Coalition Comments on Proposed Rule: Hunting and Trapping in National Preserves in Alaska

 

 

March 8, 2023

 

Sarah Creachbaum, Regional Director

National Park Service, Alaska Regional Office

240 West 5th Avenue

Anchorage, AK 99501

 

Subject:  Proposed Rule: Hunting and Trapping in National Preserves in Alaska

 

Dear Regional Director Creachbaum:

 

I am writing to you on behalf of the Coalition to Protect America’s National Parks (Coalition). Our membership is comprised of over 2,300 National Park Service (NPS) retirees, former and current employees, and NPS volunteers, who collectively represent more than 45,000 years of national park management and stewardship experience. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. Our membership includes former NPS directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters. 

 

We also count among our members many former NPS employees of Alaska national parks, monuments and preserves and the Alaska Regional Office, as well as 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 under the Alaska National Interest Lands Conservation Act (ANILCA).

 

We offer the following comments on the proposed rule to amend the NPS regulations for sport hunting and trapping in national preserves in Alaska, which is described in Federal Register Notice 2023-00142 at: https://www.federalregister.gov/documents/2023/01/09/2023-00142/alaska-hunting-and-trapping-in-national-preserves.

 

 

The Coalition supports sport and subsistence hunting and trapping in national preserves in Alaska (hereafter “Preserves”) consistent with applicable authorities and policies, including the NPS Organic Act, its amendments, and ANILCA. These statutes allow NPS to adopt State sport hunting regulations, but only to the extent that they are not in conflict with applicable NPS laws, regulations, and policies. For example, ANILCA, 16 U.S.C. 3201, states that the 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, the term “subsistence” refers only to subsistence activities authorized by Title VIII of ANILCA  

 

 

While the “Supplementary Information: Background” section of the preamble to the proposed rule provides a good description of the 2015 and the 2020 rules respectively, it provides a very sparse explanation of guidance provided in ANILCA with regard to hunting in national preserves and even less information regarding the relevance of the NPS Organic Act of 1916 to this issue. Both statutes provide important context for discussion of the proposed rule; so we offer the following background information to be included in the administrative record.

 

1.  NPS Organic Act of 1916 – The Organic Act established the National Park Service, described the fundamental purpose of “parks,” and provides the legal basis for the agency’s “conservation mandate.” The Act also provides the basis for many of the policies in NPS Management Policies 2006¹ https://www.nps.gov/subjects/policy/upload/MP_2006.pdf that are particularly relevant to NPS management of hunting and trapping in Alaska’s national preserves. These policies include:

 

 

The most important statutory directive for the National Park Service is provided by interrelated provisions of the NPS Organic Act of 1916 and the NPS General Authorities Act of 1970, including amendments to the latter law enacted in 1978. The key management-related provision of the Organic Act is as follows: 

 

[The National Park Service] shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified… by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is 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. (16 USC 1) 

 

Congress supplemented and clarified these provisions through enactment of the General Authorities Act in 1970, 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… The authorization of activities [in parks] 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)

 

We note that both the General Authorities Act of 1970 and the 1978 Redwoods amendment predate the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) and, therefore, certainly apply to NPS’s legal mandate for the management of Preserves in Alaska. In addition, the term “Park” is used generically in the Management Policies to refer to any/all National Park System “units,” which includes “Preserves” in Alaska. 

 

b. NPS Management Policies Section 1.4.3, titled “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 and providing for enjoyment of them, conservation is to be predominant.” (Emphasis added)

 

c. NPS Management Policies Section 1.4.3.1, titled “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 specifically 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.” (Emphasis added)

 

d. NPS Management Policies Section 1.4.4, titled “The Prohibition on Impairment of Park Resources and Values,” which states in part: “While Congress has given the Service the management discretion to allow impacts within parks, that discretion is limited by the statutory requirement (generally enforceable by the federal courts) that the Park Service must leave park resources and values unimpaired unless a particular law directly and specifically provides otherwise. This, the cornerstone of the Organic Act, establishes the primary responsibility of the National Park Service. It ensures that park resources and values will continue to exist in a condition that will allow the American people to have present and future opportunities for enjoyment of them.” (Emphasis added)

 

e. NPS Management Policies Section 4.4.1, titled “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.”

