House Bill No. 109

Introduced By harper

By Request of the Department of Fish, Wildlife, and Parks

A Bill for an Act entitled: "An Act revising regulation of private fish ponds; clarifying the definition of "artificial lake or pond"; establishing a 1-year amnesty program for pond owners not in compliance with fish pond regulations; establishing terms, fees, site inspections, and transfer and renewal procedures for noncommercial and commercial private fish pond licenses; eliminating the provision allowing the federal government to conduct fish hatching operations in any manner and at any time that the federal government considers it necessary and proper; amending sections 87-3-204, 87-3-205, 87-4-601, 87-4-603, and 87-4-606, MCA; repealing section 87-1-704, MCA; and providing an immediate effective date, an applicability date, and a termination date."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 87-3-204, MCA, is amended to read:

"87-3-204.   Restrictions on fishing methods. (1) No A game fish may not be caught, captured, or taken or attempted to be caught, captured, or taken by the aid or with the use of any gun or trap,. nor may any such A set gun, trap, or other device to entrap game fish may not be used, made, or set.

(2)  It is unlawful for a person to take or catch fish in any of the waters of this state,:

(a) except with hook and line held in hand or line and hook attached to rod or pole held in hand; to take or catch fish

(b) with hook baited with any poisonous substance or by means of the use of any poisonous substance, including fish berries; or to take or catch fish

(c) by means of the use of fishtraps, grabhooks, seines, nets, or other similar means for catching fish.

(3)  The department may designate such waters within the state of Montana wherein in which, in the judgment of the department, spears or gigs may be used for taking walleyed pike, sauger, northern pike, and nongame fish and traps, seines, nets, and rubber or spring-propelled spears, when employed by sportsmen individuals swimming or submerged in the water, may be used for the taking of designated species of fish. The designated waters so designated may be closed at the discretion of the department. The taking of all fish by such designated means in the designated waters, when so designated, is to must be done under such rules as that the department may prescribe with reference thereto and under the supervision of the department. All such nongame fish so taken by designated means may be possessed and sold in such the manner and under such the restrictions as that the department may direct. All fish, other than those herein designated, so taken by designated means under department rules, when prescribed by the department, shall must be returned uninjured to the waters from which they were taken.

(4)  The taking of black bass in Flathead Lake may be permitted by the department.

(5)  The department shall have the power to may designate certain waters where setlines may be used to fish for certain species of game or nongame fish, and the department may designate the number of hooks and lines and the length of line or lines which may be used as setlines.

(6)  Game fish shall must be taken only by angling; that is, by hook and single line in hand or single rod in hand or within immediate control as provided in subsection (2)(a). This does not prevent, however:

(a)  the snagging of paddlefish, coho (silver salmon), and kokanee (sockeye salmon) when the department declares an open season when paddlefish, coho (silver salmon), and kokanee (sockeye salmon) may be taken by snagging;

(b)  the taking of paddlefish, channel catfish, and nongame fish with longbow and arrow, under such rules and regulations as the fish, wildlife, and parks commission may prescribe;

(c)  the taking of walleyed pike, sauger, northern pike, burbot (ling), and nongame fish with spear or gig when the department declares an open season for taking walleyed pike, sauger, northern pike, burbot (ling), and nongame fish with spear or gig;

(d)  the use of landing net or gaff to land a game fish after the same game fish has been hooked by angling as above specified in subsection (6);

(e)  the taking of minnows other than game fish variety by the use or aid of a net not to exceed 12 feet in length and 4 feet in width in such waters as may be designated by the department;

(f)  the taking of whitefish by nets or traps in the Kootenai River and in its tributary streams within 1 mile of the Kootenai River, under such rules and regulations as that the fish, wildlife, and parks commission may prescribe; or

(g)  the taking of any game fish through a hole in ice with an unattended line or rod as long as the angler is in the vicinity and within visual contact of the line or rod.

(7) These restrictions do not apply to fish taken under 87-4-603."

Section 2.  Section 87-3-205, MCA, is amended to read:

"87-3-205.   Unlawful to possess net or seine -- exceptions. (1) It is unlawful for any person or persons to have in their possession or under their control any seine, net, or other similar device for capturing fish. A seine or net found in any vehicle, at the camp, or on the premises of any person shall be is prima facie evidence that the seine, net, or similar device belongs to the person or persons occupying said the camp or premises.

(2)  Nothing contained herein shall This section does not apply to:

(a)  the owners of private fish ponds, as defined under the statute provided in 87-4-603 and anyone given permission by the owners;

(b)  a person or persons having an unexpired seine or net license, as provided for in the statutes of Montana law;

(c)  the use, by any person, of a landing net in connection or in addition to pole, line, and hooks in fishing for game fish; or

(d)  the possession of traps, seines, or nets where found in the vicinity of any waters which that the department has designated within the state where that traps, seines, or nets may be used are permitted for the taking of nongame fish and Dolly Varden trout, as provided for in the statutes of Montana."

