Montana River Recreation Management

An on-going discussion . . .

Statewide River Recreation Advisory Council Established

On August 29, 2002, the Montana Dept. of Fish, Wildlife and Parks convened a "River Recreation Advisory Council" to make recommendations to the FWP Commission on "ways to address the issue of crowding on Montana's rivers and streams." FOAM will urge consideration and adoption of our stated management plan development process and will advocate equitable treatment for all river users, resident and nonresident alike.

Because this council's decisions are only recommendations, FOAM will check with the FWP Commission periodically to make sure the council's discussions and ideas fit with their inclinations. The council certainly doesn't need to spend a lot of time building consensus on plans that the commission will reject out of hand. To help keep things straight, Commissioner Tim Mulligan sits on the council and has stated he will serve in a dual role, representing his own district and acting as liason between the council and the commission.

The possibility of a disconnect between the council recommendations and the commission's eventual regulations is a reality, but FOAM hopes the work of this council will be respected and that the FWP commission (and department) won't ignore or dilute whatever the council develops.

River Recreation Advisory Council recommendations become statewide policy

The RRAC recommdendations were reported to the FWP Commission in July of 2003, then redrafted into formal statewide management policy adopted by the FWP Commission in October of 2004. Not all of the RRAC recommendations survived into the formal rules, but the essential intent of the RRAC is expressed, if in legalese.

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FOAM and River Recreation

FOAM has advocated for appropriate and effective river recreation management since 1991. We're dedicated to consensus or collaborative forums involving a wide variety of stakeholders working together to develop equitable management solutions using a rational decision-making process, now and for the future.

Unfortunately, a first attempt on two Montana rivers may be flawed. Due to what we hold as poorly interpreted legal authority exercised through an improper regulatory framework, inequitable regulations are temporarily in place on the Beaverhead and Big Hole rivers. Our challenge of the current Beaverhead, Big Hole Biennial Rule could have helped set clear legal guidelines for future river recreation management development.

FOAM legal challenge rejected by Gallatin District Judge

Gallatin County District Judge Mike Salvagni ruled against all four of FOAM's legal challenges regarding FWP's rule-making authority and rule development process for the Beaverhead and Big Hole rivers. Our association argued that:

• The Montana legislature did not grant FWP the broad authority it assumes to regulate recreational use on the state's waters, particularly as concerns specific classes of recreational users
• FWP misapplied the justification and rationale requirements of the Montana Administrative Procedures Act (MAPA) when developing the Beaverhead and Big Hole Recreation rules
• FWP has created a de facto preferential reservation system barred by federal granting guidelines at access points funded by the Land and Water Conservation Fund
• FWP has violated the Interstate Commerce Clause of the U.S. Constitution by discriminating against nonresident anglers without seeking an alternate, less discriminatory method to achieve the purported ends of protecting the resource and promoting recreational quality

The judge's ruling noted that FWP correctly exercised it's "broad" authority to regulate recreation, but did not comment on the legislative history that clearly granted narrow authority for FWP to focus on resolving conflicts between motorized and nonmotorized use of the state's waters and to regulate use in the interest of public welfare when speed limits for motorized watercraft are required in circumstances where safety is not an issue. The judgement did not mention the standards outlined in MAPA that call for justification of specific methods applied, such as targeting a specific user group. Nor did the ruling agree that allowing residents to launch boats, then immediately begin fishing while forcing nonresidents who launched boats at the same federally-funded sites to float up to a mile before beginning to fish was arguably a preferential reservation system biased toward resident use of those sites. Finally, the ruling does not address as discrminatory the burden of limiting nonresident floatfishing access to the Big Hole river while simultaneously benefiting residents by allowing full access at all times. The Interstate Commerce Clause in such instances requires the state to to seek other, less discriminatory methods to regulate use.

Of course, our association is disappointed with these rulings. We do not agree that unjustified, unsubstantiated, mostly resident claims of nonresident and outfitter "overuse" constitute sufficient cause to regulate either class of user or service provider. We hope to convince other judges and lawmakers that this authority and technique are misplaced and misused. We consider all users to have equal privileges to float and fish on Montana waters unless sufficient and credible data prove a particular user group, regardless of residency or livelihood, warrants control.

Proposed Statewide River Recreation Management Policy - A Last Chance?

This legal ruling puts more weight on the proposed statewide River Rec. Mgt. Policy being considered by the FWP Commission. Many of our association's best efforts at promoting equitable and reasonable decision-making are reflected in this proposal. At the same time, we've argued that the policy should incorporate several important changes, such as:

• establishing a minimum threshold of data to balance opinion in all decision-making
• local citizen advisory committees aiding in the development, monitoring, AND amendement of any recreation regulation
• inclusion of specific details regarding public participation, collection and analysis of data, and public recommendations in management plans

We want to thank all the River Recreation Advisory Council participants for helping develop the best recommendations for a statewide policy, and we hope our members and nonresident clientle took advantage of the opportunity to comment on this proposed policy. Since our legal efforts have not brought reason and justification to existing regulatory efforts, perhaps this proposed policy will temper future considerations.

Statewide River Recreation Management Policy - A Disappointing Application

As noted above, FOAM is disappointed that the FWP Commission chose to loosely interpret the statewide management policy in favor of residents and the non-outfitted public. Of course, we had hoped our legal challenge, even though indecisive, would provoke some reasonable behavior. We were clearly wrong.

 

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