Migratory bird hunting: Federal Indian reservations, off-reservation trust lands, and ceded lands,

[Federal Register: August 17, 2004 (Volume 69, Number 158)]

[Proposed Rules]

[Page 51036-51051]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr17au04-24]

[[Page 51036]]

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 20

RIN 1018-AT53

Migratory Bird Hunting; Proposed Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2004-05 Season

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

SUMMARY: The U.S. Fish and Wildlife Service (hereinafter Service or we) proposes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2004-05 migratory bird hunting season.

DATES: We will accept all comments on the proposed regulations that are postmarked or received in our office by August 27, 2004.

ADDRESSES: Send your comments on these proposals to the Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240 or fax comments to (703) 358-2272. All comments received will become part of the public record. You may inspect comments during normal business hours in room 4107, 4501 N. Fairfax Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, (703) 358-1714.

SUPPLEMENTARY INFORMATION: In the March 22, 2004, Federal Register (69 FR 13440), we requested proposals from Indian Tribes wishing to establish special migratory bird hunting regulations for the 2004-05 hunting season, under the guidelines described in the June 4, 1985, Federal Register (50 FR 23467). In this supplemental proposed rule, we propose special migratory bird hunting regulations for 28 Indian Tribes, based on the input we received in response to the March 22, 2004, proposed rule. As described in that rule, the promulgation of annual migratory bird hunting regulations involves a series of rulemaking actions each year. This proposed rule is part of that series.

We developed the guidelines for establishing special migratory bird hunting regulations for Indian Tribes in response to tribal requests for recognition of their reserved hunting rights and, for some Tribes, recognition of their authority to regulate hunting by both tribal and nontribal members on their reservations. The guidelines include possibilities for: (1) On-reservation hunting by both tribal and nontribal members, with hunting by nontribal members on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s); (2) on- reservation hunting by tribal members only, outside of the usual Federal frameworks for season dates and length, and for daily bag and possession limits; and (3) off-reservation hunting by tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.

In all cases, the regulations established under the guidelines must be consistent with the March 10 to September 1 closed season mandated by the 1916 Convention Between the United States and Great Britain (for Canada) for the Protection of Migratory Birds (Treaty). The guidelines apply to those Tribes having recognized reserved hunting rights on Federal Indian reservations (including off-reservation trust lands) and on ceded lands. They also apply to establishing migratory bird hunting regulations for nontribal members on all lands within the exterior boundaries of reservations where Tribes have full wildlife management authority over such hunting or where the Tribes and affected States otherwise have reached agreement over hunting by nontribal members on lands owned by non-Indians within the reservation.

Tribes usually have the authority to regulate migratory bird hunting by nonmembers on Indian-owned reservation lands, subject to Service approval. The question of jurisdiction is more complex on reservations that include lands owned by non-Indians, especially when the surrounding States have established or intend to establish regulations governing hunting by non-Indians on these lands. In such cases, we encourage the Tribes and States to reach agreement on regulations that would apply throughout the reservations. When appropriate, we will consult with a Tribe and State with the aim of facilitating an accord. We also will consult jointly with tribal and State officials in the affected States where Tribes wish to establish special hunting regulations for tribal members on ceded lands.

Because of past questions regarding interpretation of what events trigger the consultation process, as well as who initiates it, we provide the following clarification. We routinely provide copies of Federal Register publications pertaining to migratory bird management to all State Directors, Tribes, and other interested parties. It is the responsibility of the States, Tribes, and others to notify us of any concern regarding any feature(s) of any regulations. When we receive such notification, we will initiate consultation.

Our guidelines provide for the continued harvest of waterfowl and other migratory game birds by tribal members on reservations where such harvest has been a customary practice. We do not oppose this harvest, provided it does not take place during the closed season defined by the Treaty, and does not adversely affect the status of the migratory bird resource. Before developing the guidelines, we reviewed available information on the current status of migratory bird populations; reviewed the current status of migratory bird hunting on Federal Indian reservations; and evaluated the potential impact of such guidelines on migratory birds. We concluded that the impact of migratory bird harvest by tribal members hunting on their reservations is minimal.

One area of interest in Indian migratory bird hunting regulations relates to hunting seasons for nontribal members on dates that are within Federal frameworks, but which are different from those established by the State(s) where the reservation is located. A large influx of nontribal hunters onto a reservation at a time when the season is closed in the surrounding State(s) could result in adverse population impacts on one or more migratory bird species. The guidelines make this unlikely, however, because tribal proposals must include: (a) Harvest anticipated under the requested regulations; (b) methods that will be employed to measure or monitor harvest (such as bag checks, mail questionnaires, etc.); (c) steps that will be taken to limit level of harvest, where it could be shown that failure to limit such harvest would adversely impact the migratory bird resource; and (d) tribal capabilities to establish and enforce migratory bird hunting regulations. We may modify regulations or establish experimental special hunts, after evaluation and confirmation of harvest information obtained by the Tribes.