Section 3.  Section 87-4-601, MCA, is amended to read:

"87-4-601.   (Temporary) Sale of fish or spawn unlawful -- exceptions. (1) Except as provided in subsections (2) and (3), a person may not, for speculative purposes, for market, or for sale, in any way, catch any of the fish which in this title are classified as game fish or remove or cause to be removed the eggs or spawn of any such game fish. No A person may not sell or offer for sale any of the game fish of this state as defined in this title or the eggs or spawn from any game fish.

(2)  The restrictions of subsection (1) do not apply to:

(a)  the catching of fish in private fish ponds by the owners of private fish ponds and anyone given permission by the owners or license holders of private fish ponds;

(b)  the taking of fish by state authorities for the purpose of obtaining eggs for propagation in state fish hatcheries or by any person who receives a permit from the department to take eggs for propagation purposes;

(c)  the catching of whitefish by the holder of a valid fishing license fishing with hook and line or rod in specified waters designated by rules and regulations of the department;

(d)  the taking of whitefish by nets or traps in the Kootenai River and in its tributary streams within 1 mile of the Kootenai River, under rules and regulations as the fish, wildlife, and parks commission may prescribe; or

(e)  the sale by the department of fish eggs produced from brood stock owned by the department but determined to be in excess of the department's needs.

(3)  (a) A person issued a paddlefish tag under 87-2-306 who legally takes a paddlefish from the Yellowstone River between the burlington northern railroad bridge at Glendive to the confluence of Cottonwood Creek and the Yellowstone River during an authorized paddlefish season may donate the paddlefish roe, or eggs, to a Montana nonprofit corporation as specified in subsection (3)(b) for processing and marketing as caviar. A paddlefish may be brought only to the Intake fishing access site for donation to the paddlefish roe donation program and must be a properly tagged, whole paddlefish. Roe separated from the paddlefish is not acceptable for donation to the program. A paddlefish intentionally cut in any manner to identify its sex is also unacceptable for donation to the program.

(b)  The department shall develop rules for selecting one Montana nonprofit organization to accept paddlefish egg donations and process and market the eggs as caviar. The department shall also develop rules for the marketing and sale of caviar under this section.

(c)  The department may enter into an agreement with the organization selected pursuant to the rules provided for in subsection (3)(b) specifying times, sites, and other conditions under which paddlefish eggs may be collected. The agreement must require the organization to maintain records of revenue collected and related expenses incurred and to make the records available to the department and the legislative auditor upon request.

(d)  (i) Forty percent of the proceeds from the sale of paddlefish egg caviar products in excess of the costs of collection, processing, and marketing must be deposited in a state special revenue fund established for the department. The fund and any interest earned on the fund must be used to benefit the paddlefish fishery, including fishing access, administration, improvements, habitat, and fisheries management, or to provide information to the public regarding fishing in eastern Montana, which could include the design and construction of interpretive displays.

(ii) Sixty percent of the proceeds from the sale of paddlefish egg caviar products in excess of the costs of collection, processing, and marketing must be paid to the nonprofit organization that processes and markets the caviar. The nonprofit organization's administrative costs must be paid from its share of the proceeds. An advisory committee must be appointed by the commission and consist of one member from the organization selected pursuant to the rules provided for in subsection (3)(b), two area local government representatives, and two representatives of area sportsmen. The advisory committee shall solicit and review historical, cultural, recreational, and fish and wildlife proposals and fund projects. The committee shall notify the commission of its actions. Proceeds may be used as seed money for grants. (Terminates June 30, 2003--sec. 2, Ch. 196, L. 1993.)

87-4-601.   (Effective July 1, 2003) Sale of fish or spawn unlawful -- exceptions. (1) Except as provided in subsection (2), no a person may not, for speculative purposes, for market, or for sale, in any way, catch any of the fish which in this title are classified as game fish or remove or cause to be removed the eggs or spawn of any such game fish. No A person may not sell or offer for sale any of the game fish of this state as defined in this title or the eggs or spawn therefrom from any game fish.

(2)  The restrictions of subsection (1) do not apply to:

(a)  the catching of fish in private fish ponds by the owners and anyone given permission by the owners or license holders thereof of private fish ponds;

(b)  the taking of fish by state authorities for the purpose of obtaining eggs for propagation in state fish hatcheries or by any person who receives a permit from the department to take eggs for such purposes;

(c)  the catching of whitefish by the holder of a valid fishing license fishing with hook and line or rod in specified waters designated by rules and regulations of the department;

(d)  the taking of whitefish by nets or traps in the Kootenai River and in its tributary streams within 1 mile of the Kootenai River, under such rules and regulations as the fish, wildlife, and parks commission may prescribe; or

(e)  the sale by the department of fish eggs produced from brood stock owned by the department but determined to be in excess of the department's needs."

