SENATE BILL NO. 334

INTRODUCED BY K. MESAROS, C. HIBBARD, J. HERTEL, E. SWANSON

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING LAWS RELATED TO OUTFITTERS; REVISING THE MEMBERSHIP AND APPOINTMENT PROCEDURES OF THE BOARD OF OUTFITTERS; DEFINING "NET CLIENT HUNTER USE" AND ESTABLISHING CRITERIA TO BE APPLIED BY THE BOARD OF OUTFITTERS AND THE DEPARTMENT OF FISH, WILDLIFE, AND PARKS IN DETERMINING WHETHER AN EXPANSION OF NET CLIENT HUNTER USE IS ALLOWABLE; PROVIDING ADDITIONAL DEFINITIONS; ESTABLISHING FEES; PROVIDING FOR ALLOCATION OF THE REVENUE GENERATED BY THE FEES; PROVIDING CONTINGENT VOIDNESS PROVISIONS; AND AMENDING SECTIONS 2-15-1833, 37-47-101, 37-47-201, AND 37-47-306, MCA."

WHEREAS, private property rights and free market principles will result in a certain amount of ebb and flow of outfitter presence statewide or in any particular geographical region; and

WHEREAS, approval or denial of an outfitter's request for expansion of client service base is predicated upon the state's broad power to regulate for the public health, welfare, and safety, which includes wildlife held in public trust, public hunting, private property rights, and private enterprise; and

WHEREAS, approval or denial of a net client hunter use expansion request must provide due process for outfitters and the opportunity for public comment under the Montana Administrative Procedure Act, including agency response to those public comments; and

WHEREAS, implementing the regulations necessary to meet the Legislature's goal of a reduction in new hunting use of areas by outfitters when the new use will cause undue conflict with existing hunting uses in the areas, providing necessary due process to outfitters, and providing for and responding to public comment will require time, staff, and resources not currently available in agency budgets.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 2-15-1883, MCA, is amended to read:

"2-15-1883. Board of outfitters. (1) There is a board of outfitters.

(2) The board consists of the following seven members to be appointed by the governor:

(a) one big game hunting outfitter;

(b) one fishing outfitter;

(c) two outfitters who are engaged in the fishing and hunting outfitting business;

(d) two sportspersons; and

(e) one member of the general public.

(3) (a) A subcommittee composed of five members of the board shall review net client hunter use expansion requests as provided in [section 5], based on the criteria provided in [section 6], and report its determinations to the full board. A favorable vote of at least a majority of all members of the board is required to adopt any resolution, motion, or other decision.

(b) The subcommittee must consist of the two hunting outfitters, the two sportspersons, and the one member of the public serving on the board pursuant to subsection (2).

(4) A vacancy on the board must be filled in the same manner as the original appointment.

(5) The members shall serve staggered 3-year terms and take office on the day they are appointed.

(6) The board is allocated to the department of commerce for administrative purposes only as prescribed in 2-15-121.

(7) Each member of the board is entitled to receive compensation and travel expenses as provided for in 37-1-133."

Section 2. Section 37-47-101, MCA, is amended to read:

"37-47-101. Definitions. As used in this chapter, unless the context requires otherwise, the following definitions apply:

(1) "Accompany" means to go with or be together with a participant as an escort, companion, or other service provider, with an actual physical presence in the area where the activity is being conducted and within sight or sound of the participant at some time during the furnishing of service.

(2) "Base of operations" means the primary physical location where an outfitter receives mail and telephone calls, conducts regular daily business, and bases livestock, equipment, and staff during the hunting season.

(3) "Board" means the board of outfitters provided for in 2-15-1883.

(4) "Camp" means each individual facility or group of facilities that an outfitter uses to lodge a client for a client's trip or uses to lodge a client in the operating area designated in the outfitter's operations plan, including a motel, campground, bed and breakfast, lodge, tent camp, cabin, camper, trailer, or house.

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

(6) "Department" means the department of commerce provided for in Title 2, chapter 15, part 18.

(7) "Guide" means a person who is employed by or who has contracted independently with a licensed outfitter and who accompanies a participant during outdoor recreational activities that are directly related to activities for which the outfitter is licensed.

