Tuesday, November 10, 2015

Ducks, Politics, and Money by Don Thomas

The following is an article, written by conservation hunter/angler and author, Don Thomas, that he shared with me last night. Don was fired for basically writing about a public access issue here in Montana, that offended the billionaire involved. The billionaire pulled strings at a conservation organization, whose magazine Don wrote for and got him fired. Not only is this an injustice, but this is a threat to conservation and is not isolated to just this organization or this writer, there have been others here in Montana that have been affected by political string pulling. This story, and its implications for conservation, needed to be shared.

Ducks, Politics, and Money by Don Thomas

As many of you know, I have been a regular contributor to Ducks Unlimited magazine for nearly twenty years, serving as their Field Editor and writing the back page column in every issue. Not any more.

In October, 2015 I wrote a piece for Outside Bozeman magazine, A Rift Runs Through It, about the long Montana legal battle to secure and maintain public access to the Ruby River in accordance with the state's stream access law. (I will make a copy of that text available to anyone on request.) To summarize a complex issue for those unfamiliar with the case, wealthy Atlanta businessman James Cox Kennedy engaged in extensive litigation to prevent such access, only to be denied repeatedly in court due to the efforts of the Montana Public Land and Water Access Association. While the article was not complimentary to Kennedy, no one has challenged the accuracy of the reporting.

James Cox Kennedy is a major financial contributor to Ducks Unlimited. On November 10, a Ducks Unlimited functionary informed me that my position with the magazine was terminated because of Cox's displeasure with the article.

Several points deserve emphasis. The Ruby River article had nothing whatsoever to do with ducks or Ducks Unlimited (DU hereafter). The article did strongly support the rights of hunters and other outdoor recreationists to enjoy land and water to which they are entitled to access, and DU is a hunters' organization. By terminating me for no reason related to my work for the magazine and the organization, DU has essentially taken the position that wealthy donors matter more than the outdoor recreationists they purport to represent.

As an outdoorsman and conservationist who supports the North American Model and the Public Trust Doctrine, I find DU's action reprehensible. As a journalist, I find it chilling. Wildlife advocates today face ever increasing pressures to abandon these principles in favor of the commercialization of our public resources, largely from wealthy individuals like James Cox Kennedy. If every journalist reporting on these issues faces this kind of vindictive retribution, the future of wildlife and wildlife habitat-not to mention the hunters and anglers of ordinary means who form the backbone of groups like DU-is bleak indeed.

This issue is not about me or my professional relationship with Ducks Unlimited magazine. It is about integrity and the future of wildlife in America. If you share my concerns-especially if you are a DU member-I encourage you to contact the organization (www.ducks.org attn: Dale Hall), express your opinion, and take whatever further action you might consider appropriate.

Don Thomas

Lewistown, MT

Wednesday, October 21, 2015

The Elk Sellers by John Gibson


Montana’s big game herds have become big business.  Several properties now advertise a hunt for bull elk at $15,000. It might include a trespass fee or a guided hunt but the elk is the product. Without the elk other two components are only worth a few hundred dollars. They are selling elk.
Look around and see existing examples of managers making tens of thousands of dollars each season selling bull elk.  
Granted, there are others who want to control elk for political influence or their own style of management. Whatever the reason, these are public elk and covered by the public trust.    
We pay the Montana Dept. of Fish, Wildlife and Parks to manage elk in our state. But if you read the web site of profiteers, such as the Musselshell or Arnaud  Outfitters you will find there is little or no mention  of the Montana FW&P. One could easily conclude that these landowners manage their own wildlife. The problem is, that conclusion is not far from the truth.
This is not the way a majority of Montana residents want their wildlife managed. We expect the department to manage the public wildlife resource under the Public Trust Doctrine, and within the scope of the North American Model of Wildlife Conservation. These tenets are based on a foundation of equal opportunity and the democracy of the hunt.
Public bull elk for sale for $15,000 is completely inconsistent with these principles. It makes little difference if the sale is bundled with a trespass fee or a guided hunt.
If this system is allowed to continue, my children and grandchildren, like most other Montanans, will never have an opportunity to enjoy much of the state’s wildlife that belongs to them.
No one is advocating erosion of private property rights. But public wildlife is not private property.  We expect the department to use the allocation process early to level the playing field and bring big game management more in line with the public trust. This can be done by conducting a drawing for all trophy animals on properties that are clearly selling or otherwise controlling bull elk.
 With the permits in place, only hunters successfully drawing a permit can hunt these animals. Likewise, the property owner can only deal with permit holders to charge for access. Also, only ten percent of the permits will be allocated to nonresidents.
 If harvest of both male and female animals is inadequate under this system, the Dept. should issue fewer permits for trophy animals in subsequent years until the surplus elk are gone. If the harvest remains too high, all trophy permits should eventually be terminated.
The courage and commitment of the Dept. of Fish and Game is about to be tested severely now that most of the habitat occupied by the second largest elk herd in Montana is under one ownership. Will these thousands of elk be controlled by the landowner or the people of Montana who are the beneficiaries of the public trust?
John Gibson
3028 Ave E
Billings MT PH  406 656 0384

Tuesday, October 20, 2015

Beaverhead & Big Hole River Recreation Rules Comments by Ray Gross

Ray Gross is a conservation hunter & angler, an FWP Citizen Advisory Council member for our Region 3 and a George Grant Chapter of Trout Unlimited (southwest Montana) board member from Dillon, Montana with firsthand experience concerning the Beaverhead & Big Hole River Recreation Rules. Below are his bullet points for comments and concerns. Please take a few moments to send in public scoping comments SUPPORTING the Beaverhead and Big Hole River Recreation Rules - with additional concerns. We need to protect our public lands and waters from privatization and exploitation.

Montana FWP - "The Beaverhead and Big Hole River Recreation Rules were first adopted in 1999 to address public concerns about crowding. The rules include restrictions on float outfitting and non-resident float fishing on certain days of the week for specified sections of the rivers. The rules also limit the number of watercraft that may be launched per day at official access sites."

