They are:

Robin Cunningham
John Way
Joe Dilschneider
Bob Gibson
Joe Fontaine
Lee McKenna
Philip Naro

From discussions with FWP staff and Montana Governor Schweitzer’s appointments secretary, I understand that FWP sent a list of 12-14 applicants to the governor, and he cut the list to seven.

Our first meeting is May 30 at FWP’s Region 3 HQ in Bozeman. The discussions will be managed by Missoula’s experienced facilitator Virginia ‘Ginny’ Tribe. I worked with Ginny when we set up the River Recreation Management Planning rules in 2004.

I plan on reporting regularly via this blog on the progress of the group. As usual, stay tuned.

“Ranch owner and communications mogul James Cox Kennedy argues that under the PPL decision he owns the bed of the Ruby River because it, like the Madison, was not navigable at the time of Montana statehood. This could have profound implications for Montana’s iconic stream access law.”

“At the time of Montana statehood in 1889, the federal government ceded control of navigable rivers to the state to be held in trust for the benefit of the people, the so-called public trust doctrine. Although the U.S. Supreme Court’s PPL decision directly addressed the issue and said the public trust doctrine stands, that the state retains its broad jurisdiction, it remains somewhat unclear if this applies only to those rivers deemed navigable at statehood.”

“In his lawsuit filed in Virginia City, plaintiff Kennedy alleges that the state of Montana has no jurisdiction over non-navigable waterways (such as the Madison and Ruby) and that denying him (and previous owners of his ranch property) ownership of the river bed constituted an unconstitutional taking.”

“Public access to the Ruby repeatedly has been contested by Kennedy. The issue had appeared resolved when a court decision allowed the public to access the Ruby from the easements at county road bridges. Anglers entering the Ruby from such public access points have full use and enjoyment of the river below the ordinary high water mark, including the bottom of the river. Plaintiff Kennedy is challenging this access by asserting ownership of the river bed.”

“Whether this lawsuit succeeds remains to be seen. Legal opinions differ. But once again it appears that Montana’s landmark stream access law is under assault.”

It was a much calmer, reasoned get-together compared to Tuesday’s meeting in West Yellowstone. Following the now-familiar routine, FWP staffers Horton, Sperry and Morris outlined the history of social use on the Madison and the process involved in the MRRMPP. Fishing Outfitters Association of Montana (FOAM) members asked Horton if the fishery was harmed by popularity – no – and if the social issues had escalated to severe problem levels – again, no.

Some new topics arose: “What’s the nature of the consensus process as the ‘decision engine’ for the MRRMPP?” Sperry detailed his history with consensus, and FWP Commissioner Dan Vermillion noted the importance of the consensus process in the archery controversy in the Bull mountain area. Scott, an angler from Butte, added that consensus is one reason for the Big Hole Watershed group’s on-going success working out issues among their members.

“How will FWP select the facilitator for the process?” Sperry explained that FWP’s Region 3 will put out a request for a facilitator later in March. Scott weighed in again, emphasizing that a qualified facilitator is key to working out the various interest’s points of view in the management planning.

“What is FWP’s role in the Citizen’s Advisory Committee?” Once more, Sperry tackled the answer: FWP will probably be part of a Technical Advisory Committee (TAC) made up of various agency staffers who will monitor the technical and social feasibility, legality, affordability and enforceability of the CAC’s recommendations. Charlie went on to advise that FWP staff be cautious and not allow personal or ‘departmental’ values to color the TAC’s comments or suggestions.

“Will the applications for the CAC be made public?” FWP: “Probably not, unless the individual CAC selectees agree to have their application’s made public.” Of course, Sperry added, those chosen for the CAC will be announced as soon as they are confirmed.

So, some important process details were added to the repeated suggestion to relieve pressure by opening more stretches to floatfishing and a continued call for more user information were the core points of this last scoping session.

Now, on to the CAC and facilitator selection, then the first CAC meetings. Stay tuned.

A standing-room-only crowd peppered Montana Fish, Wildlife and Parks employees Travis Horton, Charlie Sperry, and Cheryl Morris with a mix of short, pointed queries or long, rambling comments that, at times, were difficult to follow.

