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1 ANILCA Section 1313.

2 ANLICA Section 202(2).

3 ANILCA Sectio 815(1).

4 Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment dated May 2011.

5 Id.

6 Id.

7 NPS Letter from Deputy Regional Director Vic Knox to the Alaska Board of Game, February 16, 2007.

8 San Luis Valley Ecosystem Council v. U.S. Fish and Wildlife Service, 657 F.Supp.2d 1233, 1242-43 (D.Co. 2009) (quoting Utahans for Better Transportation v. U.S. Dep't of Transportation, 305 F.3d 1152, 1162 (10th Cir. 2002)).

9 Rhodes v. Johnson, 153 F.3d 785 (7th Cir. 1998) (quoting 40 C.F.R. § 1507.3(a)); 42 U.S.C § 4342).

10 San Luis Valley Ecosystem Council, 657 F. Supp.2d_at 1243 (quoting 305 F.3d at 1162-1163).

11 Id. at 1244; see 49 CFR § 1508.7.

12 42 U.S.C. § 4332(1)(C).

13 Id.

14 40 C.F.R. § 1506.6.

15 40 C.F.R. § 1501.4(a)(2).

16 40 C.F.R. § 1508.4; 40 C.F.R. § 1507.3.

17 Id.

18 Order-12 Handbook, section 3.2; 40 C.F.R. 1508.4.

19 Personal email from Dick Sellers to Ken & Chris Day, January 29, 2003; Katmai Resource Management Plan, August 1994, page 52.

20 NPS letter from Vic Knox to Alaska Board of Game Chair Ron Somerville dated February 16, 2007; ANLICA Section 202(2) and ANILCA Section 802(1); NPS letter from Sue Masica to Alaska Board of Game Chair Cliff Judkins dated February 11, 2009.

21 Order-12 Handbook, section 4.3.

22 657 F. Supp. 2d at 1243 (quoting 305 F.3d at 1162-1163).

23 40 C.F.R. § 1508.18(a); Order-12 Handbook, Section 4.3.

24 In a letter addressing NEPA issues for the proposed prospectus, Regional Director Sue Masica stated that "NPS NEPA guidance at Director's Order-12 Handbook, Section 4.3, provides that if a park unit is making a decision to continue with an activity that may have significant impacts and either NEPA has never been done or is outdated or inadequate, then a NEPA document should be prepared for public review." NPS letter from Sue Masica to Mr. William Horn, dated March 2, 2011.

25 Id.

26 Denali National Park & Preserve, Backcountry Management Plan Final EIS, January 2006, page 55. Also Map #5 on page 84.

27 Gates of the Arctic National Park & Preserve, General Management Plan, 1986, page 87.

28 [click here] accessed on 8/12/2011.

29 Meeting between Jim Stratton and Katmai Superintendent Ralph Moore and Commercial Services Chief Lisa Fox at NPS Offices in Anchorage on June 15, 2011.

30 Meeting between Jim Stratton and Katmai Superintendent Ralph Moore and Commercial Services Chief Lisa Fox at NPS Offices in Anchorage on June 15, 2011.

31 The Bears of Katmai by Bill Sherwonit, Anchorage Press, February 18, 2009.

32 Although Katmai has this legal mandate and the Katmai General Management Plan (GMP) explicitly discusses brown bear viewing in the park, the GMP does not directly address guided hunting. Katmai National Park and Preserve General Management Plan, 1986. Conversely, the Gates of the Arctic National Park and Preserve (Gates) GMP specifically addresses guided hunting services without having a directive to maintain high concentrations of bears within the park. Gates of the Arctic National Park and Preserve General Management Plan, 1986.  No analysis in the Katmai GMP further drives the need for an EA for the proposed new guided hunting concessions. This EA could be incorporated into a GMP revision so that this issue has been NEPA reviewed for further decisions.

33 Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment dated May 2011; Order-12 Handbook, Section 3.2.

34 Id. at 3.4.A.5.

35 Id. at 3.2.

36 Id accessed on 6/5/2011, [click here].

37 40 C.F.R. § 1506.6.

38 Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment dated May 2011.

39 Id.

40 40 C.F.R. § 1506.6.

41 Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment dated May 2011.

42 In a meeting with NPS officials on June 15, 2011, NPCA requested a deadline for submitting comments and only after Jim Stratton confirmed an August 15, 2011 deadline in an email to Lisa Fox on July 1, 2011 was a deadline confirmed with NPS in writing.

