Use of Bait in Hunting

DEPARTMENT OF AGRICULTURE

Forest Service

Use of Bait in Hunting

AGENCY: Forest Service, USDA.

ACTION: Notice of withdrawal of interim policy, notice of proposed

policy; and request for public comment.

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SUMMARY: On March 14, 1994, the Forest Service published an interim

policy, with a request for public comment, on the agency's role in

regulating the placement of bait on National Forest System lands (59 FR

11765). This notice withdraws the interim policy and republishes it as

a proposed policy. The intended effect of the proposed policy is to

clarify the agency's role in relation to the role of the States and,

thus, to provide a consistent approach to the regulation of baiting

resident game. Public comment is invited and will be considered in the

adoption of a final policy, notice of which will be published in the

Federal Register.

DATES: Comments must be received in writing by June 13, 1994.

ADDRESSES: Send written comments to Director, Wildlife, Fish, and Rare

Plants (2640), Forest Service, USDA, P.O. Box 96090, Washington, DC

20090-6090.

The public may inspect comments received on this proposed policy in

the Office of the Director, Wildlife, Fish, and Rare Plants, 4th floor

Southwest Wing, Auditors Building, 205 14th Street SW., Washington, DC.

Those wishing to inspect comments should call ahead at (202) 205-1159

to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Tom Darden, Wildlife, Fish, and Rare Plants Staff, (202) 205-1206.

SUPPLEMENTARY INFORMATION:

Background

State fish and wildlife agencies have the primary responsibility

for protection and management of wildlife populations on National

Forest System lands, including adoption of State fish and wildlife laws

and regulations affecting the taking of resident game animals. The

Forest Service enters into a Memorandum of Understanding (MOU) with

each State which governs Forest Service/State cooperation on matters of

Statewide fish and wildlife policy or procedure affecting the National

Forest System (FSM 2611.1). The States issue regulations regarding

hunting licenses, methods, seasons, locations, and bag limits for

resident game and have the primary responsibility for enforcement of

fish and wildlife laws and regulations on National Forest System lands.

Federal land management statutes acknowledge the States'

traditional role in managing fish and wildlife; see the National Forest

System Organic Administration Act at 16 U.S.C. 480, the Multiple Use-

Sustained Yield Act at 16 U.S.C. 528, the Sikes Act at 16 U.S.C. 670h,

and the Federal Land Policy and Management Act, at 43 U.S.C. 1732. The

Forest Service, therefore, is generally reluctant to override State

fish and wildlife regulation, except where federal interests, such as

protection of forest land, resources, and users, require federal

intervention.

The practice of placing bait (food or scent to attract wildlife) is

a hunting activity subject to State laws and regulations. The baiting

of bears is particularly controversial. While the total number of

States allowing bear baiting has declined, State fish and wildlife

agencies permit the baiting of black bear as a hunting activity in

Alaska, Idaho, Oregon, Maine, Michigan, Minnesota, New Hampshire, Utah,

Washington, Wisconsin,and Wyoming. The Forest Service intends to work

diligently through its ongoing cooperative efforts to encourage the

States to evaluate their regulation of the practice of baiting bears.

In the meantime, the agency is issuing proposed policy regarding the

use of bait on National Forest System lands.

In the past, some national forests have regulated the placement of

bear baits by requiring hunters and commercial guides to obtain special

use authorizations in order to prevent conflicts with other users or

other problems associated with the location and removal of bait.

Additionally, some Forest Service Regions have issued orders under 36

CFR part 261 to control litter, as well as to close certain areas to

bear baiting where the practice would create unacceptable adverse

effects on other resources or forest users. Special use authorizations

for bear baiting had been issued on a number of national forests in

Wyoming. Typically, those special use authorizations included

conditions with which the holder had to comply to minimize adverse

effects created by placement of bear bait. In early 1992, the Forest

Service's role in the regulation of bear baiting on the national

forests in Wyoming became an issue.

In March 1992, the Regional Foresters for the Rocky Mountain and

Intermountain Regions issued a joint closure order prohibiting bear

baiting in the national forests in Wyoming, unless the baiting activity

was conducted in compliance with the requirements of the order

pertaining to the placement and disposal of baits. Like the conditions

that previously had been included in special use authorizations, the

requirements of the order were intended to minimize adverse effects on

forest resources and users.

The Fund for Animals and the Friends of the Bow brought suit to

challenge the Forest Service's closure order and to challenge what

Plaintiffs considered a shift in established policy, that is, no longer

requiring special use authorizations for bear bait placement and using

closure orders instead (The Fund for Animals v. Robertson (D.D.C. Civ.