 

f. NPS Management Policies Section 4.4.3, titled “Harvest of Plants and Animals by the Public,” which states in part: “Public harvest of designated species of plants and animals, or their components, may be 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 specifically 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.” (Emphasis added)

 

2.  Alaska National Interest Lands Conservation Act of 1980 (ANILCA)²https://www.nps.gov/locations/alaska/upload/anilca-electronic-version.pdf   – In enacting ANILCA in 1980, Congress’s stated purpose was to establish in Alaska various conservation system units that contain nationally significant values, including units (Parks, Monuments and Preserves) of the National Park System, in order to preserve them “for the benefit, use, education, and inspiration of present and future generations[.]” 16 U.S.C. 3101(a). Included among the express purposes in ANILCA are preservation of wildlife, wilderness values, and natural undisturbed, unaltered ecosystems while allowing for recreational opportunities, including sport hunting. 16 U.S.C. 3101(a)-(c) [ANILCA §101 (a-c)]. (Emphasis added)

 

It is worth noting that only two years prior, in 1978, Congress had amended the NPS’s responsibilities with the Redwood National Park Expansion Act, which states in part (emphasis added to underlined sections): 

 

Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. 92 Stat 166 (1978) 

 

As described by Julie Lurman & Sanford P. Rabinowitch in “Preemption of State Wildlife Law in Alaska: Where, When, and Why,” Alaska Law Review 145-172 (2007)3 (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 and Charley …watersheds.” Alaska National Interest Lands, Report of the Committee on Energy and Natural Resources, United States Senate, Report No. 96-413 at page 137 (hereafter Senate Report). Further, the congressional designation of “national preserves” in Alaska is for the specific and sole purpose of allowing sport hunting and commercial trapping, unlike areas designated as national parks or monuments. 126 Cong. Rec. H10549 (Nov. 12, 1980) (Statement of Rep. Udall). 16 U.S.C. 3201 (ANILCA Sec. 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. As described in the Senate Report, at pages 232-331, “[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.” Furthermore, 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 the various Preserves that were established by ANILCA, which include the protection of populations of fish and wildlife, including specific references to predators such as brown/grizzly bears and wolves and to prey such as moose and caribou. 

 

More specifically, ANILCA Title II clearly describes the congressional intent for these Preserve units: 

 

ANILCA § 201 (1) Aniakchak National Preserve (ANIA) “shall be managed for the following purposes … and assure continuation of the natural process of biological  succession; to protect habitat for and populations of fish and wildlife, including but not limited to brown/grizzly bears, moose, caribou…”

 

ANILCA § 201 (2) Bering Land Bridge National Preserve (BELA) ““shall be managed for the following purposes…to protect habitat for and populations of fish and wildlife, including… but not limited to brown/grizzly bears, moose, and wolves…”

 

ANILCA § 201 (4) Gates of the Arctic National Park and Preserve (GAAR) “Shall be managed… and the natural environmental integrity… and to protect habitat for and populations of, fish and wildlife, including but not limited to caribou, grizzly bears…moose, wolves …”

 

ANILCA § 201 (7) Lake Clark National Park and Preserve (LACL) “Shall be managed…to protect the watershed necessary for perpetuation of the red salmon fishery in Bristol Bay, to maintain unimpaired the scenic beauty and quality of portions of the Alaska Range and the Aleutian Range…; and to protect habitat for and populations of fish and wildlife including but not limited to caribou, Dall sheep, brown/grizzly bears…”

 

ANILCA § 201 (8) Noatak National Preserve (NOAT) “Shall be managed…To maintain the environmental integrity of the Noatak River and adjacent uplands…to assure the continuation of …biological processes unimpaired by adverse human activity, to protect habitat for and populations of wildlife…caribou, grizzly bears, Dall sheep, moose, wolves…and in a manner consistent with the foregoing, to provide opportunities for scientific research.”

 

ANILCA § 201 (9) Wrangell-St. Elias National Park and Preserve (WRST) “Shall be managed to maintain … lakes, streams, valleys, and coastal landscapes in their natural state; to protect habitat for and populations of fish and wildlife…caribou, brown/grizzly bears, Dall sheep, moose, wolves,…” 

 

ANILCA § 201 (10) Yukon-Charley Rivers National Preserve (YUCH) “Shall be managed…To maintain the environmental integrity of the entire Charley River basin, including streams, lakes…in its undeveloped natural condition…to protect habitat for and populations of fish and wildlife, including but not limited to peregrine falcons…caribou, Dall sheep, grizzly bears, and wolves…”

 

ANILCA § 202 (1) Glacier Bay Park and Preserve – (GLBA) “Shall be managed …to protect a segment of the Alsek River, fish and wildlife habitats and migration routes…”

 

ANILCA § 202 (2) Katmai National Park and Preserve (KATM) “Shall be managed…to protect habitat for and populations of fish and wildlife…high concentrations of brown/grizzly bears and their denning areas…”

 

ANILCA § 202 (3) Denali National Park and Preserve (DENA) “Shall be managed…to protect habitat for and populations of fish and wildlife…brown /grizzly bears, moose, caribou, Dall sheep, wolves…”

 

After ANILCA’s passage, activities related to taking wildlife remain subject to other federal laws, including the mandate of the NPS Organic Act (54 U.S.C. 100101), which as stated previously is “to conserve the scenery, natural and historic objects, and wild life” in units of the National Park System and to provide for visitor enjoyment of the same for this and future generations. Implementing the NPS Organic Act requires the NPS to protect natural ecosystems and processes, including the natural abundances, diversities, distributions, densities, age-class distributions, populations, habitats, genetics, and behaviors of wildlife.  

