[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Rules and Regulations]
[Pages 37308-37311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17741]
[[Page 37307]]
_______________________________________________________________________
Part VI
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 36
Seasonal Closure of the O'Malley River Area in the Kodiak National
Wildlife Refuge; Final Rule
Federal Register / Vol. 60, No. 138 / Wednesday, July 19, 1995 /
Rules and Regulations
[[Page 37308]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 36
RIN 1018-AC49
Seasonal Closure of the O'Malley River Area in the Kodiak
National Wildlife Refuge
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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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