43 Id.

44 Id.

45 Jim Stratton letter to Sue Masica, dated April 11, 2011.

46 Order-12 Handbook, Section 3.2.

47 Id at 3.4, 3.5.

48 43 C.F.R. § 46.215.

49 California v. Norton, 311 F.3d 1162, 1177 (9th Cir. 2002).

50 40 C.F.R. § 1508.4.

51 Order-12 Handbook, Section 2.10.C.(6) ("You should prepare an EA if...the action is described in section 3.3 or 3.4, but one or more exceptions in section 3.5 apply.").

52 43 C.F.R. § 46.215(f).

53 Id at § 46.215(c).

54 43 C.F.R. § 46.30 ("Controversial refers to circumstances where a substantial dispute exists as to the environmental consequences of the proposed action:).

55 Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment dated May 2011.

56 NPS letter from Vic Knox to Alaska Board of Game Chair Ron Somerville dated February 16, 2007; ANLICA Section 202(2) and ANILCA Section 802(1); NPS letter from Sue Masica to Alaska Board of Game Chair Cliff Judkins dated February 11, 2009.

57 Id at § 46.215(b).

58 NPS letter from Vic Knox to Alaska Board of Game Chair Ron Somerville dated February 16, 2007; ANLICA Section 202(2) and ANILCA Section 802(1); NPS letter from Sue Masica to Alaska Board of Game Chair Cliff Judkins dated February 11, 2009.

59 43 C.F.R. § 46.215(d).

 

- - -

 

 

PLEASE READ:

 

Itís Time to Better Assess the Guided Hunting of Katmaiís Bears

Hunting video mentioned in Mr. Stratton's letter:  click here

National Parks Conservation Association

Comments letter to Lisa Fox/National Park Service/Katmai, regarding the Katmai Hunt Prospectus:

 

 

We would like to thank Jim Stratton, NPCA, Alaska and Pacific Northwest Senior Regional Director for sharing his response regarding the NPS Katmai Hunt Prospectus with us.  This letter has been posted full length, with footnotes (highlighted in red in letter text) and noted on the sidebar for your convenience. (posted with permission from JS/NPCA)

15 August 2011



Lisa Fox

Chief of Commercial Operations

Katmai National Park & Preserve

240 West 5th Ave., Suite 236

Anchorage, AK 99501

 

Re:  Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment

 

Dear Lisa,

 

The National Parks Conservation Association (NPCA) has a long history of actions taken to protect the brown bears of Katmai National Park & Preserve.  As such, we appreciate the recent actions taken by the National Park Service (NPS) to provide more transparency to its guided hunting concession contract opportunities in the park.  A newsletter published in May 2011 was the first time NPS has provided the public with the opportunity to comment on the concession contracts prior to the release of its contract prospectus.  Furthermore, within that newsletter NPS is proposing to limit the number of brown bear hunts.  This is another first and the Park Service should be commended for taking these important first steps.  However, we continue to have concerns about the process that developed the number of bears that may be hunted.

 

NPCA is providing these comments to encourage and request that NPS take even larger steps by providing the public an opportunity to significantly engage in fully understanding the purpose and need, the data used, assumptions made, and the analysis performed by NPS in setting the proposed terms and conditions of the two Katmai Guided Hunting Concession Contracts.  NPCA adamantly feels this deeper engagement with the public should be provided through compliance with the National Environmental Policy Act (NEPA), including publication of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS).  We request that the issuance of the Katmai Hunting Guide Concession prospectus be delayed until the issues raised by the public during this "input will be considered" opportunity are addressed and an EA or EIS has been completed.

 

To clairfy, NPCA's concerns should not be construed as anti-hunting, nor should they be interpreted as anti-guide.  On the contrary, Congress was clear that hunting is to be permitted in national preserves "under applicable State and Federal law and regulations."1  And the applicable state law is that out-of-state brown bear hunters must be guided.  We understand and accept these legal realities and they are not a focus of these comments.

 

Our concern is one of government accountability as the Park Service takes this concession contract opportunity to influence the AMOUNT of allowed hunting, and other stipulations to perpetuate high concentrations of brown bears.  As the Park Service proposes to redraw guide area boundaries and limit the number of brown bear hunts in the Katmai National Preserve, they must do so in a manner that provides the public with a full understanding of what data was used, what assumptions it made, how the data was analyzed and how NPS came to the conclusions presented in its May 2011 newsletter.  That full disclosure of data, assumptions and analysis, which we argue is best presented to the public through a full review under NEPA, is missing from this entire discussion.  NEPA was created by Congress as the tool for presenting these issues to the public in a format that guarantees full disclosure of any decision affecting the quality of the human environment and it does so in a a familiar manner that allows the public to participate.

