Seasonal Closure of the O'Malley River Area in the Kodiak National Wildlife Refuge

SUMMARY: This rule closes a 2,560 acre area within the Kodiak National

Wildlife Refuge (Refuge) to all public access, occupancy and use from

June 25 through September 30 annually. This closure includes a portion

of the O'Malley River drainage and adjacent Refuge lands bordering

Karluk Lake and O'Malley Lake. The area is heavily used by Kodiak brown

bears that concentrate along the O'Malley River from late June through

October to feed on spawning salmon. Extensive research indicates that

public use of the O'Malley area has increased to a level that is

adversely affecting brown bears. The seasonal closure is necessary to

protect brown bears and prevent incompatible conflicts between people

and brown bears at an important bear concentration area.

EFFECTIVE DATE: August 18, 1995.

ADDRESSES: U.S. Fish and Wildlife Service, Kodiak National Wildlife

Refuge, 1390 Buskin River Road, Kodiak, Alaska 99615.

FOR FURTHER INFORMATION CONTACT: Refer all questions to Jay Bellinger,

Refuge Manager, at the address listed above; Telephone: (907) 487-2600.

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 the purposes for which the Refuge is

established and shall be managed. The primary purpose and management

priority of the Refuge is:

``* * * 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.''

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 compliance

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

Kodiak Refuge Public Use Management Plan (PUMP) was developed. This

rule is a result of direction provided by both these planning

processes.

The O'Malley River area in Kodiak National Wildlife Refuge contains

crucial habitat for the world-renowned Kodiak brown bears. Bears

concentrate along the O'Malley River from late June through October to

feed on spawning salmon. The area supports about one third of the brown

bears in the Karluk Lake Basin during this period. During the season of

heavy bear use, many people also visit the area primarily to view and

photograph the bears and/or to fish. This public use has steadily

increased for many years.

In 1991, the Service began a study of brown bear use of the

O'Malley area and potential impacts of public use on bears. This study

documented detrimental impacts on bears in the O'Malley area resulting

from the public uses in the area, indicating a need to regulate public

uses. To provide viewing opportunities while reducing human-bear

conflicts, the Refuge implemented, on a trial basis, a guided bear

viewing program (BVP) in the O'Malley area in 1992. Structured BVPs

have been used successfully elsewhere in Alaska as a conservation

management tool and to enhance public use opportunities. On national

wildlife refuges, such services are normally provided by commercial

permittees. However, the Service operated the experimental O'Malley BVP

to maintain full control over its development and to ensure the

scientific integrity of the study. The Service was satisfied with the

results of the trial BVP. The O'Malley BVP and public use closure were

suspended in 1993. However, the bear study was continued to provide

additional information on the impacts of unrestricted public use on the

bears. The 1993 and 1994 study documented significant disturbance to

feeding bears and confirmed the need to protect bears from rapidly

growing and unrestricted public use.

The Service is committed to conserving healthy populations of

Kodiak brown bears in their natural diversity, as this is a primary

purpose for which the Refuge was established. The Service must manage

public uses of the Refuge in a manner consistent with this purpose.

On May 11, 1994, the Service published an Interim Rule closing the

O'Malley River area to public use from June 25-September 30, 1994,

except for individuals participating in a refuge-sponsored bear viewing

program (59 FR 24564). A proposed rule that would make the seasonal

public use closure permanent was also published (59 FR 24567)

concurrently with the Interim Rule. The Service reinstated the O'Malley

BVP to provide controlled, low impact recreational opportunities, as an

alternative to seasonal closure to all public use. The proposed and

interim rules were subject to a 60 day public review.

In 1994, to reduce government costs and strengthen support from the

private sector, the Service turned the bear viewing program over to a

commercial operator, who provided the services through a special use

permit issued by the Refuge. The operator, a long time Kodiak guide,

was selected through a competitive selection process. In light of

problems in the selection process and heavy public opposition to

privatization of the O'Malley BVP, the Service canceled the program and

revoked the Refuge permit in December 1994.

