Alaska; Hunting and Trapping Regulations

DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 13

RIN: 1024-AC25

Alaska; Hunting and Trapping Regulations

AGENCY: National Park Service, Interior.

ACTION: Proposed rule; revision.

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SUMMARY: This proposed rule will establish a National Park Service

(NPS) prohibition of hunting on the same day in which the hunter has

flown in an aircraft, and will clarify the existing NPS prohibition of

using firearms and other weapons to take free ranging wildlife under a

trapping license on lands under the jurisdiction of the NPS in the

State of Alaska. While clarifying the NPS firearm prohibition for

trapping, this rule will expressly recognize as an exception, the

common trapping practice of using a firearm to dispatch wildlife that

is already caught in a trap. Aircraft use for access purposes is not

affected by this rule.

The NPS has concluded that activities such as those allowed under

State authorizations for same-day-airborne taking of wildlife conflict

with NPS management mandates and policies, and invite abuse and

violations of the Federal Airborne Hunting Act and exacerbate

enforcement problems with that Act. This proposed rule is intended to

establish clearly the NPS position regarding any potentially applicable

conflicting State authorizations. The intended effect of the proposed

rule is to reduce the incidence of aircraft harassment of wildlife and

to reduce the potential for aircraft assisted taking of wildlife.

DATES: Written comments will be accepted on or before December 15,

1994.

ADDRESSES: Comments should be addressed to: Robert D. Barbee, Regional

Director, National Park Service, 2525 Gambell Street, Anchorage, AK

99503-2892.

FOR FURTHER INFORMATION CONTACT: Paul Hunter, National Park Service,

2525 Gambell Street, Anchorage, Alaska 99503-2892, Telephone: (907)

257-2646.

SUPPLEMENTARY INFORMATION:

Background

In 1980, the Alaska National Interest Lands Conservation Act

(ANILCA), Pub. L. 96-487, was passed by Congress. This act, among other

things, identified and set aside certain areas of Federal land in

Alaska as being of a high public interest. These ``public interest''

lands include units designated as national parks, monuments, and

preserves.

ANILCA provided for continued subsistence use of fish and wildlife

in most of the new park and monument areas in Alaska. National

preserves were established as open to subsistence uses, as well as

sport hunting and trapping. Federal regulations govern subsistence

taking of fish and wildlife on Federal public lands in Alaska,

including NPS lands. State laws and regulations govern sport hunting

and non-subsistence trapping allowed in national preserves. Such State

provisions are subject to overriding Federal regulations intended to

protect the congressionally mandated Federal purposes of the preserves.

Same-day-airborne hunting is not an issue in those parks and

monuments open to subsistence taking. This is because National Park

Service regulations, promulgated in 1981, generally prohibit the ``use

of aircraft for access to or from lands and waters within a national

park or monument for purposes of taking fish or wildlife for

subsistence uses* * *'' (36 CFR 13.45). The primary effect of this

revised proposed rule will be on same-day-airborne taking of wildlife

in national preserves.

National preserves are to be managed under the same mandates, and

by the same principles, as all NPS areas. ANILCA directed the Secretary

of the Interior to administer the Alaska areas of the National Park

System, including national preserves, ``pursuant to the provisions of

the Act of August 25, 1916 (39 Stat. 535) as amended and supplemented

(16 U.S.C. 1 et seq.), and, as appropriate, under section 1313 and the

other applicable provisions of this Act* * *'' (ANILCA, Sec. 203). The

Act of August 25, 1916 is the NPS Organic Act, which calls for the

conservation of scenery, natural objects, and wild life of units in

such a manner as to leave those values unimpaired for the enjoyment of

future generations. Section 1313 of ANILCA specifically addresses the

management of national preserves and establishes the aforementioned

allowance for sport hunting and trapping. With the exception of those

specific allowances, section 1313 and its legislative history clarify

that national preserves are to be managed with the same degree of

stewardship as parks and monuments. Congress made it clear that the

preserve lands ``qualify in every regard as National Parks'', while

recognizing, ``in some instances that the taking of wildlife under

appropriate regulation is consistent with the maintenance of the

natural values of lands which we otherwise would unhesitatingly

designate as National Parks.'' (Congressional Record, House, November

12, 1980; H10549).

