H.R. 4089 Provides Fundraising Bonanza for Extremist Groups

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Anti-hunting and Environmental Lobby

Distort the Sportsmen’s Heritage Act to Raise Money

Following in the footsteps of the nation’s most powerful anti-hunting organization, a quartet of environmental groups wasted no time firing off fundraising appeals to fight HR 4089.  The bill, also called the Sportsmen’s Heritage Act of 2012, is the most significant pro-sportsmen legislation in 15 years.  The funding requests are full of lies, mischaracterizations and distortions.

Joining the Humane Society of the United States in this cynical attempt to cash in are the Center for Biological Diversity, Defenders of Wildlife, The Wilderness Society and the National Parks Conservation Association.  Their fundraising appeals can be viewed by clicking on each group’s name.

Opponents falsely claim that the Sportsmen’s Heritage Act will:

  • Allow motorized access, roads, logging and oil / gas development in wilderness areas;
  • Prohibit the use of the National Environmental Policy Act in making hunting and fishing management decisions on public lands;
  • Mandate that hunting be allowed in National Parks.  This could include hunting at historic battlefield, cemeteries or other sensitive cultural sites;
  • Remove protection from the Endangered Species Act and the Marine Mammal Protection Act for polar bears;
  • Allow unregulated hunting on federal public land;
  • Remove the authority of the U.S. EPA to regulate lead in ammunition and fishing tackle.

Bill Horn, federal affairs director for the U.S. Sportsmen’s Alliance (USSA), is one of the key contributors to the language in H.R. 4089.  A former Assistant Secretary of Interior, Bill explains what is fiction and what is fact about the Sportsmen’s Heritage Act of 2012.

 

Fiction:

“Provision undercuts the Wilderness Act: Section 104(e) should be called the “Motorize Our Wilderness Areas Provision” because it could allow motorized access, road construction, and logging and energy development in wilderness areas.” – The Wilderness Society

Fact:

H.R. 4089 does not open designated wilderness to road building, motorized access or oil/gas industry development.   In reality, Section 104(e)(1) states: “the provision of opportunities for hunting, fishing, and recreational shooting , and the conservation of fish and wildlife to provide sustainable use recreational opportunities on designated wilderness areas on Federal public lands shall constitute measures necessary to meet the minimum requirements for the administration of the wilderness area.”

An additional subsequent clause in (e)(1) prescribes this language is “not intended to authorize or facilitate commodity development, use, or extraction or motorized recreational access or use.”

None of the language in this section would open designated wilderness areas to road building, motorized access or oil/gas industry development.  The “deem necessary” language was included to contravene three U.S. Court of Appeals rulings that overturned U.S. Fish and Wildlife Service and Forest Service determinations about the “necessity” of conservation activities and recreational access (via horseback) to satisfy the requirements of the Wilderness Act.

Section 104(e)(1) clarifies the interpretation of the Wilderness Act that the agencies had relied on for 30+ years until the 9th Circuit stepped in.  Just as was the case prior to these judicial actions, motorized access and road building would not be authorized in wilderness areas.  The bill speaks of providing “opportunities” for hunting, fishing, recreational shooting and wildlife conservation, but does not reference “motorized access opportunities” or “road access opportunities.” Land management agencies can satisfy the requirements of Section 104(e)(1) by making sure that traditional wilderness opportunities are available via access on foot or on horseback.

The allegations regarding section 104(e)(2) are even more off the mark.   Please note that it merely reaffirms the ORIGINAL language in the 1964 Wilderness Act. Section 4(a) of the 1964 Act (16 USC 475; Pub.L. 88-577) provides the following:  “The purposes of this Act [the Wilderness Act] are hereby determined to be within and supplemental to the purposes for which national forests and units of the national park system and national wildlife refuge systems are established and administered.”  Pursuant to this 48 year old language – still in effect – Wilderness areas are off limits to motorized vehicles, road construction, etc.   However, the 9th Circuit (again) disregarded this language in a recent Arizona Refuge case holding that a Wilderness area within a Refuge unit had to be treated as a Wilderness first and a Refuge second; that elevated the plainly “supplemental” purposes of Wilderness above the “primary” wildlife conservation purposes of Refuges per the 1966 and 1997 Refuge Acts.

