(1) "Adversely affecting" means significantly and harmfully altering the quality or quantity of fish or wildlife populations.

(2) "Damage" means physical harm to structures, equipment, agricultural production, or stream beds or banks up to the ordinary high-water mark or to land beyond the ordinary high water mark.

(3) "Degradation" means physical harm to the stream banks and beds that results in continuous, long-term violations of state or federal water quality standards.

(4) "Disrupting or altering" means causing modification of an area resulting in a measurable harmful reduction in biotic community or communities.

(5) "Person" means an individual, firm, corporation, association, partnership, municipality, or local, state, or federal governmental agency,

(a) to limit, restrict, or prohibit the type, incidence, or extent of recreational use of a surface water as provided in this section; or

(b) to alter limitations, restrictions, or prohibitions on recreational use of a surface water imposed by the commission as provided in ARM 12.4.104; or

(c) with respect to class II waters, to identify streams capable of no recreational use or of limited recreational use, and to restrict the recreational use to the actual capacity of the water, as provided in ARM 12.4.106.

(2) Petitions to the commission under this subchapter must:

(a) be in writing and signed by the petitioner or his authorized agent;

(b) state the name and location of the river or stream that is the subject of the petition;

(c) state the remedy that the commission is being requested to grant;

(d) allege one or more of the facts set forth in ARM 12.4.104(2) , 12.4.105(2) or 12.4.106(2) accompanied by specific data or documentation in support thereof; and

(e) describe the historical recreational use of the river or stream that is the subject of the petition, if known.

(3) Upon receipt of a petition, the commission chairman shall order the department to conduct an investigation of the facts alleged, and may order a physical inspection of the area described in the petition.

(4) The department shall publish a notice of the request for action in at least one daily newspaper in the area of the requested action and in at least 4 other major daily newspapers within the state. The notice shall solicit public comment on the proposal and shall provide at least 30 days for public comment from the time of the notice. The department shall provide notice of the petition to any groups or individuals who have expressed interest in the issue.

(5) Within 45 days of the publication of the notice described in ARM 12.4.103(4) , the commission may upon its own motion or upon request of an interested party order a public hearing within the county in which the petition requests commission action.

(6) The department shall submit a report and recommendation to the commission within 45 days after the commission directs an investigation. The department shall send a copy of its report and recommendation to the petitioner and to any other party who has requested them at the same time it submits its report to the commission. When circumstances warrant, the commission may extend the time within which a report is due.

(7) The department's report shall address every allegation in the petition requesting commission action.

(8) Upon receipt of the department's report the commission shall, within 30 days, issue a decision granting, denying or granting with modifications the petitioned relief. The decision shall be supported by written findings which specifically describe the factual basis for the decision.

(9) The commission may summarily dismiss a petition with a brief statement of the reasons for dismissal if the petition:

(a) is unsupported by specific substantial factual allegations, data or documentation;

(b) requests relief substantially similar to that requested by another petition which has been acted upon within the preceding 365 days; or

(c) requests relief which is not permitted or is unnecessary under 23-2-302, MCA.

(10) Notwithstanding (1) through (9) of this rule, the commission may, upon request of an affected landowner, who has filed a petition with the commission under (1) through (9) of this rule, temporarily close or restrict recreation use on a stream or on any part of a stream if the failure to do so would result in irreparable damage to property, irreparable disruption or alteration of the natural areas or biotic communities, or irreparable degradation of the waterbody. The commission may act under this subsection through the chairman and the commissioner in the affected region after consultation with the director. Any closure or restriction under this subsection may remain in effect only until the commission acts upon the petition filed pursuant to (1) through (9) of this rule.

(2) A petition under this section must meet the requirements of ARM 12.4.103(2) and must specifically allege one or more of the following facts in support of the request for commission action:

(a) that public use is damaging the banks and land adjacent to the water body;

(b) that public use is damaging the property of the landowner underlying or adjacent to the water body;

(c) that public use is adversely affecting fish or wildlife;

(d) that public use is disrupting or altering natural areas or biotic communities;

(e) that public use is causing degradation of the water body; and

(f) that any alleged damage, adverse effect, disruption or alteration is not being caused by private use.

(g) where public recreational use presents a clear threat of degradation to the water body or of disruption or alteration to natural areas or biotic communities, and where present and future owners are legally bound by conservation easements to stringent management practices which protect the natural values of the waterbody and its bed and banks.

(h) where present or anticipated use presents a clear and immediate threat of any of the items described in (a) through (e) of this subsection.