The intent of Congress to allow the taking of wildlife for sport

purposes and trapping under ``applicable State and Federal law and

regulation'' (ANILCA Sec. 1313) is reflected in this revised proposed

rule, and in existing NPS regulations codified in Title 36 of the Code

of Federal Regulations. National Park Service regulations at 36 CFR

2.2(b)(4) adopt nonconflicting State hunting and trapping laws for all

NPS areas in which hunting and trapping are authorized. The adoption of

applicable State law for hunting and trapping is reiterated by 36 CFR

13.21(d) for the NPS preserves in Alaska.

This proposed rule was first published in the Federal Register on

June 9, 1989 (54 FR 24852). A final rule was originally intended in

1990, but the NPS held the final rule in abeyance as a result of State

actions restricting same-day-airborne taking of wolves in NPS managed

areas. The NPS has now determined it is necessary to revise the

original proposed rule and reactivate the rulemaking started in 1989

because of subsequent changes in the State rule for same-day-airborne

taking of wildlife. These State changes have resulted in a great deal

of public confusion regarding the applicability of State hunting and

trapping laws to NPS areas. This revised proposed rule is necessary to

identify the conflict between State and NPS laws and regulations and

clearly establish a controlling NPS rule. In this regard, the NPS

proposed rule is consistent with a rule now being proposed for adoption

by the U.S. Fish and Wildlife Service for similar reasons.

The revised proposed rule, while substantially the same as the

original proposed rule, has extended application to other wildlife

similarly susceptible to same-day-airborne taking. This change was

promoted by approximately 82% of the public providing written comments

during the comment period for the original proposed rule. The revised

proposed rule also provides administrative clarification of the

existing NPS prohibition on the use of firearms and other weapons under

a trapping license. This clarification is deemed necessary due to

recent State action to allow the taking of certain wildlife, including

wolves, by same-day-airborne land and shoot trapping, which, under

State law, can be done in the same manner as same-day-airborne hunting.

History of Same-Day-Airborne Taking in the NPS Preserves

Prior to 1975 same-day-airborne taking of wildlife was allowed in

Alaska by State regulation. Starting in 1975 the State began

prohibiting same-day-airborne hunting of many species of wildlife while

continuing to allow same-day-airborne land and shoot trapping. Because

wolves may be taken under State law with either a hunting or trapping

license, and State law provides for taking by firearm with a trapping

license, wolves could still be taken by the land and shoot method on

the same-day-airborne despite the prohibition for same-day-airborne

hunting.

On June 17, 1981, Federal regulations (36 CFR Part 13) were adopted

for NPS areas in Alaska, including a regulation (36 CFR 13.1(u)) which

limited trapping in NPS areas to taking by snares, traps, mesh, or

other implements designed to entrap animals. The use of firearms for

trapping was precluded. As a result, use of a firearm under the State

authorization for land and shoot trapping was superseded in NPS areas.

From 1981 until 1986 NPS managers operated on the assumption that

the State prohibition of same-day-airborne hunting and the NPS

prohibition of use of a firearm for trapping eliminated the possibility

of land and shoot taking of wolves and most other wildlife in NPS

areas. However, at the January 1986 Board of Game meetings the NPS

learned that State wildlife managers were unaware of the NPS trapping

restriction and that State tagging records indicated that as many as 20

wolves may have been taken in NPS preserves by the land and shoot

trapping method during that season. Shortly thereafter the NPS Regional

Director met with the Commissioner of the State Department of Fish and

Game to explain the NPS trapping regulation. This was followed with a

letter dated February 14, 1986, to the Commissioner formally conveying

the NPS prohibition of firearm use for trapping.

In 1987 the State Board of Game revised same-day-airborne

provisions for wolves by eliminating the previous allowance for

trapping and establishing such an allowance for hunting. This action

had implications for national preserves where same-day-airborne takings

were previously prohibited by the NPS preclusion of use of firearms for

trapping. This was the first time that wolves could legally be taken on

the same-day-airborne in NPS areas in Alaska.

In response to the State change in same-day-airborne taking rules

for wolves, the NPS adopted an emergency one-year regulation from

November, 1988, to November, 1989, prohibiting same-day-airborne

hunting of wolves in NPS areas. At the same time the NPS began drafting

a proposed rule for permanent adoption. The proposed rule was published

in the Federal Register on June 9, 1989 (54 FR 24852). Written comments

were accepted and public hearings held during the Summer of 1989. After

analyzing the public comments, the NPS prepared a final rule for

adoption during 1990.