 

Additionally, NPS regulation 36 CFR 13.42 (a), which applies specifically to Alaska, directs that “Hunting and trapping are allowed in national preserves in accordance with applicable Federal and non-conflicting State law and regulation” (emphasis added). The NPS demonstrated in writing its concern with State management actions as early as 1982 with the Master Memorandum of Understanding between the NPS and the Alaska Department of Fish & Game. As early as 1984 Alaska Regional Director Contor expressed such concerns in testimony to the Alaska Board of Game on related wildlife management issues when he spoke about NPS legal authorities and management policies.

 

Fourteen years after ANILCA became law, in 1994, the State enacted its “Intensive Management” (IM) law in Alaska Statutes (AS), and several new statutory defined terms which further shaped the meaning of the statute. For example, AS 16.05.255 (k) (4) states “intensive management means management of an identified big game prey population consistent with sustained yield through active management measures to enhance, extend, and develop the population to maintain high levels or provide for higher levels of human harvest including control of predation and prescribed or planned use of fire and habitat improvement techniques.” Thereafter the state drafted its implementing regulations in the Alaska Administrative Code (AAC). Combined, these state actions dramatically changed the goals of State management of wildlife and significantly 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 §24³https://www.ecfr.gov/cgi-bin/text-idx?SID=04e8f9d29bcda9b77ab7c8d9cea96a58&tpl=/ecfrbrowse/Title43/43cfr24_main_02.tpl regarding state-federal relationships. Specifically, section 24.4(f) applies to units of the National Park System. It states, in part:

 

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. (Emphasis added)

 

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.

 

First, it is important to understand what the State’s Intensive Management program entails. As described in Understanding Intensive Management and Predator Control in Alaska⁴https://www.adfg.alaska.gov/static/research/programs/intensivemanagement/pdfs/predator_brochure.pdf  by ADF&G (see p. 2), IM encompasses a range of management actions including improving habitat; adjusting hunting season lengths and bag limits; targeted removal of predators by relaxing restrictions on how sport hunters may hunt or trap predators (e.g., the so-called “liberalized” predator hunting regulations); and up to and including State sanctioned “predator control” actions. (Emphasis added) The basic purpose of all of the above forms of IM is to increase ungulate (e.g., moose and caribou) numbers to allow for increased harvest by hunters.      

 

Second, it is also important to understand the difference between “predator control” and “predator regulation” (or “predator reduction”) under the IM program. As described in the ADF&G Intensive Management Protocol⁵https://www.adfg.alaska.gov/static/research/programs/intensivemanagement/pdfs/intensive_management_protocol.pdf (see p. 17), “predator control” is intended to “reduce predation effects…and allow ungulate population growth in a relatively short period. For wolves this is recognized as at least 55% [reduction] below pre-control levels.” In contrast, “predator regulation” (i.e., “predator reduction”) is intended to reduce the abundance of predators “below thx`eir theoretical food-based carrying capacity. Regulation for wolves typically requires reductions of at least 30% below pre-treatment levels.” In other words, the distinction between “control” and “regulation” (or “reduction”) is a matter of degree under the State’s IM protocol. Both are intended to reduce predator numbers in order to increase ungulate numbers to allow for increased harvest by hunters; and “predator control” is simply the most aggressive form of IM. 

 

Lastly, it is important to understand that “predator control” is not considered to be “hunting” by the State because it involves predator killing methods that are not otherwise legal for sport hunters. As explained in Intensive Management of Wolves and Ungulates in Alaska  (see p. 373) by Kimberly Titus of ADF&G, “Present wolf-control programs began in 2004 and rely on aerial gunning or on landing and shooting wolves.”(Comment: Both techniques are illegal under the State’s sport hunting regulations.) “Pilot-gunner teams are permitted by the department… [and] act as agents for Alaska, which meets the requirements of the federal Airborne Hunting Act… The control programs are directed management activities with an emphasis on effectiveness; as such, there is no requirement for fair chase such as there is for hunting activities.” (Emphasis added ) 

 

In reviewing a 2014 NPS map⁶ State of Alaska Intensive Management Areas, Moose (5 AAC 92.108) Alaska Region GIS Team 5/1/2014, Wildlife Harvest in National Park Service Preserves In Alaska, Environmental Assessment, September, 2014, p. 17. of BOG-determined 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 significant change(s) based upon our recent review of the State statute. “Allowances” (such as” liberalized” predator hunting practices) that manipulate natural systems and processes to achieve these goals, including actions to reduce native predator numbers in order to increase harvestable numbers of moose and caribou, directly conflict with laws and policies applicable to NPS areas that require preserving natural wildlife populations. For example, see NPS Management Policies 2006 §§ 4.1 and 4.4.3. The Secretary of the Interior also unambiguously stated this perspective in a December 19, 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.” 

