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| Montana Administrative Register Notice 12-553 | No. 9 05/13/2022 | |
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BEFORE THE FISH AND WILDLIFE COMMISSION OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 19, 2021, the Fish and Wildlife Commission (commission) published MAR Notice No. 12-553 pertaining to the public hearing on the proposed repeal of the above-stated rules at page 1609 of the 2021 Montana Administrative Register, Issue Number 22.
2. The commission has repealed ARM 12.11.6706 as proposed.
3. The commission has amended ARM 12.11.6702, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
12.11.6702 WALK/WADE SECTIONS OF MADISON RIVER
AUTH: 87-1-303, MCA IMP: 87-1-303, MCA
4. The commission has thoroughly considered the comments and testimony received. A summary of the comments received and the commission's responses are as follows:
Comment 1: The commission received one comment inquiring if the repeal of walk/wade sections in ARM 12.11.6702 would repeal just the recent changes made in administrative rule or include the walk/wade sections that have been established on the Madison River for decades in the fishing regulations.
Response 1: This comment and phone calls with similar questions prompted the department to evaluate the intent of the work group and the possible unintended consequences of the proposed repeal of ARM 12.11.6702. Instead of repealing the walk/wade sections that were adopted in administrative rule, the commission chose to amend ARM 12.11.6702, adopting the walk/wade sections that have been established in the fishing regulations for decades. The amendments to ARM 12.11.6702 will result in the administrative rule and the fishing regulations having the same language, which will prevent any confusion as to whether fishing from a boat is prohibited or not and in which sections.
Comment 2: The commission received several comments inquiring about the Madison River Work Group. The comments asked about the composition of the Madison River Work Group, how to become a member, and where to find information about the work group meetings including minutes.
Response 2: ARM 12.11.6710 states the Madison River Work Group will consist of three commercial outfitters with a current Madison River Special Recreational Use Permit, three non-commercial Madison River users, two individuals with a Madison Valley business interest not connected to commercial outfitting, one member trained in natural resources management and not currently working for the Department of Fish, Wildlife and Parks, one representative from the Fish and Wildlife Commission, one representative from the Bureau of Land Management, and one at-large member whose selected qualities are largely outside the above descriptions for other work group members. The members of the working group are appointed for three years.
The commission selected the members from a pool of applicants. If a vacancy should occur, the commission will solicit for applicants that meet the required position that is vacated. The commission will solicit for applicants prior to the three-year term of the current members expires.
Minutes are not kept for work group meetings; however, recordings of the meetings and all other information regarding the work group is available on the Department of Fish, Wildlife and Park's website: https://fwp.mt.gov/aboutfwp/madison-river-workgroup.
Comment 3: The commission received almost 200 comments opposed to repealing ARM 12.11.6702 and 12.11.6710 stating the rules were a collaborative effort of several groups to address crowding on the Madison River and to protect the fishery, the representation that there is no support for these rules is incorrect, repealing the rules before they are implemented will circumvent the intent of the rules, and the rules should be implemented and studied before further action is taken.
Response 3: In 2020, the commission proposed rule language based on two petitions submitted by various sportsmen groups, that was adopted as the Madison River Recreation Management rules. As part of that collaborative effort, the commission adopted ARM 12.11.6710 establishing the Madison River Work Group. The work group is responsible for considering and recommending rules or changes to rules for the Madison River.
The commission is aware of the concerns surrounding crowding. ARM 12.11.6705 capped commercial use at the number of trips reported in 2019 or 2020, whichever is higher. The commission is maintaining the commercial use cap. In addition, ARM 12.11.6701 requires all users recreating on the Madison River, whether commercial or non-commercial, to report their use as prescribed by the department. The information provided by these reports will help guide future management decisions.
The commission is dedicated to protecting the fishery of the Madison River and the state of Montana. The Department of Fish, Wildlife and Parks (department) monitors the fish populations within the state and if necessary, will take any proposals to the commission including any potential fishing regulation changes.
When the Madison River Recreation Management rules were proposed in 2020, the commission received comments in support and in opposition of the rules. Similarly, the commission received comments supporting and opposing the proposed repeal of the walk/wade sections and the rest/rotation sections. The commission reads and evaluates all comments received as part of making a reasoned and informed decision. It is not a vote or a tally. The work group members recommended repealing the rules because they received reports and comments at their meetings indicating a lack of support.
An unintended consequence of the proposed repeal of ARM 12.11.6702, was confusion as to whether the long-established walk/wade sections found in the fishing regulations would remain. It was the work group's intention for the walk/wade sections listed in the regulations to remain, and the sections established in the administrative rule to be removed. The commission amended ARM 12.11.6702, adopting the walk/wade sections that have been established in the fishing regulations for decades. The amendments to ARM 12.11.6702 will prevent confusion as to whether fishing from a boat is prohibited or not and in which sections because the administrative rule and the fishing regulations will have the same language.
Comment 4: The commission received multiple comments concerned with the amount of commercial use of the Madison River and its potential impacts.
Response 4: In 2021, the commission adopted ARM 12.11.6705, capping the total number of fishing outfitting and guided trips per individual outfitter and guide at the number of trips reported in 2019 or 2020, whichever is higher.
Comment 5: The commission received several comments inquiring about the work group's rationale for recommending repealing ARM 12.11.6702 and 12.11.6706 to the commission.
Response 5: The work group recommended repealing because they received reports and comments at their meetings indicating a lack of support for the rules as written.