Summary of Public Comments

Six persons attended a public hearing on the interim and proposed

rule held in Kodiak, Alaska on April 20, 1994. Concerns and comments

were extracted from the administrative record of that hearing and

evaluated by the Service.

The Service also received 36 letters and post cards containing

written comments from individuals. Comments received over the telephone

from one individual were also documented and considered. Of these

responses from private individuals, 27 supported or conditionally

supported the proposed rule, and 8 opposed it. In two cases, comments

were ambiguous as to whether the person supported or opposed the

proposed rule.

Nine environmental organizations and one sportsman's organization

[[Page 37309]]

commented on the proposed rule. Six of these private organizations

opposed the proposed rule, and four provided support or conditional

support for it. The Service also received written comments opposing the

proposed rule from the State of Alaska, Kodiak Chamber of Commerce, and

the Alaska Citizens Advisory Commission on Federal Areas.

Most public opposition and concerns with the proposed rule were

directed at the privately operated bear viewing program and/or the

continuation of bear hunting in the area. The Service reevaluated the

proposed rule, in light of public comments and other concerns, and

modified the final rule as follows:

(a) The Service eliminated the O'Malley BVP. The O'Malley area will

now be closed to all public use from June 25-September 30.

(b) The area subject to this public use restriction has been

reduced from 3,955 acres to 2,560 acres.

Analysis of Public Comments

(a) Objections to private operation of the bear viewing program:

Most comments in opposition to the proposed rule focused on the

bear viewing program. Most commenters conceptually supported the need

for reducing conflicts between people and brown bears and providing

public bear viewing opportunities. However, there was considerable

objection to the specific actions proposed and implemented by the

Service at O'Malley. Common objections to the bear viewing program

included:

(1) The Service issued a five year special use permit to a private

businessman to operate the O'Malley BVP for personal profit, prior to

the proposed rule.

(2) The permitted private operator of the O'Malley BVP also guides

bear hunters on the Refuge, which raises conflict of interest and

ethical concerns.

(3) The permittee pays a minimal fee to the Federal government to

operate the bear viewing program, but charges the public $1,400 each to

view bears on public lands.

(4) One permittee is allowed exclusive commercial use of the area.

(5) Costs charged to view bears are exorbitant and prohibitive to

many people.

(6) The O'Malley BVP makes bears more familiar with, and therefore

less afraid of, people. Such ``habituation'' to human presence may

increase their vulnerability to bear hunting.

This rulemaking establishes a seasonal use restriction to protect

bears. The O'Malley BVP was subjected to a full, but separate, public

review and environmental assessment before the seasonal use restriction

was published in the Federal Register. Though already established by

separate action, the O'Malley BVP had to be considered in the proposed

and interim rules because it created an exception to the general public

use closure. Although public use restrictions are necessary to protect

brown bears and maintain compatibility with Refuge purposes, the bear

viewing program is not necessary to achieve these objectives. The

Service intended the program to provide a quality wildlife viewing

opportunity, as an alternative to a complete seasonal closure.

The decision to allow a private permittee to operate the O'Malley

BVP was based largely on the high cost to taxpayers for the government

to operate the program. Funds are not available for the Service to

operate such programs without sacrificing higher priority resource

management programs. Also, it is general Service policy to allow

private operators, rather than the government, the opportunity to

provide recreational services on refuges.

Public comments raised valid questions about the need, cost to the

public and the Service, and impacts of the O'Malley BVP on bears and

other recreational uses of the Refuge. Due to these and other concerns,

the Service canceled the O'Malley BVP. This final rule now prohibits

all public use in the O'Malley area during the season of important and

concentrated bear activities.

(b) Comments that the seasonal closure is inadequate or

inappropriate, since bear hunting is still allowed in area:

Next to the privatization of the O'Malley BVP, allowing bear

hunting to continue in the area appeared to be the most contentious

issue in the proposed rule. The proposed seasonal public use closure

dates (June 25-September 30) will not effect brown bear hunting

opportunities in the O'Malley area. Currently, spring bear season runs

April 1-May 15, and fall season runs October 25-November 30. Several

commenters voiced strong concerns that:

(1) The proposed rule restricts opportunities to view and

photograph wildlife, and to participate in other non-consumptive

activities, in order to protect bears from benign and incidental

impacts, but then allows hunters to deliberately kill bears in the same

area.

