Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 98-WIL-07 and 98-WIL-11 In the matter of appeals under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Heidi Gutfrucht APPELLANTS Guy Anttila AND: Regional Wildlife Manager RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Toby Vigod, Chair Richard Cannings, Member Christie Mayall, Member DATE OF HEARING: October 27, 1998 PLACE OF HEARING: APPEARING: APPEAL Smithers, B.C. For the Appellants: Heidi Gutfrucht Guy Anttila For the Respondent: Dale Drown Guy Anttila Reid White An appeal was filed by Heidi Gutfrucht of the March 10, 1998 decision of Reid White, Regional Wildlife Manager for the Skeena Region, assigning her a quota of two grizzly bears for the 1998/99 hunting season. An appeal was also filed by Guy Anttila of the March 10, 1998 decision of Mr. White, assigning him a quota of 6 grizzly bears for the 1998/99 hunting season. The Environmental Appeal Board has authority to hear these appeals under section 11 of the Environment Management Act, and section of the Wildlife Act. Under section of the Wildlife Act, the Board has the power to conduct an appeal by way of a new hearing, and may confirm, reverse, vary, or send back to the Director or Regional Manager the decision being appealed. The Board may also make any decision that the person whose decision is being appealed could have made, and that the Board considers appropriate. Ms. Gutfrucht is seeking an order that her quota be increased and that the quota be increased for Management Unit (MU) Mr. Anttila is seeking an order reinstating his 1997/98 quota of 9 grizzly bears for MUs 6-26 and The two appeals were held together.

2 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 2 BACKGROUND Wildlife is managed on the basis of information for subsets of the province called MUs. Ms. Gutfrucht, owner of Northwest Ranching and Outfitting, is a guide outfitter with a territory within MU 6-21A and MU 6-21B between the Stikine and Iskut Rivers in northwestern British Columbia. On March 10, 1998, Mr. White issued her Guide Outfitter Licence GO , which expires on March 31, As a condition of that licence, she was given a quota of two grizzly bears. The licence also contains a section entitled Species Guidelines which provides that, in relation to the hunting of grizzly bear: No more than four (4) Grizzly Bears in areas and during times included in the Skeena Grizzly Bear Limited Entry Hunting areas between April 1, 1998 and December 31, 2000 and no more than two (2) in any one year. Ms. Gutfrucht s quota of 2 in the 1998/99 hunting season was the same as her quota in the 1996/97 and 1997/98 hunting seasons. Ms. Gutfrucht appealed Mr. White s decision to the Environmental Appeal Board on March 18, Mr. Anttila is a guide outfitter with a territory within MU 6-26 and MU 6-27 near the Taku River in northwestern British Columbia. On March 10, 1998, Mr. White issued him Guide Outfitter Licence GO , which expires on March 31, As a condition of that licence, Mr. Anttila was given a quota of six grizzly bears, of which no more than one (1) may be taken from the Taku River below the confluence of the Inkin River. No more than three (3) bears in total may come from M.U The licence also contains a section entitled Species Guidelines which provides that, in relation to the hunting of grizzly bear: No more than eleven (11) Grizzly Bears in areas and during times included in the Skeena Grizzly Bear Limited Hunting areas between April 1, 1998 and December 31, 2000 and no more than six (6) in any one year. Any harvest of female Grizzly Bear may result in a further reduction of future quota. The quota of six grizzly bear in the 1998/99 hunting season was a reduction from a quota of 9 given to Mr. Anttila in the 1996/97 and 1997/98 hunting seasons. Mr. Anttila appealed Mr. White s decision to the Environmental Appeal Board on April 7, ISSUES The Panel finds that the primary issue to be determined is whether the Regional Manager acted arbitrarily in coming to his decisions regarding the 1998/99 grizzly bear quotas for Ms. Gutfrucht and Mr. Anttila.