We believe the guidelines provide appropriate opportunity to accommodate the reserved hunting rights and management authority of Indian Tribes while ensuring that the migratory bird resource receives

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necessary protection. The conservation of this important international resource is paramount. The guidelines should not be viewed as inflexible. In this regard, we note that they have been employed successfully since 1985. We believe they have been tested adequately and, therefore, made them final beginning with the 1988-89 hunting season. We should stress here, however, that use of the guidelines is not mandatory and no action is required if a Tribe wishes to observe the hunting regulations established by the State(s) in which the reservation is located.

Population Status

The following paragraphs provide preliminary information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds.

May Breeding Waterfowl and Habitat Survey

Most of the U.S. and Canadian prairies were much drier in May of 2004 than they were in May of 2003. The return of water to short-grass prairies of southern Alberta and Saskatchewan we saw last year did not continue, and habitat in these areas went from good last year to fair or poor this year. The Manitoba survey area ranges from poor in the east to good in the west, similar to conditions observed last year. The Dakotas have continued the slow drying trend that we have seen over the past few years, and much of eastern South Dakota is in poor condition. Conditions in the Dakotas improve to the north. Eastern Montana is a mosaic of habitat conditions ranging from poor to good, and production potential is thought to be only fair in this region. Although many areas received considerable moisture in the form of over-winter snow, with even a late snowstorm in the southern portions in middle May, the snow melted and went right into the parched ground. Snow and cold during the May storm probably adversely impacted early nesters and young broods. Water received after the May surveys likely did not alleviate dry conditions, because much of it soaked into the grounds. Therefore, waterfowl production in the prairies is only poor to fair this year.

When there are dry conditions in the prairies, many prairie nesting ducks will typically over-fly these areas into the bush. This year, the Canadian Bush (Northwest Territories, Northern Alberta, Northern Saskatchewan and Northern Manitoba) was exceptionally late in thawing so the birds that did over-fly the dry prairies encountered winter-like conditions and will be even less successful than in a normal over- flight year. This is especially true for mallard and pintails; late nesters will have better success. Overall, the bush, including the parklands and boreal forest, will be only fair to marginally good for production because of the latest spring thaw in at least 20 years. However, Alaska birds should produce well because of excellent habitat conditions. Areas south of Alaska's Brooks Range experienced a widespread, record-setting early spring breakup, and flooding due to rapid thaw was minor.

Breeding habitat conditions were generally good to excellent in the eastern U.S. and Canada. Although spring was late in most areas, it is thought that nesting was not significantly affected because of abundant spring rain and mild temperatures. Production in the East is expected to be better this year than last year.

We will have no traditional July Production Survey this year to verify the early predictions of our biologists in the field. However, the pilot-biologists responsible for several survey areas (Southern Alberta, Southern Saskatchewan, the Dakotas, and Montana) will return in early July for a brief over-flight of a representative portion of their areas to assess significant habitat changes since May and provide a snapshot of production. This information and reports from local biologists in the field will help us with our overall perspective on duck production this year.

Status of Teal

The preliminary estimate of blue-winged teal numbers from the Traditional Survey Area is 4.07 million. This represents a 26.2 percent decline from 2003 and 9.6 percent below the long-term average. A population size in this range suggests that a 9-day September teal season is appropriate in 2004.

Sandhill Cranes

The Mid-Continent Population of Sandhill Cranes has generally stabilized at comparatively high levels, following increases in the 1970s. The Central Platte River Valley, Nebraska, spring index for 2004, uncorrected for visibility, was 356,850 cranes. The most recent photo-corrected 3-year average (for 2001-2003) was 370,300, which is within the established population-objective range of 343,000-465,000 cranes. All Central Flyway States, except Nebraska, allowed crane hunting in portions of their respective States in 2003-04. About 7,700 hunters participated in these seasons, which is similar to the number that participated during the previous year. An estimated 18,527 cranes were harvested in the Central Flyway during 2003-04 seasons, which was 42% higher than the previous year's estimate. Retrieved harvests in the Pacific Flyway, Canada, and Mexico were estimated to be about 13,109 cranes for the 2003-04 period. The total North American sport harvest, including crippling losses, was estimated at 35,706, which is similar to the previous year's estimate. The long-term trend analysis for the Mid-Continent Population during 1982-2000 indicates that harvests have been increasing at a higher rate than the trend in population growth over the same period.

The fall 2003 pre-migration survey estimate for the Rocky Mountain Population of sandhill cranes was 19,523, which was similar to the previous year's estimate of 18,803. Limited special seasons were held during 2003 in portions of Arizona, Idaho, Montana, New Mexico, Utah, and Wyoming, resulting in a harvest of 528 cranes, which was 17% below the previous year's harvest of 639 cranes.

Woodcock

Singing-ground and Wing-collection Surveys were conducted to assess the population status of the American woodcock (Scolopax minor). Singing-ground Survey data for 2004 indicate that the numbers of displaying woodcock in the Eastern and Central Regions were unchanged from 2003 (P>0.10). There was no significant trend in woodcock heard on the Singing-ground Survey in either the Eastern or Central Regions during the 10 years between 1995 and 2004 (P>0.10). This represents the first time since 1992 that the 10-year trend estimate for either region was not a significant decline. There were long-term (1968-2004) declines (P