May 30, 2023
The Honorable Shannon Estenoz
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 Proposed Rule on Hunting and Trapping in National Preserves in Alaska
Dear Assistant Secretary Estenoz:
As former federal and state officials who are familiar with the management of National Park System units in Alaska, we are writing to commend Alaska Regional Director Sarah Creachbaum and National Park Service (NPS) staff for their good work on the proposed rule on Hunting and Trapping in National Preserves in Alaska.
Collectively, we are very knowledgeable of wildlife management issues on federal lands in Alaska and have considerable first-hand experience interacting with the Alaska Department of Fish and Game (ADF&G) regarding conflicts between state and federal wildlife management mandates and policies. Some would portray the current rulemaking as reflecting federal overreach or perhaps a lack of NPS consultation with ADF&G and/or lack of NPS deference to the state’s “intensive management” approach to regulating sport hunting and trapping. However, we assert that the NPS has the responsibility and obligation, as well as the authority, under the NPS Organic Act, to prohibit state-sanctioned sport hunting practices that conflict with federal laws and policies applicable to hunting and trapping in NPS-managed national preserves (Preserves) in Alaska.
For 43 years from Alaska statehood in1959 until 2002, the State of Alaska and the NPS successfully engaged in cooperative management of wildlife on NPS conservation units consistent with the Alaska Statehood Act, the NPS Organic Act and later the Alaska National Interest Lands Conservation Act (ANILCA) of 1980. This successful relationship spanned many state and federal administrations. One specific purpose that both the State and the Service highlighted was to protect and conserve the treasured wildlife of Alaska National Park units, which collectively represent over half the total acreage of America’s National Park System.
Passage of the Alaska Statehood Act in 1959 was a success for Alaskan control over its future, including management of its fish & wildlife like other states. At the same time, the Federal government retained authority to regulate wildlife on federal land as necessary to ensure consistency with federal law or policy. For 21 years the State managed wildlife in NPS units in a manner generally consistent with the NPS Organic Act and various federal wildlife regulations such that the Service had little need to override State management decisions.
The next major change came in 1980 with the federal enactment of ANILCA. This law added 43 million acres to the National Park System, including over 20 million acres designated as Preserves where ANILCA authorized federal subsistence and sport hunting. Governor Jay Hammond negotiated the State’s participation in fish and wildlife management on the new lands in the National Park System. The ADF&G Commissioner and the NPS Regional Director signed an agreement, the Master Memorandum of Understanding (MMOU) in 1982 which is still in place today. It states that “[t]he Department of Fish and Game agrees to manage fish and resident wildlife populations in their natural species diversity on Service lands, recognizing that non-consumptive use and appreciation by the visiting public is a primary consideration.” It once again recognized that the State would adhere to federal fish and wildlife regulations and there would be no manipulation of species or predator control on NPS lands.
In 2003, after 43 years of cooperation, a new state administration attempted to apply state intensive management and predator control policies to NPS-managed lands. After numerous unsuccessful consultations with the State, NPS managers used their authority to impose emergency hunting closures to counteract each violation of the joint agreement and ANILCA committed by the State.
This interplay, which included numerous letters and testimony to the Alaska Board of Game, occurred more than 50 times over the next 12 years and were the basis for the NPS beginning a multiyear public process to permanently resolve this issue by proposing a new NPS regulation on hunting and trapping in the Preserves.
The proposed rule provided that the NPS does not adopt State of Alaska management actions or laws or regulations that authorize taking of wildlife, which are related to predator reduction efforts (as defined in the rule). The rule also prohibits the following activities that are allowed under State law: Taking any black bear, including cubs and sows with cubs, with artificial light at den sites; taking brown bears and black bears over bait; taking wolves and coyotes during the denning season; harvest of swimming caribou or taking caribou from a motorboat while under power; and using dogs to hunt black bears.
In that process the NPS received more than 70,000 comments and held over 25 Alaska public hearings with over 99% of the comments supporting the new proposed NPS rule. In 2015 the NPS adopted the new final rule guaranteeing natural diversity of wildlife and humane practices in harvesting,
However, after a change in Administration, the NPS published a final rule (2020 Rule) on June 9, 2020 that removed the restrictions on sport hunting and trapping in the Preserves that had been properly implemented by the NPS in the 2015 Rule. The 2020 Rule also deleted the prohibition on predator reduction efforts within NPS Preserves.