To correct the errant 9th Circuit, HR 4089 provides the following in 104(e)(2): “The term ‘within and supplemental to’ Wilderness purposes in section(a) of Public Law 88-577, means that any requirements imposed by that Act shall be implemented insofar as they do not prevent Federal public land management officials and State fish and wildlife officials from carrying out their wildlife conservation responsibilities or providing recreational opportunities on the Federal public lands subject to a wilderness designation. (emphasis added).”

This provision is also subject to the clause about no commodity development, extraction or motorized use.   The language is limited to wildlife conservation and hunting/fishing recreational opportunities – NOTHING in it provides ANY authorization for oil and gas, mining, grazing, road building, logging, or motorized access.   Claims to the contrary are just a willful misreading of the language.


Fiction:

Provision provides an exemption from the National Environmental Policy Act (NEPA): Section 104(c)(1)(B) prohibits the use of NEPA in making hunting and fishing management decisions on our public lands and forests.” – The Wilderness Society

Fact:

Section 104(c)(1)(B) does not prohibit adequate NEPA review as wrongly alleged.  Let me quote the provision itself:  “No action taken under this title [i.e., to provide for fishing, hunting or recreational shooting] or section 4 of the National Wildlife Refuge System Administration Act of 1966 (16 USC 668dd), as amended by the National Wildlife Refuge System Improvement Act of 1997, either individually or cumulatively with other actions involving Federal public lands, shall be considered to be a major Federal action significantly affecting the quality of the human environment, and no additional identification, analysis or consideration of environmental effects, including cumulative effects, is necessary or required.”

Since HR 4089 establishes that  BLM and Forest lands are “open until closed” to fishing and hunting, no agency “action” per se is needed to keep these Federal public lands open to anglers and hunters.  If there is no “action”, there is no need to do an environmental impact statement (EIS).  However, federal courts do not like implied amendments to NEPA (and the EIS requirement) so this provision makes it plain that when BLM or Forest Service comply with this bill to provide fishing/hunting/shooting opportunities, no additional EIS or NEPA review is necessary.  How this language could “actually result in less hunting opportunity” as some have stated is beyond me.  That charge is just another specious red herring.

The Refuge Act references in section 104(c)(1)(B) are designed to correct another errant court ruling.  The 1997 Refuge Act specified that the U.S. Fish and Wildlife Service (FWS) would prepare a Comprehensive Conservation Plan (CCP) for each Refuge unit and make the decisions within the CCP to provide for hunting and fishing (which are designated “priority public uses” in the 1997 Improvement Act).   Each CCP is accompanied by an appropriate NEPA document – an EIS or an Environmental Assessment (EA).  Anti-hunters filed suit against FWS arguing that a series of CCP/EIS decisions to allow hunting on 51 refuge units were illegal because FWS had failed to consider “cumulative effects.”  FWS defended its action saying that as there were no on-the-ground connections, and no cumulative effects, associated with deer hunting on the Bond Swamp NWR in GA, bird hunting on the Canaan Valley NWR in WV, duck hunting on refuges in ND, or caribou hunting on refuges in AK, a “cumulative effects” analysis was unnecessary and superfluous.

The court ordered this analysis anyway and FWS spent hundreds of thousands of dollars and years of staff time producing this superfluous (but legally necessary) analysis.   HR 4089 reverses the court decision, reestablishes the intent of the 1997 Refuge Act, and spares FWS from having to do costly, time consuming, factually unnecessary cumulative effects analyses regarding its decisions to open refuge units to hunting and fishing.  Most in the sportsmen’s community would rather have FWS spend finite dollars and personnel resources on genuine conservation work rather than useless paperwork.  And by eliminating the court imposed requirement to engage in useless paperwork, it facilitates action by FWS to open more refuges to fishing and hunting.


