[Federal Register Volume 59, Number 72 (Thursday, April 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9014]
[[Page Unknown]]
[Federal Register: April 14, 1994]
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DEPARTMENT OF AGRICULTURE
Forest Service
Use of Bait in Hunting
AGENCY: Forest Service, USDA.
ACTION: Notice of withdrawal of interim policy, notice of proposed
policy; and request for public comment.
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SUMMARY: On March 14, 1994, the Forest Service published an interim
policy, with a request for public comment, on the agency's role in
regulating the placement of bait on National Forest System lands (59 FR
11765). This notice withdraws the interim policy and republishes it as
a proposed policy. The intended effect of the proposed policy is to
clarify the agency's role in relation to the role of the States and,
thus, to provide a consistent approach to the regulation of baiting
resident game. Public comment is invited and will be considered in the
adoption of a final policy, notice of which will be published in the
Federal Register.
DATES: Comments must be received in writing by June 13, 1994.
ADDRESSES: Send written comments to Director, Wildlife, Fish, and Rare
Plants (2640), Forest Service, USDA, P.O. Box 96090, Washington, DC
20090-6090.
The public may inspect comments received on this proposed policy in
the Office of the Director, Wildlife, Fish, and Rare Plants, 4th floor
Southwest Wing, Auditors Building, 205 14th Street SW., Washington, DC.
Those wishing to inspect comments should call ahead at (202) 205-1159
to facilitate entry into the building.
FOR FURTHER INFORMATION CONTACT:
Tom Darden, Wildlife, Fish, and Rare Plants Staff, (202) 205-1206.
SUPPLEMENTARY INFORMATION:
Background
State fish and wildlife agencies have the primary responsibility
for protection and management of wildlife populations on National
Forest System lands, including adoption of State fish and wildlife laws
and regulations affecting the taking of resident game animals. The
Forest Service enters into a Memorandum of Understanding (MOU) with
each State which governs Forest Service/State cooperation on matters of
Statewide fish and wildlife policy or procedure affecting the National
Forest System (FSM 2611.1). The States issue regulations regarding
hunting licenses, methods, seasons, locations, and bag limits for
resident game and have the primary responsibility for enforcement of
fish and wildlife laws and regulations on National Forest System lands.
Federal land management statutes acknowledge the States'
traditional role in managing fish and wildlife; see the National Forest
System Organic Administration Act at 16 U.S.C. 480, the Multiple Use-
Sustained Yield Act at 16 U.S.C. 528, the Sikes Act at 16 U.S.C. 670h,
and the Federal Land Policy and Management Act, at 43 U.S.C. 1732. The
Forest Service, therefore, is generally reluctant to override State
fish and wildlife regulation, except where federal interests, such as
protection of forest land, resources, and users, require federal
intervention.
The practice of placing bait (food or scent to attract wildlife) is
a hunting activity subject to State laws and regulations. The baiting
of bears is particularly controversial. While the total number of
States allowing bear baiting has declined, State fish and wildlife
agencies permit the baiting of black bear as a hunting activity in
Alaska, Idaho, Oregon, Maine, Michigan, Minnesota, New Hampshire, Utah,
Washington, Wisconsin,and Wyoming. The Forest Service intends to work
diligently through its ongoing cooperative efforts to encourage the
States to evaluate their regulation of the practice of baiting bears.
In the meantime, the agency is issuing proposed policy regarding the
use of bait on National Forest System lands.
In the past, some national forests have regulated the placement of
bear baits by requiring hunters and commercial guides to obtain special
use authorizations in order to prevent conflicts with other users or
other problems associated with the location and removal of bait.
Additionally, some Forest Service Regions have issued orders under 36
CFR part 261 to control litter, as well as to close certain areas to
bear baiting where the practice would create unacceptable adverse
effects on other resources or forest users. Special use authorizations
for bear baiting had been issued on a number of national forests in
Wyoming. Typically, those special use authorizations included
conditions with which the holder had to comply to minimize adverse
effects created by placement of bear bait. In early 1992, the Forest
Service's role in the regulation of bear baiting on the national
forests in Wyoming became an issue.
In March 1992, the Regional Foresters for the Rocky Mountain and
Intermountain Regions issued a joint closure order prohibiting bear
baiting in the national forests in Wyoming, unless the baiting activity
was conducted in compliance with the requirements of the order
pertaining to the placement and disposal of baits. Like the conditions
that previously had been included in special use authorizations, the
requirements of the order were intended to minimize adverse effects on
forest resources and users.
The Fund for Animals and the Friends of the Bow brought suit to
challenge the Forest Service's closure order and to challenge what
Plaintiffs considered a shift in established policy, that is, no longer
requiring special use authorizations for bear bait placement and using
closure orders instead (The Fund for Animals v. Robertson (D.D.C. Civ.