However, as a result of consultations between the State of Alaska

and the NPS, the State agreed to exclude the NPS preserves from the

State regulation allowing same-day-airborne hunting of wolves. State

regulations were changed to specifically exclude same-day-airborne

hunting allowances in national preserves in August, 1990. On October

30, 1990, the NPS published a Notice in the Federal Register (55 FR

45663) announcing the exception for the preserves. Since that date, the

NPS rule making on this issue has been held in abeyance.

In 1992 the State Board of Game again prohibited same-day-airborne

hunting of wolves statewide and did not reauthorize same-day-airborne

land and shoot trapping. Consequently, for about one year, same-day-

airborne taking of wolves in Alaska was not allowed under either a

State hunting or trapping license. Then in 1993 the State Board of Game

reauthorized same-day-airborne land and shoot trapping of wolves. This

action essentially returned same-day-airborne taking of wildlife to the

pre-1987 status when it was allowed for trapping but not hunting.

While the 1993 State action did not directly impact the NPS, it did

result in a strong public reaction that, because of the incorrect

perception that the State action did affect NPS areas, included many

requests that the NPS move ahead with the rule making that was first

proposed in 1989. In this regard, there continues to be significant

public interest in separating NPS areas from even the possibility of

impact from current and prospective State allowances for same-day-

airborne taking of wildlife under either State hunting or trapping

regulations.

Hunting and Trapping in NPS Areas

In discussing subsistence uses of wildlife in NPS areas under

ANILCA Congress 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 the

natural abundance, behavior, diversity and ecological integrity of

native animals as part of their ecosystem, and that concept should

be maintained. It is expected that the National Park Service will

take appropriate steps when necessary to insure that consumptive

uses of fish and wildlife populations within National Park Service

units not be allowed to adversely disrupt the natural balance which

has been maintained for thousands of years. Accordingly, the

National Park Service will not engage in habitat manipulation or

control of other species for the purpose of maintaining subsistence

uses within National Park System units.''

Congressional Record H10541 (November 12, 1980).

NPS policy guidelines reflect the Congressional mandate by

directing that, where hunting and trapping are allowed in NPS areas,

the NPS will seek to perpetuate healthy and natural populations of

native wildlife and protect the integrity of natural ecosystems by

minimizing human impacts on natural wildlife population dynamics.

Native animal populations are protected against harvest, removal,

destruction, harassment, or harm through human action, even though

individual animals within the population may be removed for various

reasons, including hunting and trapping where authorized. NPS

Management Policies, pp. 4:5-7 (Dec 88).

With reference to predator control, the NPS ``Natural Resources

Management Guideline'' (NPS-77), states: ``No native predator may be

destroyed on account of its normal utilization of any native animal

unless it is part of an approved threatened and endangered species

recovery program'' (NPS-77, Chap. 2, p.37). NPS-77 further directs that

native predators may not be manipulated, controlled, or eradicated for

the purpose of increasing harvestable species (Chap.2, p.29).

The practical effect of allowances for same-day-airborne hunting or

trapping of wolves is increased efficiency in the taking of wolves. The

State of Alaska does not allow for same-day-airborne hunting of favored

hunting species such as moose, caribou, or even bear. Reduction of

wolves in favor of caribou and moose populations and opportunities for

harvest is clearly a general goal of the State of Alaska. These facts

taken together lend credence to the conclusion that allowances for

same-day-airborne wolf taking are motivated, at least in part, by

predator control. To the extent predator control is the basis, or the

result, of State authorized same-day-airborne hunting and trapping, any

such authorizations are in direct conflict with NPS wildlife management

policies and with congressional allowances for hunting and trapping in

NPS areas.

Furthermore, the NPS does not consider the use of aircraft in such

proximate relation to the actual taking of wildlife as is the case with

same-day-airborne hunting, to be a sporting practice. Although Congress

clearly provided for continued sport hunting in national preserves,

same-day-airborne hunting does not appear to be intended to be

legitimately related to such sport.

The Problem of Enforcing Aircraft Harassment Restrictions

Hunting with the aid of an aircraft was characterized as

``unsportsmanlike'' in the legislative history for the Airborne Hunting

Act (AHA) of 1971 and was given as a primary reason for passage of the

AHA. The significant impact of aircraft assisted hunting on certain

prey species, including wolves, was also given as a reason for passage

of the AHA (Senate Report No. 92-421, Pub. L. 92-159). The NPS is

responsible for enforcing the AHA in NPS areas.

