Senate Bill No. 149

Introduced By bishop

A Bill for an Act entitled: "An Act providing for regulation of the recreational use of Montana's public waters in certain cases by allowing the fish, wildlife, and parks commission and the board of outfitters to adopt and enforce rules to address impacts caused by recreational users, to preserve a diversity of recreational opportunities, to minimize recreational user conflicts, or to protect the public health, public safety, or property; amending sections 37-47-201 and 87-1-303, MCA; and providing an immediate effective date."

STATEMENT OF INTENT

(1) A statement of intent is required for this bill because authority is granted to the fish, wildlife, and parks commission in 87-1-303 to adopt rules addressing the INDIVIDUAL AND COMMERCIAL recreational and commercial use of Montana rivers and streams. It is intended that the commission use this authority to identify public reservoirs, public lakes, rivers, and streams that are in immediate or potential danger of resource degradation or conflict over recreational uses. It is also intended that the commission develop rules to reasonably control the public recreational use of identified problem waters in order to address impacts or conflicts caused by recreational users, while maintaining a diversity of recreational opportunities. Rules may include, but are not limited to:

(a) restrictions on RECREATIONAL activities allowed;

(b) special seasons for special RECREATIONAL activities;

(c) closures of public waters TO RECREATIONAL ACTIVITIES; and

(d) the determination of restrictions on INDIVIDUAL AND COMMERCIAL recreational and commercial use.

(2) A statement of intent is also required because authority is granted to the board of outfitters in 37-47-201 to adopt rules regulating commercial outfitting and guiding activities. When notified by the commission of restrictions on commercial use as part of overall public restriction, it is intended that the board adopt rules regulating commercial outfitting and guiding activities on affected waters in order to address impacts or conflicts caused by recreational users, while maintaining a diversity of commercial RECREATIONAL service providers.

(3) Because of the potential for considerable impacts to the public's INDIVIDUAL AND COMMERCIAL recreational and commercial use of Montana's waters, it is intended that any rules proposed under the authority of this bill be subject to the Montana Negotiated Rulemaking Act, 2-5-101 through 2-5-110, to ensure a consensus in the rulemaking process when negotiated rulemaking will enhance public participation.

(4) This bill is not intended to restrict or interfere with existing water rights or private property rights OR WITH FACILITIES AND IMPROVEMENTS USED IN CONJUNCTION WITH WATER RIGHTS OR PRIVATE PROPERTY RIGHTS.

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

Section 1.  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 hunting use under an outfitter's existing operations plan in order to determine if the proposal will cause an undue conflict with existing hunting use of the area, constituting a threat to the public health, safety, or welfare. The board may not approve a new operations plan or the proposed expansion of net client hunting use under the existing operations plan if it finds that the proposal will cause an undue conflict with existing hunting use of the area. 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.

(6) (a) adopt and enforce rules, using a negotiated rulemaking process, regulating the number of outfitters or guides who may operate on a particular body or stretch of water when the fish, wildlife, and parks commission adopts rules regulating the number of recreational users on a particular body or stretch of water based on a determination that is necessary to:

(i) address impacts caused by recreational users;

(ii) preserve a diversity of recreational opportunities;

(iii) minimize recreational user conflicts; or

(iv) protect the public health, public safety, or property;

(b) provide that rules adopted under this subsection (6) ensure a diversity of commercial RECREATIONAL service providers.

(7) hold hearings and proceedings to suspend or revoke licenses of outfitters, guides, and professional guides for due cause."

Section 2.  Section 87-1-303, MCA, is amended to read:

"87-1-303.   Rules for use of lands and waters. (1) The commission may adopt and enforce rules governing uses of lands that are acquired or held under easement by the commission or lands that it operates under agreement with or in conjunction with a federal or state agency or private owner. The rules must be adopted in the interest of public health, public safety, and protection of property in regulating the use of these lands. All lease and easement agreements must itemize uses as listed in 87-1-209.

(2) (a)  The commission may adopt and enforce rules governing recreational uses of all public fishing reservoirs, public lakes, rivers, and streams that are legally accessible to the public or on reservoirs and lakes that it operates under agreement with or in conjunction with a federal or state agency or private owner. These rules must be adopted in the interest of public health, public safety, and protection of property in regulating swimming, hunting, fishing, trapping, boating, (including but not limited to boating speed regulations, and the operation of motor-driven boats), waterskiing, surfboarding, picnicking, camping, sanitation, and use of firearms on the reservoirs, lakes, rivers, and streams or at designated areas along the shore of the reservoirs, lakes, rivers, and streams.

(b) The commission may adopt and enforce rules, using a negotiated rulemaking process, for RECREATIONAL USE OF all public reservoirs, public lakes, rivers, and streams to address impacts caused by INDIVIDUAL AND COMMERCIAL recreational users, to preserve a diversity of recreational opportunities, and to minimize recreational user conflicts.

(3) Areas regulated pursuant to the authority contained in this section must be areas that are legally accessible to the public.

(4) These rules Rules adopted to protect the public health are subject to review and approval by the department of public health and human services with regard to issues of public health and sanitation before becoming effective. Copies Adoption notices of the rules must show that endorsement.

(5) This section does AND RULES ADOPTED PURSUANT TO THIS SECTION DO not restrict or interfere with existing water rights or private property rights OR WITH THE RIGHTS OF LANDOWNERS TO ACCESS ALL LAKES, RIVERS, OR STREAMS LOCATED ADJACENT TO AND WITHIN THE BOUNDARIES OF THEIR PROPERTY."

NEW SECTION. Section 3.  Effective date. [This act] is effective on passage and approval.

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