Montana Fish, Wildlife & Parks will host two public scoping meetings in October to take comments and questions about the Beaverhead and Big Hole River Recreation Rules. The meetings will take place from 6 p.m. to 8 p.m. on the dates and at the locations which follow:
  • Dillon: Wednesday, Oct. 21 at the University of Montana-Western Block Hall #311
  • Butte: Thursday, Oct. 22 at the Butte Ranger District, 1820 Meadowlark Drive
The Scoping process will develop a tentative proposal, which will go to the FWP Commissioners probably in December, with FWP's recommendations. Pending commissioner tentative approval, it would then be opened up for the formal comment period with a vote by the FWP Commission expected in Jan. or Feb.

Scoping Comments on the Rules may be emailed to cherylmorris@mt.gov or sent to Montana Fish, Wildlife & Parks, Attn: Cheryl Morris, 1400 S. 19th Ave., Bozeman, MT 59718

I support the Beaverhead and Big Hole River rules. The rules are working, but I have concerns.

  • Some outfitters are outright selling client days. They are selling client days for on the Beaverhead and on the Big Hole. The rules are that client days can only be transferred if an outfitter sold his business. There was to be no vested interest created with the river rules.
  • A few outfitters have even sold their client days, applied for and received additional days as a one boat outfitter.
  • An outfitter on the Beaverhead that gets more clients than he has allowed number of boats on the river, or client days, calls other outfitters and uses their client days. They call this subleasing or acting as a booking agent.
  • The Tash to Selway stretch of the Beaverhead River was closed to float outfitting to provide a stretch of river for the public to not have the conflict and competition with commercial outfitting. Some outfitters are leasing or paying rod fees to walk their clients to this stretch of the river. This is a statement by those outfitters that they have no consideration for the public. The Big Hole has one stretch of river closed to float outfitting every day of the week. There are not enough stretches on the Beaverhead to do this.
  • Float fishing is permitted from the dam on the Beaverhead to Buffalo Bridge. This stretch is mostly wade fishing and has public access on both sides of the river. Floating through this section causes conflicts and is an intrusion to wading anglers. Floaters could put in at Buffalo Bridge and walk upstream to wade fish if they want. Additional parking would need to be provided at Buffalo Bridge. This is Bureau of Reclamation land.
  • Outfitter client days are only counted during "the shoulder seasons", June and July on the Big Hole and July and August on the Beaverhead. The outfitters were originally allocated days based on the total number of days they had during their highest year. When the rules were passed, in 1999, the internet was not used as extensively. At present, with the internet and the smart phone, clients are recruited by email, web pages, social media, text messages and on and on. Now there are exponentially greater numbers of clients recruited. The outfitting season starts in early May and lasts through October, not considering the cast and blast trips. Commercial, outfitted use, on all Montana’s rivers will continue to grow. How much capacity do our rivers have? How much longer will exponential grow of commercial fishing outfitting, on all Montana Rivers, go unchecked and unregulated? All this needs to be reevaluated. 

Ray Gross

Dillon, Montana

Thursday, August 13, 2015

Ranching For Wildlife by Vito Quatraro

Sportsmen are constantly complaining about “Privatization and Commercialization” of our wildlife resources.  “Ranching for Wildlife” is another common phrase used to denote the takeover of our wildlife resources by private sources.

What does “Ranching for Wildlife” often look like?  What comes to my mind is allocating tags/vouchers to landowners that can be sold to the highest bidder and special seasons outside the general hunting season for that species.

Fast forward to Montana and the current proposals being considered by the FWP Commission and Dept of FWP.  First, shoulder seasons for elk, outside the traditional 11 week archery/rifle seasons, that could include the taking of bull elk.  Second, an Amendment to the current ARM rules to allow the Dept. to use lists provided by landowners to designate up to 100% of the hunters allowed to hunt on their lands during game damage hunts and management seasons.

At the FWP public meeting on the game damage rule changes, under questioning, Alan Charles admitted that there is no rule or law that would prohibit a landowner from charging a fee to hunters wishing to participate in game damage hunts, shoulder seasons or management hunts on their land.

Let’s add up what is being proposed.  Special seasons which could include bull elk; landowners could get to choose who hunts on their land; and there is nothing to stop the landowner for charging a fee to hunt on their private land during these special seasons/management hunts.  Seems to meet the criteria for “RANCHING FOR WILDLIFE”!!

It was apparent last night at the FWP game damage public comment meeting that they were not interested in hearing what we had to say.  There were only 5 people from Regions 2, 3 & 4 at the hearing which was skyped into each of those Regional headquarters.  The gal with Alan Charles had the gall to put a 2 minute maximum for comments from the audience, which only confirms these meetings are held to meet the process requirements not to consider our comments.  This is consistent with what Paul Sihler told a group in Butte on an issue, that though they asked for public comments, they were not taken into consideration by the FWP in making their decision.  The game damage amendments are not even being heard by the FWP Commission but will only be decided by FWP in Helena. 

It should be noted that at last night’s meeting, not a single sportsmen organization was represented or made comments.  Hopefully, they are weighing in via written comments.  The lack of advertisement of the meeting and extremely poor attendance should be of concern to the sportsmen of Montana.

As a side note, last November, Director Hagener established an interim policy changing ARM rule 12.9.804A pertaining to how hunters are selected for game damage and management hunts.  This may have been in violation of the above code.  In that Memorandum, it allows up to 25% of the hunters to be selected by the landowner.  Personally, I think allowing the landowner to choose 25% of the hunters is a good idea, provided no bull elk hunting is allowed.

The sportsmen of Montana are being duped by the FWP leadership in Helena.  Contrary to what some sportsmen have been saying, this is not being brought forth by legislators, landowners, outfitters or MOGA!  All of these proposals are moving forward with the approval and at the direction of FWP Director Hagener and his leadership team in Helena!!  It is time that sportsmen stand up to the Dept and hold them accountable.  Science based wildlife management has taken a back seat to increasing revenues, “social tolerance” and personal agendas.