(8) "License year" means that period beginning January 1 and ending December 31 of the same year.

(9) "Net client hunter use" or "NCHU" means the most actual clients served by an outfitter in any NCHU license category in any license year , as documented by verifiable client logs or other documents maintained by the board pursuant to 37-47-201(7).

(10) "Nonresident" means a person other than a resident.

(11) "Outfitter" means any person, except a person providing services on real property that the person owns for the primary pursuit of bona fide agricultural interests, who for consideration provides any saddle or pack animal; facilities; camping equipment; vehicle, watercraft, or other conveyance; or personal service for any person to hunt, trap, capture, take, kill, or pursue any game, including fish, and who accompanies that person, either part or all of the way, on an expedition for any of these purposes or supervises a licensed guide or professional guide in accompanying that person.

(12) "Participant" means a person using the services offered by a licensed outfitter.

(13) "Professional guide" means a guide who has met experience, training, and testing qualifications for designation as a professional guide, as set by board rule.

(14) "Resident" means a person who qualifies for a resident Montana hunting or fishing license under 87-2-102."

Section 3. Section 37-47-201, MCA, is amended to read:

"37-47-201. Powers and duties of board relating to outfitters, guides, and professional guides. The board shall:

(1) prepare and publish an information pamphlet that contains the names and addresses of all licensed outfitters. This pamphlet must be available for free distribution as early as possible during each calendar year but not later than the second Friday in March. The pamphlet must contain the names and addresses of only those outfitters who have a valid license for the current license year.

(2) cooperate with the federal government in matters of mutual concern regarding the business of outfitting and guiding in Montana;

(3) enforce the provisions of this chapter and rules adopted pursuant to this chapter;

(4) establish outfitter standards, guide standards, and professional guide standards;

(5) adopt:

(a) rules of procedure;

(b) rules to administer and enforce this chapter, including rules prescribing all requisite qualifications for licensure as an outfitter, guide, or professional guide. Qualifications for outfitters must include training, testing, experience in activities similar to the service to be provided, knowledge of rules of governmental bodies pertaining to outfitting and condition and type of gear and equipment, and the filing of an operations plan.

(c) any reasonable rules, not in conflict with this chapter, necessary for safeguarding the public health, safety, and welfare, including evidence of qualification and licensure under this chapter for any person practicing or offering to practice as an outfitter, guide, or professional guide;

(d) rules specifying standards for review and approval of proposed new operations plans involving hunting use or the proposed expansion of net client hunter use, as set forth in [sections 5 and 6], under an outfitter's existing operations plan . Approval is not required when part or all of an existing operations plan is transferred from one licensed outfitter to another licensed outfitter. Rules adopted pursuant to this section must provide for solicitation and consideration of comments from hunters and sportspersons in the area to be affected by the proposal who do not make use of outfitter services.

(e) rules establishing outfitter reporting requirements. The reports must be filed annually and report actual leased acreage actively used by clients during that year and actual leased acres unused by clients during that year, plus any other information designated by the board and developed in collaboration with the department of fish, wildlife, and parks or the review committee established in 87-1-269 that is considered necessary to evaluate the effectiveness of the hunter management and hunting access management programs .

(6) hold hearings and proceedings to suspend or revoke licenses of outfitters, guides, and professional guides for due cause;

(7) maintain records of actual clients served by all Montana outfitters that fulfill the requirements of subsection (5)(e)."

Section 4. Section 37-47-306, MCA, is amended to read:

"37-47-306. Fees. (1) The board shall establish fees commensurate with costs as provided in 37-1-134.

(2) Applications must be accompanied by a license fee as specified by board rule.

(3) If a nonresident license applicant resides in a state that requires residents of the state of Montana to pay in excess of the amount established by the board for a similar license, then the fee for the nonresident outfitter's, guide's, or professional guide's license must be the same amount as the higher fee charged in the state where the nonresident license applicant resides. A nonresident hunting outfitter is subject to the same rules and regulations that apply to a resident hunting outfitter, except that a nonresident hunting outfitter is not eligible to sponsor hunters for the Class B-10 and Class B-11 licenses, as provided in 87-2-511.

(4) The license fees must be deposited in the state special revenue fund and must be used by the board to investigate the applicant, to enforce this part, and for administrative costs, subject to 37-1-101(6)."