Fiction:

“H.R. 4089 mandates hunting on public lands including National Parks.” – Humane Society of the United States

HR 4089 “could allow hunting at historic battlefields, cemeteries or other sensitive cultural sites” according to the National Parks Conservation Association – E&E Daily, April 19, 2012

HR 4089 ignores “the millions of families who visit, value and love experiencing and learning about our heritage in our National Park System, but its odd treatment of many National Park Service areas is highly arbitrary and wholly inappropriate.” – Craig Obey, National Parks Conservation Association senior vice president of government affairs.

Fact:

It is evident that this is just more misreading of the bill’s actual text and willful disregard of existing (unamended) statutory authority and 35 year old case law regarding hunting on NPS units.  

HR 4089 does not mandate hunting on National Parks, period.  Nowhere can that language be found in the bill.  In fact, § 104(h) specifies that nothing in the bill “requires the opening of national park or national monuments under jurisdiction of the National Park Service to hunting or recreational shooting.”

First, almost all designated National Park and Monument units are statutorily closed to hunting or closed in the Presidential Proclamation that creates the unit (in the case of Monuments).   Second, at the other end of the spectrum are statutorily designated Preserves in which Congress mandated in law that hunting be allowed.  Third, in the middle are an array of NPS units that are not Parks, Monuments, or Preserves including Lakeshores, Seashores, Battlefield Parks, Historic sites, Recreation Areas, National Rivers, etc.

In many of these units, Congress was never expressly clear about whether or not hunting was authorized on such units.  In the late 70’s/early 80’s disputes arose regarding hunting and trapping on some of these units including a couple of Lakeshores and a National River.  NPS initially adopted a policy that units were closed to these activities unless the law creating the specific unit expressly mandated or provided for hunting and trapping.

NRA challenged this policy in federal court and lost the case – the court determined that general NPS law (i.e., the 1916 Organic Act) and Congressional silence provided adequate authority for NPS to adopt and enforce this policy.  Immediately following this court ruling, NPS promulgated a regulation to this exact effect – 36 CFR 2.2(b)—which remains in full force and effect. The regulation states “hunting may be allowed in park areas where such activity is specifically authorized as a discretionary action under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles” (emphasis added).

Enter HR 4089.   It provides as a general matter that on “federal public lands” – which include NPS units – the federal land managers “shall exercise their authority under existing law” to facilitate hunting (and shooting) “except as limited by —  (1) statutory authority that authorizes action or withholding action for reasons of national security, public safety, or resource conservation;  …… (3) discretionary limitations on recreational fishing, hunting, and shooting determined [by the land managing agency] to be necessary and reasonable….”. Section 104(a)(1),(3).

In the case of NPS units, the early 80’s court decision (and the subsequent regulation) determined that NPS had “statutory authority” to withhold action (i.e., not act to open a unit to hunting) for reasons of public safety  or resource conservation.    HR 4089 does not change the law or the regulation or mandate NPS to take such action.

Fundamentally, the bill (and section 104) leaves intact established NPS discretion regarding these matters.  The early 80’s court decision did not conclude that NPS was compelled or mandated to promulgate the rule at 36 CFR 2.2(b); the court held that the agency had the discretion to adopt the rule.  NPS has the authority and discretion to revoke the 38 year old rule, if it chooses, and adopt a different policy if it wants.   NPCA (via the proposed Holt amendment) wanted to change this law and codify in statute the 36 CFR 2.2 rule.   NPCA wanted to strip NPS of the retained discretion to change its mind regarding hunting on these non-Park and non-Monument units and is now declaiming that preservation of the legal status quo in HR 4089 constitutes some threat to these NPS units.

