BEFORE THE FISH, WILDLIFE AND PARKS COMMISSION

OF THE STATE OF MONTANA

 

In the matter of the adoption of new rules I through XV and the repeal of ARM 12.8.211 pertaining to commercial use of lands under the control of the department

) ) ) ) )

NOTICE OF ADOPTION AND REPEAL

 

TO: All Concerned Persons

 

1. On July 27, 2006, the Fish, Wildlife and Parks Commission (commission) published MAR Notice No. 12-322 regarding the public hearings on the adoption and repeal of the above-stated rules at page 1779 of the 2006 Montana Administrative Register, Issue No. 14.

 

2. The commission has adopted New Rule II (ARM 12.14.105), New Rule XII (ARM 12.14.155), and New Rule XV (ARM 12.14.170) of Alternative A exactly as proposed.

 

3. The commission has adopted the following new rules of Alternative A with the following changes, stricken matter interlined, new matter underlined:

 

NEW RULE I (ARM 12.14.101)  DEFINITIONS (1) "Allocation" means distributing limited use opportunities when a rationing system is in place.

(2) "Authorization" means written permission granted to a person or entity by the department to conduct commercial use.

(3) "Commercial use" means any person or entity that utilizes lands under the control, administration, and jurisdiction of the Montana Department of Fish, Wildlife and Parks for consideration. Commercial use includes any person, group, or organization, including nonprofit organizations and academic institutions, that makes or attempts to make a profit, vend a service or product, receive money, amortize equipment, or obtain goods or services as compensation from participants in activities occurring on lands that are is under the control, administration, and jurisdiction of the department. This includes nonprofit organizations and educational groups that receive money from participants in activities occurring on department land. This includes a person whose business operates on department land, regardless of that person’s physical presence at the site, but does not include a person who rents, sells, or otherwise provides equipment or merchandise that is used on department land unless the renting, selling, or providing of equipment or merchandise takes place on department land. Examples of commercial use that are governed by these rules include but are not limited to: trail rides, guided walks or tours, float trips, guided angling or hunting, game retrieval, professional dog training, equipment rentals, retail sales, food concessions, filming, firewood cutting, construction-related activities, research when accompanied by paying clients, or any combination thereof. This does not include persons or entities that transfer vehicles or people to or from a department owned or controlled site.

(4) "Commission" means the Department of Fish, Wildlife and Parks Commission of the state of Montana.

(5) "Concession service" means a commercial business that provides multiple services or products on department land. Examples include but are not limited to marinas, lodging, equipment rental or sales, retail sales, and food services.

(6) "Consideration" means something of value given or done in exchange for something of value given or done by another.

(7) "Department" means the Department of Fish, Wildlife and Parks of the state of Montana.

(8) "Educational group" means an organized group that is officially recognized as an educational or scientific institution by a federal, state, or local government entity. Documentation of this recognition must be on institutional letterhead and include a signature by the head of the institution/department and documentation of official educational or scientific tax exemption as granted by the Internal Revenue Service.

(8)(9) "Fishing access site" means a site or area designated by the department as a fishing access site.

(10) "Mitigation" means an enforceable measure, within the authority of the agency or mutually agreed to by the permit holder that is designed to reduce or prevent undesirable effects or impacts of the proposed use.

(9)(11) "Ration" means to regulate use intensity by limiting the amount of use on a site.

(10)(12) "Restricted water body" means a body of water regulated by special department rules governing commercial or public use, such as rules that restrict the timing, location, amount, or type of commercial use that occurs. "Restricted water body" may also means a body of water that is cooperatively managed with another agency under a cooperative management agreement with another agency concerning commercial use.

(11)(13) "Site" means an individual unit of land, or portion thereof, owned or managed by the department.

(12)(14) "State park" means a site or area designated by the department as a state park.

(13)(15) "Water-based outfitter or guide" means any person who for consideration provides nonhunting, water-related recreation services or supervises someone providing these services. This includes fishing outfitters and guides that are licensed by the state of Montana, and nonfishing water-based outfitters and guides service providers that are not licensed by the state of Montana.

(14) (16) "Wildlife management area" means a site or area designated by the department as a wildlife management area or a wildlife habitat protection area.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE III (ARM 12.14.110)  EXCEPTIONS TO APPLICABILITY OF COMMERCIAL USE RULES (1) These commercial use rules do not apply to commercial activities or uses that are initiated or invited by the department for the purpose of manipulating, enhancing, or otherwise improving the habitat of a site. Such uses shall continue to be governed by the department’s land lease-out policy. Examples include but are not limited to livestock grazing, farming, haying, fencing, and timber harvest.

(2) These commercial use rules do not apply to the leasing of department

lands for communication towers, utility easements, and granting of right-of-way. These types of commercial use shall continue to be governed by the department’s land lease-out policy.

(3) These commercial use rules do not apply to the leasing of department oil and gas reserves. These uses shall continue to be governed by the department’s oil and gas reserves leasing policy.

(4) These commercial use rules do not apply to the transferring of vehicles or people to or from a department site.

(5) These commercial use rules do not apply to the collection of antlers.

(6) These commercial use rules do not apply to trapping or commercial activities under Title 87, chapter 4, parts 2 through 10, MCA (87-4-201, MCA; etc.). (Ttaxidermists, fur dealers, alternative livestock, shooting preserves, fish ponds, sale of game, menageries and zoos, game bird farms, and fur farms), except commercial dog training and field trials conducted for commercial purposes.

(7) These commercial use rules do not apply to the press or the news media when photographing, filming, or reporting on activities that occur on department land.

(8) These commercial use rules do not apply to consignment sales when the department sells merchandise on behalf of a business and a portion of the revenue is allocated to the department.

(9) These commercial use rules do not apply to commercial activities or uses that are initiated or invited by the department for the purpose of addressing public safety concerns. Examples include but are not limited to hazardous tree removal and fuel reduction efforts to reduce fire danger.

(10) These commercial use rules do not apply to fishing tournaments conducted by nonprofit organizations.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE IV (ARM 12.14.115)  GENERAL POLICY (1) Department lands belongs to the people of Montana and the department manages these sites and associated resources in trust for the benefit of current and future generations of the people. The department’s primary responsibility responsibilities is are to provide benefits to the public from these sites and to maintain or enhance the resources of these sites and to provide benefits to the public from these sites, now and in the future.

