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Fears Rise That Congress Could Open More Units Of National Park System to Hunting
Few units of the National Park System are open to hunting, but there are fears that legislation now working its way through Congress could clear the way for hunting across dozens of parks in the system.
The measure, the Recreational Fishing and Hunting Heritage and Opportunities Act, was sponsored by Reps. Dan Benishek, R-Michigan; Dan Boren, D-Oklahoma; Don Young, R-Alaska; and Mike Kelly, R-Pennsylania. They see H.R. 2834 as a vehicle to revive Americans' interest in hunting and fishing.
“In Northern Michigan, hunting and fishing is more than a sport or hobby—it is a way of life. My hope is that Congress will act to ensure that hunting, fishing and shooting rights are protected on federal lands for years to come,” Rep. Benishek said back in September when the legislation was introduced. “It’s hard for me to think of something I enjoy more than heading out from my camp in the Ottawa National Forest during late September and doing some bird hunting. Our goal with this legislation is to make that possible for future generations of sportsmen."
As the measure is worded, it states that "opportunities to recreationally fish, hunt, and shoot are declining," and that in turn "depresses participation in these traditional activities, and depressed participation adversely impacts fish and wildlife conservation and funding for important conservation efforts."
Groups that advocate for wilderness have come out strongly against the measure, which passed out of the House Natural Resources Committee to the House floor last week, saying it would "eviscerate the Wilderness Act of 1964."
Under the legislation, “any requirements imposed by [the Wilderness Act] shall be implemented only insofar as they facilitate or enhance the original or primary purpose or purposes for which the Federal public lands or Federal public land unit was established and do not materially interfere with or hinder such purpose or purposes," Bill Meadows, president of The Wilderness Society, wrote members of the House National Parks, Forests, and Public Lands Subcommittee. "This sweeping limitation on the Wilderness Act’s requirements is not limited in the draft bill to requirements affecting hunting, fishing, and shooting; therefore, it presumably covers all other land use activities as well, including logging, oil and gas drilling, road construction, buildings, mining, and commercial development."
The legislation does specifically exempt "national park or national monuments under the jurisdiction of the National Park Service to hunting or recreational shooting." But those are just two of at least 18 designations bestowed on units of the National Park System. That narrow exemption was not lost on Frank Buono, a former Park Service manager who now consults on a wide variety of issues associated with the parks.
"No one disputes that Congress is empowered to enact a new rules for the National Park System. Congress may even open the entire system to well-managed, scientifically regulated hunting of wildlife, as the (National Rifle Association) would like," says Mr. Buono. "But that is not 'America’s Best Idea'.”
According to his analysis, the legislation could be detrimental to the National Park System in at least four ways:
1) There are many units within the park system not officially titled “national parks” or “monuments” but which Congress did not specifically open or close to recreational hunting in the enabling acts creating them. Under H.R. 2834, such areas could be opened to hunting. The bill requires, among other things, an explicit closure in law to surmount the bill’s mandate to otherwise open federal lands.
Here, according to Mr. Buono, is a list of park areas that are not “parks” or “monuments” where Congress does not authorize hunting BUT also does not prohibit it.
* Coronado National Memorial, Arizona
* Pea Ridge National Military Park, Arkansas
* Santa Monica Mountains National Recreation Area, California
* Cumberland Gap National Historical Park, Kentucky
* Catoctin Mountain Park, Maryland
* Natchez Trace Parkway (52,000 acres; several nodes of land exist along the parkway that are far enough from the roadway to meet Mississippi State law for discharge of weapons)
* Chaco Culture National Historical Park, New Mexico
* Pecos National Historical Park, New Mexico
* Blue Ridge Parkway
* Gettysburg National Military Park, Pennsylvania
* Valley Forge National Historical Park, Pennsylvania
* Colonial National Historical Park, Virginia
* Manassas National Battlefield Park, Virginia
* Prince William Forest Park, Virginia
According to Mr. Buono, if the current bill language remains and it becomes law, the Park Service could face assertions that it is in violation of H.R. 2834 by not allowing hunting or recreational shooting in the above parks.
"The National Rifle Association or some other party could sue under H.R. 2834 to open a Santa Monica National Recreation Area, for example, to hunting," he adds.
2) In two units of the park system, Cape Cod National Seashore and Point Reyes National Seashore, Congress authorized hunting but did not mandate it. At Point Reyes, the Park Service has chosen not to allow hunting.
"H.R. 2834 would remove that discretion and likely compel the (Interior) Secretary to allow access for hunting in Point Reyes," says Mr. Buono. "Similarly, for Cape Cod, should the NPS ever decide to end hunting in that park, the NPS would find that H.R. 2834 circumscribes its discretion."