3 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 3 RELEVANT LEGISLATION Section 60(1) of the Wildlife Act states: If a regional manager issues a guide outfitter licence, the regional manager may attach a quota as a condition of the licence and may vary the quota for a subsequent licence year. The Wildlife Act Commercial Activities Regulation, B.C. Reg. 338/82, as amended, provides: 1.04 Where a regional manager issues a guide outfitter licence which attaches a quota as a condition of licence, he may specify (a) species of game and their age, sex, horn or antler classification, and numbers of each class or classification of game that may be harvested, (b) the area or areas within which the harvest may occur, (c) the time period within which the game may be harvested, or (d) the number of hunters or a class of hunters that may hunt a species in a defined time and area. DISCUSSION AND ANALYSIS Whether the Regional Manager acted arbitrarily in coming to his decisions regarding the grizzly bear quotas for Ms. Gutfrucht and Mr. Anttila. General Mr. White gave evidence on the process used by the Ministry of Environment, Lands and Parks ( MELP ) to establish grizzly bear quotas and guidelines in an area. He stated that grizzly bear population estimates were determined for each MU in 1989 and are still being used, pending a population review presently underway. A guide outfitter s licence is issued annually and may contain a guideline for a three-year period for the number of grizzly bears that may be harvested, and a maximum for any given year. Sean Sharpe, Wildlife Section Head, Skeena Region, MELP, testified that the choice of a three year guideline reflects, in part, the natural processes of a female grizzly bear which takes up to five years before it reproduces for the first time. Guidelines also provide some flexibility for the guides to plan from year to year. The licence also contains a quota, which is the legal maximum limit for the harvest of a particular species in any given year. The Wildlife Act provides only for the establishment of quotas in a guide outfitter s licence. According to Mr. White, the yearly quota is usually twice the average annual rate. In other words, a guideline of 6 grizzly bear over 3 years with a (maximum) quota of 4 in any year (2 x the annual rate of 2 per year) would be typical. If 4 grizzly bear were harvested

4 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 4 in the first year there would be 2 remaining for the final 2 years of the guideline period. On April 19, 1997, Mr. White wrote to all guide outfitters in Skeena Region, outlining the process for grizzly bear allocations and quotas. He notes that in the fall of 1996, province-wide Limited Entry Hunting (LEH) for residents and quotas for grizzly bears were instituted as part of the government s Grizzly Bear Conservation Strategy. Mr. White notes that in order to continue to provide hunting opportunities and to ensure that human caused kill does not exceed sustainable levels, the Wildlife Branch continues to employ conservative population estimates and hunting limits until better population information is gathered. He notes that the Wildlife Branch is working toward a province-wide review of grizzly bear estimates using an improved habitat based model. Mr. White states that until the review is completed, the Skeena Regional Wildlife Program will continue to use existing population estimates. Mr. White stated that the previous three-year guideline expired in 1996 and that, because they were awaiting updated population estimates and First Nations consultation, they did not institute new three year guidelines for the 1997/1998 season. Instead, they treated 1997/98 as a transition or interim year between the 3 year period and the period. Unfortunately, the revised population estimates were not in place in time for the 1998 licencing year. Mr. White outlined the general background to the setting of Mr. Anttila s and Ms. Gutfrucht s quotas. He testified that he considered the public interest as expressed in three publications in coming to his decision. These were: the Background Report to the Conservation of Grizzly Bears in British Columbia; the June 1995 Grizzly Bear Conservation Strategy; and the April 1996 Wildlife Harvest Strategy. Mr. White referred to the Background Report which concluded that given our present state of knowledge, responsible management demands that we are conservative in setting allocations for hunting grizzly bears (p.47). Mr. White stated that until 1988, the Wildlife Branch used 5% of the estimated population as a target for harvest. Prompted by concerns of overharvest, a provincial grizzly bear harvest review was conducted in It was determined that during , 52 of 118 MUs had total kills that exceeded the annual allowable harvest. As a result of the review, a number of management principles were adopted as general guidelines. The ones most relevant to this appeal are that: The maximum provincial harvest level should be 4 percent of the total population, including kills from all sources. The ratio of females to males harvested would be no greater than 1 female to 2 males (33 percent females) The unreported kill (natural mortality, accidental, illegal) is included in estimates of the total kill and standarized at 50 percent of the legal kill unless documentation indicates otherwise.