 

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 (Emphasis added) 

 

In the last few decades, the State of Alaska has authorized an increasing number of “liberalized” methods of hunting and trapping wildlife and extended seasons to increase opportunities to harvest predator species. For example, retired ADF&G 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)⁷http://www.bioone.org/doi/10.2192/URSU-D-17-00002.1. The Abstract for the article summarizes their findings: 

 

For >35 years Alaska, USA, has attempted to reduce brown bear (Ursus arctos) abundance through adoption of progressively more liberal hunting regulations. We document these changes in a portion of Alaska we term the Liberal [brown bear] Hunting Area (LHA) constituting 76% of Alaska’s area. In most instances, regulation liberalizations were intended to reduce brown bear abundance in the expectation this would reduce predation by bears on wild ungulates and thereby increase hunter harvests of these ungulates…We also document the expansion of regulations pertaining to brown bear population reduction to the small and isolated population on Alaska’s Kenai Peninsula (outside the LHA) that resulted in a 25-fold harvest increase in the year of regulation liberalization…In the LHA during 1995–2017, we tabulated 222 regulatory changes in Game Management Subunits making brown bear hunting regulations more liberal and 4 changes making regulations more conservative. Since 2000, the State of Alaska has reported no research in the LHA that would permit evaluation of the impacts of these regulatory changes and correlated harvest increases on bear abundance or demographics. (Emphasis added)

 

More recently, the State continued to authorize additional “liberalized” predator harvest practices that are of significant concern to the NPS and park advocates alike. These practices have included:

 

Such practices are obviously intended or reasonably likely to manipulate wildlife populations for harvest purposes; and are in clear conflict with the NPS’s implementation of ANILCA’s authorization of “sport hunting and trapping” in the 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 are often very 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 additional ”liberalized” hunting and trapping practices have been and are reasonably expected to be 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. As stated previously, “predator control” under Alaska’s Intensive Management statute and implementing regulations is nothing more than the most aggressive form of IM (see AS 16.05.255 (e)-(g) and regulations implementing the IM law beginning at “Article 5 Intensive Management and Predator Control. Sections 5 AAC 92-106 through Section 92-127”).                                   

 

16 U.S.C. 3201 of ANILCA provides that “within national preserves the Secretary may designate zones where and periods when no hunting, fishing, trapping, or entry may be permitted for reasons of public safety, administration, floral and faunal protection, or public use and enjoyment.” In order to comply with federal law and NPS policy, the NPS adopted temporary restrictions under 36 CFR 13.40(e) to prevent the application of the above listed predator harvest practices to 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 native wildlife 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, which would include the State simply “excluding 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, since the early 2010’s, the NPS has objected to more than fifty proposals to liberalize predator harvest in areas that included Preserves; and each time the BOG has been unwilling to exclude the 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 Preserve lands and offered NPS staff time to assist the State in working out the details⁸The Agenda Change Request (ACR) and testimony are on file at the NPS Alaska Regional Office . This request was also denied. 

 

In principle, State law allows the BOG to treat NPS lands differently from State lands (AS 16.05.255 (f)(1)(B)) if such actions (such as harvest regulations) are “inappropriate due to land ownership patterns.” However, the BOG responded that the NPS, in effect, was responsible for ensuring that taking of wildlife in Preserves complies with federal laws and policies applicable to NPS areas; and the NPS could use its own authority to ensure Preserves are managed in a manner consistent with federal law and NPS policy. See statement of BOG Chairman Judkins to NPS Superintendent Dudgeon, BOG Public Meeting in Fairbanks, Alaska (February 27, 2010)⁹Transcript on file at the NPS Alaska Regional Office where NPS was testifying in opposition to allowing the take of black bear cubs and sows with cubs with artificial light in Preserves. In the absence of State action excluding Preserves from the sport hunting methods in question, the 2015 rulemaking was necessary to make the temporary restrictions permanent under 36 CFR 13.50(c) Rulemaking Requirements. In essence, the 2015 rule responded to the BOG’s suggestion that the NPS, not the BOG, is responsible for ensuring sport hunting in Preserves complies with applicable federal laws and regulations.        

 

Contrary to those who alleged the 2015 rule was “federal overreach,” the NPS, in fact, worked closely with and communicated regularly with the State since 1982 on this topic. The NPS wrote letter after letter, by our count at least 36 letters through 2017; and a number of NPS Alaska Regional Directors have gone to the BOG to speak, as have NPS Preserve Superintendents and other NPS 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 has been doing the job they are supposed to do, in fact mandated to do by the “Redwood amendment” to the NPS Organic Act, which is 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 has continually sought 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 the State’s position; nor does the legislative and administrative history of federal and state wildlife law and management. The Preserves are federal, not state land. 

