[Federal Register: March 24, 1999 (Volume 64, Number 56)]

[Rules and Regulations]               

[Page 14151-14154]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]




Fish and Wildlife Service

50 CFR Part 36

RIN 1018-AE58


Seasonal Closure of the Moose Range Meadows Public Access 

Easements in the Kenai National Wildlife Refuge

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We restrict public access and use of the public easements in 

the Moose Range Meadows area within the boundary of the Kenai National 

Wildlife Refuge (Refuge). This seasonal closure is necessary to prevent 

incompatible levels of bank degradation that occur along the easements 

due to intensive bank angling during the sockeye (red) salmon fishery 

each summer. We will prohibit public access and use on our managed 

easements from July 1 through August 15 annually.

DATES: This rule is effective April 23, 1999.

FOR FURTHER INFORMATION CONTACT: Robin West, Refuge Manager, Kenai 

National Wildlife Refuge, telephone: (907) 262-7021; or Bob Stevens, 

Public Involvement Specialist, telephone: (907) 786-3499.



    This seasonal closure is necessary to prevent incompatible levels 

of bank degradation that occur along the easements due to intensive 

bank angling during the sockeye (red) salmon fishery each summer. 

Concentrated bank angling along the easements has led to unacceptable 

levels of vegetation destruction and accelerated erosion of the 

riverbank. Healthy riverbank habitats are important in maintaining the 

Kenai River's famous anadromous and resident fish populations and in 

meeting the primary purpose of the Refuge.

    We manage two public use easements on the banks of the Kenai River 

within lands conveyed to the Salamatof Native Association, Inc. We 

reserved the easements under terms of the August 17, 1979, stipulated 

settlement agreement between the United States, Cook Inlet Region Inc., 

and Salamatof Native Association Inc. We reserved the subject easements 

``. . . for the public at large to walk upon or along such banks, to 

fish from such banks or to launch or beach a boat upon such banks . . 

.'' We also reserved two access easements from existing roadways to the 

river bank easements under the same agreement and limited use of the 

two access easements to foot travel or wheelchairs.

    The level of foot traffic and use on the river bank easements has 

increased dramatically since the mid-1980's. The development and growth 

of the sockeye salmon sport fishery is the principal activity which has 

lead to this high level of public use. In recent years, use has grown 

to the point where impacts to the vegetated banks of the Kenai River 

are readily apparent.

    Discussions and meetings among our staff, landowners, users, and 

other State and Federal managing agencies on how to deal with 

increasing use of the easements have been ongoing since the late 

1980's. In 1995, the Kenai National Wildlife Refuge Manager (Refuge 

Manager) issued an emergency closure of portions of the public access 

easements pursuant to the authorities granted in 50 CFR 36.42. In 

issuing the emergency closure, the Refuge Manager determined that the 

human-caused bank degradation occurring as a result of the intensive 

bank angling effort was incompatible with the Refuge's purpose 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, salmonids and other 

fish, waterfowl and other migratory and nonmigratory birds'', [Alaska 

National Interest Lands Conservation Act (ANILCA),16 U.S.C. 140hh-3233, 

43 U.S.C. 1602-1784]. By regulation, we limited this emergency action 

to 30 days in duration.

    Following the closure in 1995, the Refuge Manager prepared an 

environmental assessment (EA), with full public involvement, to analyze 

the management alternatives for the Moose Range Meadows access 

easements (obtain copies of the EA from the Refuge Manager). Through 

the EA process, we selected a management alternative that would 

permanently close the easements

[[Page 14152]]

on a seasonal basis. We instituted a temporary closure during the peak 

use season of 1996 pursuant to 50 CFR 36.42 as an interim management 

measure. This rulemaking action is a necessary part of implementing the 

preferred alternative to make permanent the seasonal use closure.

    In the March 18, 1998, issue of the Federal Register (63 FR 13158-

13161) we published a proposed rulemaking and invited public comment on 

these regulations and received no public comments during the 60-day 

comment period.

    The seasonal closure will be in effect on the 25-foot wide 

streamside easements on both banks of the Kenai River, and on the 25-

foot wide access easements running from Funny River Road and Keystone 

Drive to the downstream ends of the stream side easements on the south 

and north banks of the River, respectively. This closure will affect 

approximately three miles of stream side easements (two miles on the 

north bank and one mile on the south bank) and an additional one mile 

of access easements. T. 4 N.; R. 10 W.; Sections 1, 2, and 3; and 

Seward Meridian contains lands affected by this action. Maps of the 

affected area are available from the Refuge Manager.

Statutory Authority

    The National Wildlife Refuge System Administration Act (NWRSAA) of 

1966, (16 U.S.C. 668dd-668ee), and the Refuge Recreation Act (RRA) of 

1962, (16 U.S.C. 460k-460k-4) govern the administration and public use 

of national wildlife refuges.