 

We understand that the National Park Service feels it can address its NEPA responsibilities for these concession contracts through a Categorical Exclusion, which NPS argues negates the need for an Environmental Assessment.  NPCA believes this is wrong and as these comments unfold, NPCA will provide the Park Service with ample legal analysis to support our request.

 

I. Background

 

The National Parks Conservation Association (NPCA) is the leading voice of current and future generations of Americans in protecting and enhancing our National Park System, with over 325,000 members nationwide with nearly 1,000 in Alaska.  Our members care deeply for America's shared natural and cultural heritage that has been preserved by the National Park System and want future generations to inherit an even stronger and invigorated system of preserved lands.

 

Most of NPCA's actions to date in support of perpetuating high concentrations of brown bears have focused on the Alaska Board of Game which has primary responsibility for managing sport hunting in Alaska, including federal lands such as Katmai National Preserve.  Federal regulations in 36 CFR 13.40(d) provide that: " Hunting and trapping are allowed in national preserves in accordance with applicable Federal or non-conflicting state law regulations."  It is those stated laws and regulations that conflict with federal management policy that have been our focus with the Board of Game and the focus of the National Park Service, which has shared many of our management concerns.

 

Primary among those concerns is the perpetuation of the Congressional mandate in Katmai's enabling legislation, as found in the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) for "high concentrations of brown/grizzly bears"2 and the directive for "conservation of healthy populations...of fish and wildlife."3  This is a unique mandate among Alaska's national parks.  Congress did not direct any other parks to protect "high concentrations" of brown bears and, as such, no other parks in Alaska have the same high responsibility to protect their bears.

 

In 2005, 2007 and 2009, both NPCA and the National Park Service advocated with the Alaska Board of Game to adopt varying measures to reduce the number of brown bears harvested out of concern that NPS may be violating the high concentration standard because of an almost 250% increase in the number of bears harvested beginning in 2003.

 

According to the data we have collected from Department of Fish & Game, from 1985 to 2002, the harvest level for each regulatory year averaged 13.5 bears.  From in 2003 through 2008, that number increased to 33 bears harvested in a regulatory year.  This increase in harvest coincided with an observed decrease by some professional bear viewing guides in the number of bears observed in the Funnel/Moraine Creek region of Katmai National Preserve.  This apparent reduction in the number of observable bears at the same time the harvest level significantly increased caused us to dig deeply into this issue.  And it was an issue of concern to NPS as well, as exemplified in their comment letter to the Board of Game seeking changes to hunting regulations over this same time period.

 

While recognizing that the Alaska Board of Game sets the bag limits and season length and that the Board of Game virtually ignored requests from NPS and others, including NPCA, to do something to reduce the brown bear harvest levels, there was the recognition that NPS could influence the brown bear harvest levels through its standards and stipulations on two guided hunting concession contracts issued for Katmai National Preserve.  We have all tried repeatedly to address our hunting level concerns with the Board of Game and have been ignored.  These two Guided Hunting Concessions are the public's only other venue and opportunity to address harvest level concerns while discussing how best to perpetuate "high concentrations of brown/grizzly bears" in Katmai.  These two Guided Hunting Concessions are the Parks Service's only opportunity to do the same.

 

II. Current Situation

 

NPCA  has been a ongtimne partner with NPS to ensure that the "high concentrations" mandate is met.  This current opportlunity is focused on meeting that standard within the proposed Katmai Hunting Guide Concession Contracts.  However, the "Katmai National Preserve Hunting Guide Concession: Opportunity for Public Comment" newsletter published in May 2011 (hereinafter "Newsletter") causes NPCA great concern.

 

The Newsletter states that NPS is preparing a prospectus that will invite proposals for bids on two concession contracts for the provision of sport hunting guide services in Katmai.4  The prospectus will describe proposed adjustments to guide area boundaries, client limits for wildlife harvest, and other contractual conditions and requirements.5  The Newsletter also states that NPS is considering maintaining the current bear harvest rates for the proposed prospectus.6

 

Before NPS may issue concession contracts, NEPA requires the creation of an EA or EIS to explain the purpose and need, including the proposed change in guide areas, and to analyze current and proposed bear harvest rates, how those harvest rates were developed, what assumptions were made in the harvest rate analysis, and a detailed description and discussion of the impacts of maintaining those havest rates.  Furthermore, this environmental analysis must discuss what appropriate means are necessary to mitigate environmental impacts and ensure that the current bear harvest rates will not cause significant declines in the brown bear populations or impact the experiences of other user groups, in violation of NPS's legal mandate.