Horton had spent the morning at Montana State University in Bozeman lecturing for a couple hours before gathering his meeting materials and heading to W. Yellowstone, so he was almost ‘talked out’. Sperry interceded several times to quietly quash the more aggressive speakers and kept the meeting rolling. Morris politely discussed the status and future of the ’3 Dollar Bridge’ access on the upper Madison during a brief, multi-participant, machine-gun Q and A session. The FWP trio kept their cool in spite of a few hard-nosed commentators.

Similar to the Ennis and Bozeman meetings, outfitters and business owners wondered aloud about the effect of possible social controls on the Madison. Several folks inquired about PPL-Montana’s Hebgen Dam flow regime, algae blooms, repair schedule and participation in this process. Short answer: because the river recreation management rules focus solely on social issues, PPL will not be represented.

Horton has noted the use of fishing regulations as social controls, namely, the ban on fishing from boats in certain stretches to allow increased walk-wade fishing. Some history of the adoption of these regulations led to suggestions to open sections currently closed to float angling to relieve pressure elsewhere on the upper river system.

One commenter compressed the evening’s various points of view into a simple list: Fix the (Hebgen) dam, increase summer flows, leave outfitters alone, keep the ‘tubers safe on the lower river, and let anglers work out fishing pressure without department intervention.

Given West Yellowstone’s history of troubled businesses responding to winter snowmobile controls in Yellowstone National Park, this hands-off manifesto certainly echos a familiar “less is better” stance on government that led to recent history’s disruptive town meetings. Deja vu, all over again . . .

So, what about Montana’s Stream Access Law (SAL)? According to the syllabus of the opinion, “The Montana Supreme Court further erred as a matter of law in relying on evidence of present-day, primarily recreational use of the Madison River. Navigability must be assessed as of the time of statehood, and it concerns a river’s usefulness for “ ‘trade and travel.’ ” Utah, 283 U. S., at 75–76. River segments are navigable if they “ ‘[were]’ ” used and if they “ ‘[were] susceptible of being used’ ” as highways of commerce at the time of statehood. Id., at 76. Evidence of recreational use and post statehood evidence may bear on susceptibility of commercial use at the time of statehood. See id., at 82–83. In order for present-day use to have a bearing on navigability at statehood, (1) the watercraft must be meaningfully similar to those in customary use for trade and travel at the time of statehood, and the river’s post statehood condition may not be materially different from its physical condition at statehood. The State Supreme Court offered no indication that it made these necessary findings. Because this analysis is sufficient to require reversal here, the Court declines to decide whether the State Supreme Court also erred as to the burden of proof regarding navigability.

With the Montana State Supreme Court’s determination of navigability so far intact, it appears that the SAL is also intact. Future legal wranglings may reveal a different story.

For more details, check Bloomberg Law’s Supreme Court of the United States blog. You may also download a copy of the decision from our archives.

Both landowners and land management agencies have tried to keep up with this popular pastime: The BLM reworked the Warm Springs access site, paving, striping for parking, creating alternate launch ramps, and improving the latrines. At Black’s Ford, FWP has added dumpsters at peak times to provide ample waste management. There is only so much both agencies can do to absorb the increasing ‘splash-and-giggle’ recreational use level and attendant drinking, overflow parking, and occasional conflict with other uses on the water and at the access points.

Clearly, this is quite a different situation from the angling use popular on the upper Madison, but it shares at least one obvious common requirement: Improved specific data on who is doing what, where, and when.

One college student asked FWP representatives if they had conducted any surveys on the lower Madison keyed to non-commercial, non-angling recreation. Aside from one ‘on-site’ survey conducted in 2009 that included the stretch from Warm Springs to Black’s Ford, the department told her they had no firm numbers on how many folk, primarily residents, are using either access point and when they are floating.

Gaps in specific data on nonresident angling in the upper Madison mirror the lack of data on this non-angling user group on the lower Madison. When asked about this need for adequate information to help guide the upcoming management discussion process, FWP Region 3 Chief, Pat Flowers, noted he was satisfied with the current data available and had no plans for further surveys or data-gathering instruments.

To his credit, he noted that if the Citizen’s Advisory Committee (CAC) requested further information on use and user levels in specific areas at specific times, the department would do its best to comply.

Another point common to this river management process was brought up by a resident angler. Noting the frequent questions and concerns from outfitters and business owners who may be impacted by social controls, he wondered aloud about the resident angler in all this, asking if the CAC selection would be ‘slanted against the resident walk-wading angler.’

