[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]]

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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