Montana Administrative Register Notice 12-475 No. 4   02/23/2018    
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BEFORE THE fish and wildlife commission



In the matter of the amendment of ARM 12.11.610 and adoption of NEW RULES I through III pertaining to recreational use on the Bitterroot River







TO: All Concerned Persons


1. On September 8, 2017, the Fish and Wildlife Commission (commission) published MAR Notice No. 12-475 pertaining to the public hearings on the proposed amendment and adoption of the above-stated rules at page 1451 of the 2017 Montana Administrative Register, Issue Number 17.


2. The commission has adopted NEW RULE III (ARM 12.11.613) to address concerns presented during public comment.


NEW RULE III (ARM 12.11.613) REVIEW OF RIVER RECREATION RULES FOR BITTERROOT RIVER (1)  The commission shall review the rules governing recreational use on the Bitterroot River every five years starting in 2024.


            AUTH87-1-303, MCA

IMP87-1-303, MCA


3. The commission has amended ARM 12.11.610 as proposed. The commission has adopted the following rules as proposed: New Rule I (ARM 12.11.611) and New Rule II (12.11.612).


4. The commission has thoroughly considered the comments and testimony received. A summary of the comments and the commission's responses are as follows:


Comment 1:  The commission received multiple comments in support of the rule language as proposed.


Response 1: The commission appreciates the participation and support in the rulemaking process.


Comment 2: The commission received several comments opposed to the rules stating it would damage the economy.


Response 2: An environmental assessment was completed evaluating any potential impacts of this rule proposal including economic impacts. No economic impacts were identified because commercial operators are still able to operate on the river.


Comment 3: The commission received a few comments opposing the rules because they unfairly target outfitters.


Response 3: The department conducted multiple surveys indicating that users identified crowding due to commercial use as a problem on the Upper and West Fork of the Bitterroot River displacing local users and noncommercial users from the river. The commission recognizes that the public prefers to recreate on rivers without controls on their recreational experience; however the commission also seeks to provide a full variety of quality recreation for a diverse public and has identified a need for management intervention to maintain the quality of the recreational experience on the Bitterroot River for all user groups. The rules do apply to commercial operators in order to address the problem of overcrowding and displacement due to high commercial use in this portion of the Bitterroot River as identified by surveys and data collection by the department.


Comment 4: The commission received a few comments that opposed the rules due to the dates proposed for the regulation.


Response 4: The dates established in the rules are consistent with data showing the high use months in this area. Seasonal factors, such as average water flows and average water temperatures, were also considered when setting these dates.


Comment 5: The commission received a few comments opposing the rules because of safety aspects.


Response 5: Safety is critical but it is the responsibility of the user to assess their experience level and choose the appropriate river and section of the river they use to recreate. Our river recreation rulemaking does not require a determination of safety.


Comment 6: The commission received a few comments stating that the rules will not address the overcrowding due to commercial use identified in the surveys.


Response 6: The department will be continually monitoring the use and conditions of the river. Information will be compiled and a mandatory review of these rules will occur every 5 years. These rules may be amended if necessary to address any further issues that are identified.


Comment 7: The commission received a few comments against the rules because they don’t consider historical use.


Response 7: The commission adopted rules restricting the use of the upper Bitterroot River and West Fork of the Bitterroot River based on historic use of the river using outfitter logs instead of allocating specific number of days.


Comment 8: The commission received a few comments opposing the rules because they were based on invalid data.


Response 8: The data collection and surveys were done as scientifically valid as possible, with each survey using a sample size of 3,000 licensed anglers.


Comment 9: The commission received some comments opposing the rules because they will move the crowding around, not solve it.


Response 9: Monitoring will be conducted on regulated and unregulated sections to see if use patterns have changed or negatively impact other sections or rivers. If it is determined that crowding remains an issue, it can be addressed at a future time.


Comment 10: The commission received a comment opposing the rules because if hoot owl restrictions are placed on the main river, commercial operators cannot use the lower stretch of the river leaving outfitters with nowhere to float.


Response 10: People can still float until 2:00 p.m. every day during hoot owl restrictions. The West Fork of the Bitterroot would not be affected. Hoot owl restrictions are rare on the upper river having only occurred on two occasions, 2013 and 2015. Usually, hoot owl restrictions only apply below Bell Crossing Fishing Access Site.


Comment 11: The commission received some comments opposing the rules because the Forest Service already issues permits for commercial use on the West Fork of the Bitterroot River. 


Response 11: The Forest Service regulates launching from their access sites only. The current system used by the Forest Service has not been enough to address the crowding and other issues identified by the department.


Comment 12: The commission received a few comments opposing the rules because they feel the social conflicts are exaggerated.


Response 12: Many people we have heard from agree that the river is crowded, and the data collected also indicates river crowding and user displacement.


Comment 13: The commission received a few comments questioning illegal outfitting on the upper Bitterroot River.


Response 13: It is unlikely that illegal outfitting is a major source of the crowding on the West Fork. The Forest Service has records of trips by licensed outfitters. When floaters were interviewed on the West Fork, it was not apparent that many were not licensed.


Comment 14:  The commission received a few comments opposing the rules because there is not enough data.


Response 14: There is enough data to enact the regulation and data will continue to be collected through monitoring. The data will be analyzed and reported on an annual basis.


Comment 15: The commission received some comments about the need for barbless hooks on the Bitterroot.


Response 15: This is outside the scope of this rulemaking process. 


Comment 16: The commission received two comments opposed to the rules because they unfairly affect resident floaters on Fridays.


Response 16:  ARM 12.11.610 prohibits all users from floating between Painted Rocks Forest Service Site and Applebury Forest Service Site on Fridays providing a wade angling section one day a week. This rule does not apply to resident floaters only. 


/s/ Rebecca Dockter                                   /s/ Dan Vermillion

Rebecca Dockter                                         Dan Vermillion

Rule Reviewer                                             Chair

                                                                     Fish and Wildlife Commission



Certified to the Secretary of State February 13, 2018.


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