The applicable statutes/ARM rules for the game damage rules are:
          87-1-225; 12.9.803; 12.9.804; 12.9.804A; 12.9.805; 12.9.1101

I see lots of emails that say our wildlife problems/issues are being caused by FWP, landowners, ranchers, legislators and MOGA.  These are labels that lump all individuals within these groups as the problem.  This is grossly unfair to some very good people within each group. 

There are some excellent folks who work for FWP but due to the current “culture of fear”, which I heard mentioned at the game damage meeting in Bozeman, are unable to speak up.  There are landowners and ranchers that are good stewards of the land/wildlife who participate in working on solutions to the problems that exist today.  The same can be said of legislators.  While some like to target MOGA, they never differentiate between private land outfitters and public land outfitters.  There is a huge difference between the two.  Anyone who has spent time with a public land outfitter knows the work, effort and hunting experience they provide for their clients.  Every group mentioned has some good people that truly care about our wildlife resources and are willing to work toward solutions that create a win-win scenario for all parties involved.

By lumping people together, we are also insulting some of the very people that could be our best allies as we move forward.  Every profession or group has their good, bad and ugly members.  The trick is to align with the good while at the same time calling out the bad/ugly.

There is a basic rule for good negotiating: “attack the issues but not the individuals”, but I believe that there is at least one valid exception to that rule.  When the issue is the people, then they must be held accountable.

FWP, Landowners, Ranchers, Legislators and MOGA are merely categories, not individual people.  I believe that we should be using names to identify those individuals within the above categories that are responsible for creating the problems we are facing today.  A good example is the Wilks brothers, who we have no problem calling out by name, over their attempts to control hunting in the Durfee hills, dictate hunting policy, etc and we have no problem calling out some legislators by name.  Why are we not doing this with FWP???  By not using names, the offending individuals can hide within the groups label without having to be held accountable for their actions.  No one likes to be publicly attacked, but when all else has failed and they are the decision makers, what other option is left??  It is not meant to be an attack on them as people, but as an attack on their decision making and/or motives.


EMWH note: personally, I am not in favor of landowners choosing hunters for a list. With a game damage program in such disarray, lack of oversight and compliance, as the audit showed, including matters of the Hunt Roster, FWP has  decided again to alter the roster process to conform to their noncompliant actions by adding, " or lists of names supplied by landowners" in a number of places and striking from ARM 12.9.1101, "If sufficient numbers of hunters cannot be identified through use of the game damage hunt roster,". This is a clear indication that they favor the landowner supplied lists, instead of utilizing the democratic hunt roster.

FWP's Game Damage Hearing Process

After spending much time on the FWP's proposed amendment to Game Damage, and the interconnecting subject of their Elk Shoulder Seasons subject, we witnessed the public hearings on the 11th and 12th of August. The meetings were set up with Helena as the homebase. There was a legislative services employee and FWP's Alan Charles, Landowner Sportsmen Coordinator. 

First, Alan Charles gave a brief overview of why they felt the need for the rule changes. Then there was a question period where each of the satellite offices could ask a number of questions, with Alan Charles answering the questions posed. Finally, they gave each person only 2 minutes to make a public comment. You were also told that you could submit additional comments in writing. 

On the 11th the Helena location had 3 sportsmen attend: Gayle Joslin (retired FWP and Helena Hunters and Anglers spokesperson), Jim Posewitz (retired FWP and HHAA) and Rod Bullis. Joslin and Bullis spoke against the amendment. Joslin's comments on behalf of Helena Hunters and Anglers, as well as her perspective as a former FWP wildlife biologist, who worked with the game damage program are linked below. The Billings meeting had 5 hunters attend and comment, generally opposing the amendment: Ron Moody, John Gibson, Tom Madden and Bob Allen, all commenting for themselves, also JW Westman for Laurel Rod & Gun Club. The satellite hearings in Kalispell, Glasgow and Miles City did not have any commenters.

On August 12th, the Missoula satellite saw Tim Aldrich begin his comment voicing concern, only to be cut off because of the 2 minute limit. In Bozeman we had Vito Quatraro, Rob Gregoire, myself (Kathryn QannaYahu, hearing comment below) and Dr. Bill Mealer, opposed to the bulk, if not all of the amendment. This morning saw Vito writing about his concerns over this process - Ranching For Wildlife.

Many of us did not know about this proposed rule change until a couple weeks ago. At the hearing last night, I filled out a paper I have never seen at an FWP meeting before - an  FWP Interested Persons List form. You can check off the subjects of interest to you, when they make these formal rule changes, you are then notified. So I called our local FWP office and got a copy sent to me and put it online for download. Please take the take to fill one out and mail it in. This way we wont be caught short on future situations.

Also, public comment deadline for this Game Dmage Proposed Amendment is August 21st. Please send comments to fwpgamedamagearms@mt.gov  or in writing to: Department of Fish, Wildlife and Parks, Wildlife Division, P.O. Box 200701, Helena, MT  59620-0701.

More concerning, was my call to Legislative Services yesterday morning to find out the process. So we have made our comments, now what? Here is what happens next - First, FWP will review the comments received and decide whether to pursue the amendment, modify it or go forward as planned, this is slated to be a couple of weeks. If they go forward as planned, they can totally ignore all testimony at the hearings and any comments submitted in writing, if they choose, filing a final adoption notice with the Montana Secretary of State, who then publishes it. That's it! No other way to stop this, short of litigation against FWP. Except, we may have one possible avenue, the EQC. The Environmental Quality Council is over the FWP during the interim legislature. They have a meeting coming up on Sept. 9th & 10th, the agenda is not fixed and published yet. I'm looking into this now and have spoken with a handful of other hunters that know members.