NEW SECTION. Section 5. Request for net client hunter use expansion -- operation -- transfer of NCHU upon transfer of operations plan. (1) An outfitter who wishes to expand NCHU shall present an expansion request to the board. A newly licensed outfitter shall establish NCHU in the same manner as a licensed outfitter who requests an NCHU expansion unless the newly licensed outfitter is purchasing the business of an existing outfitter. The board shall evaluate the request based on the criteria provided in [section 6].

(2) For any expansion of NCHU approved by the board after March 1, 1996, the outfitter has 3 years from the date of the expansion approval to establish the new NCHU. Upon expiration of the third year, the outfitter's client base must be adjusted to reflect the highest number of clients actually served, up to but not exceeding the number of clients authorized by the NCHU expansion request.

(3) An outfitter may exceed the NCHU in any given year by the following percentages without formally requesting an NCHU expansion:

(a) 10% for an outfitter with 1 to 50 clients;

(b) 8% for an outfitter with 51 to 100 clients; and

(c) 2% for an outfitter with 101 to 300 clients.

(4) When an expansion of NCHU is approved, the outfitter who is granted the expansion shall operate within the limits of the NCHU. The flexibility to exceed NCHU in any given year, as outlined in subsection (3), does not apply to an outfitter who has been previously granted an NCHU expansion.

(5) The NCHU of an existing outfitting business transfers with the operations plan for that business unless the business has not been in operation for at least 3 years. Upon the expiration of 3 years, the client base must be adjusted to reflect the highest number of clients served in any category during the preceding 3 years, not to exceed the total authorized by the NCHU.

NEW SECTION. Section 6. Criteria for board evaluation of NCHU expansion request -- public comments. (1) The criteria listed in subsection (2) must be applied by the board in evaluating and deciding whether to grant an NCHU expansion request. The criteria must be considered in light of the cumulative effect of the current expansion request and any previously approved expansion requests. The board may not approve an expansion request unless, by a preponderance of the evidence, a reasonable person would conclude that the criteria support an expansion request.

(2) An NCHU expansion request may not be granted if any of the following criteria are established:

(a) The request creates closure of a public right-of-way.

(b) The requestor has current license restrictions imposed by the board or is currently subject to a disciplinary action imposed by the board.

(c) The requestor has been convicted or pleaded guilty to a violation of Montana hunting or fishing statutes, rules, or regulations in the last 3 years.

(d) Any information in the request is inaccurate or untrue.

(e) The request does not cover adequate land to ensure the personal safety of hunters.

(f) Sufficient wildlife is not available to support the proposed number of hunters covered under the request.

(g) The proposed expansion would create or exacerbate a game damage situation.

(h) The proposed expansion would restrict the current efforts of the department of fish, wildlife, and parks to manage area wildlife through permits issued to public hunters.

(3) Failure by a requestor to provide all pertinent information and documentation will result in the expansion request being deferred without action until the subsequent meeting of the board. If the requestor fails to provide the pertinent information and documentation before the subsequent board meeting, the request must be denied.

(4) Public comments concerning an NCHU expansion must be solicited and compiled by the department of fish, wildlife, and parks from affected recreationists and recreationist organizations, public land management agencies, affected landowners and landowner organizations, affected outfitters and outfitter organizations, and the general public. Public comment must be solicited through the issuance of press releases and by identification of proposed leased private land by its popular description. The department of fish, wildlife, and parks shall incorporate the public comments into the analysis of the expansion request required under subsection (5). In addition, the board shall consider the public comments separately from the department of fish, wildlife, and parks' analysis.

(5) In considering an NCHU expansion request, the board shall also consider any analysis and comments submitted by the department of fish, wildlife, and parks. Departmental analysis may include but is not limited to the following criteria:

(a) whether historic hunting data, such as the past occurrence of outfitting or public hunting, supports the request;

(b) whether negative impacts to the wildlife population will occur, given documented wildlife trends in the geographical region encompassed by the expansion request;

(c) whether public access or public hunting trends in the geographic region affected by the request will be negatively impacted;

(d) whether there have been past substantiated conflicts between the hunting public and outfitters or between individual outfitters and their clients in the local geographic region affected by the request;

(e) if the expansion will create a negative effect on wildlife habitat;

(f) if the expansion will have negative implications on hunting on public land, hunting access, or outfitting;

(g) whether analysis of existing data regarding wildlife, hunting access, or other relevant information supports the expansion request; and

(h) whether there will be impacts on previously available hunting access in the local geographic region affected by the request, such as impact on the block management program.

