[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Proposed Rules]
[Pages 14107-14110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04318]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 36
[Docket No. FWS-R7-NWRS-2017-0058; FXRS12610700000-212-FF07R00000]
RIN 1018-BC74
Refuge-Specific Regulations; Public Use; Kenai National Wildlife
Refuge
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; withdrawal.
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SUMMARY: The U.S. Fish and Wildlife Service (Service, we) is
withdrawing our June 11, 2020, proposed rule to amend the refuge-
specific regulations for Kenai National Wildlife Refuge (NWR, Refuge)
related to the harvest of brown bears at bait stations, trapping under
State law without a Federal permit, discharge of firearms along the
Kenai and Russian Rivers, increased access for the use of bicycles and
game carts, and the use of snowmobiles, all-terrain vehicles, and
utility task vehicles on certain lakes when there is adequate snow and
ice cover. Based on the extensive public comments submitted in
opposition to the June 11, 2020, proposed rule and new information and
scientific literature not previously considered, we have determined
that the best course of action is to withdraw the proposed rule.
DATES: The proposed rule that published on June 11, 2020 (85 FR 35628),
to amend the refuge-specific regulations for Kenai NWR is withdrawn on
March 7, 2023.
FOR FURTHER INFORMATION CONTACT: Brian Glaspell, Alaska National
Wildlife
[[Page 14108]]
Refuge Chief, Alaska Regional Office, 1011 East Tudor Road, Anchorage,
AK 99503; telephone: 907-786-3584. Individuals in the United States who
are deaf, deafblind, hard of hearing, or have a speech disability may
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
On June 11, 2020, the Service published in the Federal Register (85
FR 35628) a proposed rule to amend the refuge-specific regulations for
Kenai NWR at 50 CFR 36.39 to allow the harvest of brown bears at
registered bait stations, allow for trapping under State law without a
Federal permit, allow the discharge of firearms along the Kenai and
Russian Rivers at certain times of year, increase access by bicycles
and game carts, and allow snowmobiles, all-terrain vehicles, and
utility task vehicles on certain lakes when there is adequate snow and
ice cover.
Refuge management is governed by Federal laws, such as the National
Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-
668ee), as amended by the National Wildlife Refuge System Improvement
Act of 1997 (Improvement Act; Pub. L. 105-57) (Refuge Administration
Act, as amended); the Alaska National Interest Lands Conservation Act
of 1980 (Pub. L. 96-487) (ANILCA); and the Wilderness Act of 1964 (16
U.S.C. 1131 et seq.) (Wilderness Act); by regulations implementing
these laws; by treaties; by Service policy; and by principles of sound
resource management that establish standards for resource management or
limit the range of potential activities (e.g., visitor use
opportunities administered via special use permitting) that may be
allowed on the Refuge.
Our authority to enact refuge-specific regulations stems from the
Refuge Administration Act, as amended, which states that when the
Secretary determines that a proposed wildlife-dependent recreational
use is a compatible use within a refuge, that activity should be
facilitated, subject to such restrictions or regulations as may be
necessary, reasonable, and appropriate (16 U.S.C. 668dd(a)(3)(D)). This
authority was affirmed in ANILCA (sec. 304(b)). Service regulations at
50 CFR 36.31(a) state that public recreational activities within the
Alaska NWRs are authorized if such activities are conducted in a manner
compatible with the purposes for which the areas were established. Such
recreational activities include, but are not limited to, sightseeing,
nature observations and photography, hunting, fishing, boating,
camping, hiking, picnicking, and other related activities. Therefore,
we manage public recreational activities on the Refuge to ensure they
are conducted in manner compatible with the purposes of the Refuge and
the mission of the National Wildlife Refuge System, as well as to avoid
conflict between the various recreational activities, with priority
given to wildlife-dependent recreation.
ANILCA's section 303(4)(B) establishes the following as the
purposes of Kenai NWR:
(i) To conserve fish and wildlife populations and habitats in their
natural diversity, including, but not limited to, moose, bears,
mountain goats, Dall sheep, wolves and other furbearers, salmonoids and
other fish, waterfowl and other migratory and nonmigratory birds;
(ii) To fulfill the international treaty obligations of the United
States with respect to fish and wildlife and their habitats;
(iii) To ensure, to the maximum extent practicable and in a manner
consistent with the purposes set forth in paragraph (i), water quality
and necessary water quantity within the Refuge;
(iv) To provide, in a manner consistent with paragraphs (i) and
(ii), opportunities for scientific research, interpretation,
environmental education, and land management training; and
(v) To provide, in a manner compatible with these purposes,
opportunities for fish and wildlife-oriented recreation.
