National Park System Units in Alaska; Denali National Park and
Preserve, Special Regulations
[Federal Register: June 19, 2000 (Volume 65, Number 118)]
[Rules and Regulations]
[Page 37863-37879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn00-9]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 5 and 13
RIN 1024-AC58
National Park System Units in Alaska; Denali National Park and
Preserve, Special Regulations
AGENCY: National Park Service, (NPS), Interior.
ACTION: Final rule.
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SUMMARY: For the portion of Denali National Park and Preserve formerly
known as Mount McKinley National Park (the Old Park) only, this rule
establishes a definition for ``traditional activities'' as the term is
used in Alaska National Interest Lands Conservation Act (ANILCA)
section 1110(a) and related Department of the Interior regulations. The
rule also applies this definition and determines that, for the Old Park
only, prior to the enactment of ANILCA, no traditional activities took
place during periods of adequate snow cover for which snowmachines
(snowmobiles) may now be used. In addition, the rule implements the
June, 2000 Statement of Finding: Permanent Closure of the Former Mt.
McKinley National Park Area of Denali National Park and Preserve To The
Use of Snowmachines and determines that any snowmachine use in the Old
Park would be detrimental to the resource values of the area. The rule
also consolidates, expands and codifies certain designations, closures
and permit requirements for Denali National Park and Preserve,
including requirements for vehicular traffic, vehicle use limits, and
public health and safety. The rule also replaces the out-of-date
references to ``Mount McKinley National Park'' with the Alaska National
Interest Lands Conservation Act name ``Denali National Park and
Preserve.''
EFFECTIVE DATE: July 19, 2000.
ADDRESSES: Superintendent, Denali National Park and Preserve, PO Box 9,
Denali National Park, AK 99755. Attention: Ken Kehrer, Jr.
FOR FURTHER INFORMATION CONTACT: Ken Kehrer, Jr. at the above address
or by calling 907-683-2294.
SUPPLEMENTARY INFORMATION:
Background
As used in this Rule, the term ``Old Park'' means the portion of
Denali National Park and Preserve that was formerly known as Mount
McKinley National Park. This Rule incorporates
[[Page 37864]]
all the information in the Environmental Assessment for Permanent
Closure Of the Former Mount McKinley National Park to Snowmachine Use,
the Finding of No Significant Impact for the Proposed Permanent Closure
of the Former Mount McKinley National Park to Snowmachine Use, the
Statement of Finding: Permanent Closure of the Former Mt. McKinley
National Park area of the Denali National Park and Preserve to the Use
of Snowmachines and the Final Cost-Benefit analysis: Denali National
Park and Preserve Special Regulations.
In 1903, United States Geological Survey geologist Alfred Brooks
wrote: ``* * * the abundance of sheep, bear, moose and caribou found
along the north slope of the Alaska Range rank it as one of the finest
hunting grounds in North America.'' In 1917, to protect and preserve
natural and scenic resources and for public enjoyment and recreation,
Congress directed that Mount McKinley National Park ``shall be, and is
hereby established as a game refuge.'' 39 Stat. 938. Congress expanded
the Park in 1922 and 1932. Horace Albright, the National Park Service
(NPS) Director, welcomed these additions, in part, as a means to better
protect wildlife, particularly to improve protection of Dall sheep and
moose in the Park by giving them additional winter range protection.
House Committee on the Public Lands, Report 207, Letter of January 20,
1932.
In 1980, Congress passed the Alaska National Interest Lands
Conservation Act (ANILCA), which enlarged Mount McKinley National Park
and renamed it Denali National Park and Preserve (Pub. L. 96-487, Dec.
2, 1980, 94 Stat 2371). Consistent with the 1917 Act that created the
Park, ANILCA recognized the importance of protecting habitat for, and
populations of, fish and wildlife. The legislative history of ANILCA
states that certain NPS units in Alaska, including ``Mount McKinley
[National Park] * * * are intended to be large sanctuaries where fish
and wildlife may roam freely, developing their social structures and
evolving over long periods of time as nearly as possible without the
changes that extensive human activities would cause.'' Sen. Rep. No.
96-413, 96th Cong., 1st Sess. 137 (1979); and, Cong. Rec. H10532 (Nov.
12, 1980). The heart of the Park and preserve lies on the lands that
once comprised Mount McKinley National Park (the Old Park); there, on
lands that ANILCA designated as Wilderness, predator-prey relationships
have functioned for decades without significant human interference.
Under NPS management for the past 83 years, the wildlife and the
wilderness have remained virtually unchanged. It is the human
recreational element that has undergone a dramatic evolution. During
the summer of 2000, the National Park Service (NPS) expects that over
400,000 people will visit the Old Park. Nevertheless, like Alfred
Brooks, they will see an abundance of sheep, bear, moose and caribou,
and the occasional wolf, against a spectacular backdrop of pristine,
subarctic, alpine landscape--taiga and tundra, glaciers, glacier-fed
rivers and cathedral peaks. The health of this shielded ecological
system is also the cornerstone of a multimillion-dollar tourism
industry in Alaska which is very dependent upon the presence of this
diverse wildlife along the Denali road corridor.
Limiting motor vehicle use on the Denali Park Road, educating
backcountry users and prohibiting snowmachine use in the Denali
wilderness have been essential factors in maintaining the natural
systems in the Park interior, and in providing continued outstanding
visitor experiences; experiences that depend, in large part, on seeing
the spectacular variety of wildlife along the Park road and the
opportunity to observe natural predator-prey interactions. The wildlife
populations in the Old Park are available for this unparalleled viewing
opportunity precisely because they have been protected from intrusive
interactions with humans for decades. Vehicle use of the road corridor
beyond certain levels has been determined by NPS to displace the
wildlife that can be seen from the road and otherwise disrupts the
Park's ecosystems, thereby impairing the resources, values and purposes
for which the Park was established.
During the difficult interior Alaska winters, any increase in
stress on the wildlife through added energy expenditure or loss of
preferred habitat is a concern. The braided river valleys and the high
open tundra of the Old Park leave little opportunity for wildlife to
avoid intrusions and take refuge. Any snowmachine use in the Old Park
would result in detriment to the resource values of the Old Park and a
significant change from the long-standing patterns of non-intrusive
human interaction with wildlife. A major change in the level and extent
of human activity in this historically undisturbed winter environment
would be detrimental to many animals over a large area. The possibility
of many additional miles of snowmachine trails and increased
snowmachine activity levels throughout the Old Park threatens all types
of habitat. This area of previously protected habitat is particularly
vulnerable to increased disturbance given its proximity to access
points along the George Parks Highway. In the long term, preserving the
Old Park wilderness and its continually evolving natural processes is
essential to ensuring opportunities for outstanding resource-based
visitor experiences.
The historical limitations on motorized use have also created a
unique wilderness recreation opportunity in Alaska. There is no other
comparably sized, naturally regulated ecosystem in Alaska that has been
as protected from motorized use during winter months. As a result, the
resource values of solitude and natural quiet, which are the source of
this opportunity, remain at exceptional levels during the winter and
are enjoyed by skiers, mushers, snowshoers and winter campers.
The NPS Organic Act of 1916 directs NPS to manage National Parks
and Monuments to ``* * * conserve the scenery and the natural and
historic objects and the wildlife therein and to provide for the
enjoyment of the same in such manner and by such means as will leave
them unimpaired for the enjoyment of future generations.'' 16 U.S.C. 1.
ANILCA section 1110(a) provides that snowmachine use may be prohibited
if such use would be detrimental to the resource values of the unit or
area. Additional information upon which NPS relied is found in the
June, 2000 Statement of Finding: Permanent Closure of the Former Mt.
McKinley National Park Area of Denali National Park and Preserve To the
Use of Snowmachines. In that Finding NPS concluded that any snowmachine
use in the Old Park would be detrimental to the resource values of the
area and that snowmachine usage for travel to and from villages and
homesites and for traditional activities did not occur. That Finding is
available from the superintendent or on the Denali National Park and
Preserve web page at www.nps.gov/dena.
Administrative History of ANILCA Section 1110(a), Special Access
for Snowmachines
National Park Service Rulemakings
On December 2, 1980, President Carter signed ANILCA into law. On
January 2, 1981, NPS published a proposed rule (46 FR 5642). The
purpose of the proposed rule was ``* * * to harmonize the statutory
directives [of ANILCA] with existing [national monument] regulations
[[Page 37865]]
* * *'' and ``* * * to provide public guidance as soon as
practicable.'' Id. According to the rule, expeditious rulemaking was
needed to, among other reasons, address new directives in ANILCA such
as section 1110(a) access. NPS regulations then in effect, generally
prohibited aircraft and snowmachine use in Parks. Id. NPS described the
proposed regulations as those minimally necessary to provide proper
management in Park areas in Alaska and noted that further comprehensive
rulemaking would follow. Id.
The proposed rule stated that: ``* * * [s]ections 13.10-13.12 would
initially open all Park areas to access by snowmachine, aircraft and
motorboat for any purpose.'' Id. at 5644. The proposal sought to reduce
the need for persons to obtain individual access permits and
distinguished between recreational uses and traditional activities:
Sections 13.10-13.12 of these proposed regulations initially
open all Park areas in Alaska to access by snowmachine (on areas
with adequate snow cover or frozen rivers), motorboat, and aircraft,
without the need for individual access permits. Access by these
methods of transportation is authorized for any purpose (e.g. travel
between villages, to a homesite, for mineral development, for
recreation, or for traditional activities except as is specifically
provided for subsistence uses in ss 13.45 and 13.46 discussed below
under subsistence. Sections 13.10-13.12 implement section 1110(a) of
the Alaska Lands Act which provides access for ``traditional
activities * * * and for travel to and from villages and
homesites.'' This approach extends the statutory concept to access
for all purposes, except the special provisions concerning access
for subsistence uses.''
Id., (emphasis added).
Under the corresponding access section for subsistence users
(13.46), the proposal noted:
At all times when not engaged in subsistence uses, local rural
residents would be able to use snowmachines, motorboats, and other
means of surface transportation [sic] in accordance with the
appropriate Subpart A regulations. For example, local rural
residents engaged in recreational uses of snowmachines, motorboats,
and other means of surface transportation would comply with the
provisions of ss 13.10, 13.11, and 13.13, respectively, and local
rural residents seeking otherwise-closed access to Inholdings or
temporary access would comply with the provisions of ss 13.14 and
13.15, respectively.
Id. at 5654, (emphasis added).
This explanation was repeated in the final rulemaking (46 FR 31836,
31852). It is instructive to note that, from the beginning, the authors
of the rule distinguished recreational activities from traditional
activities. On June 17, 1981, NPS published the final rule (46 FR
31836). The preamble to the rule also noted that:
A substantial number of comments (203) objected to making these
regulations applicable to all Park areas in Alaska (see ss 13.1(m),
13.2), including pre-ANILCA areas like the former Mt. McKinley
National Park and Katmai and Glacier Bay National Monuments. The
proposed regulations were viewed by these commentors as an
unwarranted lessening of protective measure for these ``old'' Park
areas.
Id. at 31837.
NPS concluded that there was no basis under the statutory language
to exclude the Old Park from the conservation system units subject to
section 1110(a).
NPS agreed with comments made that the findings required by
Executive Order 11644 would not allow a general opening for snowmachine
use--thus the final rule limited snowmachine use to the uses enumerated
in section 1110(a), while allowing motorboats, airplanes and non-
motorized surface transportation means to be used for any purpose.