5 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 5 Mr. White also considered the statement in the Background Report that to avoid the impacts of area-concentrated kills, it is not only important to control the size of the harvest, but also its distribution. The Grizzly Bear Conservation Strategy notes that the number of grizzly bears on the continent has declined to the point where the species is extinct in the southern and eastern segments of its range and is considered vulnerable or threatened in much of its remaining range. Mr. White referred to the purpose of the Grizzly Bear Conservation Strategy which is to help reverse the loss of grizzly bears in British Columbia and to ensure that this species is allowed to survive. Finally, Mr. White referred to the Wildlife Harvest Strategy which states that the Fuhr-Demarchi habitat model will be refined and tested and will be the primary method for extrapolating bear population estimates to the larger ecosystem level. The Fuhr-Demarchi method uses the habitat classification of the province combined with estimated grizzly bear densities in each habitat type. The areal extent of different habitats in a MU and their capability for supporting bears are then used to produce a population estimate for that area. Mr. Sharpe testified about his input into the setting of the 1998 quotas for MUs 6-21, 6-26 and Mr. Sharpe indicated that his responsibility is to oversee all aspects of the wildlife program from hunting management to conservation management. He has been in his current position since December 1995, and prior to that was the carnivore specialist in Victoria. Mr. Sharpe was a co-author of the documents referred to above. He sits on the Grizzly Bear Scientific Advisory Committee which, in October 1998, confirmed that the Fuhr-Demarchi method is still the best approach in the absence of a detailed scientific inventory of grizzly bears. The Advisory Committee was appointed by Cabinet and is a technical committee with representation from a broad range of scientists, including international biologists with expertise in grizzly bears. Mr. Sharpe testified that the Annual Allowable Harvest (AAH) was set in 1989, based on the Fuhr-Demarchi model, but that it is presently being refined. He said that the Fuhr-Demarchi estimate is not meant to be a calculation of the absolute number of animals that one might see, but rather is the minimum stable population level that can be supported by a group of habitats. Mr. Sharpe says that they are presently revisiting habitat classes and re-rating them. He says that the Skeena estimates are completed, but they are awaiting correlation with other regions. He expects that the new population estimates will be in place for the 1999/2000 quota determinations. Ms. Gutfrucht s quota (MU 6-21A and B) Ms. Gutfrucht submits that the Regional Manager acted in an arbitrary manner in making his decision to reduce her quota for the period and that he was acting without the benefit of any input from her and as a result, could not have known that the population of grizzly bears could easily support an increase in quota. She claims that the Regional Manager did not take into account the fact that the grizzly bear population is very healthy in MU 6-21 and not at any risk. She

6 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 6 also says that she would not be asking for an increased quota for grizzly bears in MU 6-21 unless she was confident that the increased harvest rate was sustainable. The Panel notes that there seems to be some confusion in Ms. Gutfrucht s use of the term quota in her Notice of Appeal and Statement of Points. A quota, which is issued on a yearly basis, is legally enforceable while a guideline, which is usually issued for a three-year period, is not enforceable. Ms. Gutfrucht s quota of 2 in 1998/99 was the same as her quota in 1996/97 and 1997/98. Her guideline was increased for the period over the period. Neither her guideline nor quota was decreased as she has claimed. Ms. Gutfrucht further submits that the method of estimating populations by using the habitat based model (Fuhr-Demarchi model) produces ultra-conservative estimates which in turn leads to ultra-conservative quotas. She also submits that the application of non-hunting mortality directly to the harvest rate is unreasonable and promotes a cycle of increasingly larger non-hunting mortality without the management control of hunting mortality. Finally, she says that Mr. White s decision was based on influence from Wildlife Branch headquarters in Victoria more than conservation concerns from within the region. In response to Ms. Gutfrucht s submission that non-hunting mortality should not be applied directly to the harvest rate, Mr. Sharpe explained that the generally accepted view is that unreported kill is to be expressed as a percentage of the maximum harvest rate of 4%, because harvest usually reflects access to poaching or cripple loss. He did agree that if unreported kills were very high, the AAH could be reduced to zero