(2) Some types of commercial use can help the department to achieve its resource management goals and/or provide desired services to the public when properly managed. Commercial use must be managed to ensure that the commercial use does not conflict with, or detract from, public use prevent or minimize conflicts with the public and the intended purposes of a site.

(3) Commercial use on department lands is a privilege, not a right. Authorization to conduct commercial use may be denied, amended, or revoked at any time for cause. Historical commercial use of a site does not convey a right to conduct commercial use in the future and does not guarantee that the department shall allocate opportunities for commercial use if rationing becomes necessary. If it becomes necessary to ration and allocate commercial use, the department is not required to allocate opportunities based on historical use of a site.

(4) The department may prohibit, restrict, condition, or otherwise manage commercial use, including placing stipulations on the type, timing, location, duration, and quantity of commercial use, for the purposes of:. Reasons for prohibiting, restricting, conditioning, or otherwise managing commercial use include but are not limited to:

(a) protecting resources or mitigating impacts to resources;

(b) preventing or minimizing conflicts with the intended purpose for which the department acquired, maintains, or manages a site;

(c) preserving the public’s ability to recreate on or otherwise use a site;

(d) providing for the public’s safety and welfare; or

(e) other purposes identified by the department.

(5) Restrictions, including prohibitions, rationing, and allocation on water-based outfitters and guides on rivers and fishing access sites shall be governed by the department’s statewide river recreation rules.

(6) The purpose and management objectives can vary from one type of department land to another and from one site to another. The public’s use and expectations can vary from one type of department land to another and from one site to another. The opportunities to conduct commercial use may be different depending upon where the use would occur, and the department may develop policies that provide additional guidance for managing commercial use at fishing access sites, state parks, wildlife management areas, and other department lands.

(7) The department may establish special criteria for a particular site or prohibit commercial use altogether based on the management objectives and conditions of that site.

(8) If a management plan has been written for a site and the management plan is more restrictive than these commercial use rules, the management plan takes precedence.

(9) (8) The department may prohibit or condition commercial use that would displace the general public. The department may temporarily alter public use opportunities at fishing access sites and state parks to accommodate commercial use on a case-by-case basis in the interest of public safety and security or when there is the potential for short-term conflicts.

(10) (9) The department must comply with federal aid requirements when authorizing commercial use on department lands purchased or managed with federal aid.

(11) (10) Commercial hunting outfitting is prohibited on all department lands and on water bodies that are located entirely within the boundaries of department lands. Commercial fishing outfitting is prohibited on all wildlife management areas. This does not apply to The department may authorize commercial use that is solely for the purpose of assisting the public in the retrieval of legally harvested game animals. The department may authorize a commercial hunting outfitter to:

(a) travel on a designated trail across department land solely for the purpose of gaining access to federal lands where the commercial hunting outfitter is authorized to conduct use; and

(b) use a fishing access site solely for the purpose of gaining access to water bodies where the commercial hunting outfitter is authorized to conduct use.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE V (ARM 12.14.120)  COMMERCIAL USE PERMITS (1) A permit is required in advance to conduct commercial use on lands under the control, administration, and jurisdiction of the department. The department may waive the commercial use permit requirement if the person is authorized under some other form of permit or contract issued by the department or other government agency.

(2) The department administers two types of commercial use permits:

(a) fishing access site permit; and

(b) restricted use permit.

(3) The department may issue a commercial use permit to a person as an individual, or as a representative of an entity, or business. When authorizing water-based fishing outfitting or guiding, the department may only issue the permit to a licensed outfitter or guide. The applicant must obtain all other licenses or permits required by state or federal law in order to receive a commercial use permit.

(4) A commercial use permit is not a property right and may be revoked, amended, or suspended at any time for cause. The recipient of a commercial use permit is not guaranteed future use of the permit. Causes for revoking, amending, or suspending a permit include but are not limited to the following:

(a) failure to comply with the commercial use rules;

(b) failure to pay required permit fees;

(c) falsifying records of use;

(d) failure to comply with the terms of the permit;

(e) failure to comply with state or federal rules or laws pertaining to resource and land management;

(f) failure to obtain other required state or federal permits;

(g) impacts on resources or the public; or

(h) changing conditions or management objectives at a site.

(5) The availability, terms, and conditions of a commercial use permit may vary based on the regulations and management plan in place at the site where the use would occur. The department may refuse applications for a permit if the use would occur at a site where commercial use is rationed and there are no additional opportunities to conduct such use.

(6) The department may require commercial users to report their use of department lands. The department may require commercial users to maintain and have on their person for department inspection a logbook for recording commercial use. The department shall include specific reporting requirements as permit or contract stipulations.

(7) A commercial use permit and any associated units of use may only be used by the holder of the permit. The permit holder may not sell, lease, or rent the permit, or otherwise receive compensation from another person for the opportunity to use the permit. The permit holder may hire or contract persons to provide authorized services provided that said persons do not recruit clients, make agreements with clients concerning monetary consideration or services provided, collect fees from clients, or advertise any business other than the permitted business when conducting the permitted use. The permit holder is responsible for ensuring that the persons hired or contracted comply with the terms of the permit.

(8) The permit holder may pay an agent to recruit clients, make arrangements with clients concerning monetary consideration or services provided, and collect fees from clients provided that the agent does not conduct the authorized services.

(8) (9) A commercial use permit is not transferable and is void when a business is sold or transferred. Upon the sale or transfer of a permitted business, the person selling the business shall notify the new owner that the new owner is required to obtain a new commercial use permit pursuant to this subchapter.

(9) The recipient of a commercial use permit may not sell, lease, rent, or otherwise receive compensation from another person or entity for the opportunity to use the permit or associated use units.

(10) If the recipient of a commercial use permit sells or transfers their permitted business in its entirety in entirety the part of his/her business that is operated under that commercial use permit, the department shall issue a new commercial use permit to the new owner so long as they the seller has remitted all fees due to the department and so long as the buyer has obtained all other licenses or permits required by state or federal law, and agrees to the terms of the permit. The new permit shall have the same expiration date as the seller’s permit. Any rationed units of use that have been allocated to the seller shall be transferred to the new owner of that business. Upon the sale or transfer of a permitted business, the person selling or transferring the business shall notify the new owner that the use of rationed units of use is subject to change pursuant to rules adopted by the commission and that no property right attaches to the rationed units of use.