Executive Order 11644 requires that off-road vehicle use, including
that of snowmachines, must be limited to specific areas and trails
that: minimize damage to soils and vegetation; minimize harassment of
wildlife or significant disruption of wildlife habitat; and minimize
conflicts with, and danger to, other existing or proposed recreational
uses. Furthermore, snowmachine use was not to be authorized in
designated Wilderness Areas, and could be authorized in areas of the
National Park system only if it would not adversely affect natural,
aesthetic or scenic values. Consequently, the final rule authorized
snowmachine use during periods of adequate snow cover or frozen river
conditions only for traditional activities and village to village
travel that were still permitted in park areas. The final rule provided
two examples of uses that were not authorized, because the land use was
no longer permitted in parks: snowmachine use to locate new mining
claims and sport hunting. The rule also cautioned that ``* * *
[p]rospective snowmachine users should note that the legislative
history of section 1110(a) defines a traditional activity in terms of a
use generally occurring in a park area prior to its designation. See S.
Rep. No. 96-413, supra at 248; H. Rep. No. 96-97, Part 1, supra at
239.''
On April 6, 1983, NPS proposed regulations that would have
effectively closed much of the Old Park to snowmachine and other
motorized uses (48 FR 14978). The proposed rule noted that ``* * *
[o]ne of the primary purposes for establishing Denali National Park and
Preserve was to provide protection to certain species of wildlife and
their habitats * * *'' ``Motorized use of certain areas of Denali
National Park is believed to be detrimental to its ecosystem and the
values for which it was established.'' Id. William P. Horn, then Deputy
Under Secretary of the Interior announced the proposal by stating:
The proposed regulations * * * would correct an oversight in the
1980 Alaska National Interest Lands Conservation Act (ANILCA). When
Congress enacted Section 1110(a) of ANILCA it opened all units of
the vastly expanded conservation system to snowmachine * * * use.
Prior to ANILCA, the critical wildlife habitat and natural resource
areas of [Mount McKinley were] essentially closed to motorized
access. Congress inadvertently opened [Mount McKinley] to this kind
of use. By re-establishing the historical public use restrictions,
the National Park Service seeks to correct the action and restore
the historical level of resource protection.
Department of the Interior, News Release, April 6, 1983.
The April 6,1983 proposal was never adopted in a final rule.
Department of the Interior Rule Making
On July 15, 1983, the Department of the Interior proposed
regulations that would implement portions of ANILCA Title XI that had
not been promulgated by any of the bureaus. The rule also proposed to
repeal and replace the bureaus' various special access, temporary
access and access to inholdings regulations, to codify all Title XI
regulations in a single part. These regulations essentially mirrored
NPS and U.S. Fish and Wildlife Service (FWS) regulations that generally
tracked the language of ANILCA section 1110(a). The proposed rule would
authorize snowmachine use during periods of adequate snow cover or
frozen river conditions only for traditional activities that were still
permitted in Park areas, and for travel to and from villages and
homesites, pursuant to an access permit, and for subsistence purposes.
The rule also proposed a definition for ``adequate snow cover.''
On September 4, 1986, the Department of the Interior published
final regulations implementing ANILCA Title XI. Following the precedent
established by NPS and FWS, the proposed regulations on motorboat,
aircraft and nonmotorized surface transportation access were not
restricted to traditional activities and travel to and from villages
and homesites, as in the statutory authorization. In the final rule,
the Department noted that EO 11644, regarding off-road vehicles (ORV),
does
[[Page 37866]]
not apply to motorboats or aircraft. Therefore, the Department
exercised its discretion under other applicable statutes in order to
authorize airplane and motorboat use beyond that mandated in ANILCA.
The fact that the Department did not limit airplane and motorboat
access to only traditional activities under section 1110(a)
demonstrates that traditional activities are a distinct subset of all
the legally permissible activities that may occur in a Park area
consistent with its enabling legislation.
The Department again also declined to endorse comments that
supported a blanket exception from the provisions of 1110(a) for the
parks and monuments that predated ANILCA.
The argument is made that Congress did not intend to open the
pre-ANILCA areas to the uses described in Section 1110(a), since
these pre-ANILCA areas had been closed to such uses prior to the
enactment of ANILCA. Interior does not find any statutory support
for this position, since Section 1110(a) provides no exception for
the pre-ANILCA areas. Accordingly, no exception for pre-ANILCA areas
is provided for in these regulations.''
Id. (emphasis added).
While the statutory language must be read to apply to the Old Park,
NPS and the Department continue to believe that the Department's 1983
characterization is correct, and that inclusion of the Old Park was
inadvertent.
The Department also declined to accept comments to define
``traditional activities,'' even though, under the regulations,
snowmachines are limited to use for traditional activities and travel
to and from villages and homesites. The Department noted that: ``* * *
[o]ne suggestion was made that the regulations should limit access to
traditional activities to the means traditionally employed, and should
define what those means are.'' Id. at 31626, (emphasis added). The
Department chose to neither reject nor accept this suggestion. Instead
the Department stated that:
Because these regulations apply to a number of areas under the
administrative jurisdiction of three agencies, it has been decided
that it would be unwise, and perhaps impossible to develop a
definition that would be appropriate for all areas under all
circumstances. Exactly what ``traditional activities'' are must be
decided on a case-by-case basis. Once the agencies have had the
opportunity to review this question for each area under their
administration, it may be possible to specifically define
``traditional activity'' for each area. Accordingly, these
regulations do not contain a definition of ``traditional activity.''
Id.
Denali National Park and Preserve 1986 General Management Plan
In the 1986 General Management Plan (GMP) for Denali National Park
and Preserve, NPS followed the suggestion in the 1986 regulations for
the development of area specific definitions of ``traditional
activity'' (GMP, page 195). The GMP also indicated that recreational
snowmachining can be treated as either a means of access or as a
distinct activity in and of itself. The GMP identified recreational
snowmachining as a distinct activity that needed to be evaluated
against the definition of traditional that was provided in the GMP in
order to determine if it was a traditional activity within the Old Park
(GMP, page 37). This definition was not incorporated into regulation,
but the Old Park was closed for 19 years to this activity by way of
Superintendent's Orders (Compendium) based on an interpretation that
recreational snowmachining was not a traditional activity in the Old
Park.
Denali National Park and Preserve: 2000 Final Rule
Under Section 1110(a) of ANILCA, snowmachines may be used in
conservation system units for traditional activities, unless a
particular traditional activity is barred by ANILCA or other applicable
law, and for travel to and from villages and homesites. The use of
snowmachines for such purposes may not be prohibited unless, after
notice and hearing in the vicinity of the affected unit, it is
determined that such use ``would be detrimental to the resource
values'' of the unit.
There are no villages, homesites and other valid occupancies within
the Old Park. Access by snowmachine through the Old Park in transit to
homesites, villages and other valid occupancies did not lawfully occur
prior to ANILCA and is available through routes outside the Old Park
that have been historically used for that purpose, both prior to and
since the enactment of ANILCA. Thus, no snowmachine use within the Old
Park is authorized by Section 1110(a) or 43 CFR 36.11(c) for travel to
and from villages, homesites and other occupancies.
Consumptive use as stated in the final rule definition of
``traditional activity'' was derived by the Department after careful
review of the legislative history of ANILCA. The four specific examples
found in that history are sport hunting, fishing, trapping and berry
picking. In the context of the proposed rule, NPS requested specific
information on other activities which the public felt might be
traditional activities. Based on its review of the comments, NPS has
not identified any other consumptive activities in the Old Park which
are traditional activities under the adopted definition.
The definition of traditional activities in this final rule differs
from the November 12,1999 proposed rule definition in two main ways.
First, the application of the final rule definition is limited. The
final rule definition is for the Old Park only, while the proposed
definition was a general definition that would have applied to all the
NPS units in Alaska. This is because the public comments indicated
there was some confusion over the applicability of the definition to
other than the Old Park. NPS also believes that further consideration
of the definition in the context of the other park areas in Alaska is
needed before a definition applicable to them is promulgated due to the
possibility of different historical use patterns in those areas.
Second, the final rule definition is now clearer about what NPS
considers to be traditional activities in the Old Park. The revised
definition clearly states that traditional activities are related to
consumptive use, and that recreational snowmobiling is not a
traditional activity in the Old Park. These changes are described in
further detail below. Because the meaning of the phrase ``utilitarian
Alaska lifestyle'' was not clear to many commentators we have replaced
it with language which we believe accomplishes the same purpose, but
defines the term traditional activity in a manner that is more readily
understood by the public.
The November 12,1999 proposed rule suggested the following
definition of a traditional activity for NPS units in Alaska: An
activity that generally and lawfully occurred in a unit or a
geographically defined area of a unit prior to enactment of ANILCA, and
that was typically associated with that region as an integral and
established part of a utilitarian Alaska lifestyle or cultural pattern.
This final rule adopts the following definition of a traditional
activity for the former Mount McKinley National Park portion of Denali
National Park and Preserve:
An activity that generally and lawfully occurred in the Old Park
contemporaneously with the enactment of ANILCA, and that was
associated with the Old Park, or a discrete portion thereof,
involving the consumptive use of one or more natural resources of
the Old Park such as hunting, trapping, fishing, berry picking or
similar activities. Recreational use of snowmachines was not a
traditional activity. If a traditional activity
[[Page 37867]]
generally occurred only in a particular area of the Old Park, it
would be considered a traditional activity only in the area where it
had previously occurred. In addition, a traditional activity must be
a legally permissible activity in the Old Park.
As a general definition for all NPS units in Alaska, and under
which an area-by-area analysis would be done, the proposed definition
of traditional activities generally received widespread support.
However, in reviewing the public comment, NPS realized that the
proposed definition was not entirely clear; accordingly, NPS has made
several clarifying changes in the final definition. To produce a more
understandable definition, the description ``involving the consumptive
use of one or more natural resources of the Old Park such as hunting,
trapping, fishing, berry picking or similar activities'' has been added
consistent with the legislative history which uses these examples of
traditional activities for purposes of section 1110(a). This
consumptive use is part of a life style or cultural pattern that remain
practical and essential components of subarctic life. Clarification
that the recreational uses of snowmachines (such as picnicking,
sightseeing, wildlife viewing, photography and camping) were not
traditional activities in the Old Park has been added. Although non-
snowmobile based recreational activities did take place in the Old Park
these activities were not the type of activities offered during the
Congressional deliberations as the traditional activities to be
preserved. Clarification that a traditional activity that only took
place in a portion of the Old Park is a traditional activity only in
the area where it generally occurred has also been added. After
analysis and consideration of the public comments, NPS has decided to
define and apply this definition only to the Old Park at this time. NPS
intends to define traditional activities and apply such definitions to
other park areas, including the remainder of Denali National Park and
Preserve, in subsequent processes, such as future rulemakings to
implement backcountry management plans for some of the national parks
in Alaska.
NPS emphasizes that the definition of traditional activities in
this rule is applicable to the Old Park only. NPS could develop and
apply a different definition of traditional activities for the
remainder of Denali National Park and Preserve and other Alaska Parks,
based on historical use patterns for those areas. While NPS has found
that certain activities did not occur in the Old Park during periods of
adequate snow cover, and has developed and applied in this rule the
definition of traditional activities for that area only, NPS could find
differently for other NPS areas. NPS notes that the use of the Old Park
may be distinct as compared to the ANILCA established portions of the
Alaska Park units, due to the use restrictions that have been
historically applied to the Old Park.
NPS has previously provided separately for snowmachine use for
subsistence activities under 36 CFR 13.46, but subsistence is not
authorized in the Old Park.