and he did indicate that in one area of the province, there had been a closure of an MU to hunting due, in part, to the high level of incidental kills. On the other hand, Mr. Sharpe indicated that in MU 6-21 there was not even a remote chance of this happening due to limited human development. Further, he said that the percentages used for unreported kill in MU 6-21, as well as MUs 6-26 and 27, were conservative. Mr. Sharpe testified as to his input into the setting of quotas and guidelines for MU This MU contains two parts MU 6-21B, which is the main portion and 6-21A which is in a park. The population estimate for 6-21B is 307, and for 6-21A is 30. These population estimates are based on the 1989 population estimates derived from the Fuhr-Demarchi model. He said that MU 6-21 is a special circumstance because 6-21A is in a park. A 3% maximum AAH rate is used in a park, instead of the 4% generally used. As far as unreported loss, 1% was used in 6-21B, while only 0.50% was used in 6-21A. The reason for a higher number for unreported loss in 6-21B is due to the greater access to this MU. Mr. Sharpe gave the Panel a very detailed explanation of the spreadsheet that he prepared for MU 21. Mr. White provided a more simplified explanation of how he reached his quota and guideline decisions based on the information provided to him by Mr. Sharpe. He indicated that the AAH for the period from was 10 per year and that the three-year guideline was therefore 30 grizzly bear (10 x 3). The actual harvest was 33. The guideline for Ms. Gutfrucht during this period was 3 over three years and a maximum of 2 in any year. Her quota for the 1997 interim year was 2 and she harvested 2 grizzly bears in that year. Mr. White explained that the AAH for 1998-

7 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page remained at 10 per year for the entire MU An allocation of one grizzly bear per year was made for First Nations, following consultation. For the 4 year period from , the maximum harvest is 40 (4 x 10) minus the overharvest of 3 carried over from The First Nation allocation of 4 was subtracted leaving a total of 33. The non-residents were allocated 16 for this period. Mr. White explained that while the provincial policy is to have 70% of the harvest allocated to residents and 30% to non-residents, in Skeena Region, in the short term, the allocation is to be 50% for residents and 50% for non-residents. Ms. Gutfrucht received an allocation of 6 for the 4-year period, while the remainder was divided among the 3 other guide outfitters with territory in MU Because she had harvested 2 grizzly bear in 1997, her guideline became 4 for Mr. White indicated that this was an increase over her previous guideline of 3 for the period, with a maximum of 2 in any year. Ms. Gutfrucht s quota remains at 2 for Mr. White submitted that he did not act arbitrarily but rather followed the general policies set out in the three documents referred to above. He said that he applied the Grizzly Bear Conservation Strategy in a consistent manner for the MUs and guide territories within the Skeena Region. He said that contrary to Ms. Gutfrucht s assertion that she had no input, there had been discussions between her and Mr. Sharpe, as well as himself, following a letter she had sent in 1997 indicating that she would be appealing the proposed grizzly bear quota. Mr. White said he was aware of her views on the number of grizzly bears in her territory, but that he was not prepared to revise the population numbers until the province wide review was completed. Mr. White submitted that there was no influence from Wildlife Branch headquarters in Victoria, or any other source, that could be considered to have fettered his decision. The Panel finds that there is no evidence that Mr. White s decision was made in an arbitrary fashion. This Board has accepted the Fuhr-Demarchi model of estimating grizzly bear populations as a reasonable one (see Bracewell v. Deputy Director of Wildlife (Environmental Appeal Board, Appeal No. 97-WIL-09, August 6, 1998)(unreported)). Mr. Sharpe explained how it is constantly being refined, and also how further work done by other methods, such as radio-collaring and DNA sampling, generally confirmed that the Fuhr-Demarchi model was providing reasonable population estimates. He explained how they tweaked the numbers coming from the Fuhr-Demarchi model by looking at other factors such as changes to habitat, and the distribution of kill. The Grizzly Bear Scientific Advisory Committee also recently confirmed the use of the Fuhr-Demarchi approach, in the absence of detailed scientific inventories. Mr. Sharpe indicated that he felt that the precautionary principle is warranted in the absence of detailed inventory data. The Panel finds that this approach is appropriate, given the vulnerability of the grizzly bear population. As noted above, Ms. Gutfrucht s guideline was increased slightly for the period and her quota of 2 grizzly bears remained the same for the 1998/99 hunting season as it had been in 1997/98.

