12/02/2019 - Legal Analysis - Student Work

New Regulations Expand Hunting and Fishing on 1.4 Million Acres of Public Lands

by Nathan Lobel, JD 2022

On September 10, 2019 the Fish and Wildlife Service (FWS) published the final 2019-2020 Station-Specific Hunting and Sport Fishing Regulations. The regulation expands hunting and fishing on 1.4 million acres of public lands by opening seven National Wildlife Refuges and 15 areas of the National Fish Hatchery System to hunting and sport fishing, and expanding hunting and sport fishing at 70 other refuges. The final rule also removes and simplifies approximately 5,000 existing regulations governing wildlife refuges and fish hatcheries.

According to the Department of the Interior, which oversees FWS, the rule more than doubles the sum of the acreage opened or expanded over the past five years. Interior Secretary Bernhardt calls it “the largest single effort to expand hunting and fishing access in recent history.” While responsible hunting and fishing can support a healthy ecosystem, opening over 1 million acres to hunting and fishing merits closer attention. This is especially true given that these management changes are often semi-permanent. Since 2000, Interior has only once entirely closed a previously-open refuge to hunting.

Congress enacted the National Wildlife Refuge System in 1966, closing the refuges in all states but Alaska to all uses until opened. The National Wildlife Refuge System now includes over 500 refuges and protects 150 million acres of land and water. By its mission, the Refuge System prioritizes conservation of fish, wildlife, and plant resources as well as the habitats upon which they depend. Refuges support thousands of species and are important havens for more than 300 threatened and endangered species. Refuges are also open to public use, so long as human activity does not threaten the refuges’ conservation objectives.

Before amending a refuge’s approved use, the National Wildlife Refuge System Improvement Act of 1997 requires FWS to determine that the use is compatible with the mission of the Refuge System and the purpose for which the refuge was established. Hunting and fishing can be compatible uses under the Act. To make compatibility determinations, refuge managers develop 15-year comprehensive conservation plans and may develop more specific hunting plans at each refuge. The agency then conducts an environmental review of the plans in compliance with the National Environmental Policy Act (NEPA) and evaluates the impacts on species protected by the Endangered Species Act, ensuring they will neither jeopardize species’ survival nor modify critical habitats. FWS then makes proposed refuge-specific regulatory language and accompanying documentation available for public comment prior to their finalization.

FWS includes closures of areas within refuges in the annual regulations, though the underlying analysis for making a closure determination appears to be more limited than the analysis required for opening refuge land to hunting and fishing. For example, when FWS closed a refuge to hunting in 2012-2013, the closure followed years of inactivity by hunters. In other instances, the agency relied on authority under the Migratory Bird Treaty Act to prohibit hunting of migratory birds in certain areas.

Responsible hunting and fishing can be essential to healthy ecosystem management. Environmental organizations, however, have raised questions about the rigor of FWS’ analyses in confirming compliance with existing mandates. The Humane Society, for example, noted that while FWS conducted NEPA and Endangered Species Act reviews for each individual refuge, it did not consider the broader impact that such a large hunting and fishing expansion could have on environmental quality and the protection of endangered species. The comment also questions the sufficiency of FWS’ environmental analyses at three sites: Crane Meadows National Wildlife Refuge, Tamarac National Wildlife Refuge, and Iron River National Fishery Hatchery. Further, they argue that FWS failed to evaluate the environmental impacts of allowing or expanding hunting in states that allow trapping and hounding, violating NEPA and potentially neglecting duties under the Endangered Species Act to protect Canada lynx (in Minnesota) and gray wolves (in Minnesota and Wisconsin).

The Trustees for Alaska, writing on behalf of major environmental organizations including the Center for Biological Diversity, Defenders of Wildlife, and Sierra Club, also questioned FWS’ diligence, though in relation to elimination of regulations prohibiting same-day airborne hunting of wolves and wolverines on National Wildlife Refuges in Alaska. FWS contends that the prohibition was duplicative of state regulation. The Trustees, however, argue that the justification for the rollback does not acknowledge and respond to the regulation’s original purpose, including to aid regulatory enforcement, and that it was not strictly duplicative of State law, which prohibits same-day airborne hunting except when the Board of Game authorizes a predator control program.

While the ultimate impacts of the hunting and sport fishing expansion are not yet clear, such a dramatic change of course demands attention to ensure that FWS complied with national environmental protection statutes and that the new regulation upholds the Refuge System’s commitment to conservation and healthy ecosystem management.