# Use of Bait in Hunting > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-9014 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** April 14, 1994 ## Text 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. ----------------------------------------------------------------------- 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] BILLING CODE 3410-11-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-9014. Public record. Not legal advice.