3) The legislation's definition of "hunting" is very broad, stating that hunting includes the “use of a firearm, bow or other authorized means in the lawful pursuit, shooting, capture, collection, trapping or killing of wildlife.”
Such breadth reduces protection of park wildlife in at least two significant ways, according to Mr. Buono:
Congress authorizes hunting in 63 areas of the park system but trapping only in 52. In 1984, as a consequence of a broad rulemaking, the NPS ended trapping in 11 park areas where Congress had not explicitly authorized it. They are: Assateague Island, Bighorn Canyon, Buffalo River, Cape Cod, Delaware Water Gap, John D. Rockefeller Parkway, New River Gorge, Ozark Riverways, Pictured Rocks, Saint Croix Riverway, and Sleeping Bear Dunes.
The Park Service explained its decision with these words: “It has been long-standing policy of the NPS that, absent express congressional authorization, trapping will not be permitted.” This decision precipitated the 1986 suit by the National Rifle Association (NRA v. Potter) which the NRA lost.
The Park Service draws a sharp distinction between “hunting” and “trapping.” H.R. 2834 has a realistic potential to erase that distinction by defining “trapping” as a subset of hunting, and not separate from it. This could have the effect of authorizing trapping in the ten units where the NPS ended it (Note that the eleventh unit – Ozark Riverways was reopened to trapping in an unpublished (and unappealed) District Court decision a few years after the 1984 rulemaking.)
Since Congress authorizes “hunting” in all of those 10 units, that authorization may now likely include “trapping” as “hunting” is defined by H.R. 2834. It is idle to speculate whether the bill’s authors are perceptive enough to anticipate this goal. But the NRA certainly is. Of that, we can have little doubt.
The NPS recently encountered an issue that arose in Lake Mead National Recreation Area where a person with a Migratory Bird Treaty Act permit, issued by the U.S. Fish and Wildlife Service, sought to collect Peregrine Falcons. Congress authorizes hunting in Lake Mead; one of the 63 park areas. The collector asserted, as did the State of Arizona, that this conduct was permissible under the state hunting laws and was therefore allowed in Lake Mead. The Park Service responded that collecting raptors from nests in the park was not “hunting” in the common usage of that word, thus – “No collecting.”
Now, H.R. 2834 defines “hunting” to mean “use of…other authorized means in the lawful…collection of wildlife.” The collecting of wildlife that the Park Service forbade at Lake Mead would now be permissible at all 63 areas of the park system where Congress authorizes “hunting.”
An unintended outcome? Again, we do not know. But the plain language leads to the conclusion that H.R. 2834 will require the Park Service to allow collection of animals in those parks where Congress authorizes hunting.
4) "Each time that the Park Service imposes a limit or restriction upon hunting (including trapping or collecting) in any of the 63 parks open by law to hunting, the agency faces intense criticism," says Mr. Buono.
"In Alaska parks, the NPS has restricted some methods and means of hunting allowable under State of Alaska laws. At Big Cypress the NPS restricts the otherwise permissible (under Florida law) use of dogs in hunting pigs and deer," he notes. "If H.R. 2438 is enacted, the challenge to such NPS actions will have some support in law. Why? The law confers the benefit of the doubt upon access for hunting (trapping and collecting too!), recreational shooting and fishing.
"Further, the bill will require that any federal, including NPS, hunting restriction or limitation on an area greater than 640 acres of federal land will now require that the NPS (and all other Federal agencies) report that restriction to Congress."
To protect the park system, Mr. Buono suggests that advocacy groups attempt to have the wording to the legislation redrafted to specifically state that "(T)his Act shall not be construed as opening any area of the national park system to recreational hunting, as defined in section 3.2, or to recreational shooting. Hunting, or recreational shooting are permitted in areas of the national park system only where, and under terms, explicitly provided in the statutes governing each particular area. This section shall not affect the authority at 16 U.S.C. 3 of the Secretary of the Interior to dispose of such animals that may be detrimental to the use of areas of the national park system. The Secretary may permit recreational fishing in areas of the national park system except where not specifically prohibited in law."
What are the bill's prospects?
"This bill could well pass the House of Representatives and a closely divided Senate. Do not count on a veto, especially if it comes wrapped in an Omnibus with some good provisions," says Mr. Buono. "Some political appointees may prefer to let the NRA’s sleeping dogs lie. Some may even pretend that H.R. 2834 is impenetrable, meaningless, or has no effect on parks. Perhaps, they think, that, once enacted, the NPS may be able to deal with the law’s provisions. At that point, it may be too late to repair the damage."
At the National Parks Conservation Association, officials are keeping an eye on the bill's progress.
"We’re working to understand the language, but if it turns out that this would overturn and open up those units, we will be wroking to aggressively to stop this legislation,” said Elise Russell, NPCA's legislative representative.