Game Damage Public Hearing Helena Hunters & Anglers 8/11/2015
Game Damage Comment - Gayle Joslin, retired FWP  8/11/2015 (small quote below)
Game Damage 2nd Comment Helena Hunters & Anglers 8/12/2015

I was employed by Montana Fish, Wildlife & Parks for 30 years as a wildlife biologist, the last 20 of that for the Helena Area. I dealt with numerous game damage complaints and implemented several game damage hunts, provided stackyards, kill permits, and aversive conditioning devices. I kept excellent records that came in very handy. All of the landowners that received assistance through me provided public hunting opportunities. There were several other folks that requested assistance but did not meet the criteria, and so did not receive materials or hunts, but we would discuss ways to deal with their circumstances.
I point this out because during all the game damage hunts, I never had trouble recruiting hunters, through the process that we had in place at the time.
I am quite concerned with the notion that landowners would be allowed to develop their own exclusive list of hunters, and thus the real possibility that the general public may be excluded from game damage hunts or management seasons. As the proposed regulations are now phrased, this is a real possibility. Montana’s wildlife is stewarded as a Public Trust on behalf of the state’s citizens by FWP. Exclusive use of landowner-generated hunter lists would be a breach of that responsibility.

Kathryn QannaYahu Hearing Comment on ARM amendment proposal for Game Damage August 12, 2015 

I oppose this proposed amendment. I feel it is simply a response to legitimize the illegal and unregulated actions FWP has been committing, per the May 2015, Legislative Services performance audit on FWP's Game Damage Program.

The following are quotes from the 56 page audit:

"Overall, we found 82 percent of game damage complaint files had missing or incomplete complaint forms or landowner eligibility worksheets. Audit work found documentation was problematic in every region we visited."

"Several landowners received game damage assistance though documentation indicated they were not eligible... having limited or no public hunting access…,"

"there needs to be more supervisory oversight and responsibility over regional game damage program activities... the department could not always provide documentation showing the department director or the local commissioner approved game damage hunts and management seasons prior to implementation. "

"For most hunts and seasons the department allowed landowners to select between 25 to 50 percent of the hunters, with the remainder selected from the game damage hunt roster... one example allowed a landowner to select all of the hunters."

Concerning the striking of "season" replaced by "hunt" - seasons requires the public commission process, the votes of the whole commission, submission of written and oral public comments; management "hunts" only requires the regional supervisor and commissioner to sign off on it, no public process. This ambiguous proposal to alter the hunt roster by adding, “date to be specified", “or lists of names supplied by landowners" is a threat to the public trust.

With a game damage program in such disarray, lack of oversight and compliance, this amendment proposal is a step towards privatization, continued abuses involving preferential treatment, rather than focusing on compliance to existing game damage laws.Thank you. 

For futher information, please see - Game Damage Isn't Broken, It's Not Properly Being Used by FWP 

Kathryn QannaYahu, Enhancing Montana's Wildlife & Habitat

Thursday, July 30, 2015

FWP Game Damage Isn't Broken, It's Not Properly Being Used by FWP.

At the June FWP Commission meeting, I expressed to FWP Commissioners, during the elk shoulder seasons discussion, that people keep saying that game damage is broken, but I don't think it's broken, I think it isn't being used properly. Little did I know that there was recently a Legislative Services Audit, just published in May, that backs up all my examples from Park County and the statements I made to the Commissioners that day, and then some.

Recently the FWP released a "Notice of Public Hearings on Proposed Amendment", announcing 8 hearings (Aug. 11th & 12th), in various cities to consider the proposed amendment on Game Damage Administrative Rules of Montana. This is bad news for Montana public hunters, worse news is that fewer of them are discussing this. I was going to write up a bullet point list of some of the major red flags I saw, was looking up a particular detail on Google when I came across an audit report - a performance audit by our Montana Legislative Services, on this very game damage process.

On the next to last page of the Proposed Amendment public notice, it states the reason for this proposition being that the Legislative Audit Division just recently completed a performance audit of their Game Damage Program. To say that FWP was lacking would be a gross understatement, it is heinous and in some cases illegal what has been taking place, all with our sportsmen's dollars. The short, quick quote from their audit that pretty much sums things up is - "The department does not have accurate, reliable, or complete information related to the Game Damage program. Consequently, it does not have an accurate, comprehensive picture of game damage issues around the state." This is basically what I told the commissioners in June, that they and the public needed proper data to access the bigger picture, which FWP had not supplied to them. 

With all the "concurring" in the FWP response to the Audit, you would expect some substantive changes to be in the Proposed Amendment, like properly defining "public access", but there is not, just an attempt to legalize all the things they are currently doing that are illegal or not sanctioned by the Administrative Rules of Montana (ARM). Basically, a lot of "Cover My Ass" measures and some additional privatizing and subsidizing to really stick it to the Montana hunting public. So before I can bullet point some concerns in the Proposed Amendment to Game Damage, you need to see some of the key points of this  audit to understand the context for the changes.

"Performance Audit, Game Damage Program" (Click for document)

The 56 page audit covers 2010-2014, a total of 586 complaints in those 5 years, in Regions 2,3,4 and 5.

