On March 21, 2017, the U.S. Senate followed the House in voting (52-47) to use the Congressional Review Act (CRA) to permanently void the Alaska National Wildlife Rule, which had prohibited some hunting practices to specifically reduce predator populations on national wildlife refuges in Alaska.
While we are profoundly disappointed in the vote, we wanted to provide Refuge System advocates with some information about what it means for the management of refuges in Alaska and nationwide. Below are some frequently asked questions and answers.
Q. How does the repeal of the Alaska National Wildlife Refuge Rule (Predator Rule) change the way refuges are managed in Alaska
A. It doesn’t. The rule created by the U.S. Fish and Wildlife Service (Service) just codified and simplified existing laws – it didn’t create new law, as the Executive Branch can’t do that. In creating the rule, the Service sought to clarify certain hunting regulations on Alaskan national wildlife refuges. Specifically, the rule would have prohibited:
- the hunting of bear cubs or sows with cubs (with an exception for customary and traditional use activities under state regulations);
- baiting of brown bears;
- trapping and snaring bears;
- hunting of wolves and coyotes during the denning season and when the pelts have no economic value (from May 1 to August 9); and
- airborne or same day airborne hunting of bears*
*The Federal Airborne Hunting Act prohibits literally shooting an animal from an airplane. “Same day airborne” AK state law prohibits spotting game from the air, landing nearby and shooting it. AK state law says you can’t hunt or help someone else take big game until 3am the day after the day you have flown.
Q. Does the overturning of the rule give the state of Alaska management authority over the FWS on national wildlife refuges?
A. No. Although the state of Alaska may try to argue that the overturning of the rule gives them final say in wildlife management issues on refuges, it does not. The Supreme Court and lower courts have consistently ruled that the federal government has the final say when it comes to managing wildlife on federal lands.
Federal Authority on Federal Lands
The federal government has clear authority to regulate wildlife on federal lands within Alaska and throughout the nation. In Kleppe v. New Mexico, 426 U.S. 529 (1976), the U.S. Supreme Court stated unequivocally that “we have repeatedly observed that the power over public land thus entrusted to Congress is without limitations.” Subsequent cases have upheld this authority. For example, Wyoming unsuccessfully challenged the FWS when the agency refused to allow the State to vaccinate elk on the National Elk Range with a brucellosis vaccine. Wyoming v. United States, 279 F.3d 1214, 1227 (10th Cir. 2002) (“we believe the point painfully apparent that the Tenth Amendment does not reserve to the State of Wyoming the right to manage wildlife [on federal lands] regardless of the circumstances”). In California, the National Audubon Society successfully challenged a state law banning trapping on all lands in California (including federal lands) because, among other reasons, the state law conflicted with “FWS’s statutory management authority on . . . federal reserves.” Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 854 (9th Cir., 2002). The court explained that the federal statute governing the management of national wildlife refuges “plainly vest[s] the FWS with authority to administer the Act and manage the [national wildlife refuges].”
Q. Will the Service work with the state of Alaska on hunting programs from now on?
A. Of course. The Service has always strived to have a collaborative partnership with the state of Alaska – and indeed every state across the nation. The Service actually prefers to defer to the state of Alaska on hunting regulations for national wildlife refuges and the Predator Rule was only targeted at specific management practices that conflicted with federal policies.
Q. Why does the Service disagree with reducing predator populations in order to boost game species?
A. The Service is bound by statute to conserve a diverse array of wildlife for the benefit of the American people. By law, it cannot arbitrarily choose to implement increasing game species over prey species unless by doing so it fulfills a specific refuge purpose or law. The Service has used predator control only where there is a need to restore natural biodiversity, such as to protect an endangered species by removing an introduced species, e.g., once-endangered Aleutian Cackling Geese were restored by removing non-native Arctic fox from Aleutian islands.