8 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 8 The Panel also notes that there is a population review underway, and that new population estimates should be available in time for the setting of the 1999/2000 quotas. Mr. Anttila s quota (MUs-6-26 and 6-27) Mr. Anttila appealed his quota on the basis that the Regional Manager had no biological evidence to cut his quota from 9 in 1996/97 and 1997/98 to 6 in 1998/99. Mr. Anttila also submitted that the Fuhr-Demarchi approach is ultraconservative and does not reflect the realities on the ground. He said that he has been on the Taku River for over 20 years and that he was only aware of one visit by the Wildlife Branch in in relation to grizzly bears. He said that he has kept tabs of bear sightings, and sow-cub ratios and that he has seen an average of 200 grizzly bears per year. Mr. Anttila also notes that his territory is in a densely vegetated area, and that it is impossible to see any great percentage of the total bear population in the area. He says that he even had a reported 87 grizzly bear sightings during one hunt. His conclusion is that the bear population has been underestimated and that there is a large discrepancy between the Wildlife Branch s estimates and his sightings. Mr. Anttila also raised the possibility of doing DNA testing to provide a more accurate estimate of the grizzly bear population. Mr. Sharpe testified that sightings are a very important tool to verify the presence and absence of bears, and are key to understanding seasonal variations. However, there are problems with using sightings to come up with a minimum stable population in a given area. Mr. Sharpe indicated that it is very difficult to be sure that one is not looking at the same bear and double-counting animals. He said that it is reasonable to see differences in the numbers of grizzly bears at various times in the year. Mr. Sharpe indicated that he did take into account the information that Mr. Anttila gave him. He also agreed that the Taku River is rated high for grizzly bears and that this will be reflected in the revised population estimates which should be completed in the near future. In response to Mr. Anttila s query as to why DNA sampling is not used instead of relying on the Fuhr-Demarchi approach, Mr. Sharpe said that the most accurate method for obtaining a population estimate is saturation trapping where one tries to trap a large proportion of individuals in a population. It has an advantage over DNA sampling as one can get an understanding of birth and mortality rates. Mr. Sharpe noted that both these methods are expensive and time consuming, however, they are being pursued in a number of places in the province. Mr. Sharpe said that the DNA results have been used to fine-tune the Fuhr-Demarchi model. He stressed that, to date, the results have not been magnitudes of difference from the Fuhr-Demarchi approach. Mr. Anttila also raised concerns about the statement in his licence that any harvest of a female Grizzly Bear may result in a further reduction of future quota. He said that he is concerned that the Wildlife Branch does not have any particular system or literature to discourage the hunting of females, and he hoped they would consider taking steps to publicize this issue. He said that he is disturbed that if

9 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page 9 residents kill females, his quota will be affected even though he is doing everything possible to make it a male harvest. Mr. Sharpe indicated that the reason the sentence about female grizzly bears was put in Mr. Anttila s licence was because of a concern with the killing of females. He said that what is changing is the understanding of female kills. Mr. Sharpe testified that female grizzly bears are less likely to move and recolonize areas and if there is a concentration of kills within certain areas, the rate of increase of the grizzly bear population can be decreased by removing the breeding females from good habitat. He said that in MUs 6-26 and 6-27 there has been an overkill already and that the kill was more than 33% in concentrated areas. Mr. Sharpe said they are just notifying guides that if the female kill remains proportionally high, they will have to reduce quotas. This could impact both residents and non-residents and, in fact, the LEH for residents was reduced for 1998, in part, because of the overkill of females. Mr. Sharpe agreed that Mr. Anttila s territory is in an area where one would expect to see a high concentration of bears and that, for example, in MU 6-26, the population is greater than the 1989 