  •  "Overall, we found 82 percent of game damage complaint files had missing or incomplete complaint forms or landowner eligibility worksheets. Audit work found documentation was problematic in every region we visited." - Chapter III - Game Damage Assistance Eligibility Reviews.
  • "Several landowners received game damage assistance even though documentation indicated they were not eligible for assistance. For example, we found 20 game damage complaint forms which stated landowners were not eligible for assistance. However, seven of these landowners still received game damage assistance including cracker shells, herding contracts, propane cannons, and plastic fencing. Eligibility reviews were not documented for three landowners so it was not possible to determine why the department decided these landowners did not qualify. Eligibility reviews for the other four landowners indicated they had hunting restrictions which disqualified them for assistance. However, a lack of documentation prevented the department from explaining why assistance was still provided to them." - Inconsistent and Undocumented Game Damage Decisions
  • "We reviewed 35 management seasons and found 23 did not have evidence the department reviewed landowner eligibility. Consequently, it was not possible to determine if landowners met eligibility requirements to participate in the management season. Where documentation did exist, we found examples of landowners being included in management seasons despite landowners having limited or no public hunting access."
  • "A typical stackyard provided to landowners costs the department between $2,000 and $2,600. We found examples where stackyards were provided to landowners despite no documented instances that game damage occurred. For example, one landowner received a total of six stackyards in four years. Department staff agreed to replace five stackyards that were destroyed in a wildfire and another stackyard was replaced because it was over 20 years old and was beginning to deteriorate. Staff stated these were replaced to prevent potential game damage from occurring in the future."
  • "There are questions as to who is responsible for administering regional game damage activities and we found limited documented involvement from regional managers. This included regional supervisors, wildlife managers and warden captains... Our regional visits found no regions had formally designated anyone as the game damage program coordinator...However, interviews found neither was responsible for reviewing and approving documentation for game damage complaints...Based on our review, there needs to be more supervisory oversight and responsibility over regional game damage program activities... We found the department could not always provide documentation showing that the department director or the local Fish and Wildlife commissioner approved game damage hunts and management seasons prior to implementation. " - Limited Supervisory Oversight of Eligibility Review Process
  • "During audit work, we found 26 instances where the department deemed landowners ineligible for game damage assistance. However, 23 (88 percent) of the denials did not have evidence landowners were issued written notification stating why they were denied or instructing landowners how to appeal the decision if they disagreed with it. We found no landowner appeals for any of the denied game damage assistance reviewed." - Denials of Game Damage Assistance Requests
  • "File review and interviews found wide variances both within regions and between regions in how department staff defines public hunting access and restrictions that 'significantly' reduce public hunting on a landowner’s property." - Public Hunting Definition Needs Clarification
  • "Staff also said they included landowners that did not meet all eligibility criteria to help foster better relationships with local landowners. Specifically, if landowners had public hunting restrictions or did not allow any public hunting, they believed providing assistance would help improve public access in the future. The current eligibility criteria do not allow the department to use this as a consideration for making decisions on whether a landowner qualifies for game damage assistance." - Comprehensive Effort Needed to Improve Public Access Definition
  • "However, we determined the department should not be using supplemental game damage hunts or supplemental management seasons to address game damage issues because it has no authority pursuant to administrative rules to use them." - Chapter IV - Supplemental Game Damage Hunts and Supplemental Management Seasons
  • "For most hunts and seasons we reviewed, the department allowed landowners to select between 25 to 50 percent the hunters with the remainder selected from the game damage hunt roster. We found one example where the department allowed a landowner to select all of the hunters. In any of these situations, individuals on the game damage hunt roster are not being provided an opportunity to participate in game damage hunts or management seasons in areas where they applied." - Inappropriate Hunter Selection Procedures Are Used
  • "There are currently no rules authorizing supplemental game damage hunts and supplemental management seasons. This includes rules describing the hunter selection process... The department either should end its use of supplemental game damage hunts and supplemental management seasons or amend administrative rules to specify the percentage of hunters that will be selected from the game damage hunt roster and selected by landowners for game damage hunts and management seasons. Department management indicated they will likely seek administrative rule amendments to allow landowners to select a percentage of hunters for game damage hunts and management seasons." - Department Lacks Authority to Use Supplemental Game Damage Hunts and Supplemental Management Seasons
  • "We noted several instances where the department was not requiring hunters to turn in all unused valid elk licenses when they were issued supplemental game damage licenses. The department was allowing hunters issued supplemental game damage licenses to possess more than one elk license when selected for these hunts... We found the department is allowing individuals to use a general elk license, an elk B license they may already possess, or to purchase an elk B license to participate in the supplemental game damage hunt...In no instance did we find hunters being required to return unused elk licenses or special permits prior to participating in supplemental game damage hunts or supplemental management seasons. " - Supplemental Game Damage License Issuance
  • "During the course of our audit work, we identified several deficiencies with department information for game damage activities. This included inaccurate and missing data for the regions we reviewed... There were several cases where game damage complaints in regional files were not included in the department’s game damage spreadsheets. In addition, there were also several instances where game damage information on the spreadsheets had no corresponding documentation in the regions. We also found numerous instances where the game damage spreadsheets and regional documentation had different information regarding assistance provided to landowners. For example, we found instances where the department’s spreadsheet indicated fencing materials were provided but a game damage hunt was documented on the complaint form. There were also cases where hard copy documentation noted some type of game damage assistance was provided but the department’s spreadsheet was blank...The department does not have accurate, reliable, or complete information related to the Game Damage program. Consequently, it does not have an accurate, comprehensive picture of game damage issues around the state." - Game Damage Program Has Missing and Inaccurate Data
  • "These weaknesses included issuing cracker shells and ammunition to landowners and limited oversight of herding contracts."
  • "ATF information also indicated it is unlawful to provide any explosive devices to anyone unless they have a federal explosives permit... Audit work also identified instances where various kinds of ammunition, including buckshot and shotgun shells were provided to landowners to address game damage issues. In most cases we identified, department staff gave these items directly to landowners to deal with game damage issues... Providing landowners with any of these items puts both the department and the state at risk for potential lawsuits if a serious injury were to occur." - Issuance of Cracker Shells and Ammunition to Landowners
  • "However, we found limited evidence that department staff were overseeing herding activities to ensure compliance with the terms of contract." - Oversight of Herding Contracts
  • "From 2010 to 2014, the Game Damage program has had operating expenditures totaling over $1.5 million, most of which was used to acquire game damage materials... We found some regions we visited were exceeding $5,000 in stackyard purchases but were not acquiring them from contracted vendors... In regions that do have contracted vendors, we found stackyard materials being purchased from noncontracted vendors... The department should use these contracted vendors when they are available. Until that happens the department cannot ensure it is getting the best possible price for stackyard materials." - Purchase of Game Damage Materials
  • "Audit work found the department lacks formal inventory controls related to game damage materials both regionally and in Helena. Audit observations generally found unrestricted employee access to the game damage materials. There was no process to document what inventory was acquired, what was on hand, or where it was located. There was also no formal process to document how game damage materials were used, where materials went, or which staff took materials from the warehouse where it was stored. The department currently relies on game damage complaint forms to document what materials were used and which landowner received them. However, audit work identified weaknesses in this process. For example, review of game damage files found 37 percent of compliant forms did not document the amount of game damage materials issued to landowners. Currently, the department is not tracking game damage materials from acquisition to issuance. Game Damage program policy requires a system to ensure accountability for game damage materials... Under current practices the department is at high risk for the misuse of game damage materials. Materials such as fencing could easily be used by department employees for their own personal gain. The department currently does not have mechanisms in place that would help prevent this from occurring or assist the department in detecting potential misuse of these materials." - Inventory Controls Over Game Damage Materials

