Seasonal Closure of the O'Malley River Area in the Kodiak National Wildlife Refuge; Rule and Proposed Rule DEPARTMENT OF THE INTERIOR

SUMMARY: The Fish and Wildlife Service (Service) issues this interim

regulation to limit public access, occupancy and use of a portion of

the O'Malley River drainage and adjacent lands bordering Karluk Lake

and O'Malley Lake within the Kodiak National Wildlife Refuge (Refuge).

Public use of a parcel of land and water consisting of approximately

3,955 acres will be restricted from June 25, 1994, through September

30, 1994, to individuals participating in a refuge-sponsored bear

viewing program.

This closure is necessary to prevent incompatible conflicts between

people and brown bears at an important bear concentration area, during

the season when conflicts and impacts on bears are most prevalent. It

is intended to control increasing human use of a very important bear

concentration area so that human uses in the area remain compatible

with refuge purposes. Research and experience have clearly demonstrated

that control of human activity in major bear concentration areas is

necessary to avoid conflicts between people and bears. Organized bear

viewing programs elsewhere in Alaska have proven highly successful in

reducing conflict to an acceptable level while maintaining quality

public use opportunities. This action will allow quality public viewing

and photography opportunities through the O'Malley Bear Viewing Program

without adversely affecting bear use of this important feeding area.

After a thorough evaluation of the bear viewing program conducted

during 1994, the Service will decide whether to continue the program.

A proposed rule that would provide a permanent seasonal restriction

on public access is being published elsewhere in this separate part of

the Federal Register with this interim rule.

DATES: This interim rule is effective from June 25, 1994, through

September 30, 1994. Comments may be submitted by July 11, 1994.

ADDRESSES: Comments should be addressed to Assistant Regional

Director--Refuges and Wildlife, U.S. Fish and Wildlife Service,

Attention: Tony Booth, 1011 E. Tudor Road, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Jay Bellinger, Refuge Manager, Kodiak

National Wildlife Refuge, 1390 Buskin River Road, Kodiak, Alaska 99615,

Telephone: (907) 487-2600, or Tony Booth, Anchorage, AK, Telephone:

(907) 786-3384.

SUPPLEMENTARY INFORMATION:

Background

President Franklin D. Roosevelt established the Kodiak National

Wildlife Refuge by Executive Order 8857 on August 14, 1941, to

``preserve the natural feeding and breeding ground of the brown bear

and other wildlife.'' This action withdrew about 1.9 million acres from

unreserved public domain on Kodiak and Uganik Islands. Congress

redesignated the Kodiak National Wildlife Refuge in 1980 when it

enacted the Alaska National Interest Lands Conservation Act (ANILCA).

All the lands, water, interests, and submerged lands retained in

federal ownership at the time of statehood were included in the refuge.

This legislation also added about 50,000 acres of public lands on

Afognak and Ban Islands to Kodiak National Wildlife Refuge. Section

303(5)(b) of ANILCA states generally that the purposes for which Kodiak

National Wildlife Refuge is established and shall be managed include:

(i) To conserve fish and wildlife populations and habitats in their

natural diversity including, but not limited to, Kodiak brown bears,

salmonoids, sea otters, sea lions, and other marine mammals and

migratory birds; (ii) to fulfill the international treaty obligations

of the United States with respect to fish and wildlife and their

habitats; (iii) to provide, in a manner consistent with purposes set

forth in subparagraphs (i) and (ii), the opportunity for continued

subsistence use by local residents; and (iv) to ensure, to the maximum

extent practicable and in a manner consistent with the purposes set

forth in subparagraph (i), water quality and necessary water quantity

within the refuge.

The Kodiak Refuge Comprehensive Conservation Plan (U.S. Fish and

Wildlife Service, 1987) provides primary guidance for management of the

Kodiak National Wildlife Refuge. According to its approved alternative,

``the Service will undertake detailed management planning to guide

implementation of the plan and operation of the refuge.'' In support of

that mandate, utilizing a full spectrum of public involvement, the

final draft of the Kodiak Refuge Public Use Management Plan has been

written. This interim rule and the proposed rule which is being

published elsewhere in this separate part of the Federal Register are a

result of direction provided by both these planning processes.