No.92-1694-TPJ)). These groups perceived this shift in method as a

diminution in the level of Forest Service regulation and wildlife

protection. The parties settled the case upon the Forest Service's

decision to rescind the closure order and, in compliance with the

National Environmental Policy Act, to analyze the effects of

eliminating the practice of issuing special use authorizations for the

placement of bear bait on National Forest System lands in Wyoming. The

Regions then prepared an Environmental Assessment to disclose effects

of the proposed action and alternatives to that proposal.

Upon completion of the Environmental Assessment and issuance of a

Decision Notice by the Rocky Mountain and Intermountain Regional

Foresters in April 1993, there were new challenges to the agency's

position. Subsequently, the Deputy Chief for the National Forest System

decided that national direction was needed to end the conflict and

controversy. Accordingly, the Decision Notice was rescinded, and bear

baiting in national forests in Wyoming was prohibited pending issuance

of national direction.

An interim policy was issued by the Forest Service, on March 4,

1994, and published in the Federal Register on March 14, 1994.

On March 28, 1994, a lawsuit was filed by the fund for Animals and

others, in the U.S. District Court for the District of Columbia

challenging, in part, the absence of a public comment period prior to

issuance of the interim policy. In a stipulation to stay proceedings in

the suit, the agency agreed to withdraw the interim policy and

republish it as proposed with a 60-day public comment period prior to

issuance of a final policy. As a result, effective March 30, 1994, the

Forest Service policy on bear baiting reverted to that which was in

effect prior to the interim policy of March 14.

Proposed Policy

The Forest Service special use authorization regulations at 36 CFR

251.50 exempt noncommercial use and occupancy, including ``hunting,''

from the special use authorization requirement. Since hunting methods

subject to State regulation are included within the term ``hunting,''

the proposed policy makes explicit that, where State regulations permit

baiting, the Forest Service would prohibit the practice of issuing a

special use authorization for the practice of baiting connected with

hunting on National Forest System lands. However, outfitter and guide

activities still require special use authorization and, as a condition

of that authorization, outfitters and guides must comply with

applicable State laws and regulations as well as any applicable Forest

Service closure orders.

However, if the placement of bait should become a land or resource

management issue and if it is determined that the State regulations

governing baiting would not protect resources in an area adequately or

would otherwise be inconsistent with the applicable forest plan or

conflict with federal laws such as the Endangered Species Act, then,

under the proposed policy, the authorized officer would issue an order

to close the area to baiting. The authorized officer also could close

an area to baiting after considering the likely impact on a site-

specific basis on water quality, public health and sanitation, or the

potential threat to the viability of wildlife. Finally, the proposed

policy would explicitly prohibit the practice of issuing a special use

authorization to individuals for the specific act of placing bait on

National Forest system lands for hunting purposes.

The approach contemplated in the proposed policy maintains

protection of national forest resources. First, under the terms of the

Memorandums of Understanding with the State fish and wildlife or game

agencies, the Forest Service continuously participates in the review

and adoption of State game regulations as they affect National Forest

System land or resources. Second, the proposed policy would provide the

Regional Forester or Forest Supervisor with the flexibility and

discretion to determine if baiting should be prohibited in a specific

location. Finally, if a hunter, in placing bait to attract resident

game creates litter through improper placement or untimely removal of

bait in violation of State regulations or Forest Service closure

orders, the agency has the authority under its regulations at 36 CFR

261.11 to cite the hunter for violating the prohibition on litter. If

such bait results in violation of State regulations, the agency also

has authority to cite the hunter for violation of 36 CFR 261.8, and

agency employees routinely do so where such violations occur. In short,

the agency's proposed approach (1) relies on existing relationships

with each State, (2) prevents duplicative regulation by Federal and

State agencies, and (3) provide site-specific environmental safeguards

to address those situations where baiting would have an adverse site-

specific effect on National Forest System land or resources.

The proposed baiting policy would be an amendment to the Forest

Service Manual. Accordingly, pursuant to 36 CFR part 216, the text of

the proposed policy is set out at the end of this notice. Public

comment is invited and will be considered in adoption of a final

policy.

Environmental Impact

Publication of this proposed policy is an integral part of the

agency's scoping process by which it determines the scope and level of

any environmental effects of proposed actions. According to the agency

NEPA procedures, scoping is required for all proposed actions,

including those that might be categorically excluded. Section 31.1b(2)

of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992)

excludes from documentation in an environmental assessment or impact

statement ``rules, regulations, or policies to establish Service-wide

administrative procedures, program processes, or instructions.'' This

proposed policy would provide administrative instructions to Forest

Service field offices on the procedures and processes to follow in the

case of placing bait for resident game. Accordingly, the agency's

preliminary assessment is that this policy falls within this category

of actions and that no extraordinary circumstances exist which would

require preparation of an environmental assessment or environmental

impact statement. The agency particularly invites comment on this

preliminary finding. Following consideration of public comments, the

Forest Service will make a final determination regarding the level of

environmental analysis.