 

The scope of the 2015 rule was, in fact, very limited. It did not apply to or affect ANILCA Title VIII subsistence harvest. For example, soon after the 2015 rule was issued the NPS worked with the Federal Subsistence Board to pass a federal subsistence regulation authorizing qualified rural residents in parts of Game Management Unit 24 (near Gates of the Arctic National Preserve) to harvest black bears from dens as a traditional activity, which passed in 2016. The 2015 rule also did not broadly affect sport hunting or trapping; and the vast majority of State sport hunting and trapping regulations continued to apply in the Preserves because they are generally 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)¹⁰https://scholarship.law.duke.edu/alr/vol24/iss2/2 . As stated in their analysis: “What is now also clear is that the Alaska’s Intensive Management statute meets the criteria for direct conflict with federal laws specifically the Organic Act and the ANILCA, as well as derivative regulations and policies, and must be preempted in favor of wildlife management goals and techniques that are in line with the mandates established by Congress.” 

 

All of the above information, 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 that were prohibited in paragraphs (f) and (g) of the 2015 Final Rule. 

 

Last but not least and also relevant to this discussion is the recent U.S. District Court of Alaska’s September 30, 2022 ruling in Case No. 3:20-cv-00209-SLG, Alaska Wildlife Alliance, et al. v. Haaland, et al¹¹https://www.courthousenews.com/wp-content/uploads/2023/01/gleason-order-alaska-bear.pdf, in which wildlife advocates challenged the NPS 2020 hunting rule that reversed numerous aspects of the 2015 rule. Regarding the relationship between State and Federal hunting regulations as they apply to Alaska’s national preserves, the ruling stated in part (see pp. 41-43):

 

“The [Ninth] Circuit recently clarified the relationship between State and Federal hunting regulations on Federal lands in Alaska,¹²Safari Club Int’l, 31 F.4th at 1165 “hold[ing] that ANILCA preserves the federal government’s plenary power over public lands in Alaska.”  This is because Congress maintains authority by way of the Property Clause of the Constitution to regulate and protect wildlife on Federal land¹³ See Ctr. for Biological Div. v. Bernhardt, 946 F.3d 553, 558 (9th Cir. 2019) and Kleppe v. N.M., 426 U.S. 529, 541 (1976)).. The Supremacy Clause requires that Federal hunting regulations override conflicting State laws in accordance with the principle of conflict preemption¹⁴See Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 854 (9th Cir. 2002) and Ctr. for Biological Div. v. Bernhardt, 946 F.3d at 558 (9th Cir. 2019). … the Federal government maintains plenary power over these lands and the authority to preempt conflicting State law.” (Emphasis added)

 

 

As described in this section of the FR Notice, “In this proposed rule, the NPS reconsiders the conclusions that supported the 2020 Rule. This proposed rule addresses three topics that were considered in the 2015 and 2020 Rules: (1) bear baiting; (2) the meaning and scope of hunting for “sport purposes” under ANILCA; and (3) State law addressing predator harvest. After reconsidering these topics, the NPS proposes in this rule to prohibit the same harvest methods that were prohibited in the 2015 Rule. The proposed rule would also prohibit predator control or predator reduction on national preserves. Under the State IM statute and its implementing regulations, intensive management and predator control are simply two methods of artificially reducing the number of predators in an area in order to affect predator-prey relationships and enhance the availability of prey species for hunters. Finally, the proposed rule would clarify the regulatory definition of trapping for reasons explained below.”

 

Bear Baiting: First, we fully support the proposed prohibition on bear baiting in national preserves for the many reasons described in the subsequent FR sections on Risk of Bears Defending a Food Source, Risk of Habituated and Food-Conditioned Bears, Other Considerations, and Feedback From Tribes and Alaska Native Claims Settlement Act (ANCSA) Corporations on Bear Baiting. 

 

In addition, we remind you of NPS’s previous well-reasoned position on this topic as stated in the NPS Response to Comment # 31 in the 2015 Final Rule, which stated, in part (emphasis added to underlined sections):

 

 

Bait stations tend to be located in accessible areas due to the infrastructure (typically a 55 gallon drum) and quantity (including weight) of bait used to engage in this activity and the frequency with which the stations must be replenished. Because of the accessibility of these areas, they are sometimes used by multiple users, which contributes to the public safety concerns associated with baiting. Although there are State regulations that prohibit bait stations within a certain distance of structures (cabins/residences), roads, and trails, these distances lack biological significance relative to bears, whose home ranges can include tens to hundreds of square miles.