Applying this park specific definition to the Old Park, NPS is
unable to identify any traditional activities or travel to and from
villages, homesites and other valid occupancies during periods of
adequate snow cover. In response to the request for comments regarding
the identification of traditional activities within the Old Park, NPS
received no comments that identified a history of any traditional
activities as defined in this rule legally taking place contemporaneous
with the enactment of ANILCA. The NPS has additionally concluded that
any snowmachine use in the Old Park would be detrimental to the
resource values of the area. Accordingly, NPS has inserted in the
regulations for the Old Park only, that snowmachine use is not
permitted for any reason within the Old Park portions of Denali
National Park and Preserve.
The legislative history of ANILCA contains several examples of
traditional activities: sport hunting; fishing; berry picking;
trapping. The House and Senate Committee Reports that accompany ANILCA
list the first three of these activities as examples of traditional
activities. Trapping was discussed as a traditional activity during
Senate mark-up. The Committee Reports state that if traditional uses
were generally occurring in an area prior to its designation the uses
shall be allowed to continue. NPS notes that hunting, fishing, berry
picking and trapping share a common characteristic; they are all
consumptive, resource gathering activities. Congress sought to
specially protect access for these activities (where the activities
were authorized by ANILCA or other law) within areas that were being
created to protect natural resources. Section 1110(a) was drafted to
address Congressional concern that many Alaskans who practiced these
kinds of activities would not qualify as subsistence users under Title
VIII and therefore would not qualify for snowmachine access under
section 811(b). Section 1110(a) was adopted to provide similar access
for consumptive activities to these non-qualifying members of the
public.
With respect to the Old Park, NPS is certain that Congress did not
expressly intend and did not create, an exception to the Wilderness Act
that would allow snowmachines in wilderness areas--because someone on
the snowmachine intended to look around, or happened to be carrying a
sandwich or disposable camera--or because non-motorized sightseeing,
picnicking and photography were permissible in the Old Park prior to
ANILCA. If a contrary interpretation were correct, Congress need not
have linked snowmobile access to traditional activities, but would have
allowed it for any purpose since virtually any use of the Park entails
an element of sightseeing. Such an interpretation would render the term
``traditional activities'' as the equivalent of ``for any purpose''.
NPS has found no evidence of such intent in the legislative history.
The Senate Committee on Energy and Natural Resource mark-up
sessions that were the origin of this section, and the Committee
Reports on the Act consistently reference traditional hunting, fishing
and berry picking. Congress did not identify other activities, such as
recreational activities, in deliberations on section 1110(a).
Conversely Congress made its intent clear in other provisions of
ANILCA, specifically opening conservation system units to recreation by
authorizing such access specifically, and separately from access for
traditional activities. See e.g., section 201(2) Bering Land Bridge
National Preserve (``in a manner consistent with the foregoing [the
preserve shall be managed] for public access for recreational purposes
to the Serpentine Hot Springs area.''); section 202(5) Kenai Fjords
National Park (``the Secretary is authorized to develop access to the
Harding Icefield and to allow use of mechanized equipment on the
Icefield for recreation.''); section 202(6) Kobuk Valley National Park
(``the Secretary shall permit aircraft to continue to land at sites in
the upper Salmon River watershed.'') and section 202(10) Yukon-Charley
Rivers National Preserve (``the Secretary shall permit aircraft to land
on sites in the upper Charley River watershed'').
With respect to the authorization of landing sites in the upper
Salmon and Charley River watersheds, amendments approved at the October
10, 1979 Senate Committee on Energy and Natural Resources mark-up
struck the phrase ``traditionally used for such purposes'' from the end
of each sentence. The amendments put a period after the word
``watershed''. The accompanying mark-
[[Page 37868]]
up colloquy explains the Committee's intent to authorize access beyond
where and what was traditional in these two areas due to their high
potential for compatible recreational use.
As the Alaska Conservation Foundation commented:
[T]he only mention of recreational use in the ``Purposes''
section of ANILCA states that the intent of Congress was ``to
preserve wilderness resource values and related recreational
opportunities including but not limited to hiking, canoeing, fishing
and sport hunting.'' Unquestionably, recreational snowmachining is
not a recreational opportunity that related to wilderness resource
values. (Section 101(b)). The other purposes outlined in Section 101
are either antithetical to recreational snowmachining or are in no
way supportive of recreational snowmachining.
With respect to Section 1110(a) and the term ``traditional
activities'', first and foremost, it is instructive to consider the
explanatory title for the section, which is ``Special Access and
Access to Inholdings.'' Congress expected this section to only apply
to ``special'' access situations--which are, by definition
``distinguished by some unusual quality, being other than the
usual.'' Therefore, Congress limited access to these areas, allowing
intrusions only for ``traditional activities'' or for access to
homesites and villages.
NPS also notes that due to the distance that may be traveled by
modern snowmachines and the resulting noise impacts, even only a few
snowmachines would cause detriment to the special resource values of
the Old Park, in particular the wilderness and wildlife values of the
Old Park. These values have developed over time as a result of the
unique management history of the area, and are therefore coincident
with the boundaries of that former unit. See Statement of Finding,
June, 2000.
Summary and Analysis of Public Comment on Snowmachine Issues
Summary of Comments
ANILCA section 1110(a) and 43 CFR 36.11(h) require notice and
hearing(s) in the vicinity of the area(s) directly affected by such
closures. NPS provided notice of the hearings in a press release that
was mailed to approximately 450 Alaskans and businesses in the
Anchorage-Fairbanks rail-belt. The press release was posted on Denali's
website and faxed directly to 31 community, local and national news
organizations, including print, radio and television in mid-November
1999. The press release was published in the Fairbanks Daily News-
Miner, Anchorage Daily News, Valley Sun and Mat-Su Frontiersman. Two
follow-up press releases were also faxed to the 31 news organizations
and were published in the Fairbanks and Anchorage newspapers. NPS also
placed newspaper advertisements in Fairbanks and Anchorage newspapers
to inform the public of the purpose for, and the times, dates and
locations of, the hearings. Alaska's congressional delegation was also
informed. Four public meetings were held from December 6, 1999, to
December 9, 1999, in McKinley Village, Talkeetna, Fairbanks and
Anchorage. Comments on the proposed rule were originally due by Jan.
11, 2000, but were subsequently extended until Jan. 25, 2000. Public
discussion of the proposal was extensive, with many articles,
editorials, and opinion pieces published, as well as television and
radio coverage broadcast.
At the public meetings: 81 people testified in favor of closing the
Old Park to snowmachine use, and 44 people testified against the
proposed closure; 34 speakers voiced support for the proposed
definition of traditional activities, and 11 spoke against it.
Including written comments, approximately 6,039 timely comments were
received on the November 12, 1999 proposed rulemaking. Some commentors
sent comments by both conventional and electronic mail. NPS attempted
to match such duplicate mailings and count them as one. Additionally,
many comments were signed by more than one person--particularly
comments that supported the proposed rule. NPS acknowledges this point,
but for this rulemaking, chose to count a letter or post card as a
single comment, regardless of the number of signatures. The numbers
shown in parentheses are the portions of the totals that were received
from Alaska residents.
Total Comments--6039
(2334, 39% of responses are from Alaskans)
Supporting Closure--5784 (96% of total response on this issue)
(2105, 91% of Alaskans on this issue)
Opposed to Closure--226 (4% of total response on this issue)
(201, 9% of Alaskans on this issue)
NPS proposed Definition of Traditional Activities.
Supporting comments--3176 (98% of total response on this issue)
(1215, 96% of Alaskans on this issue)
Opposing comments--68 (2% of total response on this issue)
(57, 4% of Alaskans on this issue)
Many commentors on both sides of the issue identified themselves as
snowmachine owners. Quite a few commentors wrote of the detrimental
effects snowmachines have had on Yellowstone National Park and urged
NPS to protect Denali from similar impacts. The comments NPS received
concerning the superintendent's determination of adequate snow cover
supported this provision.
Response to Public Comment
Comment: The State of Alaska, Office of the Governor commented that
it would support selected snowmachine closures in Denali National Park
if NPS agrees to meet additional procedural steps such as a management
regime less restrictive then a total closure. Other commentors simply
disagree with the NPS assertion that any snowmachine use in the Old
Park would be detrimental due to the unique values of the area. They
suggest that just by the act of allowing snowmachine use into
wilderness areas in Alaska, Congress was acknowledging that some impact
was acceptable and therefore cannot be considered detrimental for the
purposes of regulating use. The State suggests that in determining what
would be detrimental to the resource values of the Park, NPS should be
``focusing greater attention on the intrinsic values of the unit, which
are becoming increasingly important to the public.''
NPS response: NPS agrees that in many cases the limited snowmachine
use envisioned by Congress in ANILCA for traditional activities may not
represent a significant change or a significant threat to the resource
values of much of the previously unreserved federal lands that were
used to create new Parks and wilderness areas. This is because
snowmachine use had been occurring on many of those lands before their
establishment as new conservation system units by ANILCA. Use of
snowmachines for traditional activities, subsistence activities and
village to village travel was the status quo condition in many of these
areas.
However in the Old Park, essentially the area that is now the
Denali Wilderness, it is dramatically different. McKinley was Alaska'a
only national park prior to ANILCA, and as a result it has a very
special set of resource values that have developed since 1917, through
protective management. The health of this shielded ecological system is
the park's most intrinsic value. It is the foundation for one of the
world's finest wildlife viewing opportunities. The possibility of
seeing in a single day, bears, wolves, caribou, moose, Dall sheep, and
other animals against the backdrop of a spectacular subarctic, alpine
landscape and vegetation is the cornerstone of a multimillion-dollar
tourism industry in Alaska. Wildlife populations within the historical
boundaries of the Old Park are available for unparalleled viewing
opportunity
[[Page 37869]]
precisely because they have been protected for decades from intrusive
interactions with humans. The opportunity to see natural predator-prey
interactions is one of the primary visitor attractions at Denali
National Park and Preserve.
Another important long-term value of this area is the possibility
of recording and gaining understanding of a naturally functioning
subarctic system with minimal disturbance by people. This largely
undisturbed core area is regularly referred to as a comparison site in
scientific studies throughout the circumpolar region. Denali National
Park and Preserve has been designated an International Biosphere
Reserve for its unique scientific values and the presence of the
protected core area. The area defined by the boundaries of the Old Park
is recognized as a distinct area in the reserve unit because of its
different management history. It has also been selected for long-term
ecological monitoring by NPS and other federal agencies because of its
historic level of protection and ecological integrity.
Section 701 of ANILCA designated about 95 per cent of the Old Park
as the Denali Wilderness. The boundaries of the Old Park are
essentially now the boundaries of the Denali Wilderness. This area
provides a unique wilderness recreation opportunity in Alaska. There is
no other large, naturally regulated ecosystem in the entire 375 million
acres of Alaska that is as free from motorized use in the winter
months. As a result, the fundamental wilderness resource values of
solitude, natural quiet and extensive untracked vistas, which are the
source of this opportunity, remain at exceptional levels during winter.
This area provides a unique opportunity to those members of the public
who seek to exercise their ``quiet rights.'' No other area with such
special qualities is readily available or adjacent to the road system
of Alaska.
Given this unique situation in the public lands of Alaska, the NPS
believes it is justified in its finding that the introduction of any
snowmachine use into the Old Park represents a fundamental change to
the condition of the unique resource values of the area. This shift
from no use to the levels of use that are now possible with modern
technology is completely different from the continuation of pre-
existing types and levels of use that Congress envisioned when it moved
to protect access for resource gathering related activities associated
with an ongoing Alaska lifestyle. Any snowmachine use in the Old Park
is a fundamental change; and therefore, such use alone would have a
significant, detrimental effect on resource values. (See Statement of
Finding, June, 2000.)