Section 4.  Section 87-4-603, MCA, is amended to read:

"87-4-603.   Fish pond license for artificial lake or pond -- records. (1) A person who owns or lawfully controls an artificial lake or pond may apply to the director for a private fish pond license. The holder of a the private fish pond license may stock the fish pond with fish procured from a lawful source. The department may designate the species of fish that may be released in the private fish pond and otherwise condition the license if there is a possibility of fish escaping from the private fish pond into adjacent streams or lakes. The license holder and anyone given permission by the license holder may take fish from the artificial lake or pond in any manner and without a fishing license or any restrictions. Before a commercial license holder may sell fish or eggs or fry from the artificial lake or pond, the license holder shall furnish a corporate surety bond to the state for $500, conditioned to the effect that the license holder will not sell fish or spawn from any of the public waters of this state or violate the conditions of the license and also conditioned to the effect that the license holder will submit an annual report on transactions to the director.

(2)  A commercial private fish pond license is necessary:

(a) to sell fish, eggs, or fry from an artificial lake or pond;

(b) to operate a fee fishing facility by charging to fish in an artificial lake or pond; or

(c) to operate a private aquaculture facility for the production, rearing, or cultivation of fish species.

(3) (a) "Artificial lake or pond" or "private fish pond", as used in this section and 87-4-606, does not include a natural pond or body of water, including streams and rivers, created by natural means or any portion of the streambed or lakebed of a natural pond or body of water. It includes only bodies of water created by artificial means or diversion of water that do not exceed 500 acres of surface area. means a body of water that is:

(i) (A) created by artificial means or a diversion of water that does not exceed 500 acres in surface area; or

(B) an instream pond that does not exceed 500 acres with a tributary spring or stream that does not support game fish or fish species of special concern; and

(C) not determined by the department to pose an unacceptable risk to game fish or fish species of special concern in downstream waters.

(b) The term does not include all other natural ponds or bodies of water, including streams or rivers, and impoundments or reservoirs of or on a natural stream, river, lake, or pond.

(4) An applicant for licensing of an instream private fish pond shall present to the department verification that game fish or fish species of special concern do not occur in the tributary, spring, or stream and that the instream private fish pond does not pose an unacceptable risk to game fish or fish species of special concern in downstream waters. The verification must be in the form of:

(a) a formal report from a department-approved professional fisheries consultant; or

(b) other reliable data and documentation.

(3)(5) The department may condition the license to require the construction, implementation, and maintenance of measures or devices to prevent fish in an artificial lake or pond from escaping into adjacent waters.

(4)(6) (a) A commercial private fish pond licensee who sells fish or eggs shall keep accurate records of:

(i)  the species and quantities of fish or eggs sold or purchased;

(ii) dates of sales or purchases;

(iii) names of purchasers or sellers; and

(iv) locations to or from which fish or eggs are transferred.

(b)  On or before January 31 of each year, a commercial private fish pond licensee who sells fish or eggs shall file a report with the department, on forms made available by the department, summarizing the records required under subsection (4)(6)(a).

(5)(7)  A person who owns or controls an artificial lake or pond may request an inspection by the department to ascertain the presence of disease in fish or the illegal introduction of fish species. Whenever the department has reasonable cause to believe that a fish species in the body of water may have been illegally introduced or may have a disease that may affect fish in another body of water, As a condition of licensure, a private fish pond license holder shall allow administrative site inspections of the license holder's artificial lake or pond at reasonable times after notification by the department. the The department shall notify the landowner or landowner's agent by mail or in person of the intention to enter upon the land and shall enter only after notice has been given to the landowner or agent or after every reasonable effort has been made to notify the landowner and receive permission to enter upon the land. Thereafter, the department may enter upon land under the provisions of this subsection for the purposes of inspecting the private fish pond or the body of water, the species of fish in the private fish pond or the body of water, the presence of disease in a fish species, the construction of any impoundment, dam, or fish barrier, and the physical connection of an artificial lake or pond to an adjacent natural lake, pond, or body of water, including a stream or river. The department is responsible for actual damages to any property.

(6)(8)  If the department finds an illegal introduction of fish or the presence of disease in fish in a licensed private fish pond,; an artificial lake or pond,; or a natural lake, pond, or body of water, the department shall consult with the landowner or the landowner's agent to determine the appropriate action unless an emergency exists. In an emergency situation, the department may order or take appropriate action to address any threat to the state's fisheries resources, including quarantine or destruction of fish, eggs, or the source of a disease. Whenever privately owned fish are destroyed and the private owner is not responsible for an illegal introduction or the introduction of fish with a disease, the department may replace the destroyed fish without charge to the private owner. A landowner or agent who has granted permission for the department to enter is not considered responsible for an illegal introduction of fish or disease unless proven otherwise.

