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| Montana Administrative Register Notice 12-525 | No. 2 01/31/2020 | |
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BEFORE THE DEPARTMENT OF FISH, WILDLIFE AND PARKS OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On February 25, 2020, at 6:00 p.m., the Department of Fish, Wildlife and Parks (department) will hold a public hearing at the Fish, Wildlife and Parks Headquarters Building, 1420 E. 6th Avenue, Helena, Montana, to consider the proposed adoption of the above-stated rules.
2. The department will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later than February 14, 2020, to advise us of the nature of the accommodation that you need. Please contact Kaedy Gangstad, Department of Fish, Wildlife and Parks, P.O. Box 200701, Helena, Montana, 59620-0701; telephone (406) 444-4594; or e-mail kgangstad@mt.gov.
3. The rules as proposed to be adopted provide as follows:
NEW RULE I DEFINITIONS (1) "Inaccessible public land" means public land wholly surrounded by private land by which there is no other legal access via public road, trail, right of way or easement; public waters; adjacent federal, state, county, or municipal land that is open to public use; or adjacent private land for which that landowner has not granted permission to cross. (2) "Landowner" means an individual, association, organization, or business entity, that owns land in fee, or a tenant or contract for deed purchaser with written authority to enter a PALA and receive payments. (3) "PALA" means public access land agreement. A PALA is an agreement between a private landowner and the department pursuant to 87-1-295, MCA, whereby the public is allowed access across private lands to inaccessible public lands or under accessible public lands. (4) "PL/PW" means private land/public wildlife advisory committee provided for in 87-1-269, MCA. (5) "Public land that is leased by the landowner" means "Inaccessible public land" or "under accessible public land" for which a landowner has an agreement with a government agency authorizing the landowner to use the whole or part of the inaccessible public land for grazing or farming. (6) "Under accessible public land" means public land wholly surrounded by private land by which there is no other legal access point within two miles via public road, trail, right of way or easement; public waters; adjacent federal, state, county, or municipal land that is open to public use.
AUTH: 87-1-297, MCA
NEW RULE II APPLICATION FOR PUBLIC ACCESS LAND AGREEMENT (1) The PALA application must include the following information: (a) legal or detailed land description of public land to which access is being proposed; (b) description of the proposed road, travel route, or connecting private lands legal land description through which access is being proposed; (c) map depicting public land to be accessed, and public access route across private land; (d) transportation mode by which public access is to be allowed; (e) indication as to whether the public land to be accessed is public land that is leased by the landowner; and (f) improvements to the land provided by the department to facilitate public access. (2) If the property through which access is provided is owned in common by multiple owners, the PALA application must specify the share of the payment to which each owner is entitled, and each owner or agent of the owner must sign the application. (3) The department shall develop and maintain a PALA application form. (4) Failure to include any required information may result in denial of the application.
AUTH: 87-1-297, MCA
NEW RULE III PUBLIC ACCESS LAND AGREEMENTS (1) Before approving a PALA the department must exercise reasonable diligence to verify that: (a) the public lands are not restricted or closed to general recreational use by the land management agency that owns or has legal control of the public land; (b) the private lands are wholly owned by the applicant(s) and there is open access across the designated access route; (c) access routes restricted to foot travel only: (i) must be capable of accommodating normal ambulatory travel; and (ii) must not exceed one linear mile from the beginning to the end of the access route; and (d) access routes available to vehicles must be capable of accommodating typical road use vehicles under normal conditions. (2) If access to inaccessible public land or under accessible public land can only or most effectively be provided through separate properties owned by different landowners, an agreement may be issued with each landowner provided each landowner holds the lease or permit on the public land or the public land does not have an existing lease or permit. (3) Contingent on the annual availability of funds to operate the PALA program, landowners may elect to participate in a PALA for up to 10 years with the agreement being renewed annually. (4) Applications must be received at least 6 weeks prior to the next upcoming PL/PW meeting to allow for time for adequate department and PL/PW review. (5) A PALA shall not be construed to support, establish or preclude, limit or diminish any claim for the right to public use. (6) Priority consideration for PALA enrollment will be given for lands that are open during commission-established hunting and fishing seasons. (7) A PALA may be terminated by the department or the landowner if the terms of the agreement are violated. An agreement may be canceled, and a landowner's property withdrawn from the program at any time due to circumstances beyond the control of the landowner or the department, such as death, illness, natural disaster, or acts of nature. In the event of termination, payment will be reduced and correlated to the time frame and access provided. (8) The landowner and the department may deny access to an individual(s) for violation of PALA rules. (9) A PALA does not convey to the public any right to hunt or otherwise recreate on the private land through which they can travel to reach public land. (10) The department shall maintain and make available to the public a list of current PALA locations and rules. (11) With department approval, a landowner may impose reasonable limitations through temporary closure of a PALA to address concerns related to high fire danger, weather-related impact to travel route, safety, or agricultural production activities such as livestock handling or harvest and planting of crops, so long as: (a) the landowner notifies department regional headquarters at least 24 hours prior to the closure; (b) the landowner posts notice to the public on-site; and (c) the closure is removed within 24 hours after the conditions causing the closure no longer to exist.
AUTH: 87-1-297, MCA
NEW RULE IV LANDOWNER COMPENSATION (1) In negotiating for the annual payment to a landowner, the department shall consider: (a) acres of private land over which access is provided; (b) acres of public land accessed; (c) duration public access is allowed; (d) mode of transportation allowed; and (e) other uses allowed. (2) Higher compensation will be provided to landowners who allow access during commission-established hunting and fishing seasons. (3) Landowners in the program may receive: (a) monetary compensation not to exceed $15,000 per annual agreement; and (b) improvements provided by the department to the private land that facilitate public access.
AUTH: 87-1-297, MCA
REASON: The 2019 Legislature passed SB 341, codified in 87-1-295, 87-1-296, and 87-1-297, MCA, which allows the issuance of public access land agreements. The program is a voluntary, incentive-based program which allows the department to enter into an agreement with a landowner in order to provide access across the landowner's private land to public land. The department is proposing to adopt rules that are necessary to implement the program. The proposed rules include the application requirements, terms of the agreement should it be issued, and clarification on landowner compensation.
4. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Jason Kool, Department of Fish, Wildlife and Parks, P.O. Box 200701, Helena, Montana, 59620-0701; or e-mail Jason.Kool@mt.gov, and must be received by February 28, 2020.
5. Kaedy Gangstad or another person appointed by the department has been designated to preside over and conduct this hearing.
6. The department maintains a list of interested persons who wish to receive notice of rulemaking actions proposed by the department or commission. Persons who wish to have their name added to the list shall make written request that includes the name and mailing address of the person to receive the notice and specifies the subject or subjects about which the person wishes to receive notice. Such written request may be mailed or delivered to Fish, Wildlife and Parks, Legal Unit, P.O. Box 200701, 1420 East Sixth Avenue, Helena, MT 59620-0701, or may be made by completing the request form at any rules hearing held by the department.
7. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by telephone on January 2, 2020, by electronic mail on January 3, 2020, and a letter was sent by U.S. postal mail on January 7, 2020.
8. With regard to the requirements of 2-4-111, MCA, the department has determined the at the adoption of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Zach Zipfel /s/ Martha Williams Zach Zipfel Martha Williams Rule Reviewer Director Department of Fish, Wildlife and Parks
Certified to the Secretary of State January 21, 2020. |
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.