 

NPCA is troubled that NPS may claim its actions meet a "Categorical Exclusion" from an EA and EIS, even though NPS has not followed the prescribed legal process to apply a "Categorical Exclusion" and certain "Extraordinary Circumstances" apply here that require an EA or EIS.

 

As shown below, NEPA applies because NPS's actions will "significantly affect[] the quality of the human environment."  NPS has previously found the bear harvest levels "may have significant impacts to the environment" and in fact, "may lead to a violations of [NPS's] Congressional directive." 7

 

No NEPA analysis has previously been performed for these contracts.  Also, before NPS may apply a Categorical Exclusion, NPS must follow a mandated process providing greater notice to the public and accepting and hearing full public input.  Futhermore, NPS must consider whether an "Extraordinary Circumstance" precludes the use of the Categorical Exclusion, which is the case here.  The bottom line is that NPS must perform and EA or EIS.

 

III:  National Environmental Policy Act ("NEPA")

 

Congress passed NEPA to require Federal agencies to integrate environmental factors into planning and decision making processes.  NEPA "requires agencies 'to consider environmentally significant aspects of a proposed action, and, in doing so, let the public know that the agency's decision-making process includes environmental concerns.'"8  The Council on Environmental Quality (CEQ) sets the guidelines for how federal agencies implement and enforce environmental protections.9  CEQ states that federal agencies "are required to take a 'hard look' at the environmental consequences of a proposed action where the action could have significant effect on the environment."10  Moreover, in a NEPA analysis, the responsible Federal Official must address cumulative environmental impacts, defined by the CEQ as:

 

The impact on the environment which results from the incremental impact of the action when added to the other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.  Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.11

 

For proposed "major Federal actions significantly affecting the quality of the human environment,"12 the responsible Federal official must prepare a "detailed statement" --and EIS-- that details the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided, alternatives to the proposed action, and other matters.13  To determine whether a "major Federal action significantly affecting the quality of the human environment" may occur and thus, whether the agency must perform and EIS,14 Federal agencies must follow a documented process with effective public notice and input.

 

CEQ grants Federal agencies the authority, in certain narrow situations, to exclude certain types of agency actions from an EA or EIS through a Categorical Exclusion ("CE").15 CEQ defines CEs as:

 

a category of actions which do not individually or cumulatively have a significant impact on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in impletmentation of [CE regulations] and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.16

 

However, CEs are qualified by a set of Extraordinary Circumstances ("ECs") that may compel an EA or EIS to be prepared for an action that would otherwise be categorically excluded.17

 

Pursuant to NPS regulations, even if NPS determines that a proposed activity may fit within certain listed CEs under NEPA and NPS Order-12 Handbook Section 3.4 ("Categorical Exclusions-CEs for Which A Record is Needed"), NPS must follow the appropriate documented process--including public notice and input -- to develop a record of its decision-making and determine if an EC exists that would remove the activity from the CE and thus, require an EA or EIS.18

 

A. NPS Has Documented Concerns of Possible Significant Impacts

 

Most fundamentally in determining NEPA's application, NPS has already demonstrated concerns that bear havest levels "may have significant impacts to the environment." Those concerns include:

 

  • When the number of harvested bears jumped significantly in 2003/2004 regulatory year, NPCA and others responded with a variety of proposals aimed at reducing the harvest level back to what Alaska Department of Fish and Game (ADF&G) biologist Dick Sellers recommended (and NPA embraced in their Resource Management Plan) as a sustainable harvest level of 14 to 18 bears/regulatory year (7 to 9 per calendar year). 19  NPS also supported several proposals because they, too, were concerned about the high brown bear harvest levels.
  • In a letter dated February 18, 2005 to Alaska Board of Game Mike Fleagle, then Katmai Superintendent, Joe Fowler told the Board of Game:  "the Moraine Creek area has experienced increases in all areas of public use in recent years." Because of that increase in users, Mr. Fowler then expressed:  "Recent bear harvest levels in the Preserve and adjacent areas have left us concerned regarding whether we will continue to meet these mandates (management of wildlife according to recognized scientific principles and the conservation of healthy populations) for brown bears."
  • Then in 2007 and again in 2009, NPS weighed in with comments to the Alaska Board of Game and stated:  "The NPS is concerned that the current trend of increasing harvest rates for brown bears in Katmai National Preserve cannot be maintained over the long term.  This may lead to violation of our Congressional directive in [the Alaska National Interest Lands Conservation Act] to manage for 'high concentrations of brown/grizzly bears and their denning areas...' and 'conservation of healthy populations of fish and wildlife (ANILCA Section 802(1)).'"20