(11) A person selling or transferring a business is no longer eligible to receive a restricted use permit unless he/she acquires another permitted business in its entirety. If the recipient of a commercial use permit sells or transfers in entirety the part of their business that operated under that commercial use permit, any rationed units of use that were previously allocated to the seller shall be reallocated to the new owner of that business. Upon the sale or transfer of a permitted business, the person selling or transferring the business shall notify the new owner that the use of rationed units of use is subject to change pursuant to rules adopted by the commission and that no property right attaches to the rationed units of use.

(12) The recipient of a commercial use permit may not sell, lease, rent, or otherwise receive compensation from another person for the opportunity to use client days or other allocated units of use, temporarily or permanently except that Smith River outfitters may lease, rent, or otherwise receive compensation from another Smith River outfitter for the opportunity to use a Smith River outfitter launch within a single use season.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE VI (ARM 12.14.125)  FISHING ACCESS SITE PERMIT (1) A fishing access site permit is required to conduct water-based outfitting and guiding at fishing access sites and other department land that provides access to a nonrestricted water body.

(2) A fishing access site permit is required to conduct water-based guiding at fishing access sites and other department land that provides access to water bodies.

(2) (3) A fishing access site permit authorizes a water-based outfitter to conduct water-based outfitting at any fishing access site or other department lands in the state that provides access to a nonrestricted water body unless the department specifies that a restricted use permit is required for that site. A water-based outfitter must obtain a restricted use permit to conduct water-based outfitting at a fishing access site or other department land that provides access to a restricted water body.

(3) (4) A fishing access site permit authorizes a water-based guide, operating under the authority of a water-based outfitter, to conduct water-based guiding at any fishing access site or other department land for which the outfitter is authorized to conduct use in the state that provides access to a nonrestricted water body. A water-based guide must obtain a restricted use permit to conduct water-based guiding at a fishing access site that provides access to a restricted water body.

(4) (5) A fishing access site permit is an annual permit that is valid for the calendar license year in which the permit is issued.  

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE VII (ARM 12.14.130)  FISHING ACCESS SITE PERMIT: APPLICATION PROCESS (1) A fishing access site permit may be obtained at a department regional office or through the department’s internet licensing system so long as the applicant provides the required application information and remits the required permit fee.

(2) The department may require the following when applying for a fishing access site permit:

(a) a completed permit application form;

(b) an outfitter or guide license number if providing angling services;

(c) an automated license system number;

(d) permit fee; and

(e) proof of insurance that indemnifies the state from any liability the department judges sufficient to protect the public and the state of Montana.

 

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE VIII (ARM 12.14.135) FISHING ACCESS SITE PERMITTING DECISIONS (1) There shall be no limit on the number of fishing access site permits issued.

(2) The regional supervisor may deny or revoke a fishing access site permit for failure to comply with the terms of the permit, violating department rules and regulations, or other infractions identified by the department, or when. If a nonrestricted water body is reclassified as a restricted water body., a fishing access site permit is no longer valid at the sites that provide access to the restricted water body. The fishing access site permit holder may apply for a restricted use permit to use these sites.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE IX (ARM 12.14.140) RESTRICTED USE PERMIT (1) A restricted use permit is required for the following:

(a) water-based outfitting or guiding at a fishing access site or other department land that provides access to a restricted water body; and

(b) all other types of commercial use at a fishing access site, state park, wildlife management area, or department administrative site.

(2) A restricted use permit authorizes the recipient of the permit to conduct commercial use of the type, and at the locations, designated on the permit.

(3) A restricted use permit is valid for the time period specified on the permit, not to exceed five years. The department may modify the terms and conditions of the permit at any time. The permit holder may also request changes to a multi-year permit through submission of an updated plan of operation or other material.

(4) The department may place stipulations on the restricted use permit, including but not limited to the type, timing, location, duration, and volume of the use. The department’s statewide river recreation rules shall govern the development of stipulations for water-based outfitters and guides on rivers and fishing access sites.

(5) The department may authorize the recipient of a restricted use permit to conduct use at more than one location.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE X (ARM 12.14.145) RESTRICTED USE PERMIT: APPLICATION PROCESS (1) A restricted use permit application must be submitted to the regional office that oversees the site or sites where the use would occur. If use is proposed for sites located in more than one department administrative region, the application may be submitted to one of the regional offices and the department may issue a single permit to authorize the use.

(2) The completed application should be submitted at least 45 days before the use is intended to begin or at least ten days before a special event, filming activity, or incidental commercial use lasting less than five days. The time period required to process applications begins when the applicant has submitted all of the required information. The department shall attempt to may process completed applications received after these time periods on a case-by-case basis. The department may require additional time to process an application if the applicant fails to provide the required information, or the department determines that an environmental analysis is required.

(3) The department may require the following when applying for a restricted use permit:

(a) a completed restricted use permit application;

(b) an outfitter or guide license number if providing angling services;

(c) an automated license system number;

(d) permit fee;

(e) deposit or damage security bond;

(f) proof of insurance that indemnifies the state from any liability the department judges sufficient to protect the public and the state of Montana;

(g) proof of workers' compensation and/or an independent contractor exemption certificate;

(g) (h) information explaining how the proposed use would benefit the public’s resources or the public’s enjoyment of the site; and

(h) (i) other relevant information in sufficient detail to allow the department to evaluate the nature and impact of the proposed activity, including measures the applicant will use to prevent or mitigate adverse impacts.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE XI (ARM 12.14.150) RESTRICTED USE PERMITTING DECISIONS (1) The department has discretion over whether to issue a restricted use permit. Permitting decisions are based on the following factors to the extent that they are relevant:

(a) conformance with laws, rules, policies, management plans, and land use plans;

(b) contribution to the overall mission, goals, and objectives of the site;

(c) public safety;

(d) conflicts with other users in regard to type of use, timing, duration, location, site capacity, and other similar considerations;

(e) resource impacts and protection;

(f) extent to which the public interest is served;

(g) effects on adjacent lands;

(h) whether in the past the applicant complied with the terms of his/her permit or other authorization from the department and other agencies;

(i) whether the department has the fiscal and human resources to oversee the proposed use; and

(j) such other circumstances that the department finds appropriate.