Furthermore, when enacting ANILCA in 1980, Congress did not
envision that snowmachines would carry large numbers of people into the
backcountry. Nor did the framers of ANILCA envision the potential for
resource harm that is now possible due to the dramatic increases in
snowmachine use caused by technological advances, increases in urban
population and increased expendable income.
Comment: Several commentors, including the Alaska State
Legislature, suggested that, as proposed, the definition of a
traditional activities requires that a utilitarian activity must have a
cultural component to qualify as traditional. The Legislature also
objected to the requirement that a qualifying activity must have been
an integral and established part of a utilitarian Alaska lifestyle or
cultural pattern. Other commentors, including the State of Alaska,
Office of the Governor, pointed out that the statute does not require
such a showing and joined in that objection.
NPS response: Based on the comments submitted, NPS realized that
the reference to ``utilitarian Alaska lifestyle'' was not well
understood by the commentors. Accordingly, NPS has modified the final
definition and eliminated this phrase to more clearly describe the
activities falling within section 1110(a).
Comment: Many of the same commentors felt that the definition of
traditional activities should have been written more broadly to include
activities that these commentors generally concede are recreational in
nature, such as sightseeing, picnicking, wildlife viewing, camping and
photography. These commentors insist that if these activities generally
occurred in the Old Park prior to ANILCA, they are ``traditional
activities.'' Most commentors, however, strongly disagreed with this
approach; they felt that NPS had correctly identified ``traditional
activities'' as activities that are necessarily connected with a
generally rural--and from the Alaska perspective, generally unique--
Alaska lifestyle or Alaska culture.
NPS response: NPS notes that it is rare that people visit National
Parks, especially an Alaska Park like Denali, without sightseeing. It's
also our experience that visitors often carry a camera and bring
something to eat. NPS also notes that many visitors to Alaska go
sightseeing, take pictures and eat take-out food in downtown Anchorage.
NPS finds no specific reference in ANILCA or its legislative history
that indicates that Congress intended to include any recreational
activities under section 1110(a). With respect to the Old Park, NPS is
certain that Congress did not expressly intend and did not create, an
exception to the Wilderness Act that would allow snowmachines in
wilderness areas--because someone on the snowmachine intended to look
around, or happened to be carrying a sandwich or disposable camera--or
because non-motorized sightseeing, picnicking and photography were
permissible in the Old Park prior to ANILCA. If a contrary
interpretation were correct, Congress need not have linked snowmobile
access to traditional activities, but would have allowed it for any
purpose since virtually any use of the Park entails an element of
sightseeing. Such an interpretation would render the term ``traditional
activities'' as the equivalent of ``for any purpose''. NPS has found no
evidence of such intent in the legislative history.
Comment: Building on its analysis of what should qualify as
traditional activities, the Alaska Governor's Office contends that NPS
cannot justify a post-ANILCA snowmachine closure in the Old Park on the
fact that snowmachines were prohibited there pre-ANILCA. The proper
analysis, the Governor suggests, is whether traditional activities were
conducted in the Park prior to ANILCA, not whether snowmachines were
used there. The Alaska Outdoor Council made a similar comment. The
Wilderness Society, the Trustees for Alaska and numerous other
commentors, on the other hand, argue that ANILCA must be interpreted to
prohibit any snowmachine use in the Old Park regardless of how
traditional activities are defined. They believe there having been no
use in the Old Park prior to ANILCA, there can be none after ANILCA. In
a recent court decision, ASSA v. Babbitt, A99-59 CV (JWS), the United
States District Court, District of Alaska, agreed with the Wilderness
Society that the statutory language of ANILCA does not foreclose the
interpretation that they suggest.
NPS response: NPS first notes that it has conducted, with this
rule's definition, an analysis of whether traditional activities
occurred in the Old Park in the manner suggested by the Governor. For
reasons that are explained in this preamble, NPS cannot identify any
traditional activities that generally occurred in the Old Park prior to
ANILCA, for which a snowmachine could be now used during periods of
adequate snow cover. Prior to ANILCA, park regulations prohibited such
traditional Alaska activities as hunting
[[Page 37870]]
and trapping in the Old Park; those activities are still prohibited.
Other subsistence activities have never been authorized and despite our
request for comments, we can find no evidence that fishing or berry
picking took place during periods of adequate snow cover
contemporaneous with the enactment of ANILCA. There are no villages or
homesites in the Old Park, and villages and homesites to the west or
north of the Old Park have been commonly and more easily reached by a
flatter, more northern route.
NPS has, however, reviewed the comments of the Wilderness Society
and the legislative history of ANILCA that they submitted with their
comments. NPS has also reviewed similar comments and legislative
history submitted by the Trustees for Alaska on behalf of a number of
conservation groups. NPS also conducted its own review of ANILCA's
legislative history, prior rulemaking and interpretive case law. ANILCA
does not define the term ``traditional activities''. The relevant
Committee Report explanation from the Senate is itself ambiguous:
The Committee recommends that traditional uses be allowed to
continue in those areas where such activities are allowed. This is
not a wilderness type of pre-existing use test. Rather, if uses were
generally occurring in the area prior to its designation, those uses
shall be allowed to continue and no proof of pre-existing use will
be required.
Report of the Senate Committee on Energy and Natural Resources, Report
No. 96-413, p. 248.
While the statute itself addresses the use of snowmachines for
traditional activities, the Committee Report speaks in terms of
continuing ``traditional uses''. Although Congress did not define the
term ``traditional activities'', the Department has determined that
Congress intended to allow traditional activities to continue where
they were taking place prior to the enactment of ANILCA. The report
only identifies hunting, fishing and berry picking as traditional
activities. In view of its ambiguity, ANILCA has left it to the
Secretary to define this term.
ANILCA section 1110(a), as enacted, was derived from section
1110(a) of the Senate Committee's reported version of the bill. S. Rep.
No. 413, 96th Cong. 1st Sess. (1979). In exercising the Secretary's
discretion to define this term, we have attempted to review all
potentially relevant information. In this regard, NPS believes the
Senate Committee on Energy and Natural Resources mark-up sessions on
August 1 and 8, 1978, are informative of the concerns expressed even
though they do not represent binding legislative history. The mark-up
colloquies reveal that, in consideration of the large size of the new
conservation system units and the remoteness of rural Alaska, Congress
carefully fashioned an exception to the 1964 Wilderness Act in ANILCA
section 1110(a). Motorized access for specific traditional activities,
where they were generally occurring, was allowed to continue in Alaska
wilderness because Congress recognized that continued access for these
activities was necessary to sustain the Alaska lifestyle. Where
snowmachines were being used for such things as hunting or trapping, or
service functions such as hauling freight to villages, snowmachine use
for these purposes would continue regardless of wilderness
designations. Congress understood that where access for these
activities was ongoing, it supported Alaskan lives and defined Alaskan
identity. However, there is no suggestion in ANILCA or its legislative
history that Congress intended to authorize new snowmachine use in the
Old Park, which ANILCA designated as wilderness, when there had been no
authorized snowmachine use there prior to ANILCA (for any activities).
Indeed the legislative history shows that Congress intended to tailor
this authorization narrowly. (Senate Energy and Natural Resources
Committee Alaska (d)(2) Lands--Mark-up, August 1, 1978, pages 47-74).
The August 8th discussion focused particularly on authorizing
mechanized use where it had been done in the past. In order to prohibit
a traditional use of this type of vehicle or mechanized equipment in a
wilderness area the land manager must find that it would cause damage.
(Senate Energy and Natural Resources Committee Alaska (d)(2) Lands--
Mark-up, August 8, 1978, pages 10-14, 49-50, 60-64).
Comment: Some commentors thought NPS should ban all recreational
uses of snowmachines from all of Denali National Park and Preserve.
Others thought NPS should be able to accommodate some recreational use
in areas other than the Old Park.
NPS response: Unlike the proposed rule, the final definition
adopted here applies only to the Old Park. NPS intends to use park
planning processes, particularly the backcountry management planning
process for the Denali addition areas and other park units, in
developing and applying the definitions of ``traditional activities''
outside the Old Park. Although NPS makes no decision at this time on
such definitions, based on its present review of the statute and its
legislative history, NPS believes that such future processes could
conclude that recreational activities independent of the types of
activities discussed in this preamble are not traditional activities
for purposes of section 1110(a) in these other areas. NPS intends
nevertheless to examine, as part of these planning processes, where
snowmobile use for recreational activities then determined to be
outside the scope of section 1110(a) could be appropriate within
individual park units, consistent with the applicable statutes and
Executive Orders pertaining to the National Park System in Alaska.
Comment: A few commentors suggested that the definition of
traditional activities will have major impacts on other forms of access
such as sightseeing flights that want to land on NPS lands.
NPS response: The definition of traditional activities adopted by
this rule does not have the broad effect described by some. The
Department's 1986 regulations went beyond the scope of section 1110(a)
and, based on other statutory authorities, authorized the non-
commercial use of motorboats and airplanes in all DOI areas without
regard to the purpose. 43 CFR 36.11(d) & (f). That extended
authorization not only remains unchanged, but the definition adopted
here applies solely to snowmachines in the Old Park. This rulemaking
has no effect on access by means other than by snowmachines. Commercial
activities, including sightseeing landings, have been and will continue
to be, regulated under NPS concessions authority.
Comment: The Alaska State Legislature and Territorial Sportsmen
Inc. commented that the proposed definition of traditional activities
is a major regulatory departure by NPS.
NPS response: NPS has consistently managed the two-million-acre Old
Park as closed to snowmachine use and open for nonmotorized winter
recreation in a way that allows visitors to experience solitude and
natural sounds, such as dog mushing, snowshoeing, and cross-country
skiing. Pre-ANILCA regulations and policy prohibited snowmachine use.
As early as 1981, in the implementing regulations to ANILCA, NPS
cautioned ``[p]rospective snowmachine users [to] note that the
legislative history of section 1110(a) defines traditional activities
in terms of a use generally occurring in a Park area prior to its
designation.'' 46 FR 3184, June 17, 1981. Based on this interpretation,
every post-ANILCA superintendent closed the Park to snowmachine use
through a compendium order since snowmachine use had not lawfully
occurred in the Old Park contemporaneous with the enactment of ANILCA.
[[Page 37871]]
Interpreting the term ``traditional activities'' so as to
distinguish recreational snowmachining from it, as a distinct activity
in and of itself, was presented to the public in the Park's 1986 GMP.
Then, as now, the public strongly supported such a distinction.
Consequently, the definition adopted by this rule does not represent a
change in the public understanding of the implementation of ANILCA
section 1110(a) relative to the Old Park. Nor does it alter the actual
patterns of use that are currently occurring in the Old Park. Since
Congress did not define the term ``traditional activities'' the NPS has
done so within its discretion.
Comment: Three commentors suggested that this closure would
discriminate against persons with disabilities because it would limit
their access to the Old Park.
NPS response: The decision treats all potential users equally in
that snowmachine use is prohibited for everyone in the Old Park.
Additionally, as noted above, NPS has determined that any snowmachine
use would be detrimental to the resource values of the Old Park. The
commercial dog sled companies that operate in the Old Park have
expressed a willingness to take any interested individuals, including
those with disabilities, into the Old Park.