 

NPS's own concerns demonstrate that "the action could have a significant effect on the environment,"21 and in fact, "may lead" to a violation of law. As a result, NPS must "take a 'hard look' at the environmental consequences of a proposed action" in accordance with NEPA.22

 

B. No NEPA Analysis Previously Occurred for Katmai Hunting Concessions Contracts

 

Both CEQ and the NPS Director's Order guiding the application of NEPA regulations require a NEPA analysis for the current propsectus on hunting concession contracts in Katmai.  NPS Order-12 Handbook, Section 4.3 states that:

 

CEQ defines federal actions subject to NEPA evaluation to include "continuing activities" in addition to new projects or programs.  If your park is making an explicit or a tacit decision to continue with an activity that may have significant impacts to the environment, and either NEPA has never been done (emphasis added) or an outdated or inadequate document was used in deciding to take the original action, you should initiate the NEPA process and prepare a document for public review.23

 

This is exactly the situation here, as conceded by Sue Masica of NPS.24  A NEPA analysis has not been completed for hunting concession contracts for Katmai in the past, and the Newsletter states that NPS is considering continuing the act of continuing guided concession hunting by issuing two new hunting concession contracts in Katmai.  Even though these are not renewals of previous contacts, the act of continuing to issue hunting concessions, as stated by Ms. Masica, qualifies as a "continuing activity."25

 

Conducting and EIS for guided hunting concession contracts in national preserves created by ANILCA is not new for NPS in Alaska.  For example, Denali National Park and Preserve (Denali) conducted a Final EIS (FEIS) that included adjusting its guided area boundaries within its Denali Backcountry Management Plan.26  Gates of the Arctic National Park & Preserve reviewed all of guided concession hunting in its GMP.27  And the U.S. Forest Service recently completed an EIS for actions concerning, among other things, adjusting guided boundaries for roadless areas in Tongass National Forest.28

 

C. Issued the EA or EIS Should Address

 

NPCA's primary concern is that a sustainable number of bears are harvested so that healthy populations are perpetuated in the high concentration standard issued by Congress. The first thing an EA or EIS would provide to the public is a comprehensive description of the purpose and need:  why is NPS considering a prospectus for two guided hunting concession contracts.  Secondly, an EA or EIS is an opportunity to fully understand what NPS means by "healthy populations" and "high concentrations."

 

Conservation of healthy populations is an ANILCA-wide standard.  We suggest that the following definition, as found in the Federal Subsistence Wildlife Regulations be applied:

 

Conservation of healthy populations of wildlife means the maintenance of wildlife resources and their habitats in a condition that assures stable and continuing natural populations and species mix of plants and animals in relation to their ecosystem, including the recognition that local rural residents engaged in subsistence may be a natural part of that ecosystem; minimizes the likelihood of irreversible or adverse longterm effects upon such populations and species; ensures the maximum practicable diversity of options for the future; and recognizes that the policies and legal authorities of the managing agencies will determine the nature and degree of management programs affecting ecological relationships, population dynamics, and the manipulation of the components of the ecosystem.

 

Of particular interest is the directive in this definition to minimize the likelihood of irreversible or adverse long-term effects on populations and ensuring the maximum practicable diversity of options for the future.

 

The definition of "high concentration," which is a Katmai specific standard, is non-exisitent.  If Katmai is going to allow the harvest of brown bears under NPS issued concession contracts, a definition of and standards for attaining high concentrations must be identified and made clear to the public.  Without a definition and appropriate standards, how does the public know if the high concentration standard is being met?  What role do age and sex classes have in this high concentrations definition?  These issues are not currently being addressed in any context.

 

Once these larger definitions and standards are identified and disclosed to the public, then the discussion of how guide areas are established and what are appropriate harvest levels, and the role of these guided hunts within that larger appropriate harvest level, can be more accurately and full engaged.  That discussion requires a full disclosure of population level studies, what study methods were used and a disclosure about the accuracy of those studies.  Furthermore, population numbers must include data on age and sex class of that larger population as well as the overall population level.  NPCA has not seen this information.  Historic harvest information must also be disclosed -- for both guided and non-guided hunting.  Overall harvest goals, which have a direct effect on the high concentrations standard, must include both guided and non-guided hunting, with specific attention given to the role that these guided concessions have in achieving that overall harvest number.  So far this is lacking in the discussion.