(2) Bears habituated to human presence in a bear viewing area are

highly susceptible to hunting. Hunting such bears presents serious

ethical problems and violates reasonable standards of fair chase.

(3) Bear hunting is inconsistent with other more appropriate public

uses of an important bear viewing area.

The Service recognizes the potential problem of bears losing their

fear of people wherever there is high public use in areas occupied by

bears. The Service canceled the O'Malley BVP and, under this final

rule, will close this important bear concentration area to all public

use during the period of high bear activity. These actions should

obviate the problems associated with hunting habituated bears.

The Service feels this closure includes the minimum area and time

period necessary to protect bears. The closure dates include the period

of highest concentrations and vulnerability of bears in the O'Malley

area. During this period, the bears concentrate along the O'Malley

River to feed on salmon. The four-year study of people-bear

interactions in the O'Malley area indicated that, during the closure

period, human activity disrupted feeding activities and displaced bears

from the area. Continued disruption of bear feeding activities along

the O'Malley River during the closure period may adversely affect their

ability to accumulate the fat and protein reserves necessary for winter

hibernation and reproduction. Bear hunting, which the Service has

determined through a separate process to be compatible with Refuge

purposes, does not occur during the critical period of heavy bear use.

(c) Comments on displacement of public use pressures and problems

to other areas:

Some commenters stated that restricting public use from the

O'Malley area would only displace public use pressure and associated

problems to other areas. In a related concern, a few commenters stated

that the Refuge needs a comprehensive system of multiple viewing areas

and that this rule focuses too much attention on one small area.

The O'Malley closure will displace some public use pressure/

problems to other areas. This rulemaking focuses on one area where a

significant problem warranting immediate action has been documented.

Public use has been rapidly increasing and commercial visitor service

providers have been targeting the O'Malley area. The Kodiak PUMP more

comprehensively addresses the issue of public use in bear concentration

areas. It identifies other areas on the Refuge where bear viewing

opportunities and potential problems exist. The Service will develop

regulations to protect bear use of other critical areas, as identified

in the PUMP.

[[Page 37310]]

For now, the Service intends to proceed with these regulations, which

are necessary to protect bears using the O'Malley area. The Refuge will

continue to monitor other brown bear concentration areas and limit

public use, where necessary to protect bears.

(d) Concerns that closure to all public use is unnecessary:

Some commenters stated that the seasonal public use closure was

excessive and/or unwarranted. Some recommended the Service consider

alternatives that allow public use to continue, but in a manner not

detrimental to resources of the area. Several commenters recommended

limiting public use through a lottery or drawing permits, as an

alternative to an expensive commercially operated bear viewing program.

One commenter recommended providing all visitors with orientation and

education materials to reduce human/bear conflicts.

Several years of research data reveal unrestricted public use at

O'Malley is adversely affecting bear use of this area, indicating that

public use restrictions are needed. The Service proposed allowing

limited public use of the area through the Refuge-permitted O'Malley

BVP, as an alternative to complete seasonal closure, but then canceled

the BVP in light of problems in the selection process and heavy public

criticism and opposition. Providing visitors with bear orientation and

education materials will not, by itself, effectively alleviate the

problems. Such materials are already available.

The Service agrees that a structured bear viewing program is not

the only means of controlling public use of important bear habitat. In

fact, the Kodiak PUMP addresses other means of regulating public uses

of other important bear use areas (e.g., seasonal restrictions on

overnight camping). The Service intends to proceed with public use

closures or restrictions only as necessary to protect and conserve

healthy populations of brown bears and other refuge wildlife resources.

(e) Comments about excessive area of restriction:

Some commenters stated that the area included in the O'Malley

closure was larger than necessary to protect bears. Cancellation of the

bear viewing program made it feasible to eliminate a safety buffer area

and reduce the closure area by 36%, from about 3,955 acres to 2,560

acres. The Service considers the closure area delineated in this final

rule the minimum size necessary to effectively protect bear use of the

O'Malley area.