Notice of Public Hearings on Proposed Amendment  (Click for document)


  • One of the first things that jumps out at me in this proposal is the striking of "season" replaced by "hunt" - season hunt. To some that may not seem important, but it is for the public process. See Montana Code Annotated defines the duties of the FWP Commissioners in MCA 87-1-304 and one of those duties is to fix "seasons". This requires the public commission process and the votes of the whole commission and the public can submit written and oral public comments, which are part of the public record. BUT, management "hunts" only requires the regional supervisor and the regional commissioner to sign off on it, no public process. Since the audit found that FWP was not following the ARMs concerning Game Damage, instead creating a hybrid situation at their discretion, FWP is trying to make themselves legal, but at the expense of the public process, by changing everything to a management "hunt".
  • The current process for choosing game damage hunters is from an established Hunt Roster for each region which has a set time period for registration and therefore a fixed list which is randomly generated. With a game damage program in such disarray, lack of oversight and compliance, as the audit showed, including matters of the Hunt Roster, FWP has  decided again to alter the roster process to conform to their noncompliant actions by adding, " or lists of names supplied by landowners" in a number of places and striking from ARM 12.9.1101, "If sufficient numbers of hunters cannot be identified through use of the game damage hunt roster,". This is a clear indication that they favor the landowner supplied lists, instead of utilizing the democratic hunt roster. Game Damage requires public hunter access for FWP assistance to landowners, as well as materials and such paid for with our sportsmen's dollars. With the growing issues of privatizing of our public trust wildlife, harboring and some landowners either outfitting their own lands or leasing to outfitters, to have landowners choosing the hunters rather than the established hunt roster, I feel this is removing the checks and balances, as well as the potential abuses of showing preferential treatment. 
  • On that same vein, the removing of the June 15 through July 15 Hunt Roster registration time frame, creates an open ended scenario that could get complicated where the later inserted hunters are added, again, possibly showing preference.  For example, a private landowner can claim a game damage situation, get a hunt set up, with the removal of the registration time period, have an out of state client ready to be added to the Hunt Roster list, if the landowner gets to supply a list of hunters, you are looking at privatized elk hunting any time of the year. 
  • Concerning the game damage licenses, since FWP got caught with their pants down on not following the rules requiring hunters to turn in unused valid elk licenses when they were issued supplemental game damage licenses with an elk management "season", they are wanting the closed to the public, limited process of the "hunt", instead of the public process "season". This means the "return for refund to the department of any unused valid A9/B12 antlerless elk license...prior to the supplemental elk game damage license being issued", instead of the surrendering of the unused general either sex valid elk license and special elk permit, if applicable, prior to the supplemental elk game damage license being issued.

As I see it, this doesn't make the game damage process better, but simply legitimizes the illegal or not regulated actions that FWP has been committing until they got caught. 

The only really good thing I saw in all this was the striking of the male gender possessive pronoun "his", in relation to the commission chair for "the chair's". Does that mean we may see a wildlife/habitat qualified woman, to" set the policies for the protection, preservation, management, and propagation of the wildlife, fish, game, furbearers, waterfowl, nongame species, and endangered species of the state and for the fulfillment of all other responsibilities of the department related to fish and wildlife as provided by law"? 

It bears repeating, "The department does not have accurate, reliable, or complete information related to the Game Damage program. Consequently, it does not have an accurate, comprehensive picture of game damage issues around the state."

Please take the time to go to one of the public hearing meetings listed on the front page of the Proposed Amendment document (Aug. 11th and 12th) and object to these "Cover My Ass" changes, especially the changing from a public process "season" to a "hunt", and hold FWP to the regulations we currently have that are not being followed.

Kathryn QannaYahu

Wednesday, April 15, 2015

UPOM's Landowner Hypocrisy

Recently, Mark Robbins, president of United Property Owners of Montana (UPOM), attempted to refute sportsmen's letters protesting the Legislature cutting vital Fish, Wildlife & Parks funding. UPOM's article – Legislature gets it right on habitat funding.

Robbins tries to piece together a number of falsehoods, presenting a distorted Picasso-like image of FWP, by trying to force together puzzle pieces of information that don't fit. He attempts to make “habitat” a dirty word,  he confuses sportsmen's license fees with “tax dollars”, then he imagines FWP has been on a “land-buying spree”,  while also accusing FWP of “a slush fund”.

UPOM's president then alleges FWP's mismanagement of wildlife numbers, “FWP's solution was not to reduce the elk herd in order to protect the habitat – it was to try to buy the adjacent land.” This principle is the kicker, having milked cows at a dairy, I know an ornery kicker when I see one.

What business doesn't welcome growth, expanding opportunities? Tourism & Outdoor Recreation is now the largest economical driver in Montana, with over $5 Billion dollars contributed to Montana's economy from non residents alone. With 63% of Montanans identifying themselves as sportsmen and 66% Montanans visiting public lands six or more times per year, with 38% visiting more than TWENTY times per year, you start to see the real economic picture that our wildlife and “habitat” present.