Summary and Analysis of Public Comment on Other Issues
Comments and Responses on Regulations Affecting Management of the
Denali National Park Road
Background
This regulation is the culmination of several years of planning and
public involvement on managing the Denali National Park Road. Detailed
direction for managing the road was outlined in the Draft Entrance Area
and Road Corridor Development Concept Plan and Environmental Impact
Statement that was available for public review between June 21 and
August 19, 1996. This draft plan was based on the recommendations of
the Denali Task Force, a committee formed at the request of the
Secretary of the Interior in 1994, on proposals received during public
scoping during 1995, on previous plans, and on planning team work and
impact analysis. NPS management proposals affecting the Park road
received widespread support during the public comment period. The final
plan was distributed in early 1997, and elements of the plan calling
for safety improvements on the road and for replacing some private
vehicles with buses were implemented beginning later that year. The
additional bus trips provided for in the plan-without increasing the
overall number of vehicles-resulted in more people having the
opportunity to travel into the Park interior. The specific vehicle
allocations outlined in the proposed regulations were also evaluated in
the 1996 draft Entrance Area and Road Corridor Development Concept Plan
and published in the final plan as part of the ``Road Management''
section. The need for regulations for management of the Park road is
listed as the first item under provisions affecting general vehicle
traffic. NPS kept the public informed of actions to implement the plan
and progress on the regulations through press releases and newsletters.
The concept of restricted vehicle access on the Denali National Park
road has been supported by the public since it was started in 1972. The
overall traffic limit on the park road, 10,512 vehicle trips during the
summer allocation season, was evaluated as part of the 1986 General
Management Plan, which included public review and comment. Public
support for the road management provisions in the draft Development
Concept Plan was expressed during studies along the park road and in
unsolicited visitor comments. Those who commented on the road
regulations during late 1999 and early 2000 demonstrated even greater
support. Of the 6,039 comments received on the proposed regulations,
382 addressed management of the Denali National Park Road. Of these 382
comments, 368 were in favor of the road regulations as proposed and 7
were opposed to the regulations as proposed. Another 7 comments were
generally in favor of restrictions on road use but expressed a
preference for other methods than those in the proposed regulations.
Public involvement and continued planning for management of the park
road indicate that the road regulations are long overdue. These
regulations are consistent with ANILCA, and all decisions have been
made with full participation of the public, above and beyond the
requirements of ANILCA and the National Environmental Policy Act.
Comment: The State of Alaska and one individual commented that
ANILCA does not allow for the regulation of the Park road as proposed.
NPS response: ANILCA does provide for the reasonable regulation
included in the final rule. See section 1110(b) of ANILCA (16 U.S.C.
3171(b)): ``Such rights shall be subject to reasonable regulations
issued by the Secretary to protect the natural and other values of such
lands.'' The permit system identified in the regulation affords the
superintendent the flexibility to accommodate the access allowances in
ANILCA while managing the Park pursuant to the NPS Organic Act and
other applicable authorities. The 1997 Entrance Area and Road Corridor
Development Concept Plan identified methods to increase the numbers of
visitors to the core of Denali National Park. These provisions have
been implemented and the overall number of visitors has increased as a
result.
Comment: One individual noted that in his view the proposed
regulations are confusing, the process is misleading, public comment
was inadequate and Kantishna landowners and stakeholders were not
provided adequate notice.
NPS response: The proposed regulations affecting road use in Denali
National Park followed two previous planning processes involving the
public, the General Management Plan in 1986 and the 1997 Entrance Area
and Road Corridor Development Concept Plan. Public notice of the 1997
plan was widely published. The plan specifically addressed the
promulgation of special regulations for management of the Park road,
establishing the GMP limit of 10,512 vehicle trips during the
allocation season in regulation, setting formal ``Rules of the Road,''
and setting a seasonal allocation limit for Kantishna business traffic.
Several Kantishna landowners and lodge operators commented on the
1997 Development Concept Plan. The Park also produced a strategic plan
that included the need for special regulations. The 1997 Strategic Plan
includes the following long-term goal on page 20: ``By 2002,
regulations affecting road use and snowmachine use are implemented and
enforced.''
The National Park Service has continued meeting with individuals
and groups interested in the process and has kept the public informed
through newsletters and press releases. Newsletters discussing
implementation of the 1997 development concept plan and the need for
road regulations were distributed to the public twice during 1996,
twice during 1997, once during 1998, twice during 1999, and once in
early 2000. Four press releases on the issue were sent to the media,
and information has been available on the Park's web site since early
1997.
Comment: One individual commented that the proposed regulations
will deny people the opportunity to visit their Park.
NPS response: The National Park Service disagrees. The 1997
Entrance Area and Road Corridor Development Concept Plan identified
methods to increase the numbers of visitors to the
[[Page 37872]]
core of Denali National Park. These provisions have been implemented
during the past three seasons, and the overall number of visitors has
increased as a result. The 1997 plan and accompanying environmental
impact statement also outlined resource protection needs and the need
for the proposed regulations.
Comment: A few individuals and one mining company commented that
they saw no reason to limit traffic on the Park road. They proposed
that safety concerns could be resolved through road improvements and
constructing an additional access route into the Park from the north
creating a one-way loop.
NPS response: The NPS considered these issues in the 1997 Entrance
Area and Road Corridor Development Concept Plan and the 1997 North
Access Feasibility Study. The 1997 development concept plan provides
for improvements to the existing road to address safety issues and for
increasing the numbers of visitors traveling into the interior of the
park.
The North Access Feasibility Study determined that a new north
access route, either road or rail, would be feasible, but notes that
much more study and planning is needed. As stated in the opening
paragraph, the 1997 study ``does not contain recommendations and is not
a decision document.''
In the cover letter accompanying the document, the Acting Assistant
Secretary for Policy, Management and Budget found that:
The projected costs of either new road access or rail access
into Denali would exceed the projected costs for the National Park
Service's 10-year, visitor access development program for the entire
State of Alaska. Thus, we believe this study must be considered in
conjunction with the other National Park Service proposals for
visitor facilities and access in Alaska-proposals developed with
input from the State of Alaska, the visitor industry and the public.
The National Park Service believes that it is a far more efficient
use of funding to expand upon the existing visitor opportunities along
the Park road, following the widely supported direction in the 1997
development concept plan, than to explore the much more controversial
and expensive north access route. Park visitors have continued to
support the management decision to maintain most of the Park road in
its rustic, historic condition.
Comment: The Alaska Visitors Association commented that the number
of trips on the Denali National Park Road apportioned to businesses and
park visitors should not decrease over time in order to accommodate any
National Park Service increase in the administrative and temporary
categories.
NPS response: The National Park Service vehicle trip allocation in
the 1986 General Management Plan (1754 total) was amended slightly by
the 1997 Entrance Area and Road Corridor Development Concept Plan,
which sets the limit of 1,776 vehicle trips. Under the regulations, the
park would adhere to that limit for its administrative use. NPS notes
that there have been fewer than 10 emergency vehicle trips in each of
the past three years. Such additional emergency trips will not effect
the allocations for other users. The NPS believes that some flexibility
must remain in the system and that emergency traffic should not be
constrained. While the NPS has committed to restraint in its
administrative travel, the same cannot be done with emergency traffic.
The agency must be able to respond to emergencies along the park road
to provide for safe and enjoyable visitor use. NPS also notes that
emergency or other non-routine road maintenance may require NPS to make
or to authorize a NPS/Federal Highway Administration contractor to make
additional trips to effect repairs. However, NPS will make every effort
to schedule repairs pre- and post-season.
Comment: The State of Alaska commented that the final rule should
incorporate an annual notice requirement and some sort of built in
administrative appeal mechanism and that the ``Rules of the Road'' part
of the regulations should not be used to indirectly restrict public
access outside the Section 1110(a) and (b) processes.
NPS response: As discussed above, operation of the regulations
including issuance of permits is consistent with section 1110(b) of
ANILCA. The ``Rules of the Road'' will continue to be conditions of a
permit. These driving rules are designed to increase safety on the Park
road and are not a means of indirectly restricting access. Public
access is enhanced by the operation of the visitor transportation
system and the tour buses. Annual notice and administrative appeal
provisions are already in place and will continue to be utilized.
Comment: The State of Alaska, the Alaska Outdoor Council, and two
individuals commented that ANILCA ``guarantees'' economic and feasible
access to inholdings and that the NPS cannot diminish the scope of this
broad statutory right through regulation.
NPS response: These comments generally omitted the last sentence of
Section 1110(b) of ANILCA: ``Such rights shall be subject to reasonable
regulations issued by the Secretary to protect the natural and other
values of such lands.''
The regulations do not deny access; they regulate access along the
park road to protect natural and other values. The result of such
protection within the road corridor is the high economic value of the
inholdings in question. What were once mining claims are now instead
valued by their proximity to the core of Denali and their access via
the Park road, with its superlative wildlife viewing opportunities. The
National Park Service is proposing to regulate, not deny this access.
As stated in the text of the proposed regulations, the traffic
limits being proposed have also been reviewed as part of the General
Management Plan in 1986 and the 1997 Entrance Area and Road Corridor
Development Concept Plan. During the more recent planning process, the
NPS received 262 written comments and heard testimony from 40 people.
No comments were received opposing the overall level of 10,512 motor
vehicle trip permits, although there were numerous comments that
supported more restrictive regulation of vehicle traffic than was
adopted in the final plan.
Comment: One individual commented that the proposed regulations
threaten the economic viability of Kantishna businesses.
NPS response: As stated earlier, the regulations are consistent
with section 1110(b) of ANILCA as well as providing for annual
adjustments of permit levels. The National Park Service notes that only
one individual raised the question of economic viability of the several
Kantishna businesses. In addition to the current level of permits which
more than afford adequate and feasible access to inholders, the visitor
transportation system provides access to Kantishna. Area businesses
also utilize the Kantishna airstrip.
Comment: One individual and one business owner noted that the
proposed rules do not provide any incentive to voluntarily reduce
vehicle use of the Park road.
NPS response: The final rule has not been modified to address
voluntary actions. The NPS agrees it is in the best interests of Park
visitors, including the Kantishna business visitors, and the government
to limit their use of the road. The National Park Service hopes other
users agree and will voluntarily limit access without regulatory
incentives, and NPS will work on such efforts with all interested
parties.
Comment: One individual commented that the rule prohibiting motor
homes, campers, and trailers to travel to
[[Page 37873]]
Kantishna is too restrictive and should allow exceptions by the
Superintendent.
NPS response: The final rule retains the prohibition of the use of
motor homes, campers and trailers to travel to transport guests to
Kantishna businesses. This provision does not prohibit private inholder
use of these types of vehicles provided they are operated during
specific times of the day. Adequate and feasible access using buses is
available for Kantishna businesses to transport guests. The prohibited
types of vehicles pose a safety concern if frequently used
commercially.
Comment: The State of Alaska commented that the regulations must
provide a mechanism for currently active inholders to seek adjustments
of individual allocations and must provide for other inholders to
acquire access for their possible future ``economic and other
purposes.''
NPS response: The current allocations afford more than adequate and
feasible access for inholders. In addition, the final regulation
contemplates reallocation to address future needs.
Comment: The Wilderness Society and two Kantishna businesses
commented that each Kantishna business should be allocated the same
number of permits.
NPS response: The distribution of permits among Kantishna
businesses as outlined in the 1997 plan and as provided for in the
regulation is appropriate in that it is fair to Kantishna businesses
(i.e., provides reasonably necessary and economically feasible access),
considers the unique characteristics of individual operations, and
maintains the overall travel limits.
Comment: One Kantishna business commented that the superintendent
should not have the authority to revoke road allocations in the case of
a sale or transfer of a Kantishna business, since it would be a severe
encumbrance upon the business.