During 1990-91 the Service tested a trial bear viewing program,

staffed by Refuge personnel, at the Dog Salmon Creek Fish Pass on

Kodiak Refuge. No closure was utilized for unguided use, but guided use

was restricted through the special use permit process. This trial bear

viewing program was successful except that the presence of artificial

fish passage structures significantly impaired the quality of viewing

opportunities available to the public.

Public use is increasing about ten percent annually on the Kodiak

National Wildlife Refuge and available information indicates the rate

of increase is even greater in the O'Malley River area. Also, a trend

of increasing adverse interactions between people and bears has

occurred in the O'Malley River area in recent years. Generally, brown

bears are negatively impacted by expanding human use. Bears are often

killed ``in defense of life or property'' as a consequence of increased

levels of human activity in areas that are used heavily by bears. In

addition to mortality, interaction between bears and people can impose

stress on bears that ultimately affect survival and/or productivity of

bears as well as jeopardize human safety.

In 1991, a research camp was established on the O'Malley River to

study bear use of the area and potential impacts of public use on

bears. Research data document human impacts on bears in the O'Malley

River area and confirm the need to control or restrict human uses in

this area. The O'Malley River area supports approximately 33% of the

entire brown bear population in the Karluk Lake basin. At least 110

different bears used the O'Malley River area during July-September

1991, with peak use occurring during the second and third weeks of

July. More importantly, refuge research data suggest that frequently

sighted bears represent only a small portion of the total population

utilizing the O'Malley River area.

During approximately 250 hours of intensive observation of bear

groups in the O'Malley River area in 1991, 66 interactions between

bears and people were recorded. One-third of the interactions disturbed

and/or displaced the bears by causing them to run or walk away from

people. In one instance, people caused the separation of a female from

one of her first-year cubs; while trying to locate its mother, the cub

was subsequently killed by another bear.

Alternatives considered in response to the public use/bear problems

in the O'Malley River area include closing the area to all public use,

which would satisfy the need to conserve bears, but would eliminate all

opportunity for public use during the period of closure. The area could

be left open to provide ample public use opportunity, but this use

would have incompatible impacts on refuge bear populations. Seasonal

closure in support of a bear viewing program not only would satisfy the

need to conserve bears, but would also make possible continued public

use. No other alternative could provide both benefits.

The refuge's trial bear viewing program initiated at Dog Salmon

Creek was moved to the O'Malley River area in 1992 because of the

documented problems and incompatibility between high and unregulated

public use and bears in the O'Malley area. A temporary closure,

pursuant to 50 CFR 36.42, was utilized to avoid conflicts between

people and bears at this important seasonal bear concentration area.

Goals of the trial O'Malley bear viewing program were:

1. To replace an incompatible level of unrestricted use of the

O'Malley River area during key bear use periods, with a compatible

recreational opportunity which would protect and conserve brown bear

populations.

2. To develop and maintain a program that provides the general

public a safe and professional guided bear viewing opportunity, that is

consistent with Refuge management objectives and policies established

in the Comprehensive Conservation Plan.

The program proved popular with the public; in 1992, 88 persons

participated. The Service was satisfied that both program goals were

adequately met.

The O'Malley Bear Viewing Program is designed to increase wildlife

viewing opportunities for the public. The brown bears of Kodiak

National Wildlife Refuge offer unique and highly desirable

opportunities for viewing; opportunities that are most safely and

effectively provided by a structured viewing program.

Structured wildlife viewing programs have been used successfully as

a conservation management tool and to enhance public use opportunities

elsewhere in Alaska. The best known program is conducted at the McNeil

River State Game Sanctuary by the Alaska Department of Fish and Game.