Later in 2020 a number of groups filed suit challenging the 2020 Rule and in September 2022, the U.S. District Court of Alaska issued a ruling (Alaska Wildlife Alliance, et al. v. Haaland, et al). The Court held that the 2020 Rule was unlawful and remanded it to the agency, in part because the 2020 Rule was based, in part, on the mistaken assertion that the agency lacked the authority to supersede state law. As the District Court reiterated, “the Supremacy Clause requires that Federal hunting regulations override conflicting State laws … [and] the Federal government maintains plenary power over these lands and the authority to preempt conflicting State law.” More recently, the NPS has published the 2023 proposed rule in a manner consistent with the District Court’s decision and its own long-held perspective on law and policy.
In sum, the federal agency authority to preempt state hunting regulations on federal lands in Alaska is well established. There are multiple federal court rulings affirming Federal authority to preempt state hunting regulations on federal lands. Relevant cases include the following:
- Kleppe v. New Mexico, 426 U.S. 529 (1976) – A seminal Supreme Court case holding that, while states may manage wildlife on federal lands, if there is a conflict between state and federal law the federal law controls under the Property and Supremacy Clauses of the U.S. Constitution.
- Metlakatla Indian Cmty. v. Egan, 369 U.S. 45, 82 S. Ct. 552 (1962) – A Supreme Court case holding that, under the Alaska Statehood Act, Alaska has the same rights over wildlife as every other state.
- Safari Club Int’l v. Haaland, 31 F.4th 1157 (9th Cir. 2022) – A case regarding management of the Kenai National Wildlife Refuge in which Ninth Circuit upheld Federal authority over wildlife on federal lands in Alaska. The state requested en banc review, which was denied, before petitioning the Supreme Court for review, which was also denied. Alaska v. Haaland, No. 22-401, 2023 U.S. LEXIS 1084 (Mar. 6, 2023).
- Alaska Wildlife Alliance v. Haaland, No. 3:20-cv-00209-SLG, 2022 U.S. Dist. LEXIS 222641 (D. Alaska Sep. 30, 2022) – An NPS case in which Judge Gleason affirmed that NPS has authority to manage wildlife on Preserves and other park lands (discussed above).
Despite the fact that the NPS has the authority to preempt state hunting regulations that conflict with NPS mandates and policies, Alaska politicians, including the Congressional delegation and the State legislature, have confused the situation with factually and legally incorrect misinformation. Recently, the delegation issued a letter alleging that the U.S. Supreme Court decision in Sturgeon v. Frost “unanimously affirmed Alaska’s right to manage its fish and wildlife.” However, the Sturgeon case involved use of a hovercraft on a section of the Nation River within Yukon-Charley Rivers National Preserve. The Court held that the state had authority over activities on the river, because the State held title to the navigable waterway. The ruling did not consider or address the issue of federal authority to preempt state hunting regulations on undisputedly federal lands.
Similarly, Alaska’s House Joint Resolution HJR 10 and the identical Senate Joint Resolution SJR8 were issued by the state legislature, alleging that the 2023 NPS proposed hunting rule to be “an overreach of federal authority [that] would inappropriately limit the state’s authority to manage wildlife on national preserves.” The joint resolutions completely ignore the plain language of several federal laws, as well as the court cases mentioned above that affirm federal authority to preempt conflicting state laws and regulations.
The reality is that the scope of the 2023 NPS proposed rule is extremely limited in the number of state-sanctioned sport hunting and trapping practices 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 would continue to apply in Alaska’s Preserves because they are reasonably consistent with applicable federal law and policy, as required by law.
Based on our collective experience and knowledge of hunting regulations and NPS wildlife management mandates and policies, we unanimously agree that the state-authorized “liberalized” methods of hunting and trapping wildlife that are addressed in the 2023 NPS proposed rule are neither “sporting” nor appropriate. In addition, the law is clear. The NPS may only adopt “non-conflicting” state hunting regulations in Alaska’s Preserves and the NPS has the authority to restrict or prohibit state-authorized hunting activities that conflict with NPS mandates.
