PUBLIC LANDS: Wilderness language in sportsmen's bill riles backcountry hunters (Thursday, May 30, 2013)
Phil Taylor, E&E reporter
For Greg Munther, a hunter from Missoula, Mont., the pursuit of big game in the Treasure State's backcountry is more important than the meat he brings home.
"People here value the experience more than the product," said Munther, who is nearing his 70s and leads the Montana chapter of Backcountry Hunters and Anglers.
That means harvesting elk or deer by foot, free of roads, off-highway vehicles or other signs of modern civilization.
"We don't want it to be easy. We want to sweat," said Munther, who hunts along Montana's Rocky Mountain Front and in the rugged Big Hole near the Idaho border. "It's spiritual to many of us."
Although Munther has hunted since he was 7, he said he opposes a House bill that aims to enhance hunting and fishing opportunities on hundreds of millions of acres of public lands.
"The title sounds good," Munther said of Rep. Dan Benishek's (R-Mich.) "Recreational Fishing and Hunting Heritage and Opportunities Act," or H.R. 1825. "It's the devil that's in the details."
Munther's organization is among a minority of hunting groups opposing the bill, which, like last Congress, has split the sportsmen's community.
The bill, which passed the House last year but stalled in the Senate, contains language that critics say would gut provisions in the Wilderness Act designed to keep some lands "untrammeled by man."
Pro-hunting conservation groups including the Wilderness Society, National Wildlife Federation and Missoula-based group Wilderness Watch have also opposed the bill, criticizing both the wilderness language and a separate provision limiting National Environmental Policy Act reviews for when land managers open or close lands to hunting and fishing.
But the bill is strongly backed by the National Rifle Association, Safari Club International and the U.S. Sportsmen's Alliance, which wield significant influence on Capitol Hill. They argue that the wilderness and NEPA language is critical to prevent anti-hunting and animal rights groups from suing to stop hunting on public lands.
"These provisions are not radical," said Bill Horn, an attorney for the Sportsmen's Alliance who served as Interior assistant secretary for fish, wildlife and parks during the Reagan administration. "We're standing up for both the way the Wilderness Act was interpreted and administered for almost the first 35-plus years."
The bill is also backed by a coalition of more than 20 wildlife and sportsmen's groups, which earlier this month penned a letter to the House Natural Resources Committee insisting that it "does not open lands designated as wilderness to activities prohibited by the Wilderness Act" (E&E Daily, May 10).
But other bill supporters have taken a more pragmatic stance.
The Theodore Roosevelt Conservation Partnership -- whose partners include both supporters and opponents of the bill -- said earlier this month that, like last Congress, the bill's wilderness and NEPA provisions are likely to hamper its passage in the Senate.
The group urged adoption of S. 170, a companion bill by Sens. Lisa Murkowski (R-Alaska) and Joe Manchin (D-W.Va.) that contains the core provisions of Benishek's bill but lacks the controversial wilderness and NEPA language.
"While we support the principles of the Benishek bill, we recognize that the wilderness groups strongly oppose it," said Tom Franklin, TRCP's senior director for science and policy. The Senate bill "accomplishes the objective of requiring the federal land management agencies to give greater emphasis to hunting and fishing on federal lands while avoiding potential unintended consequences of the wilderness and NEPA language in the Benishek bill."
Similar language in the House bill last year effectively blocked it from being taken up in the Democratic-controlled Senate. Noting the concerns of backcountry hunters in his state, Sen. Jon Tester (D-Mont.) excluded Benishek's bill from a package of hunting, fishing and conservation measures that nearly passed the chamber.
The nonpartisan Congressional Research Service concluded last year that H.R. 4089, which contained the Benishek bill, "could be construed as opening wilderness areas to virtually any activity related to hunting and fishing, even if otherwise inconsistent with wilderness values" (E&ENews PM, April 16, 2012).
An 'increasingly urban nation'
At their core, both the House and Senate bills direct the Bureau of Land Management and Forest Service to promote hunting, fishing and recreational shooting on public lands unless they threaten public safety or natural resources.
That provision is universally embraced by the sportsmen's community, which argues that the agencies' founding management statutes -- the BLM's Federal Land Policy and Management Act and the Forest Service's Multiple Use Sustained Yield Act -- give short shrift to hunting and fishing.
The language is critical to preventing lawsuits seeking to force hunters off public lands, said Horn of the Sportsmen's Alliance.
Such was the case, he argued, when a Michigan man successfully argued in the 6th U.S. Circuit Court of Appeals that the Huron-Manistee National Forest had failed to consider whether to close a small portion of the nearly 1-million-acre forest to hunting and snowmobiling to provide opportunities for quiet recreation.
Horn said the lawsuit reflects a growing hostility toward traditional sporting activities, noting other lawsuits to stop bear hunting and limit access in the High Sierras of California.