(3) Each allegation of damage in the petition must be accompanied by a specific description of the damage, including the character of the damage (i.e., erosion, crop damage, etc.) and a description of the location on the river or stream where the damage has occurred.

(4) The commission shall process the petition in accordance with ARM 12.4.103(3) through (9) , and may order any restriction on recreational use it finds necessary to alleviate damage described in ARM 12.4.104(2) , including absolute prohibition of recreational use, provided that it confines its action to that which is least disruptive to public recreational use and still provides the necessary protection.

(2) A petition under this section must meet the requirements of ARM 12.4.103(2) and must specifically allege one or more of the following facts in support of the request for commission action:

(a) that because of changed circumstances the previous order of the commission is no longer necessary or appropriate; or

(b) that the damage alleged in the petition requesting the previous order of the commission did not in fact occur or was caused primarily by use other than public use.

(3) Each allegation in the petition must be accompanied by specific data and documentation.

(4) The commission shall process the petition in accordance with ARM 12.4.103(3) through (9) , and may alter any restriction on recreational use no longer necessary or appropriate, provided the alteration is the least disruptive to public recreational use and still provides the necessary protection.

(2) A petition under this section must meet the requirements of ARM 12.4.103(2) and must include allegations and supporting data and documentation that the class II stream is incapable of or is capable in a limited fashion of supporting one or more of the following recreational uses: fishing, hunting, swimming, floating in small craft or other flotation devices, boating in motorized craft or craft propelled by oar or paddle.

(3) The commission shall process the petition in accordance with ARM 12.4.103(3) through (9) .

(4) In its determination, the commission shall consider, among others, the following factors for each kind of use:

(a) with respect to fishing, the department's stream evaluation data for that particular stream, any fish population data for the stream, and the suitability of the stream habitat for gamefish;

(b) with respect to hunting, the likelihood that a hunter will be able to confine his hunting, including retrieval of downed game, to the area within the ordinary high-water marks, and the suitability of the habitat for game species;

(c) with respect to swimming, the danger and difficulty associated with swimming the waters and the availability on the stream of waters deep enough to swim;

(d) with respect to floating or use of watercraft, instream flow data describing the minimum flow necessary to support various watercraft and the actual suitability of the water to the use of watercraft as evidenced by historical use or other data; and

(e) with respect to other water related pleasure activities, any other relevant factors.

(5) The commission shall process the petition in accordance with ARM 12.4.103(3) through (9) , and may order any restriction it finds necessary to limit recreational use to the actual capacity of the stream, including absolute prohibition of recreational use, provided it confines its action to that which is least disruptive to public recreational use and still provides the necessary protection.

(6) Nothing in this rule shall obligate the petitioner to conduct formal studies to provide relevant data or to bear the expense of such studies. If the commission requires additional studies to reach an informed decision the department shall bear the cost of the additional studies.

(1) Under 87-1-301(1) (c) , MCA, and 87-1-303, MCA, the fish, wildlife, and parks commission has authority to develop rules governing the use of lands controlled by the department or that it operates under agreement with federal, state or private landowners. These statutes are the basis for the block management program administered by the department. The hunter management program and the hunter enhancement program as described under 87-1-267, MCA, are similar in intent and differ only in terms of license benefits for non-resident landowners who are eligible for the program. Both programs are administered under these rules as block management areas.

The following definitions apply to this subchapter:

(1) "Accessible state lands" means state lands under the jurisdiction of the Montana Department of Natural Resources and Conservation.

(2) "BMA" means a block management area. A BMA is a specified area on which, by cooperative agreement between the landowner, other resource management agencies, and the department, public hunting is permitted with certain restrictions or use rules.

(3) "Commercial filming of hunting activity" means the film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a commercial purpose.

(4) "Commercial hunting activity" means any activities in which money, goods, or services are required as a condition for hunting.

(5) "Cooperator" means a private or public landowner or land management agency with which the department enters into an agreement for the purposes of allowing hunting access on a BMA.

(6) "Department" means the Montana Department of Fish, Wildlife and Parks. 

(7) "Director" means the director of the Montana Department of Fish, Wildlife and Parks.

(8) "DNRC" means the Montana Department of Natural Resources and Conservation.

(9) "Hunter day" means one hunter who hunts on a cooperator's property during a calendar day.

(10) "Hunting season" means the time during which game birds and game animals may be legally taken in accordance with the Fish and Wildlife Commission regulations.

(11) "Livestock loss insurance" means a program which provides reimbursement to livestock owners whose animals are injured or killed as the direct result of allowing public hunting on their property.