(2) The availability, terms, and conditions of a restricted use permit may vary based on the regulations and management plan in place at the site where the use would occur. Prior to issuing a permit to conduct commercial use at a wildlife management area, the department must prepare a commercial use plan for that site. The commercial use plan shall:

(a) identify the types of commercial use that may be authorized at the site;

(b) establish the terms, conditions, and volume of commercial use that may be authorized; and

(c) establish the methods for allocating commercial use permits.

(3) The department’s statewide river recreation rules shall govern Ppermitting decisions that would ration, allocate, or otherwise restrict water-based outfitting and guiding opportunities on rivers and fishing access sites shall be governed by the department’s statewide river recreation rules. This does not include permitting decisions when the applicant or permit holder has violated the terms of a permit or violated department rules or regulations.

(4) Upon adoption of these rules, the department may continue to issue a restricted use permits to any person or entity that was authorized to conduct commercial use prior to the adoption of these rules on department lands now requiring a restricted use permit so long as the person submits the required application material and fees that were established prior to the adoption of these rules. The department shall administer these permits consistent with these commercial use rules.

(5) For permit systems established prior to the adoption of these commercial use rules, When when a restricted use permit expires, the department shall review the previously authorized commercial use and may issue a new restricted use permit to the permit holder upon application so long as the applicant complied with the terms of his/her permit or other authorization from the department and other agencies and so long as the applicant complied with the laws, rules, and policies of the department and other agencies. The department may adjust the terms and conditions of the new permit, including the allocated units of use.

(6) For permit systems established after the adoption of these commercial use rules, the department may develop a permit renewal system under which the previous permit holder and other commercial users are eligible to apply for the new permit. The department’s statewide river recreation rules shall govern the development of a permit renewal system for water-based outfitting and guiding on rivers and fishing access sites.

(6) (7) The regional supervisor, in consultation concurrence with the appropriate division administrator, shall be responsible for restricted use permitting decisions.

(7) (8) A person who has been denied a restricted use permit or a person whose commercial use permit has been suspended or cancelled may appeal the permitting decision in writing to the director within 30 days of the date of mailing of the notice of the permitting decision. Persons not appealing within 30 days have waived their right to appeal.

(8) (9) The director or the director’s designee shall issue a written decision on the appeal. The director's decision is final.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE XIII (ARM 12.14.160) COMMERCIAL USE FEES (1) The department may require payment of fees for conducting commercial use on lands owned or managed by the department. Permit fees pursuant to this rule shall be established through commission rulemaking. The department shall establish concession contract fees on a case-by-case basis. The commission may adjust permit fees as necessary to reflect changes in costs and the market and in situations where the department has an agreement or joint-permit system with other agencies.

(2) The department may waive commercial use fees on a case-by-case basis when for educational groups when the following conditions are met:

(a) the sole purpose of the use is for educational purposes and the monetary benefits from the use or event do not exceed the cost of providing the use or event the group is from a bona fide institution that meets the definition of an educational group; or

(b) the proceeds from the use or event are allocated to the maintenance, management, or the improvement or development of facilities, at the site where the use occurs. the group provides a written explanation of the educational purpose of the visit; and

(c) the use is not primarily for recreational purposes.

(3) The department may waive or adjust commercial use fees on a case-by-case basis when the proceeds from the use or event are donated to the maintenance, management, or the improvement or development of facilities, at the site where the use occurs.

(3) (4) The department may waive or adjust commercial use fees when a service provider donates their services for a charitable cause and is not compensated for the service.

(4) The commission may adjust permit fees as necessary to reflect changes in costs and the market and in situations where the department has an agreement or joint-permit system with other agencies.

(5) The department may charge a processing fee for recovery of costs associated with preparing an environmental analysis document when processing a permit application.

(6) Applicants must pay the required fees by the date specified in the terms of the permit. deadlines established in the fee rule.

(7) With approval from the legislature, the department shall use the permit fees from commercial use at fishing access sites to help support the fishing access site program, river recreation management, and enforcement.

 

AUTH: 2-4-102, 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 2-4-102, 23-1-105, 23-1-106, 87-1-303, MCA

 

NEW RULE XIV (ARM 12.14.165) RATIONING AND ALLOCATION OF COMMERCIAL USE (1) The department’s statewide river recreation rules shall govern the rationing and allocation of commercial use on rivers, including fishing access sites that provide access to rivers.

(2) The regional supervisor, in consultation concurrence with the appropriate division administrator, director, and the commission, may ration and allocate commercial use at a state park, wildlife management area, or department administrative site. The regional supervisor may consider the following when making rationing and allocation decisions:

(a) laws, rules, policies, management plans, and land use plans for the site;

(b) overall mission, goals, and objectives of the site;

(c) input from the public;

(d) public safety concerns;

(e) biological conditions;

(f) social conditions;

(g) use conflicts;

(h) past performance of commercial users;

(i) public demand for commercial use; and

(j) other factors as determined by the department.

(3) The regional supervisor shall describe what actions have already been taken by the department to address a particular problem or concern, why rationing is necessary, and how rationing of use would address a particular problem or concern.

(4) To the extent possible, the department must monitor and evaluate commercial use of a site to determine whether rationing is necessary and to assess whether rationing has improved conditions.

 

AUTH: 23-1-105, 23-1-106, 87-1-301, 87-1-303, MCA

IMP: 23-1-105, 23-1-106, 87-1-303, MCA

 

4. The commission has repealed ARM 12.8.211 as proposed.

 

AUTH: 23-1-106, 87-1-303, MCA

IMP: 23-1-102

 

5. Under the commission's direction, the department conducted eight public scoping meetings to identify the issues pertaining to commercial use. The commission then directed the department to draft tentative administrative rules and prepare an environmental assessment of the impacts of adopting the rules. The department also drafted a commercial use permit fee rule. The public was invited to submit comments on all three documents. The commission also held eight public hearings to take testimony on the draft rules and the environmental analysis document. Seventy-four people, groups, and agencies submitted comments on the tentative administrative rules and the commercial use permit fee rule. Thirteen people, groups, and agencies submitted comments on the environmental analysis document. The following comments address the proposed administrative rules.