No.92-1694-TPJ)). These groups perceived this shift in method as a
diminution in the level of Forest Service regulation and wildlife
protection. The parties settled the case upon the Forest Service's
decision to rescind the closure order and, in compliance with the
National Environmental Policy Act, to analyze the effects of
eliminating the practice of issuing special use authorizations for the
placement of bear bait on National Forest System lands in Wyoming. The
Regions then prepared an Environmental Assessment to disclose effects
of the proposed action and alternatives to that proposal.
Upon completion of the Environmental Assessment and issuance of a
Decision Notice by the Rocky Mountain and Intermountain Regional
Foresters in April 1993, there were new challenges to the agency's
position. Subsequently, the Deputy Chief for the National Forest System
decided that national direction was needed to end the conflict and
controversy. Accordingly, the Decision Notice was rescinded, and bear
baiting in national forests in Wyoming was prohibited pending issuance
of national direction.
An interim policy was issued by the Forest Service, on March 4,
1994, and published in the Federal Register on March 14, 1994.
On March 28, 1994, a lawsuit was filed by the fund for Animals and
others, in the U.S. District Court for the District of Columbia
challenging, in part, the absence of a public comment period prior to
issuance of the interim policy. In a stipulation to stay proceedings in
the suit, the agency agreed to withdraw the interim policy and
republish it as proposed with a 60-day public comment period prior to
issuance of a final policy. As a result, effective March 30, 1994, the
Forest Service policy on bear baiting reverted to that which was in
effect prior to the interim policy of March 14.
Proposed Policy
The Forest Service special use authorization regulations at 36 CFR
251.50 exempt noncommercial use and occupancy, including ``hunting,''
from the special use authorization requirement. Since hunting methods
subject to State regulation are included within the term ``hunting,''
the proposed policy makes explicit that, where State regulations permit
baiting, the Forest Service would prohibit the practice of issuing a
special use authorization for the practice of baiting connected with
hunting on National Forest System lands. However, outfitter and guide
activities still require special use authorization and, as a condition
of that authorization, outfitters and guides must comply with
applicable State laws and regulations as well as any applicable Forest
Service closure orders.
However, if the placement of bait should become a land or resource
management issue and if it is determined that the State regulations
governing baiting would not protect resources in an area adequately or
would otherwise be inconsistent with the applicable forest plan or
conflict with federal laws such as the Endangered Species Act, then,
under the proposed policy, the authorized officer would issue an order
to close the area to baiting. The authorized officer also could close
an area to baiting after considering the likely impact on a site-
specific basis on water quality, public health and sanitation, or the
potential threat to the viability of wildlife. Finally, the proposed
policy would explicitly prohibit the practice of issuing a special use
authorization to individuals for the specific act of placing bait on
National Forest system lands for hunting purposes.
The approach contemplated in the proposed policy maintains
protection of national forest resources. First, under the terms of the
Memorandums of Understanding with the State fish and wildlife or game
agencies, the Forest Service continuously participates in the review
and adoption of State game regulations as they affect National Forest
System land or resources. Second, the proposed policy would provide the
Regional Forester or Forest Supervisor with the flexibility and
discretion to determine if baiting should be prohibited in a specific
location. Finally, if a hunter, in placing bait to attract resident
game creates litter through improper placement or untimely removal of
bait in violation of State regulations or Forest Service closure
orders, the agency has the authority under its regulations at 36 CFR
261.11 to cite the hunter for violating the prohibition on litter. If
such bait results in violation of State regulations, the agency also
has authority to cite the hunter for violation of 36 CFR 261.8, and
agency employees routinely do so where such violations occur. In short,
the agency's proposed approach (1) relies on existing relationships
with each State, (2) prevents duplicative regulation by Federal and
State agencies, and (3) provide site-specific environmental safeguards
to address those situations where baiting would have an adverse site-
specific effect on National Forest System land or resources.
The proposed baiting policy would be an amendment to the Forest
Service Manual. Accordingly, pursuant to 36 CFR part 216, the text of
the proposed policy is set out at the end of this notice. Public
comment is invited and will be considered in adoption of a final
policy.
Environmental Impact
Publication of this proposed policy is an integral part of the
agency's scoping process by which it determines the scope and level of
any environmental effects of proposed actions. According to the agency
NEPA procedures, scoping is required for all proposed actions,
including those that might be categorically excluded. Section 31.1b(2)
of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992)
excludes from documentation in an environmental assessment or impact
statement ``rules, regulations, or policies to establish Service-wide
administrative procedures, program processes, or instructions.'' This
proposed policy would provide administrative instructions to Forest
Service field offices on the procedures and processes to follow in the
case of placing bait for resident game. Accordingly, the agency's
preliminary assessment is that this policy falls within this category
of actions and that no extraordinary circumstances exist which would
require preparation of an environmental assessment or environmental
impact statement. The agency particularly invites comment on this
preliminary finding. Following consideration of public comments, the
Forest Service will make a final determination regarding the level of
environmental analysis.