 

To the information above, we would add that the use of bait stations can adversely impact the assemblage of wildlife species in areas open to bear baiting, as numerous species can and likely do find and utilize the bait. Thus, not only do the bears come to the bait, but other animals may also. In effect, this further compounds the problem of food-conditioning wildlife. 

 

In contrast to the State’s assertion that “baiting does not cause bears to become food-conditioned,” which is made without compelling supporting evidence, the problems with bear baiting and supplemental feeding are well documented:

 

Finally, ADF&G’s educational website, “Living with Bears”²⁶http://www.adfg.alaska.gov/index.cfm?adfg=livingwithbears.bearharmony, points out the significant problems caused by bears having access to human food, which include the following concerns (emphasis added to underlined sections):

 

 

The Meaning and Scope of Hunting for “Sport Purposes” Under ANILCA: As described in the FR Notice (emphasis added to underlined sections below): 

 

The NPS is re-evaluating whether it was appropriate for the 2020 Rule to change its interpretation of the term “sport” in the 2015 Rule. An important implication of that change is that the 2020 Rule expanded sport hunting opportunities for nonlocal residents  who are not qualified to harvest wildlife under federal subsistence laws… In the 2015 Rule, the NPS said harvest of wildlife for “sport purposes” carries with it concepts of fairness or fair chase. These constructs do not necessarily apply to [federally determined] subsistence  practices, which emphasize cultural traditions and acquisition of calories for sustenance… In the 2020 Rule, the NPS changed its interpretation by saying the term “sport” only serves to differentiate harvest under State regulations from harvest under federal subsistence regulations. As a result, practices that some might consider only appropriate for subsistence harvest by local rural residents now may be used by anyone harvesting for “sport purposes” under State law. As conveyed by the Tribes and ANCSA Corporations, this increases competition between federal subsistence hunters and sport hunters [on federal lands] by expanding hunting opportunities to those who are not local rural residents. It also allows for sport hunters to engage in practices that are not considered sporting under notions of the term as described above… ANILCA authorizes harvest for Federal subsistence and “sport purposes” in national preserves in Alaska. The NPS interprets the term “sport” to include the concept of fair chase, as articulated by some hunting organizations ²⁷The Hunting Heritage Foundation, www.huntingheritagefoundation.com (last visited July 25, 2022); Boone and Crockett Club, www.boone-crockett.org/principles-fair-chase (last visited July 25, 2022)., as not providing an unfair advantage to the hunter and allowing the game to have a reasonable chance of escape. This involves avoiding the targeting of animals that are particularly vulnerable, such as while swimming, while young, or while caring for their young. While the NPS understands that the exact boundaries of this concept involve some level of ambiguity, the NPS believes the practices addressed in this proposed rule fall outside the norms of “sport” hunting. The NPS requests comment on this concept of “sport” and whether the practices described in these examples should be allowed as a “sport” hunt in national preserves in Alaska. Giving meaning of the term “sport” also prioritizes harvest for subsistence by [federally qualified] local rural residents by avoiding competition with nonlocal residents who are hunting for sport purposes under ANILCA. This is consistent with the priority that Congress placed on the customary and traditional uses of wild renewable resources by local rural residents under ANILCA (see Sec. 101(c)). 

 

Comment: “Sport hunting” is a widely used but seldom defined term that is referred to in many state and federal hunting regulations. For example, all three NPS rulemakings regarding “sport hunting” in national preserves (2015, 2020, and 2023) have used the terms “sport hunting” or “hunting for sport purposes,” yet none have offered an actual definition of what that means. Similarly, there is no definition of these terms in ANILCA or in applicable NPS regulations. For example, Title 1 Section 101(b) of ANILCA uses the term “sport hunting”; however, Section 102 Definitions does not define the term. Section 102 (18) does define “[t]he term “take” or “taking” as used with respect to fish or wildlife, means to pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage in any such conduct.” And Title VIII Section 803 defines the term “subsistence uses” but it does not explicitly relate or contrast “subsistence hunting” to the concept of “sport hunting.” In addition, NPS general regulations at 36 CFR §1.4 define “hunting” as “taking or attempting to take wildlife, except trapping”; and  “take or taking means to pursue, hunt, harass, harm, shoot, trap, net, capture, collect, kill, wound, or attempt to do any of the above.” Similarly, NPS regulations for National Park System Units in Alaska at 36 § 13.1 defines “Take or taking as used with respect to fish and wildlife, means to pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage in any such conduct.” Similarly, the federal subsistence regulations at 50 CFR § 100.4 define “take or taking as used with respect to fish or wildlife, means to pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage in any such conduct.” However, none of the aforementioned NPS or DOI regulations actually define “sport hunting.”