The Wilderness Act created additional purposes for the Kenai NWR.
The Wilderness Act states in part that designated wilderness areas are
to be managed for the use and enjoyment of the American people in such
manner as will leave them unimpaired for future use and enjoyment as
wilderness, and so as to provide for the protection of these areas, the
preservation of their wilderness character, and for the gathering and
dissemination of information regarding their use and enjoyment as
wilderness (16 U.S.C. 1131(a)). In addition, the Wilderness Act
provides that each agency administering wilderness areas shall be
responsible for preserving the wilderness character of the area and
shall so administer such area for such other purposes for which it may
have been established as also to preserve its wilderness character.
Except as otherwise noted in the Wilderness Act, wilderness areas shall
be devoted to the public purposes of recreational, scenic, scientific,
educational, conservation, and historical use (16 U.S.C. 1133(b)). The
Refuge's wilderness purposes apply to the approximately 1.3 million
acres of the Congressionally designated Kenai Wilderness.
On June 11, 2020, we published in the Federal Register (85 FR
35628) a proposed rule to amend Kenai NWR's public use regulations. We
had two public comment periods on the proposed rule for a total of 90
days (see 85 FR 35628, June 11, 2020; and 85 FR 64106, October 9,
2020), and we held two virtual public hearings (on October 26 and 27,
2020; see 85 FR 64106, October 9, 2020). Of the almost 50,000 comments
on the proposed rule, all but 123 opposed all or part of the proposed
changes. In addition, we received over 95,000 campaign letters in the
form of attachments to letter submissions from various organizations
and groups that opposed the proposed rule.
Based on the extensive public comments we received on the proposed
rule, as well as new information and scientific literature not
previously considered and our sound professional judgment, we have
determined that the best course of action is to withdraw the entirety
of the June 11, 2020, proposed rule, as discussed further below.
Commenters expressed concerns that the June 11, 2020, proposed
rule, particularly the provisions allowing brown-bear baiting and
removing restrictions on trapping on the Refuge to align with State
regulations, would have significant adverse impacts on brown bears,
furbearers, non-target wildlife, and visitor use and safety. Many
commenters stated that these provisions of the proposed rule conflicted
with the purposes of the Kenai NWR and the Service's responsibilities
for managing Alaska NWRs, as outlined in ANILCA and the Refuge
Administration Act, as amended. Many commenters stated that the
proposed changes would materially detract from the Refuge's mandate in
ANILCA to protect wildlife in its ``natural diversity.'' Commenters
also stated that we had not properly complied with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in adequately
analyzing the impacts of the proposed rule; that we had not met our
obligations under ANILCA and the Improvement Act to ensure all
recreation on Kenai NWR is compatible with the purposes of the Refuge
and the mission of the National Wildlife Refuge
[[Page 14109]]
System; and that we had not provided reasonable justification for the
major change in the Service's position on these issues as required by
the Administrative Procedure Act (5 U.S.C. 551 et seq.).
We have never authorized the harvest of brown bears over bait on
Kenai NWR. The current regulations prohibiting harvest of brown bears
over bait on the Refuge promulgated by a May 5, 2016, final rule (81 FR
27030) codified a prohibition previously in place through a special
condition of the Federal special use permit required for the taking of
black bears over bait on the Refuge that in turn prohibited the taking
of any other species over bait. This prohibition was determined
necessary to meet our mandates under ANILCA to conserve healthy
populations of wildlife in their natural diversity on the Refuge,
especially as bears are explicitly referenced as one of the species the
Refuge is mandated to conserve (as discussed above; see section
303(4)(B) of ANILCA). In addition, we determined the prohibition was
necessary to maintain the wilderness character of the Kenai Wilderness
as mandated by the Wilderness Act (see 16 U.S.C. 1133(b)) and to meet
the Refuge's purpose for providing compatible wildlife-oriented
recreational opportunities (both consumptive and non-consumptive).