The AHA prohibits airborne shooting of wildlife and use of an

aircraft to harass wildlife. Harassment, as defined in the implementing

regulations (50 CFR 19.4), means to disturb, worry, molest, rally,

concentrate, harry, chase, drive, herd, or torment. This is a broader

restriction than the related State restriction, which covers only

intentional driving, herding, or molesting of game (5 AAC 92.080(5)).

Federal law enforcement experience indicates a correlation between

same-day-airborne taking of wildlife and the likelihood of aircraft

harassment of wildlife under the broader Federal definition. Unless

observed directly, it is difficult to prove that aircraft harassment

has occurred in conjunction with land and shoot taking of wildlife,

even though as a practical matter it is difficult, if not impossible,

to take wildlife in this manner without violating the Federal

harassment prohibition. Therefore, in areas where same-day-airborne

taking of wildlife is allowed, federal harassment violations tend to

increase while enforcement remains difficult.

An increase in the number of violations occurred in conjunction

with the State authorization of same-day-airborne hunting of wolves in

1987. In one incident in March of 1988, four wolves were illegally

killed in and near Denali National Park and Preserve. Evidence at two

kill sites indicated that the animals were run nearly to the point of

exhaustion by aircraft before being killed. In March, 1989 the U.S.

Fish and Wildlife Service investigated a case on the Kanuti National

Wildlife Refuge where wolves had been chased by several aircraft

operating under State land and shoot regulations. Aircraft radios were

used by the pilots to coordinate aerial driving of the wolves to a

location where the aircraft could be landed and the hunters could shoot

the wolves. In March 1990, two airplanes were observed in the Koyukuk

National Wildlife Refuge driving a wolf to a suitable location to land

and shoot. One person was convicted for violating the AHA. In another

large scale investigation that ended in 1990, federal investigators

found that numerous wolves reported as legal kills by one pilot and ten

of his partners were, in fact, actually killed in violation of the AHA.

A common thread in these cases is the pattern of illegal aircraft

harassment of wildlife occurring in conjunction with otherwise legal

land and shoot hunting. It is clear that when same-day-airborne taking

of wildlife is allowed, illegal aircraft harassment of wildlife

increases.

Summary of Comments Received in 1989

The original proposed rule (54 FR 24852-24854, June 9, 1989)

afforded the public a comment period of 60 days (extended to 70 days).

During the comment period, public meetings were held in Alaska in

Anchorage, King Salmon, Wasilla, Chignik, McGrath, Fairbanks,

Glennallen, Eagle, Kenai, Bettles, Iliamna, Yakutat, Kotzebue, Juneau,

and Nome, as well as in Washington, D.C. The comments strongly

supported the prohibition of same-day-airborne land and shoot hunting.

Analysis of 1989 Comments

The NPS received 1405 comments, 1312 written and 93 oral, during

the formal comment period for the original proposed rule. Ninety-four

percent (1323 comments) favored the proposed rule and six percent (82

comments) opposed the rule. Seventy-six percent (1069 comments)

suggested that the rule should be extended to other wildlife in

addition to wolves. Those opposing the rule generally felt the State,

not the Federal Government, should regulate all aspects of the taking

of wildlife in Alaska.

Since the formal comment period for the original proposed rule

ended, the Department of Interior and the National Park Service have

received, and continue to receive thousands of letters advocating

stricter controls on same-day-airborne hunting and trapping.

Regulatory Analysis

Subsection 13.21(a): Paragraph (a) is removed to standardize the

rule for all hunting classifications.

Subsection 13.21(d): This subsection addresses hunting and trapping

activities in park areas, including preserves.

Paragraph (1) of subsection (d) is added and revises existing

language to clarify that only State law and regulation that does not

conflict with Federal law and regulation is applicable to hunting and

trapping in NPS preserves.

Paragraph (2) of subsection (d) is added to clearly establish that

violation of non-conflicting State hunting and trapping laws is

federally prohibited and, therefore, enforceable by Federal officers.

Paragraph (3) of subsection (d) is added to retain existing

language concerning the prohibition on engaging in trapping as the

employee of another person.

Paragraph (4) of subsection (d) is added to prohibit same-day-

airborne taking of wildlife. The use of aircraft to aid in the taking

of wildlife to the degree allowed by same-day-airborne authorizations

is contrary to Congressional mandates governing NPS management of

wildlife. There is no other practical means of enforcing the Federal

and State prohibitions on airborne shooting and aircraft harassment of

wildlife. The prohibition is expanded from that specified in the

original proposed rule to include bear, caribou, Sitka black-tailed

deer, elk, coyote, arctic and red fox, mountain goat, moose, Dall

sheep, lynx, bison, musk ox, wolf, and wolverine.