 

The Newsletter assumed a harvest of 7% of the population.  This was described as within the 5 - 10% havest guidelines for the Alaska Peninsula.  Given that this is the only brown bear population in the state with a Congressional mandate to manage for high concentrations, why was the 5% or something even lower not considered?  It would seem logical that if the statewide standard for bear harvest where a high concentration standard is not applicable is 5 - 10%, then Katmai should be something less.

 

We know from conversations with Katmai officials that they considered doing an EA or IES, but decided they could not identify a reasonable range of alternatives.29  It would be very logical to have harvest rates drive that range -- evaluate, for example, a 2%, 5% and 10% harvest levels and three reasonable alternatives would be presented to the public.  The EA or IES must address this harvest rate and why.  In the case of the Newsletter, the assumptions behind selecting 7% are missing.

 

The Newsletter claims that the numbers proposed "represent a reduction in bear harvest of 30% in fall and 10% in spring from maximum harvests experienced in the past 10 years." This may be plausible, but the analysis of population levels and harvest records over time that led NPS to make this statement are completely missing from this discussion. This kind of analysis should be in an EA or EIS for the public to understand the basis for NPS decision making.

 

Further, the Newsletter states that "In the past, unguided harvest has accounted for 70% of fall harvest... Therefore, only the fall client limits have been adjusted to account for unguided harvest."  Again, these statements were made with no data to back them up nor any discussion of the analysis used.  What kind of adjustment was made for unguided harvest?  We simply have no idea because it is missing.

 

We also know from our discussions with Katmai officials30 that should an EA or EIS be required, they would like to broaden the scope to include not just guided hunting, but all other commercial acitivies that could impact Katmai bear populations and behavior, including fishing and bear viewing. We wholeheartedly endorse this approach.  NPCA's involvement in this issue is to help determine what is best for Katmai's bears and to use all applicable legal tools to achieve that end.  We recognize that the impacts of other park users, like bear viewers and fishermen, while not removing bears from the population, do have an impact on bear behavior. A comprehensive bear management strategy for Katmai Preserve would place bear hunting into this larger spectrum of not only meeting high concentration standard, but would also address the impact of hunting on other users -- a standard discussed in the Environmental Complaince section of the Newsletter, but dismissed without any factual basis, with an assertion that they "are not expected to result in unacceptable impacts to park resources and values, including... other users (bear viewing)..."  We disagree.

 

Bear viewers and photographers, just like hunters, desire access to an abundant population that is representative of a natural age and sex structure.  Simply put both bear watchers/photographers and hunters desire large male bears.  There is a history of conflict between bear viewers and hunters as exemplified by the video shot during the 2007 fall hunt that went viral nationwide.  Without any discussion, analysis, data or justification, the Park Service cannot simply dismiss the impact of hunters removing large male bears on the opportunity for viewers/photographers to see the very same large male bears. This concern was articulately raised by for ADF&G Manager of McNeil River State Game Sanctuary and bear biologist Larry Aumiller, who was quoted in the Anchorage Press:

 

"What [biologists and managers] dealing with the Katmai Preserve issues miss is that bears are not interchangeable.  If you kill the 10 most tolerant bears (which of course are the most likely to be killed) then you are going to have eight to 10 fewers bears to see the next few years, even though those 'niches' may be filled by less tolerant and more secretive bears.  WhenI saw the harvest numbers go up in the preserve, I knew they would start seeing fewer bears there. And knowing what we do about bear home ranges and movements, I knew 'McNeil bears' were also being removed by hunting. It is well documented now that summer "McNeil Bears' are also fall 'Katmai bears.' The discussion shouldn't be about population and harvest rates.  The preserve issue is about a use that has nothing - or very little - to do with how 'healthy' a population is."31

 

The imact on bear viewing by removing the most tolerant bears must be analyzed and discussed.32

 

D. The Act of Issuing New Guided Hunting Concession Contracts Cannot Be Categorically Excluded

 

Issuing the prospectus for guided hunting concession contracts cannot be excluded from NEPA because this action does not fit within the CE rule and under Section 3.4.  NPS presumes that the CE for "reissuances or minor modifcations of concession contracts or permits not entailing new construction," contained in the NPS Handbook Section 3.4.A.5, applies to the current situation.33 This CE however, applies to actions where contracts are being reissued or modified, unlike the current situation where NPS is proposing to issue new contracts.34

 

According to the Newsletter and Sue Masica, the prospectus will announce the issuance of two new guided hunting concession contracts. There is nothing in the Newsletter stating that the prospectus will reissue existing contracts, nor is there any reference to existing contracts or modifications of contracts. Therefore, the proposed action cannot be excluded from NEPA under Section 3.4.A.5.