estimate of 189. He stressed that while a population review is currently underway, the new information was not available when the 1998 quotas were being set. He also indicated that there had been a recommendation from a provincial review for a closure of MU 6-26 in 1998/99, due to the fact that the female harvest had been greater than 30% and that the total harvest had been greater than the allowable harvest in Mr. Sharpe indicated that using the information that Mr. Anttila had provided him about grizzly sightings, he was able to successfully argue that MU 6-26 should remain open. Finally, he indicated that he expected the population estimates to increase for MUs 6-26 and 27 once the provincial review has been completed. Mr. Sharpe did caution that, while it is expected that the population estimates will increase in MUs 6-26 and 6-27, to increase the kill rate one would need another 100 grizzly bears in the population estimates to have 4 more bears available to be split among the guides, residents and First Nations. Mr. White and Mr. Sharpe testified as to how Mr. Anttila s 1998/99 quota was derived. Mr. White provide an overview and Mr. Sharpe went through the calculations done on a spreadsheet. It was clarified that the calculations are done by MU and then a quota is allocated to the total number of guides with guiding territory within that MU. There are a total of 6 guides with territories in MU 6-26 and 2 in MU 6-27, including Mr. Anttila. Mr. White and Mr. Sharpe stated that for MU 6-26, the population estimate is 189, and for MU 6-27 it is 43. The standard 4% maximum AAH rate was used. The next step was to make an estimate of the unreported kill and subtract it from the 4%. While the provincial average rate for unreported kill is 0.5%, a lower number of 0.25% was used in these two MUs, due to their remoteness and the information supplied by the guides. Again, Mr. Sharpe provided a detailed explanation of the spreadsheets that he had prepared for MUs 6-26 and 27. Mr. White presented this information in a somewhat simplified form. He stated that in relation to MU 6-26, for the 4 year period of , the maximum harvest is

10 APPEAL NO. 98-WIL-07 and 98-WIL-11 Page (4 x 7) minus the overharvest of 3 in which leaves 25 of which 12 are left for non-residents. He said the 4-year allocation for Mr. Anttila was to have been 9, with the balance going to the other guides. For MU 6-27, he said the maximum harvest for the four year period of is 8 (4 x 2). As there was no overharvest, there would be 4 bears allocated for non-residents. This would mean 2 bears would be allocated to Mr. Anttila, with the balance going to the other guides. The total for both MUs would be 11, minus Mr. Anttila s 1997 harvest of 7. His net allocation would have been 4, however, Mr. White testified that this would have been a very big change from his previous guideline of 15 for the 3 year period from Mr. White borrowed 7 from the resident allocation, on the expectation that the resident harvest was expected to be low due to poor access to these MUs, with the net effect that the guideline for Mr. Anttila for is 11. The Panel finds that the Regional Wildlife Manager did not act arbitrarily in setting Mr. Anttila s 1998 quota. It appears that, in the face of pressure to close MU 6-26, regional staff presented information provided by Mr. Anttila about grizzly bear sightings and made the case to have the MU remain open for hunting. The Panel also finds that the Regional Manager was flexible in increasing Mr. Anttila s guideline from 4 to 11 for the period. Finally, the Panel notes that all parties agree that the population estimates should be increased as a result of the ongoing population review, which should be available for the setting of the 1999/2000 quotas. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all the evidence before it, whether or not specifically reiterated here. For all the reasons stated above, the Panel is satisfied that the Regional Wildlife Manager s decisions regarding the 1998/99 quotas for Ms. Gutfrucht and Mr. Anttila were reasonable and proper. Therefore, the Panel confirms the decisions of the Regional Wildlife Manager. The Panel notes that both Mr. White and Mr. Sharpe indicated that they expect that the population estimates of grizzly bears in MUs 6-21 and 6-26 and 6-27 will increase, and Mr. White has indicated that he will endeavour to adjust guidelines and subsequent quotas as soon as the final estimates are determined and made available to him. The appeals are accordingly dismissed. Toby Vigod, Chair Environmental Appeal Board April 16, 1999