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Club Lauds Passage of H.R. 4089 in the House
Wednesday, April 18, 2012

 Boone and Crockett Club leaders are applauding the passage of unprecedented pro-sportsmen legislation in the House of Representatives on April 17. Behind a strong bi-partisan vote of 274-146, the Sportsmen's Heritage Act of 2012 (H.R. 4089) now moves on to the Senate.

"The Boone and Crockett Club was founded by Theodore Roosevelt to promote the use and enjoyment of our wildlife heritage to the fullest extent by this and future generations," said Ben B. Wallace, president of the Club. "H.R. 4089 is essential to the expansion, enhancement, promotion and advancement of hunting and recreational fishing and shooting--all which are vital to conservation today and for generations to come."

H.R. 4089 includes language that:

- Requires hunting and recreational shooting and fishing to be recognized activities on all Forest Service and Bureau of Land Management lands.

- Protects recreational shooting on National Monuments under the jurisdiction of the Bureau of Land Management.

- Amends the Marine Mammal Protection Act to allow hunters who legally harvested polar bears in Canada prior to its listing under the Endangered Species Act to purchase permits in order to transport their trophies into the U.S.

- Clarifies that the Environmental Protection Agency does not have the jurisdiction to regulate lead components found in either traditional ammunition or fishing tackle.

Boone and Crockett members and leaders are working directly with lawmakers and their staffs, supporting the vital efforts of the Congressional Sportsmen's Foundation, and sending letters of support from the Club to urge Senate passage of H.R. 4089.

The bill as passed by the House simply does NOT open Wilderness areas to motorized vehicles, does NOT "allow industrial development of Wilderness areas" and does NOT "prohibit adequate NEPA review." These are red herrings, peddled by bill opponents, that have been refuted time and again over the past few months.

Let's start with section 104(e)(1). Here's what it says: "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."

Nothing in this language opens Wilderness areas to motorized vehicles or road building as alleged. The "deem necessary" reference is needed to contravene three U.S. Court of Appeals for the NinthCircuit rulings that overruled determinations by the U.S. Fish and WildlifeService and the Forest Service about conservation activities and recreational access (via horseback) as not satisfying the Wilderness Act "necessity" standard. These three rulings--starting a little over 10 years ago--disregarded the established interpretation of the 1964 Wilderness Act language used and relied on by the agencies for the first 30+ years of that Act. Section 104(e)(1) restores the legal status quo upset by the 9th Circuit. And in restoring this legal status quo, it most emphatically does not authorize motorized access and roads; the language talks about providing "opportunities"-- it doesn’t say "motorized access opportunities" or "road access opportunities." The agencies can satisfy 104(e)(1) by providing traditional Wilderness opportunities 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 the1966 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.

Lastly, section 104(c)(1)(B) plainly 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 forfishing, 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. I have been a practicing NEPA lawyer for nearly 30 years (and a former Assistant Secretary of the Interior for Fish, Wildlife and Parks) and I’m at a complete loss to figure out how this language could “actually result in less hunting opportunity” as stated in the letter/email to BHA members. 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. HR4089 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 re its decisions to open refuge units to hunting and fishing. USSA 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.

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