 

E. NPS Must Follow Process for Determining Whether "Categorical Exemption" Applies

 

If NPS asserts that the CE for Section 3.4.A.5 applies, NPS must follow the prescribed process and create a record of the decision before reaching that conclusion and avoiding NEPA analysis. The Newsletter states that NPS will conduct an "environmental screening" -- essentially completion of a checklist form concerning the planned activity to determine the context of potential impacts and appropriate NEPA review. However, this CE is the type, "for Which a Record is Needed," and NPS regulations requre more than a mere environmental screening.35 NPS Handbook Section 3.2 details the process for applying CEs in this situation:

 

1.  Using an interdisciplinary approach, determine whether any connected, cumulative, or similar actions are part of the proposed action. In other words, carefully consider whether it is a piece of a larger action that should be analyzed in a NEPA document.

2. Use the [Environmental Screening Form] ESF to ascertain the important environmental issues, and visit the site if the IDT is not familiar with it.

3.  If no exceptional (see section 3.5) circumstances exist, and this fact is confirmed by the ESF, contact interested and affected local, state, and/or federal agencies to see whether any object to the NPS determination that there is not potential for measurable impact.

4.  If interested or affectied public exist, make a diligent effort to contact them and obtain their input.

5. If all (the NPS team, other agencies, and the public) agree there is no potential for measurable impact, document this in the Categorical Exclusion form (CEF) shown in appendix 2. The CEF required a brief description of the proposal, identification of the category used in excluding the action from further NEPA analysis, and a signature block.  The ESF is attached to and becomes part of the CEF.

6. If extensive mitigation is required to avoid triggering one of the exceptional circumstances criteria (section 3.5), you must prepare an EA.  If minimum mitigation is acceptable to appropriate agencies and any interested or affected public, it should be fully integrated into the project description on the CEF.

7. You should consider changed environmental circumstances in determining the level of NEPA documentation, and in deciding if the criteria in section 3.4 would apply. 36

 

Critical to this process is effective public notice, input and participation in the decision-making process, and ultimately an agreement by "all (the NPS team, other agencies, and the public)" that "there is no potential for measurable impact." The NPS's Newsletter issued in May fails to meet these requirements.

 

NPS, while calling the Newsletter an "Opportunity for Public Comment," nonetheless failed to "make a diligent effort to contact" interested and affected public for their input.  The Newsleter was not published in the Federal Register or with a broad mailing list, as a notice of proposed Federal action normally would be.37  Instead, it appears NPS is relying on NPCA and others to broadcast the Newsletter to the general public.  Without adequate notice, the public has no opportunity to provide input.

 

The exact purpose of the Newsletter is unclear, stating that NPS is "contemplating" issuing concession contracts.38  The Newsletter does not identify the duration or deadline for the comment period,39 even though comment procedures are generally clearly defined with rules and a deadline to satisfy the NEPA process.40  The Newsletter also does not provide for the submission of comments electronically, which is expected with today's technology.41  Combined, these issues likely have caused confusion for those who have seen the Newsletter, and certainly do not give the public clear notice of a proposed action about which comments must be submitted within a particular time frame for consideration in NPS decision-making.42

 

The Newsletter does not provide any data to demonstrate the basis for NPS's conclusions and on which the public may comment.43  The Newsletter refers to "biological data" from 2006-2009 bear surveys that NPS relied on to "evaluate harvest goals and client numbers in future concession operations within the preserve."44  Yet none of the bear survey data or analysis, aside from the conclusions, is made available.  Before the Newsletter was issued, NPCA also requested that NPS include with its notice other pertinent information such as a historic summary since 1989 of the two existing contracts that includes the dates of previous renewals/re-bids and other administrative changes in these contracts, the number of clients taken into the field under each contract by year, and the hunting success for all species reported by each concessionaire by year.45  NPS included none of this data in the Newsletter, so NPCA was forced to request this information through a Freedom of Information Act (FOIA) request to NPS.