NPS response: The final regulation continues to provide for a
reevaluation of access needs upon sale or other change. Additional
visitor use may be accommodated by the reevaluation while continuing
adequate access for the business needs of the inholding. To address
these concerns, the NPS intends to retain the established limit for an
individual Kantishna business for 12 months after the sale of the
business while the access requirements of the new owner are being
evaluated.
Comment: One business and the Alaska Visitors Association commented
that the proposed rule should stipulate that the National Park Service
will work on transfer of the concession agreement and the vehicle
permit allocation simultaneously.
NPS response: A regulation is not necessary, as consideration of
any concession authorizations will also likely include consideration of
vehicle permits at the same time.
Comment: Two individuals commented that the National Park Service
has not provided adequate evidence, such as scientific studies, of the
need for regulating traffic on the Park road.
NPS response: Studies addressing the importance of this regulation
are identified and the topic discussed in the 1997 Entrance Area and
Road Corridor Development Concept Plan. Other considerations including
the large growth in visitor numbers, the condition of the road and the
success demonstrated by road restrictions also make it clear that
continuing the restrictions at the 1986 levels is best for the Park and
the visitors.
Comment: The Denali Citizens Council, one Kantishna business, and
several individuals commented that the regulations should include daily
bus trip limits. The Wilderness Society, Denali Citizens Council, one
Kantishna business, and several individuals also noted that the
regulations should include daily limits on the Denali Natural History
Tour.
NPS response: The National Park Service has already implemented
daily bus trip limits including limits on the Denali Natural History
Tour as outlined in the 1997 Entrance Area and Road Corridor
Development Concept Plan. Since the bus systems are operated under
concessions contracts, the National Park Service has the authority to
enforce these restrictions as part of the conditions of the contracts.
Comment: The Alaska Visitors Association commented that the
National Park Service should provide at least one year advance notice
of specific numbers of the annual permit allocation.
NPS response: The regulations provide that an annual date to
evaluate requests will be established. The National Park Service
recognizes that businesses desire to know as far in advance as possible
and the Superintendent will consider that desire in establishing the
date.
Comment: The Alaska Visitors Association commented that absent
documented safety or resource issues, the regulations should not be
expanded to further control vehicular traffic.
NPS response: The National Park Service believes that safety and
resource issues should be addressed in a proactive way rather than
waiting for damage to resource values or injury to visitors to occur.
The National Park Service will continue to monitor all aspects of Park
use and resource considerations and manage accordingly. In any event,
the final rule is consistent with current motor vehicle practices on
the park road, and do not constitute an expansion.
Comment: Several commentors noted that the Denali Natural History
Tour (also known as the short tour) does not stop at the Savage River,
but instead turns around 2.3 miles further into the park at the
Primrose Overlook. A few questioned why NPS does not count the short
tour bus trips as part of the 10,512 annual permits.
NPS response: While the park road changes from pavement to gravel
at the Savage River and that has traditionally been the site of the
check station and the beginning of the restricted access section, that
location does not readily accommodate large buses. The limited parking
there is often filled with private vehicles and backing busses (as is
required to turn around there) would be a hazard to pedestrians. The
short tour buses are better and more safely accommodated at the
Primrose Overlook where they can turn around without backing. As these
buses only travel 2.3 miles up the moderate and improved grade past the
Savage River before returning, there are no resource nor road wear
reasons to include these trips in the annual limits and these trips
have, therefore, always been excepted. This issue received thorough
public review in the 1997 Entrance Area and Road Corridor Development
Concept Plan and the accompanying Environmental Impact Statement.
Analysis of Comments on Kantishna Firearms Safety Zone
Although many comments expressed general support for the entire
proposed rule, NPS received a few comments specific to the seasonal
prohibition on the discharge of firearms on public lands within the
developed area of Kantishna. The closure applies on: the Kantishna
Airstrip; the approximately 4.5 mile-long State Omnibus Act Road right-
of-way; and all public lands located within one mile of the Kantishna
Airstrip or the State Omnibus Act Road right-of-way (within the Park
addition area surrounding Kantishna). Fourteen comments expressed
specific support for the closure or suggested a more stringent closure
was appropriate.
Comment: The Alaska Outdoor Council and the State of Alaska Office
of the Governor did not oppose the closure. They suggested, however,
that further evaluation of the need for this
[[Page 37874]]
closure was warranted and that NPS should guard against incremental
expansions of or additions to this closure that favor non-consumptive
Park uses and have cumulative impacts on consumptive uses. The state
also pointed out that the state uses a one-half mile closure in many
areas.
NPS response: NPS anticipates that public use will increase in this
developed area. The fact that this area is developed distinguishes it
from the approximately four million acres of Park addition and preserve
land that is open to various types of hunting. The rule will only have
a minimal effect as the Kantishna area is closed to sport hunting,
protection of life and property is excluded, and there is only a small
overlap of the permissible subsistence hunting periods and the visitor
season. NPS finds that the closure is warranted.
Analysis of Comments on Wildlife Protection
Most commentors generally supported the wildlife closure
regulations. Several people spoke in favor of the proposal at the
public hearings and NPS received 25 written comments specifically
supporting the proposed flexible closures for wildlife and wildlife
habitat protection; two written comments were opposed. As explained
below, NPS disagrees with the comments in opposition to this proposal
and concludes that it does have the necessary legal authority for the
closure provision as proposed. However, after reviewing the comments
and further consideration of the proposal, we have determined that the
proposed regulation is simply redundant with respect to the existing
regulatory authorities pertaining to closures under 36 CFR 1.5 and 1.7.
Accordingly, NPS has chosen not to promulgate this regulation but to
instead continue to utilize existing regulations when wildlife closures
are required.
The Department in 1986 concluded that the NPS regulations at 36 CFR
1.5 were not superceded by section 1110(a) and its implementing
regulations:
* * * Our review of section 1110(a) leads us to conclude that
the closure of areas to the authorized uses (snowmachines,
motorboats, airplanes, and nonmotorized surface transportation
methods) should occur only under standards of the law which this
section is to implement. Accordingly, the final regulations have
been amended to provide that no closure to any use authorized under
this section may be made unless the ``area manager determines that
the use would be detrimental to the values of the unit or area.''
It is Interior's view however, that these uses may be limited or
restricted pursuant to other applicable law. The Secretary of the
Interior has the authority in the areas administered by Interior to
close areas or restrict use for a variety of reasons, such as for
health and safety. We do not believe that the provisions of this
section of ANILCA were intended to preclude the Secretary from
utilizing other statutory authorizations to restrict these uses. The
proposed and interim regulations attempted to incorporate these
other laws and the standard stated above, for emergency closures.
After reconsideration of these closure provisions as a result of the
comments made about the standard for closure under section 1110(a),
Interior has determined that these regulations should be limited to
closures under the authority of that section. Accordingly, by,
limiting these regulations to closures authorized by section
1110(a), it was determined that the category of closure
``emergency'' was no longer necessary, and as such is covered by
other established authority. Regulations providing for the closure
of areas for reasons other than the provisions of section 1110(a)
include: For NPS, 36 CFR 1.5; for FWS, 50 CFR 25.21; and for BLM, 43
CFR 8364.
51 FR 31619, 31627-8 (September 4, 1986) (emphasis added).
Comment: The Alaska State Snowmachine Association and the Alaska
Outdoor Council question the legal authority of the NPS to permit the
Superintendent to make seasonal closures and take other actions to
protect wildlife and indicates that such authority is inconsistent with
ANILCA section 1110(a). The State of Alaska, Office of the Governor
recognized that NPS needs flexibility, but suggested the proposed rule
was too wide-ranging and offered several suggestions to limit the range
of the rule.
NPS response: The Department regulations at 43 CFR 36.11(h)(6)
explicitly provide that nothing in that section limits the authority of
the appropriate federal agency to restrict or limit uses of an area
under other statutory authority. The quote in the previous response
demonstrates that the Department has consistently maintained that the
closure provisions of 1.5 are available when appropriate and are not
preempted by the regulations implementing section 1110(a). The 1986
regulations recognize and confirm the responsibility of the NPS to
protect the resource values of the Park units in Alaska not only
through a finding of detriment to Park resources under section 1110(a),
but also, where applicable, the use of other closure authorities such
as those in 36 CFR 1.5.
For example, if NPS sought to close an area only to snowmachines
due to the detrimental effects of snowmachines to that area, that
closure must be implemented under the section 1110(a) regulations (43
CFR 36.11(h)). However, if high avalanche danger necessitated closing
an area to all entry or use (thereby including snowmachines), such a
closure can be appropriately implemented in accordance with 36 CFR 1.5
and 1.7. Similarly, closing an area to all uses under 36 CFR 1.5 for
resource protection purposes is permissible so long as the closure is
reasonable under the given circumstances. Most uses of this closure
authority in the past within the Park have occurred during the summer
visitor season and are unrelated to section 1110(a) access issues.
Section-by-Section Analysis
36 CFR 5.2(b), 5.4(a) and 5.10(a)
To reflect the name change to the Park that occurred with the
enactment of ANILCA, the rule changes the name of the Park, as it
appears in these sections, from Mount McKinley National Park to Denali
National Park and Preserve (Pub. L. 96-487 section 202(3)(a), Dec. 2,
1980). In Sec. 5.4(a) the reference to ``McKinley Park Hotel'' in the
existing regulations is replaced with ``Denali Park Railroad Depot.''
This change reflects the fact that the 1996 Final Denali Entrance Area
and Road Corridor Development Concept Plan Environmental Impact
Statement (1996 Final Entrance and Road Plan), which was approved in a
1997 Record of Decision, adopted September 2001 as the closing date for
the hotel. The railroad depot, which is just across the road, is
substituted for the hotel because the depot will remain open. No change
is made to the regulatory content of the other sections.
36 CFR 13.2(c)
This section lists those Parks statutorily excepted from
applicability of the subsistence regulations found in Part 13, subpart
B. In the case of Denali, only part of the Park was statutorily
excepted (i.e., that ``core'' part formerly known as Mount McKinley
National Park, and referred to herein as the ``Old Park'') (Pub. L. 96-
487, section 202(3)(a), Dec. 2, 1980). The rule revises this section to
use that terminology to clarify the meaning of the current Sec. 13.2(c)
phrase ``* * * and parts of Denali National Park.'' The new language
more clearly specifies the intended area and does not change the
regulatory application of the section.
36 CFR 13.63(d), Denali Park Road: Motor Vehicle Traffic
This rule codifies the 1986 Denali National Park and Preserve
General Management Plan (GMP) motor vehicle use level of 10,512 vehicle
round trips on the Denali Park road west of the Savage River from
Memorial Day weekend through mid-September.
[[Page 37875]]
Consideration of factors such as natural resource protection (including
maintaining the opportunity for unparalleled wildlife watching), road
wear and maintenance, environmental impacts and traffic safety led to
this limit. The 1997 Final Entrance Area and Road Corridor Development
Concept Plan considered these issues and called for retaining the
annual season motor vehicle traffic level (10,512) as established in
the 1986 GMP. Public comment on the draft development concept plan,
which was designed to be applicable for 10-15 years, indicated
widespread support for retaining the GMP level.
Because a portion of the motor vehicle traffic on the Denali Park
road is destined for commercial lodges and other private inholdings in
Kantishna at the western end of the road, the proposed regulation
includes consideration of the requirements of ANILCA section 1110(b).
ANILCA section 1110(b) affords inholders such rights as may be
necessary to ensure adequate and feasible access to their land for
economic and other purposes, subject to reasonable regulations that
protect the natural and other values of the conservation system unit.
Therefore, this section would be implemented with consideration of, and
in compliance with, 43 CFR 36.10 (Access to Inholdings).
