Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2012-13 Early Season
Federal Register, Volume 77 Issue 172 (Wednesday, September 5, 2012)
Federal Register Volume 77, Number 172 (Wednesday, September 5, 2012)
Rules and Regulations
Pages 54451-54463
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2012-21969
Page 54451
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
Docket No. FWS-R9-MB-2012-0005; FF09M21200-123-FXMB1231099BPP0L2
RIN 1018-AX97
Migratory Bird Hunting; Migratory Bird Hunting Regulations on Certain Federal Indian Reservations and Ceded Lands for the 2012-13 Early Season
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule prescribes special early-season migratory bird hunting regulations for certain tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands. This rule responds to tribal requests for U.S. Fish and Wildlife Service (hereinafter Service or we) recognition of tribal authority to regulate hunting under established guidelines. This rule allows the establishment of season bag limits and, thus, harvest, at levels compatible with populations and habitat conditions.
DATES: This rule takes effect on September 1, 2012.
ADDRESSES: You may inspect comments received on the special hunting regulations and tribal proposals during normal business hours in room 4107, Arlington Square Building, 4501 N. Fairfax Drive, Arlington, VA or at http://www.regulations.gov at Docket No. FWS-R9-MB-2012-0005.
FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street NW., Washington, DC 20240; (703)-358-1714.
SUPPLEMENTARY INFORMATION: The Migratory Bird Treaty Act (MBTA) of July 3, 1918 (40 Stat. 755; 16 U.S.C. 703 et seq.), authorizes and directs the Secretary of the Department of the Interior, having due regard for the zones of temperature and for the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory game birds, to determine when, to what extent, and by what means such birds or any part, nest, or egg thereof may be taken, hunted, captured, killed, possessed, sold, purchased, shipped, carried, exported, or transported.
In the August 16, 2012, Federal Register (77 FR 49680), we proposed special migratory bird hunting regulations for the 2012-13 hunting season for certain Indian tribes, under the guidelines described in the June 4, 1985, Federal Register (50 FR 23467). The guidelines respond to tribal requests for Service recognition of their reserved hunting rights, and for some tribes, recognition of their authority to regulate hunting by both tribal members and nonmembers on their reservations. The guidelines include possibilities for:
(1) On-reservation hunting by both tribal members and nonmembers, 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 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-September 1 closed season mandated by the 1916 Migratory Bird Treaty with Canada. We have successfully used the guidelines since the 1985-86 hunting season. We finalized the guidelines beginning with the 1988-89 hunting season (August 18, 1988, Federal Register 53 FR 31612).
In the April 17, 2012, Federal Register (77 FR 23094), we requested that tribes desiring special hunting regulations in the 2012-13 hunting season submit a proposal including details on:
(a) Harvest anticipated under the requested regulations;
(b) Methods that would be employed to measure or monitor harvest (such as bag checks, mail questionnaires, etc.);
(c) Steps that would 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.
No action is required if a tribe wishes to observe the hunting regulations established by the State(s) in which an Indian reservation is located. On August 16, 2012, we published a proposed rule (77 FR 49680) that included special migratory bird hunting regulations for 30 Indian tribes, based on the input we received in response to the April 17, 2012, proposed rule. All the regulations contained in this final rule were either submitted by the tribes or approved by the tribes and follow our proposals in the August 16 proposed rule.
Although the August 16 proposed rule included generalized regulations for both early- and late-season hunting, this rulemaking addresses only the early-season proposals. Therefore, it includes information for only 21 tribes. The letter designations for the paragraphs pertaining to each tribe in this rule are discontinuous because they follow the letter designations for the 30 tribes discussed in the August 8 proposed rule, which set forth paragraphs (a) through (dd). Late-season hunting will be addressed in late September. As a general rule, early seasons begin during September each year and have a primary emphasis on such species as mourning and white-winged doves. Late seasons begin about October 1 or later each year and have a primary emphasis on waterfowl.