 

Finally, while Section 3.2 requires agreement from "all" -- including the interested public -- to which a CE applies to avoid and EA or EIS, there, is certainly no agreement here.  In fact, interested and affected parties, like NPCA, have expressed disagreement and concern that there will be a "potential measurable impact" on the environment if no EA or EIS is prepared before issuing the prospectus for the proposed concession contracts.46

 

F. "Extraordinary Circumstances" Precluding a Finding of "Categorical Exclusion"

 

In addition to the public notice and input requirements, the process requires NPS to determine that there are no "Extraordinary Circumstances" before a CE can be applied.47  The impact that reducing the density of large, male brown bears has on the experience of bear viewers and bear photographers clearly presents "Extraordinary Circumstances" (ECs) that must be addressed through an EA or EIS befrore the prospectus can be released for bids on the hunting concession contracts.48  At the very least, NPS cannot publish the prospectus until it explains why the proposed action does not entail ECs.  "Where there is substantial evidence in the record that exceptions to the categorical exclusion may apply, the agency must at the very least explain why the action does not fall within one of the exceptions."49

 

CEQ states that "Any procedures under [the CE process] shall provide for Extraordinary Circumstances in which a normall excluded action may have significant environmental effects."50  The EC provision in the NPS regulations provides a list of ECs that prevent NPS from categorically excluding an action, thus requiring NPS to conduct an EA or EIS before carrying out the proposed action.51  Here, the following ECs apply:

 

  • Issuing the prospectus without an EA or EIS will "[h]ave a direct relationship to other actions," that reduce the amount of viewable, large-male bears, "with individually insignificant but cumulatively significant environmental effects"52 that impact guided bear viewing and bear photography.  Between 2003 and 2008, the average harvest for each regulatory year jumped to 33 bears (twice the allowed level prescribed in the Katmai Resource Management Plan).  Annual harvest of trophy size brown bears (>8 years of age) has increased from 14.3% in the late 1970's to 25% after the year 2000. Combine this increase in percentage of mature male harvest with the substantial increase in harvest rates of  bears in 1985/1986 to 35 bears in 2005/2006 and there is potential for negative impacts to the mature male age class of the bear population that needs to be understood.  Although the bear harvest rates per season may be small, the current harvest rate continued over a period of time and joined by other factors may significantly impact the brown bear population and impact the experience of park users other than hunters.

 

  • Issuing the prospectus will "[h]ave highly controversial environmental effects."53  There is "a substantial dispute"54 about the environmental consequences of issuing the prospectus.  NPCA does not oppose hunting in Katmai or issuing hunting concession contracts, but NPCA does fear that issuing the prospectus for hunting concessions contracts could have significant environmental consequences for large, male brown bear populations with subsequent unacceptable impacts on other users, like bear viewers and bear photographers if an EA or EIS is not provided and mitigation measures are not adopted.  Conversely, the NPS states that the proposed bear harvest rates can be maintained based on a 2006-2009 survey.55  However, this data is not included in the Newsletter.  Moreover, the NPS does not address why the survey data was compelling enough to assuage the significant concerns that the NPS expressed in their comments to the Alaska Board of Game in 2007 and 2009.56

 

  • Allowing the prospectus to go through without an EA, EIS and mitigation measures will "[h]ave significant impacts on [Katmai's] natural resources" by encouraging a decline in the park's large, male bears that are often viewable to the public.57  NPS stated that "Section 202(2) of ANILCA provides that the Park and Preserve are to be managed for "high concentrations of brown/grizzly bears and their denning areas...' The NPS is concerned that the current trend of increasing brown bear harvests in Katmai National Preserve cannot be maintained over the long term, consistent with that management directive."58

 

  • Concerns that the current bear harvest rates will impact the viewing experience by reducing the amount of viewable bears shows that issuing the prospectus has "highly uncertain and potentially significant environmental effects," and "involves unique or unknown environmental risks" to the future of brown bears.59

 

Conclusion:

 

The National Park Service is poised to redraw guide area boundaries and adopt a concession contract prospectus that allows the guided hunting of certain numbers of brown bears in Katmai.  With the focus of this guided hunting on large male brown bears, NPCA fears this proposed guided hunting could have an irreversible, cumulative adverse impact on the brown bear population, other park users, and the Katmai environment.  Yet, in violation of NEPA, NPS failed to analyze the environmental impacts of its actions and failed to fully inform the public about its decision-making process and the data and support for its decisions.

 

NEPA must be complied with to ensure that NPS fulfills Katmai's unique mandate in its enabling act to maintain the Park for "high concentrations of brown/grizzly bears and "conservation of healthy populations... of fish and wildlife."

 

Sincerely,

 

Jim Stratton

Alaska and Pacific Northwest Senior Regional Director

 

cc:  Ralph Moore - Katmai Superintendent

       Sue Masica - NPS Alaska Regional Director

       Deb Cooper - NPS Associate Regional Director

       Pat Pourchot - DOI Alaska Office