(12) "Outfitting" means the act of providing hunting-related services in exchange for money, goods, or services.

(13) "Regional supervisor" means the supervisor of a regional office.

This rule has been repealed.

(1) If a hunter reserves permission on a BMA that restricts hunter numbers or requires reservations, that hunter cannot reserve permission on another BMA, for that same day, unless the hunter receives permission from the cooperator.  The cooperator maintains discretion to allow additional hunters on the BMA.

(2) The cooperator and the department reserve the right to deny access to a BMA for cause. Reasons for denying access may include intoxication, violation of BMA rules, or previous misconduct on a BMA. A willful violation of BMA rules may result in a misdemeanor citation under 87-6-415, MCA. BMAs may also be temporarily closed by the cooperator, in conjunction with the department, due to weather, livestock operations, fire danger, or other conditions or circumstances which would place public safety or resources in jeopardy.

(3) BMAs which impose daily hunter number limits will allow free and equal opportunities for access to all hunters requesting use of the BMA.

(4)  With department approval, a cooperator may impose reasonable limitations through temporary closure of a BMA to address concerns related to high fire danger, rest-days, weather-related impacts to a travel route, safety, or agricultural production activities, such as livestock handling or harvest and planting of crops, so long as:

(a)  the cooperator notifies the department regional headquarters at least 24 hours prior to the closure;

(b)  the cooperator or department personnel post signage indicating the closure; and

(c)  the closure is removed within 24 hours after the conditions causing the closure no longer exist.

(1) Cooperators enrolled in the BMA program may receive the following types of payments:            

(a) a basic enrollment payment;

(b) a basic hunter day impact payment computed at an amount per hunter day;

(c) a length of season impact payment for cooperators who place no restrictions on commission-established fall hunting seasons;

(d) a species/sex impact payment for cooperators who place no restrictions on the species and sex of elk, deer, antelope, upland game birds, and waterfowl, as they exist on their property;

(2) Cooperators may also receive compensation for:            

(a) livestock loss insurance payable at full market value of any loss up to $5,000;

(b) supplying wildlife damage materials; 

(c) permitting wildlife game damage hunts;

(d) participating in a unified aggregate cooperative;

(e) every five years of participation in the BMA program; and 

(f) participation in other department cooperative programs.

(1) Outfitting and commercial hunting activities on BMAs are not consistent with the intent of providing free public access to recreational opportunities on private lands. Outfitting may not take place on a BMA unless public recreation and hunting opportunities are not unreasonably restricted and the cooperator and regional supervisor approve the activity.

(2) This rule does not regulate licensed outfitters legally operating on federal or state lands under license or permit obtained from the U.S. Department of Interior Bureau of Land Management, U.S. Department of Agriculture Forest Service, DNRC, or other resource management agency.

(3)  A report documenting outfitting activities on the BMA must be supplied by the cooperator, to the department, within thirty days of the contract ending date.  At a minimum, the outfitting activities report must explain:

(a)  total number of days outfitted hunting occurred;

(b)  total number of outfitted hunters who hunted;

(c)  total number of outfitted hunter days that occurred; and

(d)  total number of game animals, by species and sex harvested by outfitted hunters.

(4)  A cooperator, who is also a licensed outfitter, is not eligible to receive block management compensation for any activities conducted by their own hunting clients.

(5)  If a cooperator receives compensation from an outfitter or clients, the cooperator is not entitled to a basic hunter day impact payment for the days associated with that use.

(6)  Commercial filming of hunting activity is not consistent with the intent of free public hunting access on private lands and is not allowed without express consent from the cooperator.

This rule has been repealed.

(1) State lands administered by DNRC may be included in BMAs. Whenever a proposed BMA includes accessible state lands, the procedures set forth in ARM 36.25.164 through 36.25.167 shall be followed.

(1) If a cooperator or a public hunter has an issue and the issue has not been resolved by regional department staff, the cooperator or hunter may submit a formal complaint to the regional supervisor.  Formal complaints must be in writing, signed by the complainant, and should describe the events that transpired, the BMA involved, the name(s) and contact information of those involved, and, if relevant, any vehicle description.

(2) The regional supervisor will review the complaint and initiate the appropriate level of investigation. At the conclusion of the investigation, the regional supervisor will provide written notification to the complainant and the director. The notice will include the results of the investigation and any action(s) taken as a result of the investigation.

(3) A complainant may appeal the action taken by a regional supervisor to the director. The director will review the complaint and investigation and issue a written decision.