Fishing Outfitters
Association of Montana
FOAM Legal Challenge (Press Release)
Bozeman, MT, January 17, 2002 - The Fishing Outfitters Association of Montana (FOAM) today filed a complaint in Gallatin District Court seeking a declaratory ruling on the validity of Fish, Wildlife and Park's "Beaverhead, Big Hole Biennial Rule" and the process used to adopt it. FOAM alleges that FWP improperly used an exception to standard administrative rule-making requirements when adopting the rule restricting fishing outfitters and nonresident anglers on both rivers. The outfitter association further alleges the agency exceeded its statutory authority in developing the rule.
"Our challenge of the rule itself is based on two points: FWP overstepped the narrow terms of an exception to state procedures when adopting portions of the rule, and the department did not justify the restrictions established in the rule," said Robin Cunningham, Executive Director for FOAM. "In the future, we think FWP should follow full rule-making requirements and employ facts, not opinions, to demonstrate the need for regulation when dealing with river management. FWP's choice to act beyond the specific authority delegated to them by the legislature and misuse the rule adoption exception sets a bad precedent for future river management planning and implementation."
The Montana Administrative Procedures Act lists specific requirements for agency rule adoption, including public participation standards and requirements for validity, rationale, and justification. FWP is granted an exception to MAPA that lets the agency adopt two-year fishing and hunting regulations and rules for seasonal use of the state's lands and waters. When using this exception, FWP is not held to the full MAPA requirements, including the requisites for validity and justification.
"A state agency can only adopt administrative regulations if the legislature has delegated that authority to them. Any regulations adopted in the absence of such a delegation are invalid," said Tom Anacker, FOAM's attorney. "The exception FWP is attempting to use in the social conflict rule is intended for use when adopting seasonal fishing and hunting regulations. River crowding and social conflict issues are of significant interest to a large number of people. Lawful procedures and standardized guidelines which provide full legal rights to all interested parties must be implemented at the outset if any headway is to be made in resolving these issues."
FOAM, with some 524 members, was formed in 1981 to represent membership business and conservation interests before state and federal agencies and the Montana legislature. Since 1991, FOAM has sought specific agency authority to regulate recreational and commercial use of Montana's most popular rivers in proven crowding or conflict situations. The association also encourages adoption of a model process for developing river recreation management plans based on fact-finding surveys, stakeholder consensus, and, when necessary, agency rule adoption using the complete MAPA process.