    The National Wildlife Refuge System Improvement Act of 1997 (Pub.L. 

105-57) is the latest amendment to the NWRSAA. It amends and builds 

upon the NWRSAA in a manner that provides an improved ``Organic Act'' 

for the Refuge System similar to those which exist for other public 

lands. It serves to ensure that we effectively manage the System as a 

national system of lands, waters and interests for the protection and 

conservation of our nation's wildlife resources. The NWRSAA states 

first and foremost that the mission of the System focus on conservation 

of fish, wildlife, and plant resources and their habitat. This Act 

prevents the Secretary from initiating or permitting a new use of a 

refuge or expanding, renewing, or extending an existing use of a 

refuge, unless the Secretary has determined that the use is a 

compatible use and that the use is not inconsistent with public safety.

    The RRA authorizes the Secretary to administer areas within the 

System for public recreation as an appropriate incidental or secondary 

use only to the extent that it is practicable and not inconsistent with 

the primary purpose(s) for which we established the areas. This Act 

requires that any recreational use of refuge lands be compatible with 

the primary purposes for which we established the refuge and not 

inconsistent with other previously-authorized operations.

    The Alaska National Interest Lands Conservation Act of 1980, (16 

U.S.C. 140hh-3233), (43 U.S.C. 1602-1784) (ANILCA), requires that we 

administer national wildlife refuges in Alaska in accordance with the 

laws governing the administration of the System. Section 304 of ANILCA 

adopted the compatibility standard of the Refuge Administration Act for 

Alaska refuges. When determining appropriate public uses of Alaska 

refuges, the refuge manager must find the use or uses compatible.

    The NWRSAA establishes the same standard of compatibility for 

Alaska refuges as for other national wildlife refuges, but it 

specifically requires that ANILCA take precedence if any conflict 

arises between the two laws. Additionally, the provisions of ANILCA are 

the primary guidance refuge managers should use when examining 

compatibility issues regarding subsistence use. We may alter the 

compatibility process in some cases for Alaska refuges to include 

additional procedural steps such as when reviewing applications for oil 

and gas leasing on non-North-Slope lands (ANILCA Sec. 1008) and for 

applications for transportation or utility corridors (ANILCA Sec. 


    Section 22(g) of the Alaska Native Claims Settlement Act provides 

that patents issued for the land within the boundaries of a refuge 

existing on December 18, 1971, the date of Act signing, are subject to 

laws and regulations governing the use and development of such refuges. 

This includes application of the compatibility standard before uses or 

development may occur on the land.

    Alaska refuges established before the passage of ANILCA have two 

sets of purposes. Purposes for pre-ANILCA refuges (in effect on the day 

before the enactment of ANILCA ) remain in force and effect, except to 

the extent that they may be inconsistent with ANILCA or the Alaska 

Native Claims Settlement Act, in which case the provisions of those 

Acts apply. However, the original purposes apply only to those portions 

of the refuge established by executive order or public land order, and 

not to those portions of the refuge added by ANILCA.

    The NWRSAA, and the RRA, also authorize the Secretary to issue 

regulations to carry out the purposes of the Acts and regulate uses.

    This rule regulates public use of our managed easements in a manner 

that is compatible with Refuge purposes as defined in section 303(4)(B) 

of ANILCA. We further determined that this action is in accordance with 

the provisions of all applicable laws, is consistent with principles of 

sound fish and wildlife management, helps implement Executive Orders 

12996 (Management and Public Use of the National Wildlife Refuge 

System) and 12962 (Recreational Fisheries) and is otherwise in the 

public interest by regulating recreational opportunities at national 

wildlife refuges. Sufficient funds will be available within the refuge 

budgets to operate the hunting and sport fishing programs.

Summary of Public Involvement

    The public frequently has focused on the local area where land 

interests are centered. On February 20, 1996 we conducted a workshop-

style public meeting in Soldotna, Alaska. Thirty people attended the 

discussions; an additional 15 provided written views. We incorporated 

the information received into an environmental assessment and mailed 

the EA to those meeting participants requesting a copy. Fourteen 

persons responded to the assessment with written comments which we 

considered in the preparation of the decision document. Eleven of those 

14 persons writing had property interests affected by the proposed 


    We published the resulting proposed rule in the Federal Register on 

March 18, 1998 (63 FR 13158), with a 60-day comment period, and on 

March 19, 1998 held a public meeting attended by approximately fifty 

people in Soldotna. Two attendees provided testimony in opposition to 

the closure because we were terminating their customary fishing access. 

We received no specific recommendations for changing the proposed rule 

nor did we receive written responses to the proposed rule during the 

60-day public review.