After reviewing the public comments, new information on recent annual
levels of human-caused brown bear mortalities on the Kenai Peninsula,
and additional scientific literature, we find that the prohibition of
harvest of brown bears over bait on the Refuge is still necessary.
We continue to believe, as discussed in the May 5, 2016, final rule
(81 FR 27030), that allowing the harvest of brown bears over bait on
the Refuge has a high potential to result in adverse impacts to the
Refuge's brown bear population, and that a cautious approach to
management of Kenai Peninsula brown bears remains scientifically
warranted. Brown bears have one of the lowest reproductive potentials
of any North American mammal, and at current densities, the Kenai brown
bear population remains a relatively small population (Morton et al.
2016) that is highly sensitive to adult female and overall human-caused
mortality levels. Genetics studies have determined that Kenai brown
bears comprise an insular population (reported in the Canadian Journal
of Zoology in 2008 by Jackson et al.), which means that immigration
from mainland Alaska will not assist in sustaining the population, and
that Kenai brown bears have very low haplotypic genetic diversity
(Jackson et al. 2008), which has unknown but potentially important
conservation implications.
The Kenai brown bear population will continue to be strongly
influenced by habitat loss and fragmentation and by multiple potential
sources of human-caused mortality as the human population continues to
grow on the Kenai Peninsula and recreational use of public lands
increases. Additionally, timely and accurate monitoring of the status
of the Kenai Peninsula brown bear population is extremely difficult at
best, costs associated with monitoring are high, and funding for
monitoring is usually limited and never guaranteed. This is important
given that the increased effectiveness of harvesting brown bears over
bait would likely mask the effects of reduced bear densities on harvest
success, thereby increasing potential for overharvest in the absence of
adequately rigorous population monitoring.
The Refuge contains a significant portion of the Kenai Peninsula's
core brown bear habitat, which in turn supports a significant portion
of the Kenai Peninsula's brown bear population. Baiting is a highly
effective method of hunting brown bears, as demonstrated by the fact
that since it was first allowed under State regulations on the Kenai
Peninsula in 2014, the number of brown bears taken over bait has
comprised over 54 percent of the overall harvest (184 of 340). Its
effectiveness is even more evident when considering that most of the
harvest of brown bears over bait occurs within a short timeframe during
the last two weeks of May, as compared to harvest not using bait which
occurs over a much longer period (most brown bears are taken during
May, September, or October within a September 1 to May 31 hunting
season).
Population modeling by the Service (using the model Vortex 9.9)
suggests that known human-caused mortality of brown bears from 2012 to
2014 reversed the previous increasing trajectory of the brown bear
population and resulted in a decline of approximately 18 percent (a
modeled decline from the 2010 population estimate of 582 bears to 478
bears) in the overall Kenai Peninsula brown bear population. We would
expect that annual harvest mortality would again increase and possibly
be maintained over a longer period if baiting were allowed on the
Refuge given this method's effectiveness and that the Refuge contains
substantially higher quality habitat and higher bear densities than the
vast majority of areas outside of the Refuge currently open to baiting.
Higher brown bear harvests over a longer time period could again drive
population declines that would be inconsistent with our mandate to
conserve healthy fish and wildlife populations, including brown bears,
in their natural diversity.
Allowing baiting for brown bears on the Refuge would also
negatively impact the wilderness character of the Kenai Wilderness.
Both population-level impacts to the Refuge's brown bears and placement
of artificial food sources used as bait, which affects behavior and
distribution of wildlife species utilizing these attractants, would
negatively impact the untrammeled and natural qualities of the Kenai
Wilderness.
Finally, in accordance with the Refuge Administration Act, as
amended, the Service has an obligation not to allow any uses of the
Refuge that are inconsistent with public safety (16 U.S.C.
668dd(d)(3)(A)(i)). Therefore, ensuring public safety is integral to
the purpose of any regulations regarding uses of the Refuge. The
Service believes that baiting of brown bears has the potential to
modify bear behavior and increase human-bear conflicts, and that
allowance of this method would increase baiting activity on the Refuge;
therefore, allowing this method on the Refuge has the potential to pose
an increased risk to public safety, which we discuss further in our May
5, 2016, final rule (81 FR 27030).