We greatly appreciate the incredible patience that NPS staff in Alaska has shown over the years in attempting to work through disagreements with ADF&G and the Board of Game regarding a limited number of state-sanctioned sport hunting regulations that conflict with the wildlife conservation mission and policies of the NPS. While the State’s lack of cooperation appears to be entrenched, the 1982 MMOU remains in effect. And it commits NPS to consult with ADF&G if/when NPS proposes to promulgate its own regulations when state regulations are found to be incompatible with NPS goals, objectives, or management plans. We encourage the NPS to continue its efforts to consult and cooperate with ADF&G to resolve, when feasible, situations in which state hunting regulations conflict with NPS mandates and policies. And when ADF&G and/or the Board of Game are unresponsive to NPS requests to exclude Preserves from specific conflicting state-sanctioned sport hunting practices, as is the case now, we urge you to support NPS in exercising its clear federal authority to preempt those practices through federal rulemaking.
In closing, of the 21 national preserves in the National Park System (System), 10 are located in Alaska. And the Alaska Preserves account for 86% of the almost 25 million acres of preserve-land managed by the NPS. We cherish these crown jewels of natural and sustainable resources of wildlife and land and waters. We value the opportunities provided by the Preserves to view Alaska’s magnificent wildlife in their natural setting and to participate in subsistence and sport hunting and fishing in a humane and sustainable way. Please conserve Preserve wildlife for the enjoyment of both current and future generations by adopting the 2023 proposed rule.
Sincerely,
Jonathan B. (Jon) Jarvis
18th Director of the National Park Service, 2009 – 2017, retired
Former Superintendent of Wrangell-St. Elias National Park and Preserve
Tony Knowles
7th Governor of the State of Alaska, 1994 – 2002
Former Chair of the National Park System Advisory Board
Paul Anderson
Deputy Regional Director, Alaska Region, retired
Denali National Park and Preserve, Superintendent, retired
Marcia Blaszak
Regional Director, Alaska Region, retired
Gilbert Blinn
Superintendent, Katmai National Park and Preserve, retired
Phillip Hooge
Superintendent, Glacier Bay National Park and Preserve, retired
Richard Martin
Superintendent, Wrangell-St. Elias National Park and Preserve, retired
David Mills
Superintendent, Gates of the Arctic National Park and Preserve, retired
Superintendent, Yukon-Charley Rivers National Preserve, retired.
Cherry Payne
Superintendent, Glacier Bay National Park & Preserve, retired
Bill Pierce
Superintendent, Katmai & Lake Clark National Parks & Preserve, retired
Sanford Rabinowitch, BS & MLA
NPS Subsistence Manager (Alaska), retired
Former Chief of Operations, Alaska State Parks
Richard Ring
Superintendent, Gates of the Arctic National Park and Preserve, retired
John W. Schoen, Ph.D
Senior Conservation Biologist, Alaska Department of Fish & Game, retired
Senior Scientist, Audubon Alaska, retired
Jim Stratton
Former Director of Alaska State Parks
Former Deputy Vice President for Regional Affairs, National Parks Conservation Association
Michael Tollefson
Superintendent, Glacier Bay National Park & Preserve, retired
Karen Wade
Superintendent, Wrangell-St. Elias National Park and Preserve, retired
cc:
Charles F. Sams, III, Director, National Park Service
Sarah Creachbaum, Alaska Regional Director, National Park Service
The Honorable Lisa Murkowski, U.S. Senator, Alaska
The Honorable Dan Sullivan, U.S. Senator, Alaska
The Honorable Mary Sattler Peltola, U.S. Congresswoman, Alaska
Dan Saddler, Majority Leader, Alaska House of Representatives
Cathy Tilton, Speaker of the House, Alaska House of Representatives
Calvin Schrage, Minority Leader, Alaska House of Representatives
Cathy Giessel, Majority Leader, Alaska State Senate
Gary Stevens Senate President, Alaska State Senate
Bill Wielechowski, Rules Chair, Alaska State Senate