Bottom line, NPS could amend existing policy and regulations to allow hunting on a variety of its units.  The agency has authority under existing law to do just that but has not taken such action for nearly four decades.  HR 4089 does not change this law and emphatically does not mandate agency action to open these units – like Gettysburg or the Mall – to such activities.  These charges are just one more red herring being peddled by HR 4089’s opponents.

 

Fiction:

H.R. 4089 Puts Polar Bears at Risk.  It would undo protection for polar bears.”   – Humane Society of the United States

Fact:     

Title III in H.R. 4089 simply allows these 41 trophies to be brought into the United States.  It does not re-open any additional polar bear importation.  It does not remove current protections on polar bears.  The 41 bears in question are already dead.

The US Fish and Wildlife Service listed polar bears as endangered in 2008 over the objections of the Canadian government, American sportsmen and native tribes in the Arctic.  Prior to the listing taking effect, forty-one Americans legally took polar bears in Canada.  The trophies have been marooned in Canada since.

 

Fiction:

H.R. 4089 mandates that federal agencies open nearly all federal public lands to hunting without regard to the impact on hunting and other resources.” – Humane Society of the United States

Fact:     

Hunting seasons and bag limits on Bureau of Land Management and Forest Service lands are set by the individual state wildlife agencies as part of their mission to manage wildlife.  H.R. 4089 does nothing to change that.   The state’s authority to consider the impact of hunting is maintained entirely.

 

Fiction:

H.R. 4089 would strip the EPA of its ability to protect people, animals, and the environment from poisoning through toxic lead ammunition exposure.”- Humane Society of the United States

Fiction:

H.R. would exempt toxic lead in ammunition and fishing equipment from regulation under the Toxic Substances Control Act.” – Center for Biological Diversity April 17, 2012

Fact:

The Center for Biological Diversity’s (CBD) attack on HR 4089 continues a pattern of disinformation and misrepresentation about what the bill does and what existing law actually provides. In this case, CBD misrepresents Title IV of the bill which confirms very recent EPA decisions about the agency’s lack of authority under the 1976 Toxic Substances Control Act (TSCA) to regulate lead in ammunition and fishing tackle.

Congress passed TSCA 36 years ago to regulate hazardous chemicals. The law specifically exempts ammunition from this regulatory scheme.

Disregarding this plain language, in 2007 environmentalists petitioned EPA to use TSCA to ban traditional ammunition which uses lead and fishing sinkers and lures using lead. On August 27, 2010 EPA rejected the petition concluding the law does not authorize EPA to regulate or ban lead in ammunition. EPA also declined to regulate fishing sinkers or lures.

In March, 2012 activists led by CBD filed a new petition with the Obama EPA looking for a different answer on ammunition. But the law is the law and on April 9 (three weeks ago), EPA reached the same conclusion: the March petition “provides no new information that would lead EPA to consider the 2012 submission to be a new petition under Section 21, nor does it include information not previously considered by EPA that would warrant reconsideration of EPA’s conclusion that it does not have authority under the TSCA to regulate shot and bullets.” The EPA release can be found at http://www.epa.gov/oppt/chemtest/pubs/petitions.html.

Not willing to take “no” for an answer – twice – CBD filed suit against EPA arguing that TSCA does allow EPA to regulate and ban traditional ammunition.

Aware of this new suit, and not wanting some activist federal judge to overrule the EPA decisions handed down by two different Administrations, the House of Representatives included Title IV in HR 4089 confirming EPA’s reading of TSCA. CBD wants to change the 1976 law and opposes action by Congress to merely confirm what has been the basic understanding of TSCA for nearly 40 years.

The activist attack on fishing gear follows a similar pattern. As noted, EPA rejected in 2010 the first effort to regulate fishing tackle. CBD and company filed a new fishing tackle petition in November, 2011. And EPA rejected it again in February, 2012. Title IV of HR 4089 also confirms this action by the Obama EPA. Again, it is the activists seeking to change the law – HR 4089 maintains the TSCA as enacted in 1976 and continues to bar EPA from expanding its reach to regulate fishing tackle.