    In adopting the President's ``plain language'' mandate, we have 

revised ``(7) Other Public Uses'' to incorporate plain language changes 

without modifying the substance of the previous restrictions. We 

included the substantive changes discussed in this preamble in this 


[[Page 14153]]

Regulatory Planning and Review (E.O. 12866)

    This document is not a significant rule subject to Office of 

Management and Budget review under Executive Order 12866. See 

explanation under Regulatory Flexibility Act.

    1. This rule will not have an effect of $100 million or more on the 

economy. It will not adversely affect in a material way the economy, 

productivity, competition, jobs, the environment, public health or 

safety, or State, local, or tribal governments or communities. See 

explanation under Regulatory Flexibility Act.

    2. This rule will not create a serious inconsistency or otherwise 

interfere with an action taken or planned by another agency. See 

explanation under Regulatory Flexibility Act.

    3. This rule does not alter the budgetary effects or entitlements, 

grants, user fees, or loan programs or the rights or obligations of 

their recipients. See explanation under Regulatory Flexibility Act.

    4. This rule does not raise novel legal or policy issues. See 

explanation under Regulatory Flexibility Act.

Regulatory Flexibility Act

    This rulemaking will not have a significant economic impact on a 

substantial number of small entities by decreasing visitation and 

expenditures in the surrounding area of Kenai NWR. This is not a 

fishing closure and the same number of anglers will continue to fish 

the Kenai River. They will simply access the river in a different 


    Since the first emergency closure in 1995, public use has continued 

to increase. Many of these people are local or own summer homes along 

the river. They will continue to pay for fishing licenses, magazines, 

membership dues, contributions, land leasing, ownership, stamps, tags, 

permits, and tackle.

    We calculated economic impacts of refuge fishing programs on local 

communities from average expenditures in the 1996 National Survey of 

Fishing, Hunting, and Wildlife-Associated Recreation. In 1996, 35.2 

million U.S. residents 16 years old and older enjoyed a variety of 

fishing opportunities throughout the United States. Anglers fished 626 

million days and took 507 million fishing trips. They spent almost $38 

billion on fishing-related expenses during the year. Among the 29.7 

million freshwater anglers, including those who fished in the Great 

Lakes, but not Alaska, 515 million days were spent and 420 million 

trips were taken freshwater fishing. Freshwater anglers spent $24.5 

billion on freshwater fishing trips and equipment.

    Saltwater fishing attracted 9.4 million anglers who enjoyed 87 

million trips on 103 million days. They spent $8.1 billion on their 

trips and equipment. Trip-related expenditures for food, lodging, and 

transportation were $15.4 billion; equipment expenditures amounted to 

$19.2 billion; other expenditures such as those for magazines, 

membership dues, contributions, land leasing, ownership, licenses, 

stamps, tags, and permits accounted for $3.2 billion, or 19.2 percent 

of all expenditures. Overall, anglers spent an average of $41 per day 

in the lower 48 states and projecting a 25 percent cost of living 

increase for Alaska, spent an average of $51 per day in Alaska.

    Five hundred angler-days, based on past creel surveys in the 

closure areas, will continue to have the same economic impact ($51./

angler-day) on local economies because these anglers that used the 

closure area will continue to purchase supplies, food or lodging in the 

area of the refuge, during the time of the closure resulting in a 

continuation of $25,500 to the local economy.

    We certify that this document will not have a significant economic 

effect on a substantial number of small entities such as businesses, 

organizations and governmental jurisdictions in the area under the 

Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 

Business Regulatory Enforcement Fairness Act. See explanation under 

Regulatory Flexibility Act.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 

tribal governments or the private sector of more than $100 million per 

year. The rule does not have a significant or unique effect on State, 

local, or tribal governments or the private sector. See explanation 

under Regulatory Flexibility Act determination. A statement containing 

the information required by the Unfunded Mandates Reform Act (2 U.S.C. 

1531 et seq.) is not required.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 

significant takings implications. We have determined that the rule has 

no potential takings of private property implications as defined by 

Executive Order 12630. See explanation under Regulatory Flexibility Act 


Federalism (E.O. 12612)

    In accordance with Executive Order 12612, the rule does not have 

sufficient federalism implications to warrant the preparation of a 

Federalism Assessment. It will not have substantial direct effects on 

the States, in their relationship between the Federal Government and 

the States, or on the distribution of power and responsibilities among 

the various levels of government.

Civil Justice Reform (E.0. 12988)

    In accordance with Executive Order 12988, the Office of the 

Solicitor has determined that this rule does not unduly burden the 

judicial system and meets the requirements of sections 3(a) and 3(b)(2) 

of the Order.

Paperwork Reduction Act

    We have examined this regulation under the Paperwork Reduction Act 

of 1995 and found it to contain no new information collection 

requirements for which OMB approval is required. We have not changed 

the information relating to permits, and you may find it in Sec. 36.3 

with OMB approval number 1018-0014.