Controlling Paperwork Burden on the Public
This policy will not result in addition paperwork. Therefore, the
review provisions of the Paperwork Reduction Act of 1980 (44 U.S.C.
3507) and implementing regulations at 5 CFR part 1320 do not apply.
Regulatory Impact
This proposed policy has been reviewed under USDA procedures and
Executive Order 12866 on Federal Regulations. It has been determined
that this is not a significant policy.
Dated: April 7, 1994.
Mark A. Reimers,
Acting Chief.
Proposed Policy--Forest Service Manual Chapter 2640
Note: The Forest Service organizes its directive system by
alpha-numeric codes and subject headings. Only those sections of the
Forest Service Manual including policy direction that are the
subject of this notice are set out here. The proposed policy
includes minor revisions to existing codes and subject headings. The
audience for this direction is Forest Service employees responsible
for coordinating wildlife management on National Forest System lands
with State fish and wildlife agencies.
2643--Applicability of State Fish and Wildlife laws and Regulations
The Forest Service actively cooperates in the development of State
fish and wildlife laws and regulations and may assist in the
enforcement of State fish and wildlife laws on National Forest System
lands. Pursuant to FSM 2610, Regional Foresters shall ensure that
memorandums with State fish and wildlife agencies recognize the role of
the Forest Service in cooperating in the development of State fish and
wildlife laws and regulations, especially those addressing hunting,
fishing, and trapping as they would apply to occupancy and use of
National Forest System lands.
2643.1--Hunting, Fishing, and Trapping Regulations
Hunting, fishing, and trapping of fish and wildlife and associated
practices are permitted on National Forest System lands subject to
State fish and wildlife laws and regulations, unless one or both of the
following apply:
1. State fish and wildlife laws and regulations conflict with
federal laws; or
2. State laws and regulations would permit activities that conflict
with the land and resource management responsibilities of the Forest
Service or that are inconsistent with forest plans.
2643.12--Use of Bait for Resident Game Hunting
The use of bait as a lure or attractant for the purpose of taking
resident game on National Forest System lands is considered a hunting
practice subject to State regulation.
Where State hunting regulations prohibit the use of bait, the
practice is prohibited on National Forest System lands.
Where States permit the use of bait for attracting resident game,
this activity is allowed on National Forest System lands, subject to
State hunting laws and regulations, unless the authorized officer
determines on a site-specific basis that there is a need to prohibit or
restrict the practice of baiting because one or more of the following
circumstances exist:
1. The State laws and regulations on placement of bait are
inadequate to protect forest land or other resources or users in a
particular location and/or to prevent trespass or litter;
2. Baiting is inconsistent with the applicable forest plan; or
3. The State laws and regulations conflict with Federal law, such
as the Endangered Species Act.
In addition to the mandatory causes for prohibiting or restricting
baiting, the authorized officer also may prohibit baiting, regardless
of the adequacy of State regulations, based on consideration of the
likely impact of baiting on such matters as water quality, public
health and sanitation, the potential for litter, or the potential to
threaten the viability of wildlife.
Where the authorized officer determines that baiting is a
significant problem and should be restricted or prohibited:
1. The officer shall notify State fish and wildlife officials and
provide them the opportunity to resolve the issue through further
restrictions or the prohibition through State regulation rather than
for the Forest Service to issue the restriction or prohibition.
2. If the State does not revise its regulations to adequately
regulate or restrict baiting, the Forest Service authorized officer
shall, time permitting close the area or otherwise restrict baiting by
issuing an order pursuant to 36 CFR part 261.
Where time does not permit closure of an area to baiting because
the hunting season is underway and it would be impracticable to issue a
closure order, the Regional Forester or Forest Supervisor shall take
such mitigation and/or enforcement measures as are appropriate and
practicable to ensure consistency with forest plan management direction
and compliance with Federal laws, orders, and regulations, and
protection for forest users and resources. For example, the agency may
close a road or gate, or cite violations of other State or Forest
Service regulations.
Closure is not the only way to address the practice of baiting. It
is expected that land managers as part of their day-to-day management
of National Forest System lands and resources will be cognizant of the
effects of hunting activities and take such proactive measures, after
consultation with the responsible fish and wildlife agency, such as
hunter education, as may be necessary to ensure resource protection
consistent with forest plan management direction.
This policy, in and of itself, does not compel an authorized
officer to undertake a specific decision or to make a determination of
whether baiting is allowed in the those States where the practice is
permitted.
Special use authorization shall not be issued for placing bait on
National Forest System lands for hunting purposes (36 CFR 251.50(c)).
For the purposes of this section and to assure consistency in
coordination of national forest wildlife matters with State agencies,
the authorized officer is the Regional Forester or Forest Supervisor
responsible for executing memorandums of understanding with the State
wildlife agency.
[FR Doc. 94-9014 Filed 4-13-94; 8:45 am]
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