As to the Federal permit requirement for trapping on the Refuge,
information and scientific literature submitted during the public
comment period supported maintaining this regulatory requirement to
ensure compatibility with the purposes of the Refuge and the mission of
the National Wildlife Refuge System (Trapping Compatibility
Determination, U.S. Fish and Wildlife Service, Kenai National Wildlife
Refuge, August 2007). The Federal permit remains necessary due to its
importance in ensuring public safety, decreasing user conflicts on the
Refuge, and minimizing adverse impacts on non-target wildlife. The
stipulations of the Federal trapping permit include a number of refuge-
specific requirements not covered under State general trapping
regulations, which we consider necessary to ensure compatibility as
they support conservation of species in their natural diversity on the
Refuge by reducing incidental take of non-target species (e.g., moose,
caribou, black and brown bears, eagles, ravens, crows, magpies and
other migratory birds, and lynx when the season is closed) and
conserving furbearers population that occur at low densities on the
Refuge (e.g., red fox, marten, and beaver). Another main objective of
the
[[Page 14110]]
stipulations is to reduce user conflicts and enhance public safety in
areas of high recreational use. The framework for managing the Refuge
trapping program was developed through extensive public planning
processes dating back to the Refuge's first comprehensive conservation
plan in 1986, and furbearer management plan in 1988. This framework has
allowed us to maintain a successful trapping program on the Refuge for
decades.
As to the proposed increased access for snowmobiles, all-terrain
vehicles, and utility task vehicles on designated lakes on the Refuge
when there is adequate snow and ice cover, the Service believes this
would result in temporary disturbance of wildlife and habitat impacts.
The increased presence and use of motorized vehicles on these lakes may
also negatively impact other visitors and increase potential for
accidental fuel discharges. For example, allowance of snowmobiles, all-
terrain vehicles, and utility task vehicles on these lakes is likely to
lead to recreational riding of these vehicles unassociated with ice
fishing, thereby increasing potential for conflict with participants in
this popular winter activity on Refuge lakes. It would also likely
result in increased unauthorized use of these vehicles on adjacent
upland and wetland habitats, with resultant impacts to soils, habitats,
and wildlife.
In further considering changes to firearm discharge restrictions
along the Russian and Kenai Rivers, the Service finds that limiting the
firearms restriction to the months of May through October, as outlined
in the June 11, 2020, proposed rule (85 FR 35628), is insufficient to
address public safety issues associated with firearms discharge along
these rivers. As previously explained, under the Refuge Administration
Act, as amended, the Service has an obligation not to allow any uses on
a refuge that are inconsistent with public safety (16 U.S.C.
6688dd(d)(3)(A)(i)). Additionally, Service regulations at 50 CFR
36.42(b) provide that in determining whether to close an area or
restrict an activity, the Refuge Manager shall be guided by several
factors, including public health and safety. Therefore, for the reasons
outlined in the May 5, 2016, final rule, and having completed
additional analyses under NEPA, we are maintaining the year-round
restriction on firearms discharge along the Kenai and Russian Rivers to
ensure public safety in these intensively used river corridors.
Maintaining this firearm restriction also provides consistency with
U.S. Forest Service regulations restricting use of weapons in the
vicinity of developed recreational facilities (36 CFR 261.10(d)), which
apply to an adjoining area of similar size in the Chugach National
Forest from the Russian River's confluence with the Kenai River
upstream to the Russian River Falls.
Lastly, the Service believes that the provisions of the proposed
rule that would increase access for bicycles and game carts on
designated roads, rights-of-way, and trails needs further planning,
public involvement, and compliance with NEPA.
For the reasons provided above, we are withdrawing the proposed
rule that published on June 11, 2020 (85 FR 35628), to amend the
refuge-specific public use regulations for Kenai NWR.
References Cited
A complete list of references cited in this document is available
on the internet at https://www.regulations.gov at Docket No. FWS-R7-
NWRS-2017-0058 and upon request from the person listed above under FOR
FURTHER INFORMATION CONTACT.
Authority
The authority for this action is the National Wildlife Refuge
System Administration Act of 1966 (16 U.S.C. 668dd-668ee), as amended
by the National Wildlife Refuge System Improvement Act of 1997 (Pub. L.
105-57); the Alaska National Interest Lands Conservation Act of 1980
(Pub. L. 96-487); and the Wilderness Act of 1964 (16 U.S.C. 1131 et
seq.).
Shannon Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2023-04318 Filed 3-6-23; 8:45 am]
BILLING CODE 4333-15-P