National Environmental Policy Act

    The rule does not constitute a major Federal action significantly 

affecting the quality of the human environment. We complied with the 

National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)) by 

completing an environmental assessment following the emergency fishing 

closure in 1995. On May 9, 1996, we signed a Decision Notice and 

Finding of No Significant Impact. You may obtain copies of the EA from 

the Kenai National Wildlife Refuge, P.O. Box 2139, Soldotna, Alaska 

99669; telephone: (907) 262-7021. NEPA requires no further 


Section 7 Consultation (16 U.S.C. 1531 et seq., 50 CFR 402)

    We reviewed the opening package documents for the seasonal closure 

of the Moose Range Meadows public access easements in the Kenai 

National Wildlife Refuge with regards to Section 7 of the Endangered 

Species Act of 1973 (16 U.S.C. 1531-1543). There are no known listed or 

candidate species present in this area of the refuge. We find the 

action as presented will not jeopardize the continued existence of any 

endangered species or threatened species or result in the destruction 

or adverse modification of habitat of such species.

[[Page 14154]]

Primary Author

    Mark Chase, Deputy Refuge Manager of the Kenai National Wildlife 

Refuge, is the primary author of this rulemaking document.

List of Subjects in 50 CFR Part 36

    Alaska, Recreation and recreation areas, Reporting and 

recordkeeping requirements, Wildlife refuges.

    Accordingly, we amend part 36 of chapter I of title 50 of the Code 

of Federal Regulations as follows:


    1. The authority citation for part 36 continues to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460(k) et seq., 668dd-668ee, 

742(a) et seq., 3101 et seq.; and 44 U.S.C. 3501 et seq.

    2. Revise Sec. 36.39 (i)(7) to read as follows:

Sec. 36.39  Public use.

* * * * * *

    (i) * * *

    (7) What do I need to know about other public uses on Kenai 

National Wildlife Refuge? (i) What are the camping restrictions? We 

allow camping subject to the following restrictions:

    (A) Camping may not exceed 14 days in any 30-day period anywhere on 

the refuge.

    (B) Campers may not spend more than two consecutive days at the 

Kenai-Russian River access area, more than seven consecutive days at 

Hidden Lake Campground, or more than seven consecutive days in refuge 


    (C) Within developed campgrounds, camp only in designated areas and 

use open fires only in portable, self-contained, metal fire grills, or 

fire grates provided by us.

    (D) Do not camp within \1/4\ mile of the Sterling Highway, Ski 

Hill, or Skilak Loop roads except in designated campgrounds.

    (E) Campers may cut only dead and down timber for campfire use.

    (F) Pets must be on a leash no longer than nine feet in developed 


    (ii) May I cut and remove timber? You may remove timber, including 

the cutting of firewood for home use, only if you have obtained a 

special use permit from the Refuge Manager.

    (iii) May I leave personal property on the refuge? Yes, however, if 

you leave personal property unattended for longer than 72 hours outside 

of a designated area, obtain a special use permit from the Refuge 


    (iv) If I find research marking devices, what do I do? Turn in all 

radio transmitters, neck and leg bands, ear tags, or other research 

marking devices recovered from wildlife to the Refuge Manager or the 

Alaska Department of Fish and Game within five days after recovery.

    (v) May I use non-motorized wheeled vehicles on the refuge? Yes, 

but only on refuge roads designated and open for public vehicular 


    (vi) May I use motorized equipment on the refuge? You may not use 

motorized equipment, including but not limited to chainsaws, 

generators, and auxiliary power units, within the Kenai Wilderness, 

except snowmobiles, airplanes and motorboats in designated areas.

    (vii) Must I register to canoe on the refuge? Only canoeists on the 

Swanson River and Swan Lake Canoe Routes must register at entrance 

points. Maximum group size is 15 persons.

    (viii) Are any areas of the refuge closed to public use? (A) We 

close rock outcrop islands in Skilak Lake used by nesting cormorants 

and gulls and the adjacent waters within 100 yards to public entry and 

use from March 15 to September 30. You may obtain maps showing these 

areas from the Refuge Manager.

    (B) From July 1 to August 15 the public may not use or access any 

portion of the 25-foot wide public easements along both banks of the 

Kenai River within the Moose Range Meadows area; or along the Homer 

Electric Association Right-of-Way from Funny River Road and Keystone 

Drive to the downstream limits of the streamside easements. You may 

obtain maps showing these closed areas from the Refuge Manager by 

referring to Sections 1, 2, and 3 of Township 4 North, Range 10 West, 

Seward Meridian.

* * * * *

    Dated: January 24, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-6943 Filed 3-23-99; 8:45 am]