Refuge-Specific Regulations; Public Use; Kenai National Wildlife Refuge, 14107-14110 [2023-04318]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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to amend the refuge-specific regulations for Kenai NWR is withdrawn on 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