(6) The outfitter making the expansion request shall address the criteria outlined in subsection (5) to the best of the outfitter's knowledge. The analysis required in subsection (5) must be compiled using information supplied by the applicant, through public comment, and through any other available data.

(7) In making its final decision regarding an expansion request, the board shall respond in the decision notice to comments received by outlining the comment and delineating how, if at all, the comment was incorporated into the final decision. The board shall also consider whether:

(a) the expansion will open private or public lands to public hunting that did not previously exist;

(b) the request addresses existing game damage by opening new public equivalent hunting opportunities for both outfitters and the public; and

(c) the expansion would directly restrict public access to public lands.

(8) For the purposes of this section, "right-of-way" means any public interest in or use of real property for purposes of recreation or for gaining access to other real property for purposes of recreation.

NEW SECTION. Section 7. Fees in addition to annual license fee -- allocation. (1) In addition to the fees required in 37-47-306 for an outfitter providing hunting services, the following fees apply:

(a) An outfitter who operates on leased private land shall pay an annual fee of $10 for each client served.

(b) An outfitter who is granted a net client hunter use expansion shall pay a fee of $500 for each new client added to that outfitter's operations plan.

(c) An outfitter who operates hunting camps in more than one department of fish, wildlife, and parks administrative region shall pay an annual fee of $5,000 for each camp that is located beyond a 100-mile radius of the outfitter's base of operations and that is in an administrative region other than the region containing the outfitter's base of operations. A fee is not required for the following:

(a) an outfitter's base of operations camp;

(b) camps established before October 1, 1999;

(c) camps established on public land when use is directly regulated by public land-use policies; or

(d) camps on corporate timberlands where public access is not restricted.

(2) Fees collected pursuant to this section must be expended pursuant to the authority in 37-47-306, and the department of fish, wildlife, and parks, to be expended pursuant to the authority in 87-1-601, and used to fund administrative costs related to implementation of this chapter. The fees collected must be allocated as follows:

(a) Revenue generated by the $10 fee imposed in subsection (1)(a) must be split equally between the board and the department of fish, wildlife, and parks.

(b) Revenue generated by the $500 fee imposed in subsection (1)(b) must be allocated between the board and the department of fish, wildlife, and parks in the following order:

(i) the amount necessary to cover the department's administrative expenses that exceed the revenue generated by subsection (2)(a); and

(ii) the remaining amount to be deposited in the state special revenue fund to the credit of the board.

(c) Revenue generated by the $5,000 fee imposed in subsection (1)(c) must be deposited in the state special revenue fund to the credit of the board.

NEW SECTION. Section 8. Contingent voidness. (1) If [LC 1708], submitting the annual fee of $10, for each client served, for an outfitter who operates on leased private land, is not approved by the electorate, then [section 7(1)(a)] of [this act] is void.

(2) If [LC 1709], submitting the fee of $500, for each new client added to an outfitter's operations plan, for an outfitter who is granted a net client hunter use expansion, is not approved by the electorate, then [section 7(1)(b)] of [this act] is void.

(3) If [LC 1710], submitting the annual fee of $5,000 for each camp for an outfitter who operates a camp in more than one department of fish, wildlife, and parks administrative region and the camp is located beyond a 100-mile radius of the outfitter's primary base of operations, is not approved by the electorate, then [section 7(1)(c)] of [this act] is void.

(4) If [LC 1708], [LC 1709], and [LC 1710] are all disapproved by the electorate, then [this act] is void.

(5) If Constitutional Initiative No. 75, enacting Article VIII, section 17, of the Montana constitution, is declared invalid, then this section is void.

NEW SECTION. Section 9. Codification instruction. [Sections 5 through 7] are intended to be codified as an integral part of Title 37, chapter 47, and the provisions of Title 37, chapter 47, apply to [sections 5 through 7].

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