FWP is not using Eminent Domain to obtain land. They obtain it through a legal purchase, from a willing seller. UPOM does not object to land purchases by private landowners, such as the Wilks Brothers or the Koch Brothers who are two of the largest landowners in Montana right now, but they clearly have an objection to land purchases by FWP, that will benefit the majority of Montanans - the public.

Abraham Lincoln, who began as an attorney, illustrated a hypocrite as such: a hypocrite is the man who murdered both his parents, then pleaded for mercy on the grounds he was an orphan. While researching public access obstructions, I remembered Robbins from documenting his locked gate on the Mabee Road, cutting off access to our BLM lands.

Robbins is a rancher who runs cattle. But he doesn't have enough “habitat” of his own, so instead of “reducing” his herd, he leases additional public BLM lands for grazing in Fergus County, at a low subsidized rate of $1.69 an AUM.

UPOM's president is not only a rancher, he is also a hunting outfitter, who profits from selling hunts of our public wildlife. From his business perspective, he benefits if there is less public “habitat” hunting for DIY hunters and less wildlife available – supply and demand – the less public competition there is, the more you can charge per unit. Robbins has outfitting leases on 4,463 acres of our State DNRC land in Fergus County.

As a hunter, I encourage FWP's purchasing “habitat” to expand our wildlife hunting opportunities on public lands. Even in years when I was injured and couldn't hunt, I purchased a license so my fees would benefit our wildlife and habitat. As a Montana citizen, I am also a United Property Owner – united with other Montanan's in sharing and contributing to our Montana Public Lands.

Theodore Roosevelt stated that in addition to accomplishing things that are of immediate consequence to the economic well-being of the people, there are other things to be done for which the economic benefit may be more remote, but that bear directly on our welfare, “because they add to the beauty of living and therefore to the joy of life.” Wildlife “habitat” is such for Montana.

You will obviously see, that the FWP funding puzzle pieces, set in their proper place, produce a clear and inspiring picture – that our crucial access and habitat funding, derived from sportsmen's dollars (which cannot be used for anything else), tremendously benefits our wildlife, Montanans and our state's economy. Remember, context is everything.

Kathryn QannaYahu, EMWH founder

Saturday, April 4, 2015

USFWS Sage Grouse - "Best Available Scientific and Commercial Data"

"Best Available Scientific and Commercial Data" ?

Critical Sage Grouse habitat spans 11 states in the western US - CA, OR, WA, ID, UT, NV, CO, WY, MT, ND, SD. The US Fish & Wildlife Services is in charge of the Endangered Species candidate listing process, gathering all the necessary data, which would normally be available to the Public after the finding is released in September 2015. That normal FWS data process has been bypassed, which will deny the Public our rights to that information.

A couple days ago I received a call, relaying part of a conversation with a US Fish & Wildlife Service employee from Colorado, concerning the sage grouse listing process. The caller was concerned that the process mentioned would mean data would not be available to the public and asked me to look into it. 

So I called Region 6 office in Denver, who is spearheading the sage grouse listing research and spoke with Stephen Torbit, explained the wee bit of conversation relayed. He remembered the discussion and explained that some states (there are 11 involved with the sage grouse issue) have state statutes that prohibit the release of information collected from private property. He said that Colorado was one. I asked what other states had this statue, he did not know. I repeated my notes back to make sure that I understood him and had my notes clear. FWS is not housing the state wildlife agency biological data, FWS does not have a copy, any possession of the state data.

Now on the USFWS sage grouse web page they house quite a bit of information and documents on this complex subject. On the Status Review page it states, "The Service must complete a status review for greater sage-grouse by September 30, 2015." I wanted to know about the scientific data requirements so I checked out their Resources > Documents page . If you look under the Endangered Species Act subsection you find a number of documents. The Fact Sheet states, "After thoroughly analyzing the best scientific and commercial information available, the Fish and Wildlife Service has concluded that the greater sage-grouse warrants protection under the Endangered Species Act." The Questions and Answers page states the same, "After evaluating all the available scientific and commercial information regarding greater sage-grouse, including an analysis of the threats to the species and sagebrush habitat, the U.S. Fish and Wildlife Service has determined that protection under the Endangered Species Act (ESA) is warranted." Again, on the Frequently Asked Questions page, concerning the Data Call, we see the same statement, "Over the next several months, the Service will be gathering and analyzing available information on the species as part of its status review. The Service is required to use the best scientific and commercial data available in the development of ESA determinations and any subsequent proposed rules. The listing decision is due in September 2015." - the best scientific and commercial data available!

In my mind, the best scientific and commercial data available includes the population, distribution, geospatial, etc. data from the state wildlife agencies. 

The USFWS in their data call, did not RECEIVE/COLLECT population, distribution,  geospatial data from the state wildlife agencies concerning sage grouse. What they did was create a computer program, with certain criteria, take the program to the states. The states were informed ahead of time to make sure their data was in shape to be processed by the USFWS program, then on the state computers the program was run. The analysis was created and the USFWS took only the analysis produced. Therefore, they do not have any possession of the state data. This is a bypass of their regulations concerning "the best scientific and commercial data available.

I was told by a retired USFWS biologist that when FWS makes a biological determination they have to make the data upon which the finding is based available to the Public upon request, either through an informal request or through a FOIA. But if FWS is not in possession of that data, they have nothing to give up. So anyone wanting to conduct an independent or peer review of the analysis after the Sept. finding is made public, would not be able to do so. They would have to go through the states with a public information request and I can personally tell you from previous MT FWP requests, what a crap shoot that is. Additionally, at least CO has a state statute to not release some of that data. With everyone that I called in the last 2 days, I kept asking what the Endangered Species formal status review process requirements were for data collection. No one could or would tell me.

Friday, Mar. 3rd I called Regions 6's Theo Stein, he was listed on the USFWS's Greater Sage Grouse page as the Region 6's Public Affairs Office. He confirmed the information I found out the day before, repeating that CO has the state statute. I asked if any of the other states had the same statute. He did not know but would look into it for me and asked me to send him a contact email to reply to, but that he would be out of the office for about 8 days.