 

COMMENT 1: A number of people offered support of Alternative A in the administrative rule notice, which allowed the consideration of commercial use on Wildlife Management Areas (WMAs) in some circumstances. Their reasons for supporting Alternative A were:

• More opportunities for visitors to our state.

• More support for small businesses and the economy.

• Nonconsumptive uses have minimal, if any, impact.

• Adverse impacts will be minimal or nonexistent.

• Some commercial use of the sites, such as for photography, enhances the public value of the site.

• Denying the public's use of WMAs who use commercial services is discriminatory.

 

RESPONSE: The commission appreciates support for Alternative A. The commission decided to adopt rules that prohibit commercial hunting and fishing outfitting at WMAs but allow the department to consider other types of commercial use at these sites. However, only commercial uses that are compatible with the purpose and mission of WMAs may be contemplated. This does not mean that all WMAs will be open to all commercial use. Some WMAs may not allow any commercial use, depending on the situation. Under the new rules the department may exclude commercial uses on WMAs if the uses may harm the resource or result in other types of conflicts. The department is required to develop a commercial use plan for a WMA before authorizing any commercial use at the site. The plan would identify appropriate types of commercial use for a WMA and the conditions under which that use would be authorized. The plan may also determine that commercial use is not appropriate for a particular WMA. The commission does not believe prohibiting commercial use in these situations is discriminatory to one segment of the public. Rather, the commission thinks prohibiting commercial use to protect the resource and minimize conflicts benefits the entire public.

 

COMMENT 2: A number of people supported Alternative B which the commission did not adopt. This alternative did not allow any commercial use at WMAs. These people or organizations opposed any commercial use on WMAs for many different reasons:

 

• Commercial use is at odds with the intended purposes of WMAs. There is no obligation to allow commercial use.

• Commercial use at WMAs would spoil the experience of the public using these sites. The average Montanan who cannot afford to hire commercial services should be able to use these areas without added pressure and conflicts of commercial use.

• The WMA program is very successful. Part of this success is due to the exclusion of commercial use. Allowing commercial use on WMAs could jeopardize public support of the program. Commercial use on other public lands has generated problems that should be reviewed before allowing commercial use. Feasibility studies should be conducted prior to allowing commercial use.

• There is no benefit associated with commercial use at WMAs.

• Allowing commercial use might create a de facto property right for use on WMAs.

• Outfitters would find a way to exclude the public and monopolize use in these areas.

• These areas are too special and valuable to be exploited. Wildlife management areas are only a small portion of the overall public land that is available for commercial use. There are ample opportunities to conduct commercial use on other public land without also allowing it to occur at WMAs.

• Commercial presence at WMAs might violate federal aid rules.

• Excluding commercial use is consistent with the public trust doctrine and avoiding privatization of a public resource.

• Commercial use always seeks to grow. The department can't provide enough oversite to control expansion. Once commercial use is entrenched, you can never get rid of it.

 

RESPONSE: The commission recognized that any commercial use rule affecting WMAs would be highly controversial. Several years ago the department and commission began evaluating commercial use. Department personnel researched other states' commercial use policies and rules and worked to develop ideas for managing commercial use on department lands. Eight public scoping meetings were held to identify the public’s interests and concerns. Public input on whether or not commercial use was appropriate on WMAs was divided. Participants advocated strongly both for and against commercial use on WMAs. In weighing the options, the commission chose not to prohibit commercial use on WMAs other than prohibiting hunting and fishing outfitting. But under the new rules, the commission required the department to carefully evaluate the types, amounts, and allocation of use to balance conflicting interests through a commercial use plan that the department must develop before use can be authorized. The commission's responses to the summary of citizens' concerns are listed below.

 

Commercial use is at odds with the intended purposes of WMAs. There is no obligation to allow commercial use.

 

The final rules require the department to develop a commercial use plan for a wildlife area prior to authorizing commercial use. The plan would identify types of commercial use that could be authorized and conditions on that use to ensure it does not conflict with the intended purposes of the site. Under these rules, there is still no obligation for the department to permit commercial use if that use conflicts with the intended purposes of the site.

 

Commercial use at WMAs would spoil the experience of the public using these sites. The average Montanan who cannot afford to hire commercial services should be able to use these areas without added pressure and conflicts of commercial use.  

 

The commission recognizes that there are many different kinds of recreators with many different philosophies. Using the tools provided in these rules, the commission hopes to fairly balance the interests of a variety of recreators. The commission's goal is to maintain the resource while providing recreational opportunities to a variety of interests, including those that would not be able to enjoy the resource without having the assistance of someone else take them there. The final rules require the department to develop a commercial use plan for a wildlife area prior to authorizing commercial use. The plan would identify types of commercial use that could be authorized and conditions on that use. The department can minimize impacts to the public by carefully considering what types of commercial use are appropriate for a particular WMA and ways to manage that use.

 

The WMA program is very successful. Part of this success is due to the exclusion of commercial use. Allowing commercial use on WMAs could jeopardize public support of the program. Commercial use on other public lands has generated problems that should be reviewed before allowing commercial use. Feasibility studies should be conducted prior to allowing commercial use.

 

Determining the factors that make a program successful is a very difficult, subjective judgment. Success can be the result of many different factors. Allowing commercial use of WMAs may decrease some public support while increasing other public support. The commission and department are entrusted with the care of WMAs for the benefit of the public who is both noncommercial and commercial.

 

The final rules require the department to develop a commercial use plan for a wildlife area prior to authorizing commercial use. The plan would identify types of commercial use that could be authorized and conditions on that use. The department can minimize impacts to the public by carefully considering what types of commercial use are appropriate for a particular WMA and ways to manage that use.

 

There is no benefit associated with commercial use at WMAs.

 

Commercial use would benefit those members of the public seeking guided services at WMAs, e.g., bird watching, wildlife watching, horseback riding, etc. The commission and the department must carefully manage commercial use in order to meet the interests of those people who do not use commercial services and the interests of those who do.

 

Allowing commercial use might create a de facto property right for use on WMAs.

 

The commission seriously considered this issue. Its intent was to avoid creating property rights through the commercial use rules. Rule drafters also carefully considered this issue. The commission believes that New Rule V sections (7), (9), and (10) (ARM 12.14.120), and New Rule IV(3) (ARM 12.14.115) adequately express the intent to avoid creating a property right through issuance of commercial use permits.