The refuges in Alaska are simply adhering to three specific laws passed by Congress:
- The Wilderness Act of 1964 directs agencies “not to manipulate ecosystem processes, including predator/prey fluctuations, in wilderness areas. . .” (90% of the wilderness acres within the National Wildlife Refuge System are in Alaska);
- Refuge System Administration Act of 1966, as amended with the Refuge System Improvement Act of 1997 directs that “the Secretary shall ensure that the biological integrity, biological diversity, and environmental health of the System are maintained through management that restores or mimics natural ecosystem processes or functions and population management that considers natural densities, social structures, and population dynamics.” In addition, the Administration Act as amended by the Improvement Act established and reinforced the compatibility standard as the legal backbone for national wildlife refuges, defining a “compatible” use as one that does not “materially interfere with or detract from the purposes of the refuge or the mission of the National Wildlife Refuge System.”
- Alaska National Interest Lands Conservation Act (ANILCA) of 1980 directed Alaska refuges as their first purpose to “conserve fish and wildlife populations and habitats in their natural diversity,” and other refuge purposes must be managed consistent with that first purpose. ANILCA’s legislative history further shows that Congress created or expanded Alaska’s national wildlife refuges to maintain natural, undisturbed ecosystems providing direction for refuges “not to emphasize management activities favoring one species to the detriment of another,” but to emphasize conservation of natural interactions, dynamics, cycles, and processes between species and their habitats.
Q. Did the Predator Rule impact subsistence hunting?
A. No. The Rule was officially titled, “Non-subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska” and would not have impacted subsistence hunting.
Q. What about other public lands in Alaska such as state owned lands or other federal lands? Does the overturning of this rule apply to those?
A. No. The FWS rule would have only applied to lands within the National Wildlife Refuge System. The National Park Service (NPS) has a similar rule on national parks and preservers in Alaska, but because it was finalized before June 13, 2016, the NPS rule was not subject to the CRA.
State lands will continue to be managed by the state under their own guidelines. The state of Alaska has a different mandate based on sustained yield management or “the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game.” Since 1994, the state’s Intensive Management (IM) law has prioritized human consumption of moose, caribou, and deer and the Board of Game–whose name reflects it’s sole focus–moved to reduce wolf, black bear, and brown bear, hence the conflicts with the Service over wildlife management decisions.
Q. Does the overturning of this rule have impacts to other refuges nationwide?
A. No. As explained above, the Service must manage refuges under the Refuge Administration Act of 1966 as amended by the Refuge Improvement Act of 1997 and the Wilderness Act. ANILCA does not apply outside of Alaska.
However, there will undoubtedly be some decision makers both inside and outside Alaska who will incorrectly say that this action by Congress gives states the ability to have the final say in management decisions on national wildlife refuges. The Supreme Court, through their interpretation of the Constitution (Property Clause and Supremacy Clause), says otherwise.
Q. What does the overturning of this rule ultimately mean for refuges in Alaska?
A. It means that the Service will have to spend more and more time and money to fight the state’s efforts to impose Intensive Predator Management on refuges throughout Alaska. Instead of being able to point to a rule for all refuges in Alaska, they will have to fight the state on a case-by-case basis as they have done successfully for over twenty years. The cost to American taxpayers is that staff time and taxpayer dollars will be used to fight frivolous lawsuits brought by the state of Alaska which the state will inevitably lose just as they have in the past.
The rule codified how national wildlife refuges had been managed in Alaska for years and did not affect subsistence hunting, and only applied to lands within the National Wildlife Refuge System.
While hunting is an integral part of America’s, and especially Alaska’s, conservation heritage, extreme predator control practices like taking brown bears over bait piles and killing wolf pups in their dens conflict with the idea of “fair chase” espoused by President Theodore Roosevelt, who established the first national wildlife refuge in 1903.
The National Wildlife Refuge Association will continue to support the Service in fighting against the state of Alaska’s efforts to impose measures to artificially inflate game species populations. The Service has an obligation to the American people and to the people of Alaska to manage national wildlife refuges for all wildlife and promote biological diversity.