Population Status and Harvest
Information on the status of waterfowl and information on the status and harvest of migratory shore and upland game birds, including detailed information on methodologies and results, is available at the address indicated under FOR FURTHER INFORMATION CONTACT or from our Web site at http://www.fws.gov/migratorybirds/NewsPublicationsReports.html.
Comments and Issues Concerning Tribal Proposals
For the 2012-13 migratory bird hunting season, we proposed regulations for 30 tribes and/or Indian groups that followed the 1985 guidelines. Only 26 tribes were considered appropriate for final rulemaking because we did not receive proposals from 4 of the tribes for whom we had proposed regulations. Some of the tribal proposals had both early- and late-season elements. However, as noted earlier, only those with early-season proposals are included in this final rulemaking; 21 tribes have proposals with early seasons. The comment period for the proposed rule, published on August 16, 2012, closed on August 27, 2012. Because of the necessary brief comment period, we will respond to any comments on the proposed rule and/or these regulations postmarked by August 27, but not received prior to final action by us, in the September late-season final rule. At this time, we have received three comments.
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Great Lakes Indian Fish and Wildlife Commission's (GLIFWC) Proposal
We received two comments on GLIFWC's initial proposal from the State of Wisconsin and the Mississippi Flyway Council (MFC). We also received a subsequent comment from the GLIWFC in response to our August 16 proposed rule.
The State of Wisconsin, Department of Natural Resources (WIDNR) and MFC noted the long history of working cooperatively with GLIFWC and individual tribes in the conservation of Wisconsin's waterfowl and wetland resources. However, WIDNR and MFC believed the most significant problem with the GLIFWC proposal was the request to allow tribal members to hunt with the use of electronic calls for ducks and geese within the ceded territory. WIDNR and MFC believe that, since the ceded territory covers one-third of the State of Wisconsin, one-half of the State of Michigan, significant areas of Minnesota, and significant areas of public hunting grounds and waters in those States, the use of electronic calls by tribal hunters would put any nontribal hunters in violation of the law when hunting in these areas. Thus, GLIFWC's proposal would, in effect, close public lands to hunting, increase conflicts among the hunting public, and create a safety concern and an unmanageable law enforcement environment. WIDNR and MFC also opposed the extension of shooting hours to 60 minutes past sunset and removing species restrictions from the daily bag limit because of safety and resource concerns. WIDNR and MFC also believe that GLIFWC's proposal to remove all species restrictions in hunting regulations fails to recognize the different status and regulations of each species and as such is inconsistent with established cooperative management practices. WIDNR and MFC believe that management decisions could not be honored without species-level restrictions. WIDNR and MFC believe that a tribal tundra swan hunting season in the ceded territory should not be implemented in 2012 because additional biological evaluation and harvest planning should be conducted, especially in light of the trumpeter swan issues. WIDNR asks that the same criteria of not implementing duck hunting seasons prior to September 15 because of impacts to breeding ducks in Wisconsin be applied to tribal seasons as well. WIDNR also opposes the tribes being exempt from decoy restrictions.
GLIWFC reiterated that their proposal was consistent with their underlying treaty rights and values, and that their proposals were biologically sound and culturally appropriate. More specifically, they proposed allowing the use of electronic calls for geese from September 1 to 21, and for ducks from September 4 to 21 in the 1837 and 1842 Treaty areas. They stated that the proposed revision to their initial proposal would minimize any user conflicts since waterfowl seasons in Michigan, Minnesota, and Wisconsin are closed. They also offered to conduct a post-season harvest survey on the use of and harvest associated with electronic calls.
Regarding expanded shooting hours, GLIFWC proposed to extend shooting hours from 45 minutes before sunrise to 45 minutes after sunset, a reduction of 15 minutes from their initial proposal. They stated that this proposal was consistent with other Service-approved tribal proposals (69 FR 53990; September 3, 2004) and was consistent with recent changes in Wisconsin allowing the harvest of wolves at night.
GLIWFC also proposed changes to the swan hunting proposal. They requested the establishment of an experimental season in Ashland, Bayfield, Forest, and Oneida Counties in Wisconsin with a 2-bird daily bag limit, mandatory registration, and carcass verification.