Controlling Paperwork Burden on the Public

This policy will not result in addition paperwork. Therefore, the

review provisions of the Paperwork Reduction Act of 1980 (44 U.S.C.

3507) and implementing regulations at 5 CFR part 1320 do not apply.

Regulatory Impact

This proposed policy has been reviewed under USDA procedures and

Executive Order 12866 on Federal Regulations. It has been determined

that this is not a significant policy.

Dated: April 7, 1994.

Mark A. Reimers,

Acting Chief.

Proposed Policy--Forest Service Manual Chapter 2640

Note: The Forest Service organizes its directive system by

alpha-numeric codes and subject headings. Only those sections of the

Forest Service Manual including policy direction that are the

subject of this notice are set out here. The proposed policy

includes minor revisions to existing codes and subject headings. The

audience for this direction is Forest Service employees responsible

for coordinating wildlife management on National Forest System lands

with State fish and wildlife agencies.

2643--Applicability of State Fish and Wildlife laws and Regulations

The Forest Service actively cooperates in the development of State

fish and wildlife laws and regulations and may assist in the

enforcement of State fish and wildlife laws on National Forest System

lands. Pursuant to FSM 2610, Regional Foresters shall ensure that

memorandums with State fish and wildlife agencies recognize the role of

the Forest Service in cooperating in the development of State fish and

wildlife laws and regulations, especially those addressing hunting,

fishing, and trapping as they would apply to occupancy and use of

National Forest System lands.

2643.1--Hunting, Fishing, and Trapping Regulations

Hunting, fishing, and trapping of fish and wildlife and associated

practices are permitted on National Forest System lands subject to

State fish and wildlife laws and regulations, unless one or both of the

following apply:

1. State fish and wildlife laws and regulations conflict with

federal laws; or

2. State laws and regulations would permit activities that conflict

with the land and resource management responsibilities of the Forest

Service or that are inconsistent with forest plans.

2643.12--Use of Bait for Resident Game Hunting

The use of bait as a lure or attractant for the purpose of taking

resident game on National Forest System lands is considered a hunting

practice subject to State regulation.

Where State hunting regulations prohibit the use of bait, the

practice is prohibited on National Forest System lands.

Where States permit the use of bait for attracting resident game,

this activity is allowed on National Forest System lands, subject to

State hunting laws and regulations, unless the authorized officer

determines on a site-specific basis that there is a need to prohibit or

restrict the practice of baiting because one or more of the following

circumstances exist:

1. The State laws and regulations on placement of bait are

inadequate to protect forest land or other resources or users in a

particular location and/or to prevent trespass or litter;

2. Baiting is inconsistent with the applicable forest plan; or

3. The State laws and regulations conflict with Federal law, such

as the Endangered Species Act.

In addition to the mandatory causes for prohibiting or restricting

baiting, the authorized officer also may prohibit baiting, regardless

of the adequacy of State regulations, based on consideration of the

likely impact of baiting on such matters as water quality, public

health and sanitation, the potential for litter, or the potential to

threaten the viability of wildlife.

Where the authorized officer determines that baiting is a

significant problem and should be restricted or prohibited:

1. The officer shall notify State fish and wildlife officials and

provide them the opportunity to resolve the issue through further

restrictions or the prohibition through State regulation rather than

for the Forest Service to issue the restriction or prohibition.

2. If the State does not revise its regulations to adequately

regulate or restrict baiting, the Forest Service authorized officer

shall, time permitting close the area or otherwise restrict baiting by

issuing an order pursuant to 36 CFR part 261.

Where time does not permit closure of an area to baiting because

the hunting season is underway and it would be impracticable to issue a

closure order, the Regional Forester or Forest Supervisor shall take

such mitigation and/or enforcement measures as are appropriate and

practicable to ensure consistency with forest plan management direction

and compliance with Federal laws, orders, and regulations, and

protection for forest users and resources. For example, the agency may

close a road or gate, or cite violations of other State or Forest

Service regulations.

Closure is not the only way to address the practice of baiting. It

is expected that land managers as part of their day-to-day management

of National Forest System lands and resources will be cognizant of the

effects of hunting activities and take such proactive measures, after

consultation with the responsible fish and wildlife agency, such as

hunter education, as may be necessary to ensure resource protection

consistent with forest plan management direction.

This policy, in and of itself, does not compel an authorized

officer to undertake a specific decision or to make a determination of

whether baiting is allowed in the those States where the practice is

permitted.

Special use authorization shall not be issued for placing bait on

National Forest System lands for hunting purposes (36 CFR 251.50(c)).

For the purposes of this section and to assure consistency in

coordination of national forest wildlife matters with State agencies,

the authorized officer is the Regional Forester or Forest Supervisor

responsible for executing memorandums of understanding with the State

wildlife agency.

[FR Doc. 94-9014 Filed 4-13-94; 8:45 am]

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