(9) (a) The department shall implement and administer an amnesty program for private fish pond owners or operators who are not in compliance with the private fish pond licensing and operational requirements. For a period of 1 year from [the effective date of this act], persons who report to the department past noncompliance with the private fish pond requirements may not be prosecuted for past violations of this section that have been reported to the department. Violations may include but are not limited to:

(i) failure to obtain a private fish pond license;

(ii) stocking of unauthorized fish; and

(iii) failure to comply with license conditions.

(b) Failure to comply, where compliance is possible, within a reasonable time granted by the department, will subject the private fish pond owner or operator to prosecution for the violation.

(c) If the department finds illegally introduced fish or diseased fish in a private fish pond as part of the amnesty program described in subsection (9)(a), the department:

(i) may exercise the authority granted in subsection (8);

(ii) is responsible for any costs incurred in ridding the private fish pond of the illegal or diseased fish;

(iii) is not required to replace the illegal or diseased fish; and

(iv) is not required to approve or license any unauthorized fish species found in the private fish pond."

Section 5.  Section 87-4-606, MCA, is amended to read:

"87-4-606.   Term of license -- fees -- site inspections -- license not transferable -- exceptions. (1) A noncommercial private fish pond license is valid for 10 years. A commercial private fish pond license is valid for 1 year.

(2) There is a $100 application fee for a new license application and a $100 renewal fee.

(3) More than one private fish pond may be authorized by a single license if the private fish ponds are:

(a) in close physical proximity to one another;

(b) located in the same immediate drainage; and

(c) owned or operated by the same person.

(1)(4) A commercial private fish pond licensee who sells fish or eggs under 87-4-603 shall renew the license annually. The license expires on January 31 February 28 of the year succeeding the year of issuance. A noncommercial private fish pond license expires on February 28 of the 10th year succeeding the year of issuance. Application for renewal must be made before a license expires. The department shall renew the license if the licensee has not violated any condition upon which the license was granted and the licensee has met all the requirements governing private fish ponds in 87-3-204 and this section.

(5) (a) A private fish pond license renewal is contingent upon inspection of the site by the department, if the department determines that an inspection is warranted in order to ensure compliance with 87-4-603, and any conditions that are part of the license.

(b) The department shall inspect commercial private fish ponds annually.

(c) If the department finds noncompliance through site inspection, the private fish pond license is suspended until the violations are corrected.

(d) If the department discovers through site inspection that additional conditions are necessary to meet the requirements of 87-4-603, the department may require compliance with those conditions as a prerequisite to future operation as a private fish pond. 

(6) A new license may be granted only after there is a site inspection by the department.

(7) (a) A noncommercial private fish pond as of [the effective date of this act] is subject to the 10-year term requirement starting from the initial licensure of the private fish pond.

(b) The department may issue a renewal license, with a term of 10 years, to each person wishing to continue operating a noncommercial private fish pond if the private fish pond still qualifies for licensure and meets the conditions required in 87-4-603. A renewal license is subject to all of the conditions and requirements of 87-3-204, 87-3-205, 87-4-601, 87-4-603, and this section.

(c) Licenses that have been in effect for greater than 10 years as of [the effective date of this act] remain in effect until the department directs the license holder to apply for renewal and submit to a site inspection if the department determines an inspection is necessary.

(d) A renewal of a private fish pond licensed as of [the effective date of this act] is subject to the $100 renewal application fee.

(2)(8) A licensee who does not sell fish or eggs is not required to renew his license. However, a new license is required when a licensee proposes to plant a new species or stock a pond not designated in the original license.

(3)(9) (a) A private fish pond license granted under 87-4-603 is not transferable, except as provided in subsections (9)(b) and (9)(c).

(b) If ownership or control of the private fish pond changes, the new owner or operator shall apply for a transfer and the transfer must be approved by the department to continue operation.

(c) A transferred license retains the remaining portion of the original license's term.

(d) The department may require a site inspection before approving a transfer."

NEW SECTION. Section 6.  Repealer. Section 87-1-704, MCA, is repealed.

NEW SECTION. Section 7.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.

NEW SECTION. Section 8.  Applicability. [This act] applies to any private fish pond license application pending review and approval by the department on [the effective date of this act] and applies prospectively to any private fish pond licensed as of [the effective date of this act].

NEW SECTION. Section 9.  Effective date. [This act] is effective on passage and approval.

NEW SECTION. Section 10.  Termination. [Section 4(9) of this act] terminates one year after [the effective date of this act].

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