Administrative Rules of the State of Montana

BEFORE THE fish and wildlife commission

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 12.9.1403 pertaining to grizzly bear demographic objective for the Northern Continental Divide Ecosystem

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NOTICE OF AMENDMENT

TO: All Concerned Persons

1. On July 8, 2022, the Fish and Wildlife Commission (commission) published MAR Notice No. 12-586 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 1135 of the 2022 Montana Administrative Register, Issue Number 13.

2. The commission has amended the above-stated rule as proposed.

3. 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 several comments in general support of hunting grizzly bears. The commission received several comments in opposition to hunting grizzly bears.

RESPONSE #1: The intent of the proposed rule amendment language was not whether hunting would occur or not, but rather to clarify that if hunting were to occur, mortalities related to hunting would count against mortality thresholds, and when hunting would cease if thresholds were exceeded.

COMMENT #2: The commission received several comments that expressed general support for federal delisting of grizzly bears from the federal Endangered Species list. The commission received several comments in opposition to federal delisting of grizzly bears from the federal Endangered Species list.

RESPONSE #2: Whether to delist NCDE grizzly bears is a decision for the federal U.S. Fish and Wildlife Service. The proposed rule amendment language was to clarify that Montana is committed to demographic objectives contained in the NCDE Conservation Strategy if bears are delisted, and that adequate regulatory mechanisms are in place to maintain a recovered population.

COMMENT #3: The commission received several comments that expressed concern about the use of the word "and" instead of "or" in the language of ARM 12.9.1403(5) as it indicates that all threshold objectives must be violated against a six-year running average before additional management action would be taken to further limit mortality and suggest a simple remedy in the language of ARM 12.9.1403 would be to replace the word "and" with the word "or" when listing the threshold objectives.

RESPONSE #3: FWP concurs and has changed the originally proposed amendment language in (5) from "and" to "or."

COMMENT #4: The commission received comments that expressed concerns about the importance of functional connectivity between the NCDE and Greater Yellowstone Ecosystem and that FWP create protective and enforceable requirements for habitat and population management between the NCDE and Greater Yellowstone Ecosystem population of bears.

RESPONSE #4: This rule makes clear the department's commitment to implement the NCDE Conservation Strategy. The demographic objectives contained in the Conservation Strategy (page 49) are to meet the overarching goal "to maintain a recovered, genetically diverse grizzly bear population throughout the DMA while maintaining demographic and genetic connections with Canadian populations and providing the opportunity for demographic and/or genetic connectivity with other ecosystems (CYE, BE, GYE)." The objectives in the proposed rule will result in conditions conducive to continuing dispersal of subadult bears out of the DMA, providing for potential emigration into other populations or recovery zones. Evidence indicates that dispersal of both males and females is inversely density dependent (Stoen et al. 2006). Subadult bears are more likely to disperse and generally move longer distances from their natal areas when bear density around them is lower. This is likely because at lower densities, dispersing individuals experience less intraspecific competition and are more apt to locate areas where they will have more exclusive access to resources. Consequently, in geographically distinct but expanding populations, we generally observe higher densities and smaller dispersal rates and distances in the "core" and lower densities and larger dispersal rates and distances near the periphery (Swenson et al. 1998, Kojola and Laitala 2000, Jerina et al.2008, Karamanlidis et al. 2021). Interestingly, although male-biased dispersal rates typically result in male-dominated sex ratios near the periphery (Swenson et al. 1998, Kojola and Laitala 2000, Jerina et al. 2008), some evidence suggests that peripheral females and males dispersed similar distances from the core (Swenson et al. 1998, Kojola and Laitala 2000), and all studies documented at least some long-distance female dispersal (Swenson et al. 1998, Jerina et al. 2008, Karamanlidis et al. 2021). These studies all support what has been observed in the spatially expanding NCDE grizzly bear population. Kendall et al. (2009) documented a core-to-periphery density gradient centered in Glacier National Park. We continue to observe outlier bears far from the DMA (and far from other ecosystems). Most outlier verified observations have been males (when sex was determined); however, females appear to be equally present within certain areas of newly occupied range, such as the East Front, the Salish Range, and the Flathead Valley. Through genetic analyses, we have documented several dispersal movements up to 82 miles from the edge of the DMA, by individuals born in the NCDE. Given the protected habitat and the demographic objectives outlined here, we expect that bear density within the DMA will continue to be higher than in surrounding areas for the foreseeable future. Thus, there will continue to be a density gradient conducive to dispersal outside of the DMA by some subadults. If these individuals are successful in staying out of conflict and surviving in the more human-populated areas between ecosystems, they may succeed in moving between the NCDE and other populations.

COMMENT #5: The commission received some comments that advocated that mortality thresholds in ARM 12.9.1403 must be recalibrated if population estimator methodologies change.

RESPONSE #5: The methods used to estimate the NCDE population result in estimates that are not biased high or low but represent our best estimate of the true population size. The mortality thresholds are not static. They are re-established at least every six years, based on population projections, they are responsive to the current population estimate (whatever it may be), and they are constrained to maintain a 90% estimated probability that the population will stay above 800 bears during the next six years.

COMMENT #6: The commission received a comment expressing concern that the use of a six-year average will result in a lag time that hinders FWP's capacity to detect and respond to significant short-term population changes, undermining the agency's ability to maintain the population above the thresholds identified in the rule.

RESPONSE #6: Our goal of maintaining a 90% estimated probability that the population remains above 800 bears is designed to overcome limitations in our ability to detect population changes. In other words, we are required to maintain a buffer above 800 bears. And this buffer increases if there is more uncertainty in our estimation. The six-year running average for mortality numbers and survival rates is appropriate because it helps smooth annual variation, which is caused by both sampling variance and true variability. Under these objectives, we evaluate population status at least every six years, and then establish new limits consistent with the 90% probability. This makes us very responsive to even small changes in observed values.

COMMENT #7: The commission received a comment that stated current language indicates hunting would not be allowed in a year if mortality thresholds are exceeded. The comment recommends the proposed language in ARM 12.9.1403(5) should be amended to read, "Hunting will not be allowed in a year if mortality thresholds as described in (3)(b)(ii) or (iii) were reached or exceeded in the previous year."

RESPONSE #7: Reaching the threshold does not necessitate closure of hunting. Because this commitment is already conservative, FWP stands by the recommended language.

COMMENT #8: The commission received one comment indicating that the probability threshold of 90% (Hunting will cease if the probability of the population exceeding 800 falls below 90%) should be higher and suggested 92% or greater. Another commenter suggested the female survival rate threshold in ARM 12.9.1403(3)(b)(i) be increased to 92% to ensure a growing population.

RESPONSE #8: The rule commits to implementing the provisions of the NCDE Conservation Strategy, from which the thresholds in (3) came. The 90% probability threshold and the 90% female survival thresholds are considered adequate to ensure a recovered and stable-to-increasing population.

COMMENT #9: The commission received a comment stating that this rulemaking is getting in front of the USFWS delisting process and should be paused and the commission should not move ahead with rulemaking based on the current conservation strategy.

RESPONSE #9: A criterion for whether a population or population segment should be delisted is whether there are adequate regulatory mechanisms. Codifying the commitments in the Conservation Strategy into ARM prior to delisting demonstrates Montana's commitment to manage grizzly bears at recovered levels if they are delisted and should help the U.S. Fish and Wildlife Service to better evaluate this criterion.

/s/ Zach Zipfel /s/ Lesley Robinson

Zach Zipfel Lesley Robinson

Rule Reviewer Chair

Fish and Wildlife Commission

Certified to the Secretary of State September 13, 2022.