 

Outfitters would find a way to exclude the public and monopolize use in these areas.

 

Commercial hunting and fishing outfitting will not be permitted on WMAs. The final rules require the department to develop a commercial use plan for a wildlife area prior to authorizing commercial use. The plan would identify types of commercial use that could be authorized and conditions on that use. The department can minimize impacts to the public by carefully considering what types of commercial use are appropriate for a particular WMA and ways to manage that use.

 

These areas are too special and valuable to be exploited. Wildlife management areas are only a small portion of the overall public lands that are available for commercial use. There are ample opportunities to conduct commercial use on other public lands without also allowing it to occur at WMAs.

 

Commercial use is already occurring on some WMAs. The new rules give the department tools to legally and effectively regulate that use. In determining the scope and amount of commercial use, if any, on a WMA, the department will create a commercial use plan for that site. The commercial use plan for a WMA will consider the demand for commercial use and whether this demand can be met on other public lands in the surrounding area or is unique to that site. The plan would identify types of commercial use, if any, that could be authorized and conditions on that use. The department can minimize or eliminate impacts by carefully considering what types of commercial use are appropriate for a particular WMA and ways to manage that use. And it can eliminate certain commercial uses altogether. The plan will outline what uses are appropriate, if any.

 

Commercial presence at WMAs might violate federal aid rules.

 

The rules governing federal aid allow the department to authorize commercial use at a WMA that is compatible with the intended purposes of the site. The commercial use plan for a WMA will evaluate types of commercial use to assess compatibility with intended purposes. The department will not authorize commercial use that conflicts with the intended purpose of a site.

 

Excluding commercial use is consistent with the public trust doctrine and avoiding privatization of a public resource.

 

The public trust doctrine provides that the state holds certain resources in trust for the benefit of the public. The commission agrees that wildlife is a resource the state manages for the people of Montana. The public includes both commercial and noncommercial interests. The commission thinks that under these rules both interests are considered, and the resource is not being privatized because the noncommercial public uses the site as well.

 

Commercial use always seeks to grow. The department can't provide enough oversite to control expansion. Once commercial use is entrenched, you can never get rid of it.

 

The commission intends that, under these rules, the department will stop commercial use any time a WMA is in jeopardy. The department has discretion through the authority granted in the rules to exclude or stop commercial use. Authorized use on WMAs is limited and may occur only under certain circumstances determined after department evaluation. Both the commission and the department have strongly held beliefs about protecting WMAs and will take whatever measures are necessary to do this.

 

COMMENT 3: The definition of commercial use should include a list of all the commercial uses that occur on department lands and waters. The list should include the types of commercial use that are exempted in the rules for the reason that in the future some of these may fall within the parameters of commercial activity restrictions.

 

RESPONSE: The commission adopted a definition of commercial use that defines the types of commercial use that are governed by the rules, rather than an all-inclusive definition list that intends to cover every type of commercial use that exists. The commission wanted a definition that made it clear as to what types of commercial use would be governed by the rules. A definition list that covers every conceivable activity would have been confusing. Neither the commission nor the department can foresee every commercial use, so the commission would be tasked with continually amending the rule to list as new activities emerge. A list of commercial activities could also pose a greater risk to the resource. Before the commission or department was aware of a damaging commercial activity not included in the definition list, the resource could sustain damage since no department permission would be required for an unlisted activity.

 

COMMENT 4: The rules should apply to vehicle transport services.

 

RESPONSE: In making its decision to exclude vehicle transport services from the rules, the commission considered all the requirements in the rule that might prove cost prohibitive to this business. The commission also considered the risk to the department, the impact this industry has on department sites, and the benefits provided to the public. The commission concluded that the vehicle transport services did not present a significant risk to the department and the simplest solution was to exclude them from the rules.

 

COMMENT 5: The commercial use rules should not apply to trapping.

 

RESPONSE: The final rules clarify that the rules do not apply to trapping. There already are rules in place pertaining to trapping and therefore it is not necessary to also apply the commercial use rules.

 

COMMENT 6: The rules should also apply to commercial use on waters that are under the control, administration, management, and jurisdiction of the state of Montana and/or department.

 

RESPONSE: The commission already has statewide river recreation rules that govern recreational use on rivers, including outfitters, guides, and other types of commercial use on rivers. The commercial use rules, therefore, only apply to department land.

 

COMMENT 7: The rule language should not be so narrowly interpreted as to preclude outfitters from utilizing their historic travel routes through WMAs while conducting their guests from place to place in the normal conduct of their outfitting operations.

 

RESPONSE: The final rules allow the department to authorize a commercial hunting outfitter to travel on historic travel routes through department land for the sole purpose of gaining access to other public land where the outfitter is authorized to conduct use.

 

COMMENT 8: How would the rules affect waterfowl outfitters who use fishing access sites to launch boats for waterfowl hunting on some lakes and streams?

 

RESPONSE: The final rules allow the department to authorize a commercial hunting outfitter to use a fishing access site to gain access to a water body where the outfitter is authorized to conduct use.

 

COMMENT 9: The department should only issue permits to persons, not entities or businesses. If the commission retains the terms "business or entity," the rules should exclude fishing outfitters from New Rule V(3) (ARM 12.14.120) or include language to ensure that permits for fishing operations can only be issued to a person who is licensed as an outfitter subject to outfitter laws and rules.  

 

RESPONSE: The commission agrees and changed the above-referenced rule to clarify that when authorizing water-based angling outfitting or guiding, the department may only issue the permit to a licensed outfitter or guide.

 

COMMENT 10: The March 1 deadline for obtaining a commercial use permit for guides would be a problem. Guides are often not on board by that date. The guides should be allowed to obtain a permit any time during the year, and if a deadline is necessary, make it July 1 instead of March 1.

 

RESPONSE: A guide may obtain a fishing access site permit at any time during the year. The permit is an annual permit that is valid for the license year in which the permit is issued.

 

COMMENT 11: I am concerned about the regional supervisor making rationing decisions. I recommended that the rules should include a statement of intent and purpose for the rationing language and include guidelines for when this occurs. The concern was that a regional supervisor could ration use with little rationale or reason.