Charlie Sperry briefly discussed the planning process rules, pointing out the variety of representatives who would be selected for the CAC. Pat Flowers went on to explain his intent to create an ‘interest-based consensus-driven’ discussion of concerns and possible solutions.

Interest-based means most particular interests will be represented; consensus-driven means all represented interests must be considered in all decisions. No ganging-up, no obvious voting blocs, no majority rule. These two principles are central to the success of this planning method.

FOAM has long promoted these core concepts, and welcomed Flower’s reiteration of his commitment to their implementation in the Madison management discussion. Flower’s experience with many other resource, wildlife, and social issues that were successfully resolved through interest-based consensus-driven proposal and resolution discussions underscores the importance of his promoting these key modes in the Madison process.

Now, if we had sufficient data to augment meaningful discussion in a cooperative atmosphere, we will be well on the way to another success.

The Ennis Middle School meeting room was lousy for acoustics – tough to hear the questions and answers – but we all struggled through. Many outfitters questioned the genesis and justification for the MRRMPP. Several local business women, notably Chris Gentry, owner of the Ennis grocery store, worried about possible controls on outfitters and guides that would cut into tourism business.

“These guys buy my food, and they bring in clients who buy my food,” said Chris. She reminded FWP that Ennis ‘lives on the summer business’ provided by recreational tourism.

Charlie Sperry, FWP River Recreation Coordinator, Travis Horton, FWP Fisheries Manager for Region 3, and Sam Sheppard, Warden Captain for Reg. 3, all fielded questions and provided, for the most part, on-point, balanced answers and explanations grounded in statistics and administrative history.

A couple points established early in the meeting: 1) Social pressure is not having any direct effect on the fishery. 2) While data about commercial use is plentiful, site-specific, time-graduated data on other angling use is sparse.

Yes, FWP has annual and summertime (May – September) statistical counts of angler days on three stretches of the Madison – roughly, Y’stone National Park to Lyons Bridge, Lyons to Ennis Dam, and Ennis Dam to the Missouri – broken into resident and nonresident numbers, but the department has no breakdown of which sub-stretches folks fished, or how many anglers used them, or when they fished.

Without this data, the committee discussing Madison concerns will be hard pressed to clearly and accurately determine if there are ‘hot spots’ of use that may warrant intervention. FWP would do well to focus on landowner and land management agency concerns, such as trespass, trash, human waste, crowded parking lots, etc. for now, while working up statistically significant survey or census instruments to backfill the missing use and user data to spur useful future discussions.

On to Bozeman tonight, then West Yellowstone on Feb. 28 and Whitehall on March 1. More to come.

We were among the first to go ‘live’ with action plans coordinated with NISAW. Check out our press release on the NISAW website for more details.

We’ll also be getting this message out to Montana papers, Yellowstone Public Radio (YPR) and the American Fly Fishing Trade Association, AFFTA.

Greg Lemon, editor of the Madisonian, hits all the right points with a balanced overview for this stage of the game. Thanks, Greg.

Scoping meetings will be held in Ennis (2/15 – Ennis Middle School), Bozeman (2/16 – Comfort Inn), West Yellowstone (2/28 Holiday Inn), and Whitehall (3/1 Whitehall High School) from 6 to 8 p.m.

Applications for the Citizen’s Advisory Committee, the CAC charter, a brief explanation of the process, plus surveys and other statistics are all available at the FWP Madison webpage.

Interesting notes: The CAC will meet some 8 or 9 times, not the 18- to 24-month process used for the Blackfoot Management Planning process, so we can expect some decisions in early 2013. Also, FWP seems to be bringing as much transparency as they can muster to this review and planning – just check the number of opportunities for public comment throughout the process description online.

Lastly, the CAC charter clearly states “the plan will focus on recreation management rather than resource management, with the understanding that resource protection is of highest priority.” The interaction of resource conditions and recreation choices will be tough to separate: It’s entirely possible anglers congregate to the point of possible crowding in stretches of the Madison that hold cooler water and leave relatively quiet those lower stretches that slowly warm during the summer. This chicken-and-egg resource-and-recreation relationship should not be ignored during the planning discussion, even if recreation is the point of the exercise.