(f) Comments that justification for the restrictions was misleading

and impacts were exaggerated or speculative:

Some commenters contended the justification or rationale for the

public use restriction was misleading. They claimed it inappropriately

implied that non-consumptive uses, such as wildlife viewing and

photography, are causing adverse effects on bears, while ignoring

impacts from hunting activities that will be allowed to continue. Some

stated the impacts were exaggerated and/or speculative.

The proposed rule provided a simple summary and evaluation of

extensive research data. The Service believes the impacts were

accurately depicted. Formal research and general management experience

with brown bears in the O'Malley River area clearly indicate that

unrestricted human use is detrimental to the resource values of the

Refuge.

The impacts of all public uses were evaluated. Though not clearly

articulated in the rulemaking documents, impacts of all public uses

were addressed in the environmental assessment (EA) and compatibility

determination for the O'Malley BVP and the Kodiak PUMP. The EA for the

O'Malley BVP and the Kodiak PUMP presented an evaluation of all public

uses occurring in the area during the period of concentrated bear use.

The Service did not intend to single out wildlife viewing and

photography as the only public uses impacting bears. The decision to

propose the closure was based upon the cumulative effect of all uses

that occur during the period of heavy bear use. In regard to impacts on

bears, the period of human use is just as important as the type of use.

Unfortunately some uses, such as wildlife viewing and photography,

occur predominately during the critical season of concentrated bear

feeding activities. The data compiled indicated that this intrusion on

the critical season of bear feeding would have a higher adverse impact

on the bear population as a whole, as opposed to controlled hunting,

because it would lessen the chances of their surviving the winter if

the bears were not allowed to feed unmolested by the public. Hunting

does not occur during the critical season of bear use and, as hunting

is controlled, the take (and ultimate impact on the bear population) is

predictable and designed to be biologically acceptable.

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

The Final Public Use Management Plan and Environmental Assessment

for Public Use Regulations for Kodiak National Wildlife Refuge was

completed in October 1993, after a full public review process. It

addresses the environmental considerations and need for the O'Malley

seasonal public use closure, as well as for other important bear

concentration areas. The environmental assessment for the Kodiak PUMP

resulted in a Finding of No Significant Impact.

Economic Effect

Implementation of the rule will seasonally close slightly more than

one tenth of one percent (0.13%) of Kodiak Refuge lands, to commercial

operators and public use. Average use (commercial and non-commercial)

of the O'Malley area was estimated at 266 user days during 1989 and

1990, and 353 user days during 1991. Most commercial use previously

occurring in the closure area will be displaced to other locations and

not lost to the local economy.

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

national income. The public use closure will cause an insignificant

impact on the local economy. Agency costs for monitoring the closure

will be about $4,000 less than expended during fiscal year 1994 for

monitoring the commercial bear viewing program, and about $40,000 less

than expended during fiscal year 1992 for the Refuge to operate the

program.

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 rule would have

minimal effect on such entities. The Department of the Interior has

determined this document is not a major rule.

List of Subjects in 50 CFR Part 36

Alaska, Recreation and recreation areas, Reporting and

recordkeeping requirements, Wildlife refuges.

Accordingly, Part 36 of Chapter I of Title 50 of the Code of

Federal Regulations is amended as follows:

[[Page 37311]]

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.

Sec. 36.39 [Amended]

2. Sec. 36.39 Public use is amended by adding paragraph (j) 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. That area within the Kodiak

National Wildlife Refuge described in this paragraph (j)(1) is closed

to all public access, occupancy and use from June 25 through September

30. The area subject to seasonal closure consists of lands and waters

located within Township 33 South, Range 30 West, Seward Meridian,

Alaska, consisting of approximately 2,560 acres, and more particularly

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; 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. Maps of the closure area are available from

the Refuge.

(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 properties described in paragraph (j)(1) of

this section in favor of the United States of America.

Dated: July 7, 1995.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 95-17741 Filed 7-18-95; 8:45 am]

BILLING CODE 4310-55-P