Comment 6: The commission received almost 140 comments in support of repealing ARM 12.11.6702 and 12.11.6706. Most of the comments received regarding the repeal of ARM 12.11.6702, specifically voiced support for the walk/wade sections that have been established in the fishing regulations for decades. Several of the comments received stated that the rest/rotation sections will concentrate the use and increase the pressure in the open sections of the river causing the opposite effect of what the commission originally intended.
Response 6: The commission appreciates the public's participation in this rulemaking process, including those who support the proposed actions and those who oppose them. It was the work group's intention for the walk/wade sections found in the fishing regulations to remain and that the sections established in the administrative rule be removed. An unintended consequence of the proposed repeal of ARM 12.11.6702, was confusion as to whether the long-established walk/wade sections found in the fishing regulations would remain. To address this confusion, the commission amended ARM 12.11.6702, adopting the walk/wade sections that have been established in the fishing regulations for decades. The amendments to ARM 12.11.6702 will prevent confusion as to whether fishing from a boat is prohibited or not and in which sections because the administrative rule and the fishing regulations will have the same language.
The commission repealed ARM 12.11.6706 due to concerns that prohibiting outfitters and guides from conducting business from June 15 to September 30 on two sections of the river on the weekends would concentrate use into the open sections of the river on those days.
Comment 7: The commission received several comments opposed to repealing ARM 12.11.6706 because the rule provided a section a river free from commercial activity on the weekends. The comments expressed a preference for expanding this approach to more sections of the river and on additional days.
Response 7: The commission repealed ARM 12.11.6706 due to the concerns that prohibiting outfitters and guides from conducting business from June 15 to September 30 on two sections of the river on the weekends would concentrate use into the open sections of the river on those days.
Comment 8: The commission received comments stating rules should be adopted restricting commercial and non-commercial use.
Response 8: ARM 12.11.6701 requires all users recreating on the Madison River, whether commercial or non-commercial, to report their use as prescribed by the department. The information provided by these reports will help guide future management decisions and help to understand associated activities and impacts.
Comment 9: The commission received multiple comments opposed to repealing ARM 12.11.6702 and 12.11.6706, with some suggesting even more restrictions due to concerns of fish populations especially due to the recent failure of Hebgen Dam.
Response 9: The commission is dedicated to protecting the Madison River fishery. The department monitors the fish populations within the state and if necessary, the department will notify the commission of any concerns regarding the fish populations.
Comment 10: The commission received one comment stating an independent third party should select the members of the work group and that outfitters and guides should not be represented.
Response 10: In 2020, the commission adopted ARM 12.11.6710, establishing the Madison River Work Group as part of a collaborative effort with multiple sportsmen groups that submitted two separate petitions to address use of the Madison River. Membership of the work group was selected so that all interest groups would be represented.
Comment 11: The commission received one comment suggesting that the number of people on the river should be limited based on CFS (cubic feet per second) and temperature of the river.
Response 11: Pursuant to ARM 12.5.507, the department may implement angling restrictions or fishing closures due to high water temperatures or low water flows.
Comment 12: The commission received two comments stating boats should not be permitted in the walk/wade sections.
Response 12: The commission amended ARM 12.11.6702, adopting the long-established walk/wade sections that have been in the fishing regulations. For decades, the fishing regulations have defined "closed to fishing from boats/vessels" to mean, anglers may not fish from a boat or vessel, but may use a boat or vessel to access wade fishing opportunities. Neither the work group nor the commission considered changing the means of accessing these sections.
Comment 13: The commission received two comments expressing support for a river ambassador program to be implemented on the Madison River. The ambassador program can be used to collect information regarding the use of the river or assist with getting boats on and off the river faster.
Response 13: The work group has discussed the benefits of an ambassador program including assisting getting people on the river quicker; however, the work group has not presented any recommendations for an ambassador program to the commission for consideration.
Comment 14: The commission received one comment with concerns that the commission was not making science-based decisions.
Response 14: The commission's river recreation use rules require the commission to consider many things including biological and social information when adopting, amending, or repealing rules regarding recreational use on a river.
Comment 15: The commission received one comment requesting the regulations on the Madison River be enforced.
Response 15: The commission appreciates the feedback and has passed the concerns along to the department enforcement personnel.
Comment 16: The commission received two comments stating the department and commission do not have the authority to make or change laws by claiming them to be rules.
Response 16: The commission is provided the authority to adopt and enforce rules governing recreational uses of all public fishing reservoirs, public lakes, rivers, and streams that are legally accessible to the public, 87-1-303, MCA. The commission is not making or changing any laws through this or any other rulemaking process.
Comment 17: The commission received one comment suggesting that ARM 12.11.6702 be amended to allow for fishing from an inflatable craft.
Response 17: The commission amended ARM 12.11.6702, adopting the long-established walk/wade sections that have been in the fishing regulations. For decades, the fishing regulations have defined "closed to fishing from boats/vessels" to mean, anglers may not fish from a boat or vessel, but may use a boat or vessel to access wade fishing opportunities. Neither the work group nor the commission considered changing the means of accessing these sections.
Comment 18: The commission received one comment suggesting a restriction on the use of anchors on the Madison River upstream of Ennis Reservoir when an angler is fishing to prevent conflicts between wade anglers and float anglers.
Response 18: For decades, the fishing regulations have defined "closed to fishing from boats/vessels" to mean, anglers may not fish from a boat or vessel, but may use a boat or vessel to access wade fishing opportunities. The commission did not consider changing the means of accessing these sections.
/s/ Rebecca Dockter /s/ Lesley Robinson Rebecca Dockter Lesley Robinson Rule Reviewer Chair Fish and Wildlife Commission
Certified to the Secretary of State May 3, 2022.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