The primary visitor attraction at the Park is the unparalleled
array of Alaska wildlife regularly seen from the Denali Park Road and
the opportunity to see natural predator-prey interactions. In 1972, to
ensure that the increasing number of visitors would continue to see
grizzly bears, caribou, moose, Dall sheep, the occasional wolf, as well
as other species of Alaska wildlife in their natural habitat, the
National Park Service developed a shuttle bus system that replaced most
of the private vehicular traffic with buses capable of transporting
more passengers. Concurrently, general private vehicular traffic was
limited to the easternmost 15 miles of the 88-mile Park road. Adding
additional traffic to the road, especially private vehicular traffic,
has been shown to displace wildlife. Private vehicle use causes the
greatest disturbance because the vehicles can stop at will and
passengers approach wildlife on foot. Although bus passengers may
choose to be dropped off at any safe point along the road, when
wildlife is near, passenger discharge is controlled to avoid conflicts
with, and displacement of, wildlife. Accordingly, opportunities for
viewing and photographing wildlife abound while the bus is stopped for
those purposes.
Traffic safety is also a significant factor for limiting use to the
GMP allocation. Park visitors consistently support the NPS decision to
maintain most of the Denali Park Road in its rustic, historic
condition. The character of the Park road and its relationship with the
landscape through which it passes are integral to the visitor
experience at Denali. Consequently, 72 miles of the road are graded
gravel, much of which varies between one and one-and-one-half lanes
wide. As the road traverses scenic mountain passes between broad river
valleys, it often dips and climbs and winds as it clings precipitously
to the mountains' supporting contours. The road, which was originally
designed for 1930s era vehicles and levels of use, now accommodates
larger traffic levels--a mix of large tour and shuttle buses, private
vehicles for inholder access, park administrative and maintenance
traffic, and service vehicles traveling to Kantishna lodges.
National Park Service concern over traffic safety is also based on
bus accidents that have occurred in 1969, 1974, 1981 and 1989, and that
have resulted in six fatalities and numerous serious injuries to park
visitors. The historic character of the road warrants special attention
to safety procedures for its use. Known locally as the ``Rules of the
Road,'' practices such as driving with lights on and specific
procedures for yielding to buses have developed through time. NPS will
hereafter apply these practices as a term and condition of a permit to
operate a vehicle on the restricted access section of the Denali Park
Road.
This rule provides the superintendent with the regulatory authority
to annually evaluate anticipated-use requirements and to reasonably
apportion motor vehicle permits for the restricted access section of
the road among authorized users. Specific allocations for Kantishna
motor vehicle traffic will help ensure long-term protection of the
current visitor experience and of wildlife populations along the road
corridor. Motor vehicle permits for present and future Kantishna
businesses would be reallocated in accordance with proposed section
13.63(d)(2) within the annual limit of 10,512 permits. A total of 1,360
vehicle round trips for Kantishna inholders are authorized, comprising
13 percent of all annual traffic. This total includes all Kantishna
traffic (individual inholders, mining claim owners, lodges and others).
As mining claims continue to be acquired by the federal government,
some Kantishna traffic will decrease. Kantishna businesses can also
continue using both the Kantishna airstrip and the NPS visitor
transportation system buses for guest access, as well as operate buses
and other vehicles on the Park road as allocated below. The current
number of round trips during the visitor season for the existing
businesses are:
Denali Backcountry Lodge: 315.
Kantishna Roadhouse: 420.
Northface Lodge/Camp Denali: 315.
Each business may determine the type of vehicle use to best suit
their needs. However, recreational vehicle (RV) travel (motor homes,
trailers, and campers) for the purpose of transporting guests to and
from Kantishna businesses is not permitted. Motor vehicle permits will
not be transferable from one business operation to another.
Additionally, when a business is sold to a different entity, National
Park Service will re-evaluate the access requirements of the new
entity. If a business ceases to operate, or changes dramatically, it is
intended that the superintendent would re-allocate the permits. The
National Park Service intends to retain the established limit for an
individual Kantishna business for 12 months after the sale of the
business while access requirements of the new owner are being
evaluated.
36 CFR 13.63(g), Firearms
The rule establishes a seasonal closure to the discharge of
firearms on public lands in the developed area of Kantishna, except for
the protection of life or property. The closure applies on: the
Kantishna Airstrip; the approximately 4.5 mile-long State Omnibus Act
Road right-of-way, and; all public lands located within one mile of the
Kantishna Airstrip or the State Omnibus Act Road right-of-way (within
the Park addition area surrounding Kantishna).
The closure is effective seasonally beginning the Saturday of
Memorial Day weekend through the second Thursday following Labor Day,
or September 15, whichever comes first. This period is the time of
heaviest overlap between subsistence hunting and other seasonal visitor
activities in the Kantishna area. The purpose of the closure is to
reduce the level of risk of firearm-related injury inherent in heavy
use areas without unduly affecting authorized subsistence uses. The
restriction does not apply on private property. This closure follows
consultation with the State of Alaska.
[[Page 37876]]
36 CFR 13.63(h), Snowmachines (Snowmobiles)
The rule defines ``traditional activities,'' as the term is used in
the Alaska National Interest Lands Conservation Act (ANILCA) section
1110(a) and 43 CFR 36.11, for the portion of Denali National Park and
Preserve formerly known as Mount McKinley National Park (Old Park). For
that area only, traditional activity is: an activity that generally and
lawfully occurred in the Old Park contemporaneously with the enactment
of ANILCA, and that was associated with the Old Park, or a discrete
portion thereof, involving the consumptive use of one or more natural
resources of the Old Park such as hunting, trapping, fishing, berry
picking or similar activities. Recreational use of snowmachines was not
a traditional activity. If a traditional activity generally occurred
only in a particular area of the Old Park, it would be considered a
traditional activity only in the area where it had previously occurred.
In addition, a traditional activity must be a legally permissible
activity in the Old Park.
The rule closes the former Mount McKinley National Park to all
snowmachine use. The closure does not affect the Park's four-million-
acre ANILCA additions where snowmachine use is permitted for
traditional activities and for travel to and from villages and
homesites, subject to reasonable regulations. (43 CFR 36.11(c)). The
rule also requires the superintendent to determine that snow cover is
adequate in order to protect the underlying vegetation and soils before
seasonally opening the latter areas. This determination is necessary to
prevent damage to soils and exposed vegetation and is similar to a
provision at the Kenai National Wildlife Refuge (50 CFR 36.39(i)(4)(i))
which NPS understands has worked well since 1986. (See also, Denali
State Park, 11 AAC section 20.425). NPS again notes that where
snowmachine activity is presently authorized by section 1110(a), that
activity is subject to the regulations found at 36 CFR 2.18(a), (b),
(d) and (e).
A copy of the June, 2000, Statement of Finding prepared in
connection with this rule and maps of the affected area can be obtained
by visiting the Park's web site at www.nps.gov/dena/statement.htm or by
writing or calling the superintendent at the address or number printed
at the top of this rule.
Drafting information. The primary authors of this rule are Ken
Kehrer, Jr., Mike Tranel, Joe Van Horn, Steve Carwile and Russel J.
Wilson, Denali National Park and Preserve; Lou Waller and Paul Hunter,
NPS Alaska Support Office also contributed.
Compliance With Laws, Executive Orders and Department Policy
Regulator Planning and Review (Executive Order 12866)
This rule is a significant rule and has been reviewed by the Office
of Management and Budget under Executive Order 12866. This rule will
not have an effect of $100 million or more on the economy. It will not
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities. The NPS has prepared a
Final Cost-Benefit Analysis that is available from the Denali National
Park and Preserve superintendent. Based on this analysis, the NPS
anticipates positive net benefits such as: increased public safety;
improved public understanding of Park regulations; and, continued
protection of wildlife, preservation of natural interactions among
wildlife, and the minimization of habitat disturbances that contributes
to visitors' use and enjoyment of Park resources. This rule will not
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency. The rule does not alter the
budgetary effects, entitlements, grants, user fees, loan programs or
the rights or obligations of their recipients. The rule may raise novel
legal or policy issues, however, the primary effect of the proposed
action is to consolidate in the Code of Federal Regulations or
otherwise clarify requirements that already exist under separate NPS
authorities.
Regulatory Flexibility Act
The Department of the Interior has determined that this regulatory
action will not have a significant economic effect on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). The primary effect of this action is to consolidate in
the Code of Federal Regulations or otherwise clarify requirements that
already exist under separate authorities. Only one of the requirements
addressed by the action is new. The new requirement would apply
specific ``Rules of the Road'', such as driving with lights on and
following procedures for yielding to buses, as a permit condition for
vehicle use on the restricted access section of the Denali Park Road.
This new requirement is not anticipated to inconvenience drivers or
otherwise adversely impact any small entity. Substantial areas exist
nearby where Park users can go who may be displaced as a result of
firearms and snowmachine closures in this proposed action. The wide
availability of such substitute-use areas would lessen, or eliminate,
any impact on Park users, including small entities. The only direct
compliance cost that would be imposed by this proposed action is the
requirement to provide drivers license information, vehicle license
plate information, and a vehicle description for purposes of issuing a
permit to operate a motor vehicle on the restricted access section of
the Denali Park Road. That requirement is not anticipated to impose
significant costs on the public, including small entities. No other
direct compliance costs would be imposed. Therefore, significant
impacts on small entities are not expected from this proposed action.
A qualitative Cost-Benefit Analysis was done and indicates positive
net benefits for each component of the regulatory action. Two specific
components that had the most public interest were the snowmobile and
the road regulations. The road regulations codified the existing trip
limits and the ``Rules of the Road''. The trip limits have been in
effect since the 1986 general management plan and are sufficient to
provide adequate and feasible access for the private holdings in
Kantishna along with the current levels of Park visitors. The benefits
exceed the potential costs in this case since this action protects the
premier wildlife watching that is the main reason the public comes to
the Park and local businesses. The ``Rules of the Road'' have been in
place for years and most drivers already follow them. The codifying of
these rules will improve safety and reduce accidents. The snowmobile
regulation reinstates a closure of the Old Park to snowmachine use.
There will be very little cost associated with this regulation since
almost no snowmachine activity has taken place in the Old Park since it
was created 83 years ago. There is very little commercial snowmachine
operation in the area and there will be some benefits to the local dog
mushing and skiing operations. Therefore both of these components will
have a net economic benefit (see the Final Cost-Benefit Analysis that
is available from the Denali National Park and Preserve
superintendent).
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business
[[Page 37877]]
Regulatory Enforcement Fairness Act. This rule does not have an annual
effect on the economy of $100 million or more; will not cause a major
increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies, or geographic regions;
and does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises. The
primary effect of this action is to consolidate in the Code of Federal
Regulations or otherwise clarify requirements that already exist under
separate NPS authorities. Copies of a Final Cost-Benefit Analysis are
available from the Denali National Park and Preserve superintendent.
The analysis found that no significant costs would result from this
action.
Unfunded Mandates Reform Act
The NPS has determined and certifies pursuant to the Unfunded
Mandates Reform Act (2 U.S.C. 1502 et seq.), that this rule will not
impose a cost of $100 million or more in any given year on local, state
or tribal governments or private entities. Copies of a Final Cost-
Benefit Analysis are available from the Denali National Park and
Preserve superintendent. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required. The rule applies only to Federal Park land and there
should be no cost to the State from any of these regulations. The State
was consulted on the topics that were of mutual concern. The NPS
determined that there are no effects to any Federally recognized
tribes.
Takings (Executive Order 12630)
In accordance with Executive Order 12360, the rule does not have
significant takings implications. The primary effect of this proposed
action is to consolidate in the Code of Federal Regulations or
otherwise clarify requirements that already exist under separate NPS
authorities. A takings implication assessment is not required.