Theo also stated that the same situation as the state data was involved with the NRCS data (Natural Resources Conservation Service - USDA), that they were also reluctant to provide data so it was analyzed and again, only the analysis taken. I asked if there were any other organizations or agencies where this was also done? He replied "yes". So I asked who were the other groups, He said he did not know but could also get that information for me. I asked him about the criteria for the modeling, if that was going to be made available to the public, he said he would check, but thought so.

I began calling FWS FOIA offices to see if the Federal exemptions that apply to their FOIA's superceded, or trumped any of the state statutes exempting information. That was not clear. But it made me think about the Supremacy Clause of the US Constitution, that Federal law trumps state law, started pursuing that line of inquiry, as well as looking through the Code of Federal Regulations for FWS and Endangered Species, trying to find the requirements for the scientific data gathering process.

US Fish & Wildlife Services is a Department of Interior Federal agency, run by our Federal Taxpayer dollars for the benefit of the Public of our Public Trust resources - our sage grouse and its habitat, in this particular case. And on a state level, it is our sportsmens dollars that pay for our state wildlife agency conservation efforts, again, in this case, our sage grouse and its habitat, producing the data that our state wildlife agencies are using. 

So why would the Public be excluded from this data?
Why would the FWS deviate from the process they used in collecting data from the states in their 2010 finding?
Why is having the FWS population, distribution, geospatial  and other data important?

What this means: Lets say that when Sept. rolls around and the sage grouse finding is produced on whether or not sage grouse will be listed, because this is a highly contentious issue with a diversity of stakeholders, someone is bound to disagree and file a Freedom of Information Act request. When you do, it will take awhile for your request to be processed, which could take a couple months, so that might take us up to end of Dec. 2015, beginning of Jan. 2016. Then you receive the requested data and start the laborious task of processing it (now I love data mining so this is a fun part for me), which could take some time due to the volume of what would be produced. So maybe you are looking at a month or two to sift through everything (now you are up to about March 2016), only to find there is no population/distribution/geospatial data from the state wildlife agencies! By the time you get back with USFWS to find out where the data is and why they didnt include it in your FOIA, you might be pissed. You cant do an independent analysis, you cant get it to scientists to do a peer reviewed analysis. You might be looking at a year, from now, to get to this point.

This is where someone might be inclined to sue the FWS for not including the data their findings are based on. This will take more time and more money and our USFWS will have to respond, so that is even more time and our taxpayer dollars going right down the toilet. Meanwhile we still have the issue with the declining sage grouse to deal with. This could cause more confusion over the issue, make the situation more volatile, with more accusations flying around. This is not a desired future.

Finally,  I found online what I been asking and looking for and not receiving - the rule book for this bloody game. I like situations like this spelled out in black and white. As a public trust researcher, I especially love agency handbooks. As Lee Gustafson wrote of me today, "She is a master bull dog researcher". I love to hunt data and am nothing if not persistent.

The USFWS Endangered Species Consultation Handbook, Section 7, page 14, of the Glossary and Terms it states under  "Best available scientific and commercial data"
- to assure the quality of the biological, ecological, and other information used in the implementation of the Act, it is the policy of the Services to: (1) evaluate all scientific and other information used to ensure that it is reliable, credible, and represents the best scientific and commercial data available; (2) gather and impartially evaluate biological, ecological, and other information disputing official positions, decisions, and actions proposed or taken by the Services; (3) document their evaluation of comprehensive, technical information regarding the status and habitat requirements for a species throughout its range, whether it supports or does not support a position being proposed as an official agency position; (4) use primary and original sources of information as the basis for recommendations; (5) retain these sources referenced in the official document as part of the administrative record supporting an action; (6) collect, evaluate, and complete all reviews of biological, ecological, and other relevant information within the schedules established by the Act, appropriate regulations, and applicable policies; and (7) require management-level review of documents developed and drafted by Service biologists to verify and assure the quality of the science used to establish official positions, decisions, and actions taken by the Services during their implementation of the Act. [59 FR 34271 (July 1, 1994)]

The USFWS is required to gather, use primary and original sources of information, and retain these sources in the official document as part of the administrative record supporting the finding they will be producing and making available to the public this Sept. They have not done so. So how can management level reviews of documents developed and drafted be used to verify and assure the quality of the science used to establish the official position that will be taken in Sept.?

I have not found out yet by whose direction FWS has changed this process, nor why, but the Public needs all the data evidence available in accordance with the regulations. FWS needs to be able to back up their findings, according to responsible evidentiary science. Dept. of Interior Secretary, Sally Jewell, needs this retained source data before putting her name to the finding in Sept. 2015. But most of all, the sage grouse and their habitat need it for future generations.


Please email
Noreen Walsh - Region 6 Director - 303-236-7920
Matt Hogan - Deputy Regional Director - 303-236-7920 

And call USFWS Endangered Species Headquarters Chief, Office of Communication and Candidate Conservation: Jim Serfis - 703-358-2171

Thank you,
Kathryn QannaYahu
Bozeman, MT

Monday, March 9, 2015

Wild Bison Want Ad: Montana, is this YOU?


Dear Governor Steve Bullock, as a Montanan, I would like to encourage you to lead the way for wild bison restoration in Montana.

  • Montana has plenty of suitable public lands that do not have grazing leases that could be a conflict, in which to restore wild bison to.
  • Wild bison are a native wildlife species that historically played an important part on this landscape and can be again.
  • Scientific studies show the benefits of native wild bison for our type of ecosystem and climate, especially to our prairie grasses.
  • As a conservation hunter, I would like to see bison on our public lands as a huntable species, utilizing our fair chase hunting ethics.
  • Bison are advantageous to our outstanding and growing ecotourism businesses and our residents outdoor experiences.
  • Montana is certainly up to the challenges of managing such a remarkable wildlife species. Please be the leader we need to usher in this historic event, to restore Montanas native wild bison to public lands.

Thank you,
Kathryn QannaYahu
Bozeman, Montana