 

RESPONSE: The rules state that the rationing and allocation of use on rivers is governed by the department’s statewide river recreation rules. Where rationing of commercial use on department land is necessary and the new rules apply, the commission believes that regional supervisors will make fair rationing decisions. The final rules require that the regional supervisor shall describe what actions have already been taken by the department to address a particular problem or concern, why rationing is necessary, and how rationing of use would address a particular problem or concern.

 

COMMENT 12: I am opposed to having no limit on the number of fishing access site permits. This is in conflict with the general policy that commercial use does not conflict with, or detract from, public use and the intended purposes of a site. The department should ration all permits from the beginning based on historical use.

 

RESPONSE: Currently, there is no limit on commercial use at department fishing access sites located on unrestricted water bodies. The commission thinks that allowing this commercial use at it now exists is congruent with the general policy stated in the new rules. If use expands to the point that it is not in keeping with the general policy, the department has the authority to place conditions on the permitted use to return it to acceptable parameters.

 

The commission struck a balance by creating an unlimited fishing access site permit to authorize commercial use at fishing access sites where there are no special restrictions governing commercial use. The restricted use permit is used to authorize commercial use at places where more intensive management is needed, e.g., places where there are special restrictions in place to address conflicts.

 

COMMENT 13: Out-of-state outfitters should not be allowed to obtain a permit if they reside in a state that does not offer the same opportunities to Montana outfitters.

 

RESPONSE: The commission's interests are focused on preventing impacts to the resource and managing conflicts between people rather than excluding a segment of the population for reasons not related to the resource.

 

COMMENT 14: The rules should make it clear that the department has sole authority to make or allow any changes to the provisions or terms of the permit.

 

RESPONSE: Under the new rules, the commission delegated authority to the department to attach conditions to a permit or change permits conditions. The final rules state that the availability, terms, and conditions of a commercial use permit may vary based on the regulations and management plan in place at the site where the use would occur. The rules also state that a commercial use permit is not a property right and may be revoked, amended, or suspended at any time for cause, and that the department may modify the terms and conditions of the permit at any time.

 

COMMENT 15: Why is the permit issued for one year and the restricted use permit issued for up to a five-year period? Both permits should be issued for the same amount of time.

 

RESPONSE: Under New Rule VI (ARM 12.14.125) a fishing access site permit is limited to water-based outfitting involving fishing access sites and other department owned land. Fishing access site permits are for a specifically enumerated activity in an unrestricted place. Any outfitter can have this kind of permit unless the outfitter eliminates himself/herself by not abiding by permit conditions or department rules. These permits can be renewed easily and need to be renewed yearly as conditions on them may need to be updated.

 

Restricted use permits differ from fishing access site permits in that only a certain number of restricted use permits may be issued to water-based outfitters. This type of permit also encompasses other types of commercial use besides water-based outfitting. Because of these differences, the department needs flexibility to determine what is an appropriate permitting period for each permit. The terms of a restricted use permit could be up to five years if that time period makes sense for the contemplated use. Or, the permit may be issued for only one day.

 

COMMENT 16: Would an outfitter be allowed to use a booking agent to book and take money from clients? The draft rules indicate that this would not be allowed.

 

RESPONSE: In New Rule V(8) (ARM 12.14.120) the commission clarified that the permit holder may pay an agent to recruit clients, make arrangements with clients concerning monetary consideration or services provided, and collect fees from clients provided that the agent does not conduct the authorized services.

 

COMMENT 17: The new rules should allow an outfitter to sell one business but retain other businesses, e.g., an outfitter who also has a hunting outfitting business, or a fishing outfitter who operates on more than one river and establishes separate businesses. Why should the buyer of an operation on one river also be required to obtain all of the rest of the business, including other rivers that they may not want to operate on?

 

RESPONSE: The commission agrees and changed New Rule V(9) (ARM 12.14.120) to state that if the recipient of a commercial use permit sells or transfers in entirety the part of his/her business that is operated under that commercial use permit, the department shall issue a new commercial use permit to the new owner so long as the seller has remitted all fees due to the department and so long as the buyer has obtained all other licenses or permits required by state or federal law and agrees to the terms of the permit.

 

COMMENT 18: The rules would still result in "blue sky value" if the department issues a permit to the buyer of a business. The permit would really be what is being sold, not the business. When a business sells, the permit should go back to the department to determine whether or not to reissue the permit. If the answer is yes, the permit should be reissued through a bidding process among qualified buyers. The state would make more money and the public interest would be served. The commercial user would rent the permit instead of owning the permit.

 

RESPONSE: The rules make it clear that the permit holder does not own the permit and the permit may not be sold. The permit returns to the department. The commission did, however, take into account that it would be difficult for a commercial user to sell their business if potential buyers are not able to obtain the necessary permit, which is why the rules require the department to issue a new permit to the

buyer if they agree to the terms of the permit and have obtained all required licenses or permits. In this way, the permit will remain the same. And once the term expires on the old permit, the business must acquire a new permit and go through all procedures for application.

 

COMMENT 19: What would the department do if the rules require the department to issue a new permit to the buyer of a business and that person is not licensed to outfit?

 

RESPONSE: New Rule V(4) and (7) (ARM 12.14.120) clarifies that the buyer must have obtained all other licenses or permits required by state or federal law in order to receive the new permit.

 

COMMENT 20: The permits should be transferable. Grazing permits, water rights, mineral rights, and liquor licenses are all transferable. Permits are already transferable on the Smith, Beaverhead, and Big Hole rivers.

 

RESPONSE: The commission does not intend that the permit should belong to the commercial user, and therefore permits are not transferable. Unlike permits for water rights, mineral rights, and liquor licenses, a commercial use permit is not a property right and cannot be managed as property. The department would issue a new permit to the buyer of a business if the buyer agrees to abide by permit conditions, rather than transferring the seller’s permit.

 

COMMENT 21: There should be one permit for all fishing access sites, rather than a fishing access site permit and a restricted use permit.

 

RESPONSE: The reason that one permit cannot be issued for use of all fishing access sites is that on some Montana rivers there is a need for more intensive management of commercial use and therefore a special permit is necessary. Not all commercial users can operate on these rivers or have unrestricted use of these fishing access sites. This is the reason for the restricted use permit. The fishing access site permit is adequate for the majority of fishing access sites around the state. It is simple to obtain and requires minimal administrative oversight.