Paragraph (5) of subsection (d) is added, and plainly clarifies in

one regulation the current firearm prohibition for trappers and

expressly adds an exception for use of a firearm to dispatch wildlife

already caught in a trap. This clarification eliminates the need to

reference various regulatory provisions when enforcing the prohibition

on the use of a firearm under a trapping license.

Subsection 13.21(e): Subsection (e) is revised in order to clarify

its applicability to closures of non-subsistence taking of wildlife

only. This change is necessitated by the elimination of Sec. 13.21(a).

Closure of subsistence taking remains subject to the provisions of Sec.

13.50.

Drafting Information

The primary authors of this regulation are Paul Hunter and John

Hiscock of the NPS Alaska Regional Office, and Tony Sisto, formerly of

the NPS, Washington Office.

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.

Compliance with Other Laws

This rulemaking was not subject to Office of Management and Budget

review under Executive Order 12866. The NPS certifies this document

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.). The economic effects of this rulemaking are local in nature and

negligible in scope.

This rulemaking is categorically excluded from the procedural

requirements of the National Environmental Policy Act (NEPA) by

Departmental regulations in 516 DM 6, (49 FR 21438). As such, neither

an Environmental Assessment nor an Environmental Impact Statement has

been prepared. The NPS has determined that this rulemaking will not

have a significant effect on the quality of the human environment,

health, and safety because it is not expected to (a) change public

hunting habits to the extent of adversely affecting wildlife or other

natural ecosystems; (b) introduce incompatible uses which might

compromise the nature and characteristics of the area, or cause

physical damage to it; (c) conflict with adjacent ownerships or land

uses; (d) cause a nuisance to adjacent owners or occupants; or (e)

affect the State hunting population generally.

The proposed rule has been evaluated in accordance with Section 810

of ANILCA and the NPS has determined there will be no significant

restriction on subsistence uses. It is worthy of note that the Federal

Subsistence Board has prohibited same-day-airborne taking of ungulates

(except deer), bear, wolves, wolverines, and furbearers for subsistence

uses on all Federal public lands in Alaska (50 CFR Part 100).

List of Subjects in 36 CFR Part 13

Alaska, National Parks, Reporting and recordkeeping requirements.

In consideration of the foregoing, 36 CFR Chapter I is proposed to

be amended as follows:

PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA

1. The authority citation for Part 13 continues to read as follows:

Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Section

13.65(b) also issued under 16 U.S.C. 1361, 1531.

2. Section 13.21 is amended by removing and reserving paragraph

(a), and revising paragraphs (d) and (e), to read as follows:

Sec. 13.21 Taking of fish and wildlife.

(a) [Reserved]

* * * * *

(a) Hunting and trapping. (1) Hunting and trapping are allowed in

national preserves in accordance with applicable Federal and non-

conflicting State law and regulations. Such laws and regulations are

hereby adopted and made a part of these regulations.

(2) Violating a provision of either Federal or non-conflicting

State hunting law or regulation is prohibited.

(3) Engaging in trapping activities as the employee of another

person is prohibited.

(4) It shall be unlawful for a person having been airborne to use a

firearm or any other weapon to take or assist in taking any species of

bear, caribou, Sitka black-tailed deer, elk, coyote, arctic and red

fox, mountain goat, moose, Dall sheep, lynx, bison, musk ox, wolf, and

wolverine under State or Federal hunting laws and regulations until

after 3 a.m. on the day following the day in which the flying occurred.

This prohibition does not apply to flights on regularly scheduled

commercial airlines between regularly maintained public airports.

(5) It shall be unlawful for a person to use a firearm or any other

weapon to take or assist in taking wildlife under a trapping license,

except that a trapper may use a firearm to dispatch wildlife caught in

a trap.

(e) Closures and restrictions. The Superintendent may prohibit or

restrict the non-subsistence taking of fish or wildlife in accordance

with the provisions of Sec. 13.30. Except in emergency conditions, such

restrictions shall take effect only after the Superintendent has

consulted with the appropriate State agency having responsibility over

fishing, hunting, or trapping and representatives of affected users.

Dated: September 27, 1994.

George T. Frampton, Jr.

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 94-28072 Filed 11-14-94; 8:45 am]

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