The McNeil River program has gained a worldwide reputation for quality

bear viewing, and competition for permits is so intense that applicants

have less than an 8 percent chance of obtaining a permit. Another

popular bear viewing program is conducted at Brooks Camp in Katmai

National Park. The number of visitors at Brooks Camp is not limited

except by availability of lodge and campground facilities. Use of these

facilities during peak visitation periods is presently at or beyond

capacity and the National Park Service may limit the number of visitors

in the future. A third bear viewing program is located at Pack Creek on

Admiralty Island and is cooperatively managed by the U.S. Forest

Service and Alaska Department of Fish and Game. Permits are required to

visit Pack Creek; during 1993 the Forest Service announced that the

number of visits to Pack Creek will be limited.

Experience at McNeil River State Game Sanctuary has demonstrated

that brown bears are least disturbed by human activity that is

consistent and predictable. Studies at the Brooks Camp and Pack Creek

bear viewing programs have confirmed that unpredictable human activity

causes some bears to avoid important habitat. Inconsistent human

activity has also been shown to cause conflicts between people and

bears. At the McNeil River Sanctuary, implementation of a structured

bear viewing program increased bear use and at the same time reduced

the incidence of bear/human conflicts.

Successful reduction of conflict, through implementation of a

structured brown bear viewing program at O'Malley River, will require

control of public use and access. Restriction of public use and access

to anyone not participating in the viewing program will promote a

quality wildlife experience for participants and reduce the potential

for serious and incompatible conflicts between refuge visitors and

bears. In this interim rule, public use and access would be restricted

from June 25, 1994, to September 30, 1994. These dates were selected

because it is the time period when the greatest number of bears are

concentrated in the O'Malley River area to feed on the seasonal salmon

runs that provide a critical component of their diet. Consequently,

this is the period bears are most vulnerable to adverse impacts from

excessive and unpredictable human use.

The Service has issued a permit, under which a private operator

will conduct the O'Malley Program, for the period 1994-1998. The

program will be thoroughly evaluated during 1994 and, if successful,

will be continued.

This interim rule would remain in effect only through September 30,

1994. A proposed rule is being submitted concurrently with this interim

rule to permanently restrict public entry and use of the O'Malley area

annually to bear viewing program participants during the June 25

through September 30 period of heavy bear use.

Statutory Authority

In accordance with the National Wildlife Refuge System

Administration Act of 1966 (16 U.S.C. 668dd), the Secretary is

authorized under such regulations as he may prescribe to permit the use

of any area within the National Wildlife Refuge System for any purpose

whenever he determines that such uses are compatible with the major

purposes for which such areas were established.

The Refuge Recreation Act of 1962 (16 U.S.C. 460k) authorizes the

Secretary to administer such areas for public recreation as an

appropriate incidental or secondary use only to the extent that it is

practicable and not inconsistent with the primary purposes for which

the area was established.

Section 304 of ANILCA requires the Secretary to prescribe such

regulations and impose such terms and conditions as may be necessary

and appropriate to ensure that any activities carried out on a national

wildlife refuge in Alaska under any permit or easement granted under

any authority are compatible with the purposes of that refuge.

Section 1306 of ANILCA permits the Service to provide visitor

facilities in the refuge if compatible with the unit's purpose.

This rule is being generated to help structure public use.

Adequately regulated public use is consistent with and will not

interfere with the refuge purposes delineated above, and is thus

compatible with the purposes for which Kodiak National Wildlife Refuge

was established according to 16 U.S.C. 668(dd).

Request for Comments

Department of Interior policy is, whenever practicable, to afford

the public a meaningful opportunity to participate in the rulemaking

process. A 60 day comment period is specified in order to both

facilitate public input and move forward to protect important refuge

resources. Accordingly, interested persons may submit written comments

concerning this interim rule to the persons listed above under the

heading ADDRESSES. All substantive comments will be reviewed and

considered.

Paperwork Reduction Act

This rulemaking does not contain information collection

requirements that require approval by the Office of Management and

Budget under 44 U.S.C. 3501 et seq.