 

COMMENT 22: Would an outfitter be required to obtain a permit even if the outfitter doesn't physically use the site. E.g., the outfitter books the trip and the guide conducts the trip. Is a permit required for an off-site business that rents equipment? For example, would a business that rents inner tubes for use on the Blackfoot River be required to have a permit? 

 

RESPONSE: An outfitter who hires a guide will be required to obtain a permit even if that outfitter is not on site while the guide conducts the trip. In this case, there is no question that the outfitter's business is using the department-owned site, even though the outfitter's employee is physically on the site, not the outfitter. A company that rents inner tubes from a location in Missoula, for example, would not be required to obtain a commercial use permit. Requiring an equipment rental business to obtain a permit would not make sense. The department has no way to ascertain whether or not all of the rental equipment is being used on the Blackfoot River, a city park, a private swimming pool, or the Green River in Utah for example. Also, a sporting equipment store that rents sports equipment for outdoor use would not send their employees to department sites to conduct business. If this business decided to set up a rental concession at a department site it would need a commercial use permit. A town-based rental business that routinely sent its employees to a department site to distribute or collect equipment would also be required to have a permit.

 

COMMENT 23: A commercial use permit should not be issued to anyone who does not have legal authority to use the permit. A commercial use permit that allows someone to use a fishing access site for the purpose of commercial fishing outfitting should only be issued to licensed outfitter (not a guide). Permitting guides could lead to more illegal outfitting (guides acting as outfitters and using the guide permit to justify this practice).

 

RESPONSE: There should not be any basis for a guide to claim that the fishing access site permit authorizes them to conduct outfitting. Under New RuleV(3) (ARM 12.14.120), a fishing access site permit authorizes a water-based guide, operating under the authority of a water-based outfitter, to conduct water-based guiding at any fishing access site or other department land for which the outfitter is authorized to conduct use.

 

COMMENT 24: The guide permits will create more paperwork for the outfitters and it would be better to just charge the outfitter a higher fee.

 

RESPONSE: The fishing access site permit used to authorize guides will be available via the automated license system and is designed to minimize paperwork.

 

COMMENT 25: The commission should include language that says filming activities on department lands may not unduly conflict with visitor use at any department site and that this should be added to the permit terms.

 

RESPONSE: Although the commission considered this comment, it did not adopt language saying that filming may not unduly conflict with visitor use at any department site. It is necessary for the department to have the ability to alter public use opportunities at fishing access sites and state parks on a case-by-case basis in the interest of public safety and security and when there is potential for short-term conflicts. There may be times when the department would temporarily close a fishing access site to accommodate a filming event. Prior to making this decision, the department would consider the impact on the public and opportunities for the public to use other department land in the general vicinity.

 

COMMENT 26: Clarify New Rule VIII(2) (ARM 12.14.135) so that when a nonrestricted water body is reclassified as a restricted water body, the department would not revoke a person's statewide fishing access site permit. Instead the department would require a restricted use permit for access sites on the reclassified water body and the fishing access site permit would still be valid for other sites.

 

RESPONSE: The commission added language to New Rule VIII(2) (ARM 12.14.135) to state that when a fishing access site permit is no longer valid for a given site, the permit holder may apply for a restricted use permit for that site. The fishing access site permit is still valid for use on unrestricted sites.

 

COMMENT 27: Take a close look at institutional, educational, and nonprofit groups for the reason that they are impacting other users and can have considerable impact on the site and the resources. These groups have the same impacts as commercial users and should be treated as such.

 

RESPONSE: The commission realizes that institutional and nonprofit groups also impact resources. The final rules clarify that the definition of commercial use includes nonprofit organizations and educational groups that receive money from participants in activities occurring on department lands. Therefore, these groups will be required to comply with the commercial use rules.

 

COMMENT 28: Allocate permit fees to the program area that generated the income. E.g., money from fishing access site permits should be allocated to the fishing access site program, including operation, maintenance, improvement, and acquisition.

 

RESPONSE: The final rules clarify that with approval from the legislature, the department shall use the permit fees from commercial use at fishing access sites to help support the fishing access site program, river recreation management, and enforcement.

 

COMMENT 29: New Rule VII(2)(e) (ARM 12.14.130) should clarify what type of liability insurance might be required: general, commercial auto, single or multiple liability coverage. Also, the insurance language of New Rule X (ARM 12.14.145) and XII (ARM 12.14.155) should be changed from "may" to "shall."

 

RESPONSE: The commission decided not to state what type of insurance is required and always require insurance. Since there are many different types of commercial use, the department needs flexibility to determine insurance requirements for a given situation. The department cannot foresee every type of commercial use and insurance requirements for that use. There could be cases when insurance is not required.

 

COMMENT 30: I'm not in favor of these rules until all other areas of management have been exhausted. More rules require more management, more enforcement, and more expense. When and if more rules are needed, the department should proceed cautiously and only implement those rules that are needed.

 

RESPONSE: The rulemaking process began in response to commercial use that is already occurring. The department has received complaints regarding commercial use as defined in these rules. Whenever possible, the commission believes establishing rules to prevent damage to the resource and recreational conflicts is preferable to waiting until they occur to begin rulemaking. Often, the expense of bringing a damaging situation under control far exceeds the expense of avoiding the situation in the first place.

 

COMMENT 31: The department should establish standards and conduct background checks before issuing and reissuing a permit, including the issuance of a permit to the buyer of a business.

 

RESPONSE: The commission does not agree that background checks are necessary as long as businesses are in good standing and have a good history with the department. Background checks require a great deal of expense and time and the department can implement other measures to ensure compliance with its rules.

 

COMMENT 32: There must be provisions for enforcement of the rules. Because of lack of funding, the department will have a difficult time enforcing the rules.

 

RESPONSE: The commission and department believe that enforcement already in place can be used to enforce the commercial use rules. For instance, wardens routinely check hunting and fishing licenses. They can also check commercial use permits in the same manner.

 

 

/s/ Steve Doherty Steve Doherty, Chairman Fish, Wildlife and Parks Commission

/s/ Rebecca Dockter Rebecca Dockter Rule Reviewer

 

Certified to the Secretary of State January 16, 2007