Lastly, GLIFWC proposed to correct an oversight in the initial season proposal pertaining to mergansers and woodcock seasons. They amended the proposed season opening dates in the 1836 Treaty area for both species from September 4, rather than September 15.
Service Response: The GLIFWC 2012 proposal, and subsequent proposed revisions, had several significant changes from regulations approved last season. In the 1837 and 1842 Treaty Areas, the GLIFWC proposal would allow the use of electronic calls in September; would extend shooting hours by 15 minutes in both the morning and the evening to 45 minutes before sunrise and 45 minutes after sunset; would increase the daily bag limits to 50 ducks and remove all species restrictions within the daily bag limit for ducks; would allow the first harvest of sandhill cranes and tundra swans; would open the season (other than for geese) on September 4; and would remove restrictions for decoy use in Wisconsin. In the 1836 Treaty Area, the GLIFWC proposal would remove all species restrictions within the daily bag limit for ducks.
GLIFWC states that the regulatory changes are intended to provide tribal members a harvest opportunity within the scope of rights reserved in their various treaties and increase tribal subsistence harvest opportunities, while protecting migratory bird populations. Under the GLIFWC proposed regulations, GLIFWC expects total ceded territory harvest to be approximately 1,575 ducks, 300 geese, 50 sandhill cranes, and 50 tundra swans, which is roughly similar to anticipated levels in previous years for those species for which seasons were established. GLIWFC further anticipates that tribal harvest will remain low given the small number of tribal hunters and the limited opportunity to harvest more than a small number of birds on most hunting trips.
Recent GLIFWC harvest surveys (1996-98, 2001, 2004, 2007-08, and preliminary 2011) indicate that tribal off-reservation waterfowl harvest has averaged less than 1,050 ducks and 200 geese annually. In the latest survey year for which we have specific results (2004), an estimated 53 hunters took an estimated 421 trips and harvested 645 ducks (1.5 ducks per trip) and 84 geese (0.2 geese per trip). Analysis of hunter survey data over 1996-2004 indicates a general downward trend in both harvest and hunter participation.
Many of the components of the GLIFWC proposal are acceptable to the Service and are adopted in this rule. However, a number of the components are not in the best interest of the conservation of migratory birds. More specific discussion follows below.
Allowing Electronic Calls
As we stated last year (76 FR 54676, September 1, 2011), the issue of allowing electronic calls and other electronic devices for migratory game bird hunting has been highly debated and highly controversial over the last 40 years, similar to other prohibited hunting methods such as baiting. Electronic calls, i.e., the use or aid of recorded or electronic amplified bird calls or sounds, or recorded or electrically amplified imitations of bird calls or sounds to lure or attract migratory game birds to hunters, was Federally prohibited in 1957 because of its effectiveness in attracting and aiding the harvest of ducks and geese and is generally not considered a legitimate component of hunting. In 1999, after much debate, the migratory bird regulations were revised to allow the use of electronic calls for the take of light geese (lesser snow geese and Ross geese) during a light-goose-only season when all other waterfowl and crane hunting seasons, excluding falconry, were closed (64 FR 7507, February 16, 1999; 64 FR 71236, December 20, 1999; and 73 FR 65926, November 5, 2008). The regulations were subsequently changed also in 2006 to allow the use
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of electronic calls for the take of resident Canada geese during Canada-goose-only September seasons when all other waterfowl and crane seasons, excluding falconry, were closed (71 FR 45964, August 10, 2006). In both instances, these changes were made in order to significantly increase the take of these species for population management due to either serious population overabundance, or depredation issues, or public health and safety issues, or both.
Available information from the use of additional hunting methods, such as electronic calls, during the special light-goose seasons indicate that total harvest increased approximately 50-69 percent. On specific days when light-goose special regulations were in effect, the mean light goose harvest increased 244 percent. One research study found that lesser snow goose flocks were 5.0 times more likely to fly within gun range (