Federalism
In accordance with Executive Order 13132, the rule does not have
federalism implications which warrant the preparation of a Federalism
Assessment. The substantive provisions of this rule apply mainly to the
portion of Denali National Park and Preserve that was formerly known as
Mount McKinley National Park which is under the exclusive jurisdiction
of the United States. The primary effect of this proposed action is to
consolidate in the Code of Federal Regulations or otherwise clarify
requirements that already exist under separate NPS authorities.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and does not meet the requirements of sections 3 (a)
and 3(b)(2) of the Order.
Paperwork Reduction Act
This regulation requires an information collection from 10 or more
parties and a submission under the Paperwork Reduction Act is required.
The information collection requirements contained in this rule at
Sec. 13.63(d)(2) have been approved by the Office of Management and
Budget and assigned clearance number 1024-0026. This information is
being collected to solicit information that is necessary for the
Superintendent to issue vehicle permits. The public is being asked to
provide this information in order for the Park to track the number of
permits issued and to whom they are issued. The information will be
used to grant administrative benefits. The obligation to respond is
required to obtain a benefit.
Specifically, the NPS needs the following information to issue the
permit:
(1) Drivers license number and State of issue.
(2) Vehicle license plate number and State.
(3) Vehicle description, including year, make and model.
The public reporting burden for the collection of information in
this instance is estimated to be 0.10 hours per response, including the
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed and completing and reviewing
the collection of information. This would make a total of about 25
hours annually.
National Environmental Policy Act
NPS has determined that most aspects of this rulemaking, with the
exception of the portion concerning a snowmachine closure, have been
previously addressed pursuant to the National Environmental Policy Act,
42 U.S.C. 4332, in environmental documents prepared in conjunction with
Park management plans. These are the environmental assessments prepared
in conjunction with the Park General Management Plan which was approved
in a 1986 Finding of No Significant Impact, or the environmental impact
statement prepared in conjunction with the Denali Entrance Area and
Road Corridor Development Concept Plan which was approved in a 1997
Record of Decision. Copies of these documents are available from the
Denali National Park and Preserve superintendent.
An environmental assessment (EA) was prepared by the NPS, in
accordance with NEPA and its implementing regulations at 40 CFR 1508.9,
on a proposed special regulation to permanently close the Old Park to
snowmachine use. The EA was released for 60 days of public comment on
November 9, 1999. The EA evaluated four alternatives: (1) No action, a
continuation of snowmachine use for traditional activities in the Old
Park; (2) closing all but a 180,000 acre area in the southeast part of
the Old Park to snowmachine use for traditional activities; (3)
instituting a series of temporary closures to the use of snowmachines
in the Old Park by use of the procedures required in Section 1110(a) of
ANILCA, including hearings in the vicinity and a published finding of
detriment, and (4) permanently closing the Old Park to snowmachine use
via a special regulation and a regulatory definition of ``traditional
activities.'' A Finding of No Significant Impact (FONSI)was approved on
June 6, 2000. The environmental consequences of the snowmachine use
closure in the old Mount McKinley National Park are minimal and are
documented within the Environmental Assessment for the Permanent
Closure of the Former Mt. McKinley National Park to Snowmachine Use and
the FONSI. The action is also in the scope of the impacts anticipated
in the approval given for the Park's General Management Plan in 1986.
A Summary Evaluation and Findings, pursuant to Section 810(a) of
ANILCA, was attached to the Environmental Assessment for the Permanent
Closure of the Former Mt. McKinley National Park to Snowmachine Use to
document the impacts of a closure and alternatives on subsistence
activities within the area. Lands in the Former Mount McKinley National
Park are closed to subsistence activities; and, therefore, the analysis
concluded that a closure would not result in a significant restriction
to subsistence uses. Copies of these documents are also available from
the Denali National Park and Preserve superintendent.
[[Page 37878]]
List of Subjects
36 CFR Part 5
Alcohol and alcoholic beverages, Business and industry, Civil
rights, Equal employment opportunity, National parks, Transportation.
36 CFR Part 13
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the NPS amends 36 CFR Chapter I,
Parts 5 and 13 as follows:
PART 5--COMMERCIAL AND PRIVATE OPERATIONS
1. The authority citation for part 5 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 17j-2, 462.
Sec. 5.2 [Amended]
2. In Sec. 5.2(b) introductory text, the words ``Mount McKinley''
in the first sentence are revised to read ``Denali''.
Sec. 5.4 [Amended]
3. In Sec. 5.4(a) introductory text, the words ``Mount McKinley
(prohibition does not apply to that portion of the Denali Highway
between the Nenana River and the McKinley Park Hotel)'' in the first
sentence are revised to read, ``Denali National Park and Preserve
(prohibition does not apply to that portion of the Denali Park road
between the Highway 3 junction and the Denali Park Railroad Depot)''.
Sec. 5.10 [Amended]
4. In Sec. 5.10(a) the words ``Mount McKinley'' in the first
sentence are revised to read, ``Denali''.
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
5. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; Sec. 13.65 also
issued under 16 U.S.C. 1a-2(h), 20, 1361, 1531, 3197; Pub L. 105-
277, 112 Stat. 2681, October 21, 1998; Pub. L. 106-31, 113 Stat. 57,
May 21, 1999.
Sec. 13.2 [Amended]
6. In Sec. 13.2(c), the words ``and parts of Denali National Park''
are revised to read ``the former Mt. McKinley National Park''.
7. Section 13.63 is amended by adding paragraphs (d), (g) and (h)
to read as follows:
Sec. 13.63 Denali National Park and Preserve.
* * * * *
(d) Operation of motor vehicles on the Denali Park road west of the
Savage River--(1) Do I need a permit to operate a motor vehicle on the
Denali Park road west of the Savage River? Yes, you must obtain a
permit from the superintendent to operate a motor vehicle on the
restricted section of the Denali Park road. The restricted section
begins at the west end of the Savage River Bridge (mile 14.8) and
continues to the former Mt. McKinley National Park boundary north of
Wonder Lake (mile 87.9).
(2) How many permits will be issued each summer? The superintendent
is authorized, under this section, to issue no more than 10,512 motor
vehicle permits each year for access to the restricted section of the
road. The superintendent will issue the permits for the period that
begins on the Saturday of Memorial Day weekend and continues through
the second Thursday following Labor Day or September 15, whichever
comes first. Each permit allows one vehicle one entry onto the
restricted portion of the Park road.
(3) How will the superintendent manage the permit program? (i) The
superintendent will apportion motor vehicle permits among authorized
users following the procedures in Sec. 13.31. Authorized users are
individuals, groups and governmental entities who are allowed by law or
policy to use the restricted section of the road.
(ii) The superintendent will establish an annual date to evaluate
permit requests and publish that date, along with the results of the
annual apportionment, in the superintendent's compendium of rules and
orders. The superintendent's compendium is available to the public upon
request.
(iii) The superintendent will re-evaluate the access requirements
of any business that is sold, ceases to operate or that significantly
changes the services currently offered to the public.
(4) What is prohibited? (i) No one may operate a motor vehicle on
the restricted section of the Park road without a valid permit.
(ii) No one may use a motor home, camper or trailer to transport
guests to a lodge or other business in Kantishna.
(iii) No one may transfer or accept transfer of a Denali Park road
permit without the superintendent's approval.
* * * * *
(g) Kantishna area summer season firearm safety zone--(1) What is
prohibited? No one may fire a gun during the summer season in or across
the Kantishna area firearm safety zone, unless they are defending life
or property.
(i) The summer season begins on the Saturday of Memorial Day
weekend and continues through the second Thursday following Labor Day
or September 15, whichever comes first.
(ii) The Kantishna Area firearm safety zone includes: the Kantishna
Airstrip; the State Omnibus Act Road right-of-way; and all public lands
located within one mile of the Kantishna Airstrip or the State Omnibus
Act Road right-of-way, from the former Mt. McKinley National Park
boundary at mile 87.9 to the south end of the Kantishna Airstrip.
(h) Snowmachine (snowmobile) operation in Denali National Park and
Preserve--(1) What is the definition of a traditional activity for
which Section 1110(a) of ANILCA permits snowmachines to be used in the
former Mt. McKinley National Park (Old Park) portion of Denali National
Park and Preserve? A traditional activity is an activity that generally
and lawfully occurred in the Old Park contemporaneously with the
enactment of ANILCA, and that was associated with the Old Park, or a
discrete portion thereof, involving the consumptive use of one or more
natural resources of the Old Park such as hunting, trapping, fishing,
berry picking or similar activities. Recreational use of snowmachines
was not a traditional activity. If a traditional activity generally
occurred only in a particular area of the Old Park, it would be
considered a traditional activity only in the area where it had
previously occurred. In addition, a traditional activity must be a
legally permissible activity in the Old Park.
(2) May a snowmachine be used in that portion of the park formerly
known as Mt. McKinley National Park (Old Park)? No, based on the
application of the definition of traditional activities within the park
to the factual history of the Old Park, there are no traditional
activities that occurred during periods of adequate snow cover within
the Old Park; and, thus, Section 1110(a) of ANILCA does not authorize
snowmachine access. Hunting and trapping were not and are not legally
permitted activities in the Old Park at any time of the year. Sport
fishing has not taken place in the Old Park during periods of adequate
snow cover due to weather conditions that are adverse to sport fishing,
and the limited fishery resources within the Old Park. During periods
of adequate snow cover, berry picking is not feasible, and has not
taken place in the Old Park. Under the definition, recreational use of
snowmachines is not a traditional activity. There are no villages,
homesites or other valid occupancies within the Old Park. Access by
snowmachine through the Old Park in transit to homesites, villages and
other valid occupancies was not lawful prior to the enactment of ANILCA
and is
[[Page 37879]]
available through routes outside the Old Park that have been
historically used for that purpose. Therefore, the use of snowmachines
is not authorized by section 1110(a) for such travel. Further, Congress
did not authorize subsistence activities in the Old Park. In addition,
the National Park Service has determined that the use of even a few
snowmachines in the Old Park would be detrimental to the resource
values of the area. Therefore, because no usage is authorized in the
Old Park by section 1110(a) the Old Park remains closed to all
snowmachine use in accordance with 36 CFR 2.18.
(3) Where can I operate a snowmachine in Denali National Park and
Preserve? You can use a snowmachine outside of the Old Park for
traditional activities or travel to and from villages and homesites and
other valid occupancies as authorized by 43 CFR 36.11(c), or when
lawfully engaged in subsistence activities authorized by Sec. 13.46.
(4) What types of snowmachines are allowed? The types of
snowmachines allowed are defined in Sec. 13.1(q) under snowmachine or
snowmobile.
(5) What other regulations apply to snowmachine use? Snowmachine
use is governed by regulations at Sec. 2.18(a) of this chapter, traffic
safety, Sec. 2.18(b) of this chapter, state laws, and Sec. 2.18(d) and
(e) of this chapter, prohibited activities; and 43 CFR 36.11(a)(2)
adequate snow cover, and 43 CFR 36.11(c) traditional activities.
(6) Who determines when there is adequate snow cover? The
superintendent will determine when snow cover is adequate for
snowmachine use. The superintendent will follow the procedures in
Secs. 1.5 and 1.7 of this chapter to inform the public.
(7) Nothing in this section shall limit the authority of the
superintendent to restrict or limit uses of an area under other
statutory authority.
Dated: June 7, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-14754 Filed 6-16-00; 8:45 am]
BILLING CODE 4310-70-P
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