 

Multiple sources indicate the term “sport hunting” emerged in the late 19th century to distinguish hunting for personal reasons, such as for recreation or to put food on the table, from the prevalent “market hunting” (or “commercial hunting”) that was commonplace at the time. For example, the Boone and Crockett Club²⁸https://www.boone-crockett.org/about-boone-and-crockett-club-1887  was established in 1887 by Theodore Roosevelt and George Bird Grinnell, in essence, to oppose the wanton destruction of American wildlife at the hands of market hunters and to advocate for the long-term conservation of wildlife. The organization was instrumental in the passage of the first laws dedicated solely to wildlife conservation, including the Lacey Act (which effectively put an end to “market hunting”), Migratory Bird Treaty Act, Wildlife Restoration Act (known as the Pittman-Robertson Act), and the Federal Duck Stamp Act. As the Boone and Crockett Club²⁹https://www.boone-crockett.org/defining-modern-hunting explains: 

 

[T]he term ‘sport hunting’ emerged at a time in history when our society had awoken to the plight of wildlife, and commercial market hunting was rightfully being rejected. Sport hunting was used to describe hunting for personal reasons and not for profit; a form of hunting with an honor code that defined the rules of engagement based on the quality of the hunt, not the quantity of game taken. The “sport” in sport hunting, was never intended to imply hunting was a sport. It meant only a sporting approach to hunting, a way to distinguish the true hunter from the market hunter. A sporting approach recognizes the advantage of human capabilities, including technologies, and represents a desire to constrain ourselves by limiting our advantage to give the animals we pursue a legitimate chance to escape. It supports the no-guarantees nature of hunting, which is the hallmark of a sportsman; one who carries with him or her a sporting approach.” (Emphasis added) 

 

The Boone and Crockett Club is also noted for its long-time advocacy for “fair chase” hunting. “FAIR CHASE, as defined by the Boone and Crockett Club, is the ethical, sportsmanlike, and lawful pursuit and taking of any free-ranging wild game animal in a manner that does not give the hunter an improper or unfair advantage over the game animals.³⁰ https://www.boone-crockett.org/fair-chase-statement  (Emphasis added)

 

Similarly, the Hunting Heritage Foundation defines “Fair Chase” as “the balance between the hunter and the hunted animal that occasionally allows the hunter to succeed while animals generally avoid being taken… Fair chase laws, outlawing unfair methods like poison, snares, or bait, ensure that the hunted animal has a reasonable opportunity to elude the hunter.” ³¹ http://www.huntingheritagefoundation.com/fair-chase/

 

Similarly, the Safari Club International Hunter’s Code of Ethics ³²https://safariclub.org/sci-does-it-right/ states, in part:  “Recognizing my responsibilities to wildlife, habitat and future generations, I pledge:

 

Similarly, the National Rifle Association³³ https://www.nrahlf.org/articles/2019/1/6/sport-hunting-defined/ describes “sport hunting” as being:

 

 …coined by early conservation hunters (think Theodore Roosevelt) to differentiate what they did from what ‘market hunters,’ who were commercial hunters of wild game, or poachers did. Prior to the late 1800s citizens in the USA were free to shoot, trap, poison or capture just about anything wild… Sport hunters created and advanced a sporting code of hunter ethics, essentially self-imposed limitations on where, when, what, how and how much game could be taken. No deer hunting at night with spotlights. No hunting during the spring and summer rearing seasons.

No shooting does, fawns, cubs or hens… No shooting from motorized vehicles. No wanton waste of meat. (Emphasis added)

 

We could continue citing additional references describing the close connection between the tradition of “sport hunting” and the concept of “fair chase” since the term “sport hunting” came into common use in the late 1800’s. We note that: 1) ANILCA makes a clear distinction between “sport hunting” (as mentioned in SEC. 101(b)) and “subsistence uses” (as defined in Title VIII); and 2) “the taking of [wildlife] for nonwasteful subsistence uses shall be given preference on the public lands over other consumptive uses” (SEC. 802(2)). To comply with these sections of ANILCA, it is critical that NPS articulate the key differences between state authorized “sport hunting” and federally authorized “subsistence hunting” in the context of the proposed rule on sport hunting in national preserves.

 

The most obvious differences between “sport hunting” and “hunting for subsistence uses” in Preserves in the context of ANILCA are as follows:

 

 

We believe it is entirely appropriate for NPS to “interpret[] the term ‘sport’ to include the concept of fair chase,” as described in the preamble. We also believe that the “Prohibited Acts” described in Table 1 to Paragraph (k) are not “sporting” and that is a reasonable basis for prohibiting those actions under “sport hunting” in Preserves. In contrast, some of these same methods for taking wildlife have been documented by the Federal Subsistence Board as customary and traditional practices associated with subsistence uses by specific rural communities or areas and therefore those rural Alaska residents are, in fact, allowed to use those practices under the federal subsistence regulations. In our view, this dichotomy in what is prohibited under sport hunting regulations versus what may be allowed under federal subsistence regulations is entirely appropriate and in keeping with the following provisions of ANILCA:

 

The interpretation and re-interpretation of the meaning of “sport hunting” by NPS has been at the core of controversy involving both the 2015 and 2020 rules. Giving meaning to the term “sport hunting” or “hunting for sport purposes” in the proposed rule now would clarify the distinction between “sport hunting” involving “fair chase” methods and “hunting for subsistence uses” involving “traditional and customary methods” on various federal lands in Alaska, including the Preserves. Making this distinction clear once and for all would also support ANILCA’s prioritization of wildlife harvest for subsistence uses by rural Alaska residents by avoiding competition from nonlocal residents who are only eligible to hunt for sport purposes. Because ANILCA prioritizes subsistence over sport hunting, such that sport hunting must be restricted before subsistence when necessary to protect wildlife³⁵16 U.S.C. § 3114 , it is appropriate for NPS to define sport hunting as more limited than subsistence hunting. 

 

Regarding the specific examples of hunting practices that are mentioned in this section of the preamble, we support NPS reinstating the following prohibitions in the 2023 rulemaking:

 

State Law Addressing Predator Harvest: As described in the FR Notice, the proposed rule would reinstate the prohibitions in the 2015 Rule on methods of harvest that target predators for the purpose of increasing populations of prey species for human harvest. We strongly concur with this approach for the reasons described in this section of the Notice. We also fully support NPS adding, as proposed, the following statement to the rule to clarify that predator control is not allowed on NPS lands: “Actions to reduce the numbers of native species for the purpose of increasing the numbers of harvested species (e.g., predator control or predator reduction) are not allowed.” (Emphasis added) See related comment about an inconsistent use of wording in the preamble (“are not allowed”) versus in §13.42 (“are prohibited”).

 

In addition, the NPS should also consider stating clearly that “intensive management of wildlife for purposes of increasing another species is not allowed.” As discussed previously, “predator control” conducted by de facto agents of the state operating under special permits to kill predators using methods not allowed under the sport hunting regulations and “predator reduction” (or predator regulation) through “easing predator [sport] hunting or trapping regulations” for licensed sport hunters are simply two levels of intensity of Intensive Management. Both are intended to increase moose or caribou numbers by reducing predator species numbers. 

 

Note: There is an inconsistency between the wording used in this section of the preamble and the wording used in the proposed rule itself. The wording in the preamble states that predator control or predator reduction “are not allowed.” However, the wording in §13.42(f) of the proposed rule uses the words “are prohibited” rather than “are not allowed.” We recommend that NPS use the words “are prohibited” in both locations. 

 

Trapping Clarification: Finally, the proposed rule would revise the definition of “trapping” in 36 CFR Part 13 to mean “taking furbearers with a trap under a trapping license.” The definition of “trapping” promulgated in the 2015 Rule inadvertently omitted reference to the use of traps, instead referring only to “taking furbearers under a trapping license.” This change would more closely align the definition of “trapping” in Part 13 with the definition that applies to System units outside of Alaska in 36 CFR §1.4, which is: “Trapping means taking or attempting to take wildlife with a trap.” Comment: We concur with NPS’s explanation and support the proposed change.

 

 

§13.1 Definition – The proposed definitions generally make sense as written, including the proposed definition of “fur animal” which includes the specification “subject to taking with a hunting license.” Similarly to that definition, we recommend that NPS revise, as described below, the proposed definition of “furbearer” to make the method of “taking” clear and to provide contrast with the definition of “fur animal”:

 

Furbearer means a beaver, coyote, arctic fox, red fox, lynx, marten, mink, least weasel, short-tailed weasel, muskrat, land otter, red squirrel, flying squirrel, ground squirrel, Alaskan marmot, hoary marmot, woodchuck, wolf and wolverine (add) subject to taking with a trapping license.

 

§13.42 Taking of wildlife in national preserves – 

 

 

In closing, the proposed rule effectively addresses many shortcoming and concerns with the 2020 rule. It appropriately returns management of wildlife in Preserves to NPS’s own long-term and consistent understanding of its enabling legislation, legislative history, and its own regulations over the past forty plus years in Alaska, as well as its own management policies (mostly recently articulated in 2006). In the new rulemaking, it is critical that NPS make a clear distinction between “sport hunting” and “hunting for subsistence uses” consistent with applicable sections of ANILCA. The proposed rule is consistent with NPS objectives for managing sport hunting in national preserves and appropriately prioritizes subsistence uses of wildlife resources over sport hunting, as directed in ANILCA Sec. 101(c).

 

We greatly appreciate the opportunity to comment on this important issue.

 

Sincerely,

 

 

 

 

Michael B. Murray

Chair of the Executive Council

Coalition to Protect America’s National Parks