Are National Parks That Recommend Bear Spray Encouraging You To Break the Law?

Is the use of bear spray in Lower 48 national parks legal? Photo by Counter Assault.

"Bear spray" long has been recommended by national parks in the West as a great deterrent against grizzly and black bears. Indeed, among those parks endorsing bear spray are Yellowstone National Park, Glacier National Park, and Grand Teton National Park.

Here's a snippet from a transcript to a video Yellowstone's staff (see accompanying videocast) produced on bear spray:

When bear encounters do occur, one response has been effective in consistently reducing the number of bear attacks with severe outcomes, the use of bear pepper spray. More and more people carry bear pepper spray in the field, professionals, outfitters, and everyday hikers and campers. Many can testify to the effectiveness of bear pepper spray as a bear deterrent, from bear specialists to outfitters, guides, and hunters.

At Glacier, officials also recommend bear spray, although they stress that you shouldn't gain a false sense of security by carrying a can or two.

This aerosol pepper derivative triggers temporarily incapacitating discomfort in bears. It is a non-toxic and non-lethal means of deterring bears.

There have been cases where bear spray apparently repelled aggressive or attacking bears and accounts where it has not worked as well as expected. Factors influencing effectiveness include distance, wind, rainy weather, temperature extremes, and product shelf life.

If you decide to carry bear spray, use it only in situations where aggressive bear behavior justifies its use. Bear spray is intended to be sprayed into the face of an oncoming bear. It is not intended to act as a repellent.

While this is all good advice, a check of the Code of Federal Regulations (Title 36, Chapter 1, see 'weapons' definition) shows those parks seem to be overlooking a prohibition against bear spray in national parks because it can be considered a weapon.

Weapon means a firearm, compressed gas or spring-powered pistol or rifle, bow and arrow, crossbow, blowgun, speargun, hand-thrown spear, slingshot, irritant gas device, explosive device, or any other implement designed to discharge missiles, and includes a weapon the possession of which is prohibited under the laws of the State in which the park area or portion thereof is located. (emphasis added)

Park Service officials in Washington tell the Traveler that the regulations do indeed seem to prohibit bear spray in many national parks. And they point out that while there is language that specifically allows the use of bear spray in Alaskan parks elsewhere in the Code of Federal Regulations, "(T)here is not a provision for it in the Lower 48 for some reason."

Thanks to Christoper Hibbard at Your Smokies for bringing this issue to the Traveler's attention.

Comments

Isn't the key word here "missiles" ? A tear gas cannister would be a missile but not a spray?

Was there an Environmental Impact Study done on this chemical loaded weapon? Chemicals used in this weapon can be lethal and will leave a large carbon footprint when the contents are expelled. I think the Brady group should file a lawsuit to force an EIP?

Ahh, gotta love Monday mornings and a touch of sarcasm. Not sure how large a carbon footprint these devices would leave, and since the "Brady group" is focused on firearms, and since bear spay is recognized as being "non-lethal," not sure they'd be interested in pursuing bear spray or mace matters.

I suspect that the answer lies in when the regulations were enacted. The original weapons definition was probably enacted well before the use of OC spray to stop bear attacks and most likely was referring to tear gases like CS gas. The Alaska reg was probably created after OC spray came into common use for repelling both human and bear attacks. Regulators probably wanted to clarify the allowance since bear encounters are more common in Alaskan National Parks.

So why wasn't the weapons definition changed? Changing regulations is a difficult process that few are willing to undertake unless there issue at hand is significant. If those who interpret the reg in the field (park rangers) read the weapons definition to mean tear gas canisters and not bear spray, then it is a non-issue. Are there any cases of rangers citing people for carrying bear spray? I doubt it.

Rick,

If it is a non issue why was I contacted by a senior in the GSMNP?

You are making huge assumptions that simply does not agree with the current law. Irritant gas is an irritant gas regardless of the form. At least that is what my lawyer told me today.

How many people were cited? Good question. Selective enforcement of weapons laws would be a poor policy for any branch of our federal government to have.

I am Looking forward to seeing how this turns out.

Bear related injuries have increased in Yellowstone Park's backcountry since bear spray became popular. From 1988-1997, there were 8 bear related injuries. From 1998-2007, there were 13 injuries. I'm can't prove there's a direct cause and effect: More people carrying bear spray = more bear related injuries. But backcountry use was about the same all those years. And the bear population in Yellowstone Park was probably the same. The much-publicized growth of the grizzly bear population in the Yellowstone region occured outside the park--Yellowstone was full. I think carrying bear spray fosters overconfidence that leads to confrontations and human injuries. The statistics for Denali National Park are similar.

Bear spray is illegal unless a park superintendent makes an exception to the Code of Federal Regulations for his or her particular park. It's worth noting that any superintendent could make the same exception to allow firearms. No public review. No public comments. Just change the law and the heck with everybody.

Dave Smith

The numbers +/- 5 may be to close to draw conclusions, but with anything to do with the outdoors or wild animals: overconfidence kills. Lack of proper bear spray use can create issues as well.

Your statement about a park superintendent being able to make an exception to the Code of Federal Regulations for his or her particular park is huge news to me. I know about the wild, not about park hierarchy, park legal issues or park politics. Is there a source that you can point me to that shows that the superintendent has this power?

I am not making a judgment yet as to if I am for or against the law but as with any "weapon", I am not against having to get a permit after being properly trained.

I am upset at the lack of transparency and what appears to be selective enforcement.

Actually, a superintendent's authority to permit the carrying of firearms is extremely limited. The code of federal regulations only allow for such permission under a short list of circumstances which apply mostly in support of research or other official activities, management of pack trains and horse stock or to pride for access to lands that are inaccessible without crossing park lands. To intimate that a park superintendent can choose to authorize the possession of firearms at will is a bit of a mischaracterization. Such permission is quite rare as it cannot be legally granted to just anyone who asks.

This is all spelled out in the Code of Federal Regulations, Title 36 Section 2.4 and available on the internet. Check out the Cornell University Law site at: www.law.cornell.edu/cfr. You can search the entire code.

And as far as bear spray goes, I see the point that it may technically fit the CFR description of a weapon. However, having been a law enforcement ranger for may years, I have never heard of any person incurring legal consequence for carrying the stuff. Just don't take it with you to Canada. Different story up there. The only situation that I could even imagine such a thing happening is if bear spray was used as an offensive weapon against another person.

Mike--I want to preface my remarks by frankly admitting I could be wrong, but I think that under the CFR "weapons" includes both bear spray and firearms. So if a park superintendent can use the superintendents "compodium" to allow bear spray, I assume the superintendent could also allow firearms. Again, I might be wrong.

The parks that legally allow bear spray do so because the superintendent made an exception to the law/CFR. It seems like a superintendent could just as easily make an exception for guns. But I could be wrong.