Environmental Considerations

This rulemaking is categorically excluded under 40 CFR 1508.4 from

the requirements of the National Environmental Protection Act of 1969

(42 U.S.C. 4321-4347) as an administrative action that will have no

potential for causing substantial environmental impact.

Economic Effect

Implementation of this interim rule will seasonally close two

tenths of one percent (.02%) of Kodiak Refuge lands, to commercial

operators and public use not connected with the organized bear viewing

program. Observations by refuge personnel indicate that commercial use

of the closure area has historically been steady. All use (commercial

and non-commercial) was estimated to have averaged 266 user days during

1989 and 1990, and 353 user days during 1991. These levels of use will

clearly be exceeded by the amount of commercial use (minimum of 480

user days) that will be allowed under terms of a permit authorizing the

bear viewing program. Thus, a net gain of commercial use is expected to

occur. Also, at least a portion of the commercial use previously

occurring in the closure area will simply be displaced to another

location and therefore not lost to the local economy.

Changes in use of the resource will have no significant effect on

national income. Private income will be enhanced, but dollar amounts

will be small and have insignificant impact on the local economy.

Agency costs for monitoring the closure and the bear viewing commercial

operation will be approximately $40,000 less than that expended during

fiscal year 1992 for program operation by the government.

This rulemaking was not subject to Office of Management and Budget

review under Executive Order 12866. In addition, a review under the

Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has been done

to determine whether the rulemaking would have a significant effect on

a substantial number of small entities, which include businesses,

organizations or governmental jurisdictions. This interim rule would

have minimal effect on such entities.

List of Subjects in 50 CFR Part 36

Alaska, Recreation and recreation areas, Reporting and

recordkeeping requirements, and Wildlife refuges.

Accordingly, part 36 of chapter I of title 50 of the Code of

Federal Regulations is proposed to be amended as follows:

Part 36--[AMENDED]

1. The authority citation for part 36 continues to read as follows:

Authority: 16 U.S.C. 460(k) et seq., 668dd et seq., 742(a) et

seq., 3101 et seq., and 44 U.S.C. 3501 et seq.

2. Sec. 36.39 is amended by adding a new paragraph (j) effective

from June 25, 1994, through September 30, 1994, to read as follows:

Sec. 36.39 Public use

* * * * *

(j) Kodiak National Wildlife Refuge.--(1) Seasonal public use

closure of the O'Malley River Area. Certain areas within the Kodiak

National Wildlife Refuge are closed to all public access, occupancy and

use from June 25, 1994, through September 30, 1994, except for

individuals participating in the O'Malley Bear Viewing Program. These

areas subject to seasonal closure consist of lands and waters located

within Townships 33 and 34 South, Range 30 West, Seward Meridian,

Alaska, consisting of approximately 3,955 acres, and more specifically

described as follows: Township 33 South, Range 30 West, Seward

Meridian, Alaska, all of section 25; all of section 26, excluding U.S.

Survey 10875 and the adjacent riparian ownership (Koniag Inc.) fronting

the survey and extending to the center of Karluk Lake; all of section

27; the NE \1/4\ of section 34; and all of sections 35 and 36,

excluding U.S. Survey 10876 and the adjacent riparian ownership (Koniag

Inc.) fronting the survey and extending to the center of Karluk Lake;

Township 34 South, Range 30 West, Seward Meridian, Alaska, the N \1/2\

of section 1 and the N \1/2\ of section 2. The refuge will provide a

map of the closure area to all interested parties.

(2) Access easement provision. Notwithstanding any other provision

of this paragraph (j), there exists a twenty-five foot wide access

easement on an existing trail within the Koniag Inc. Regional Native

Corporation lands within the properties described in paragraph (j)(1)

of this section in favor of the United States of America.

Dated: April 13, 1994.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 94-11121 Filed 5-10-94; 8:45 am]

BILLING CODE 4310-55-P