nps.gov/policy/mp/policies.html#_Toc157232612
 Memorandum of Understanding, supra note 4.
 Id. (emphasis added).
 46 Fed. Reg. 31854 (June 17, 1981).
 See 16 U.S.C. § 3125 (2000).
 Alaska Stat. § 16.05.255(e) (2006).
 NPS Management Policies 2006, Harvest of Plants and Animals by the Public, at § 4.43.
 USDOI Office of the Secretary, letter to Gerald Nicholia (Dec. 19, 2006).
 “Because the NPS Organic Act does not defer to state wildlife law, the Park Service is not constrained by that law.” Robert L. Glickman & George Cameron Coggins, Modern Public Land Law in a Nutshell 260 (Thomson West) (2001). See also R. Gerald Wright, Wildlife Management in National Parks: Questions in Search of Answers, 9
Ecological Applications 30, 32 (1999) (“From its beginning, the NPS has maintained exclusive jurisdiction over the management of wildlife in parks. And, although legally contested by individual state game departments, court decisions have uniformly supported the right of the NPS to own and manage wildlife on its lands.”).
 410 F.2d 1197, 1199 (10th Cir. 1969).
 640 F. Supp. 164, 166 (S.D. W. Va. 1986); see also Organized Fishermen of Fla. v. Andrus, 488 F. Supp. 1351, 1355 (S.D. Fla. 1980) (“[T]here is no question that the complete power Congress has over public lands under the Property Clause of the Constitution . . . necessarily includes the power to regulate and protect the wildlife living there.”).
 431 F. Supp. 56, 59 (D. Minn. 1976).
 Id. at 63; see also Kleppe v. New Mexico, 426 U.S. 529, 541 (1976) (holding that the argument that Congress lacks power to administer public lands contrary to state law without state consent is “without merit”).
 16 U.S.C. §§ 3126(a), 3202(c)(1) (2000).
 46 Fed. Reg. 31854 (June 17, 1981).
 Gretchen T. Goldman, Perceived losses of scientific integrity under the Trump administration: A survey of federal scientists, PLoS ONE (Apr. 23, 2020), 15(4): e0231929, https://doi.org/10.1371/journal.pone.0231929.