"The hostile animal rights movement has grown and uses its ever-swelling war chest to harass hunters and anglers," he told the committee in testimony earlier this month. "And an increasingly urban nation -- wholly disconnected from America's outdoor heritage -- either doesn't care or joins in the hostility."
But Horn said the wilderness and NEPA language in Benishek's bill is equally important to correct what he called bad court decisions.
In one case in 2003, a Washington, D.C., judge said the Fish and Wildlife Service needed to conduct a "cumulative effects analysis" when it decided to open refuges to hunting, an exercise Horn argued would be wasteful and time-consuming during a time of sequestered budgets and federal belt tightening.
The Benishek bill would relieve agencies of NEPA provisions that require the consideration of cumulative impacts.
In a more recent case, the 9th U.S. Circuit Court of Appeals in 2010 ruled that the Fish and Wildlife Service had violated the Wilderness Act when it authorized the use of motorized vehicles and equipment to redevelop two water tanks in a wilderness portion of the Kofa National Wildlife Refuge in southwest Arizona.
Conservationists and state game officials in Arizona argue the water tanks are critical to sustaining the roughly 400 desert bighorn sheep in the refuge, whose population -- while stable -- has slid by nearly half since 2000. The animals are threatened by drought and decreased water availability, in addition to predation, disease and human disturbance, biologists said.
The sheep are also a prized game species for hunters.
The Benishek bill states that "opportunities for hunting, fishing and recreational shooting, and the conservation of fish and wildlife to provide sustainable use recreational opportunities" shall automatically meet the minimum requirements for the administration of a wilderness area as long as it does not allow commodity development, permanent roads or recreational off-road vehicle use.
Horn said the provision would not change the Wilderness Act but would stop wilderness or anti-hunting groups from blocking development of water catchments or similar habitat improvements.
"They're trying to address highly specific problems caused by bad court decisions," Horn said. "We see it as preventive medicine to stop this before it gets totally out of control."
Like Horn, wilderness advocates also disagreed with the 9th Circuit decision, but for opposite reasons.
George Nickas, executive director of Wilderness Watch, the plaintiff in the Kofa case, said the Wilderness Act never intended allowing concrete water catchments such as those built at Kofa, each of which holds about 13,000 gallons of water.
"There is no question in my mind that the Wilderness Act prohibits the kind of developments that Fish and Wildlife undertook at Kofa," he said. "There is no question that that was the intent of the authors of the act."
Hunters seek wilderness precisely because it lacks such modern infrastructure, Nickas said. They appreciate that they are hunting under a natural condition that does not exist on the vast majority of public lands, he said.
"These are places we don't go into to modify to make them into something else," Nickas added. "There are some places we're going to leave alone. It just flies in the face of what wilderness is all about."
The 9th Circuit did not say the tanks are incompatible with the Wilderness Act. Rather, it said the Fish and Wildlife Service had failed to take the minimum steps necessary to sustain the bighorn sheep.
For example, the agency could have prohibited future translocations of Kofa sheep to other parts of the Southwest, halted hunting of the animals and restricted hikers from accessing lambing areas, which can stress the animals. None of those alternative steps would have threatened the area's wilderness character, the court said.
Incidentally, Arizona's Game and Fish Department halted sheep translocations in 2005. The 2012 hunting season allowed only six rams to be killed, which agency biologists said has no impact on population levels because a single ram can impregnate multiple ewes.
'I don't want to compromise'
The wilderness provisions in Benishek's bill have been tweaked from last year's version to more clearly state that commodity extraction and road building are not allowed.
But critics say the language is still too ambiguous.
Paul Spitler of the Wilderness Society this month said the "Trojan horse" language would allow motorized access, temporary roads, game carts, aircraft landings and other permanent structures in wilderness areas that are generally prohibited under the Wilderness Act.
"Hunting and fishing are time-tested traditions enjoyed in wilderness, and this bill would weaken protections of critical wildlife habitat," Spitler said.
The National Wildlife Federation released a side-by-side comparison of the two bills, saying of the House version: "Its value to hunters and anglers is less clear."
"HR 1825 would be detrimental to fisheries and big game species by diminishing the very conservation measures designed to protect their habitat," said the group's analysis. "We have determined that it is nothing more than the sportsmen community being used as a cover to hide an attack on wilderness, national monuments, and national wildlife refuges."
Munther, the backcountry hunter from Montana, said he has hunted in Arizona and recognizes the importance of water to bighorn sheep. But he said he would rather see lawmakers legislate exemptions for specific wilderness areas, if appropriate, than see them provide blanket exemptions from the Wilderness Act.
"The Senate bill is much cleaner," he said. "It takes out the ambiguity."
But Horn said he sees no reason to water down the House bill.
"I don't want to compromise with people who are misreading or misrepresenting what the provisions actually do," he said. "I've never been a believer that pre-emptive capitulation is a strategy for success."
The House committee has yet to schedule a markup of the Benishek bill. The Murkowski-Manchin bill has yet to be taken up in the Senate Energy and Natural Resources Committee.