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. APPEAL NOS. 98-WIL-09 and 98-WIL-13 through 98-WIL-17 In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Robert Fontana APPELLANTS Barry Scott Wilf Boardman Steven Leuenberger Harry Leuenberger Henry Fercho AND: Regional Wildlife Manager RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Toby Vigod, Chair Richard Cannings, Member William MacFarlane, Member DATE OF HEARING: July 28 & 29, 1998 PLACE OF HEARING: Cranbrook, B.C. APPEARING: For the Appellants: Robert Fontana Evelyne Fahselt For the Respondent: Rick Morley APPEAL Appeals were filed by Robert Fontana, Barry Scott and Wilf Boardman of the March 25, 1998 decisions by Rick Morley, Regional Wildlife Manager for the Kootenay Region assigning each of them a 1998 quota of zero grizzly bear. Appeals were also filed by Steven Leuenberger, Harry Leuenberger and Henry Fercho against the three-year allocations for grizzly bear assigned to each of them by Mr. Morley on March 25, The Environmental Appeal Board has authority to hear these appeals under section 11 of the Environment Management Act, and section of the Wildlife Act. Messrs. Fontana, Scott and Boardman are seeking an order that would reinstate the ten bear allocation for all guide-outfitters in the Southern Rocky Mountain Block, less the harvest that occurred in Messrs. Leuenberger, Leuenberger and Fercho are seeking an order to adjust their Administrative Guidelines to

2 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 2 three, two and six grizzly bears respectively. All six appellants request that the present system used to set allocations and quotas be changed to a simpler, consistent and more easily understood system that is still biologically sound. The appeals were heard together with Mr. Fontana representing himself, Mr. Scott and Mr. Boardman, and Ms. Evelyne Fahselt representing Messrs. Steven and Harry Leuenberger and Mr. Fercho. BACKGROUND The Appellants are guide-outfitters in the Elk Valley and Flathead Valley of southeastern British Columbia. Their territories are managed by the Kootenay (Region 4) office of the Ministry of Environment, Lands and Parks ( MELP ) in Nelson. One of the species they offer hunts for is grizzly bear. On April 10, 1997, Mr. Morley, the Regional Manager for Fish, Wildlife and Habitat in Nelson, sent Messrs. Fontana, Scott and Boardman a letter regarding their grizzly bear quota for 1997 and explaining how it was calculated. Mr. Fontana s quota was reduced from 3 to 2 bears and Mr. Scott s was reduced from 2 to 1. Mr. Boardman s quota remained at 1 bear. Mr. Fontana appealed this decision to the Deputy Director of Wildlife, Mark Hayden, on August 20, 1997, on the basis that the Regional Manager did not follow proper policies and procedures in calculating the quota, but the appeal was dismissed on October 23, On March 25, 1998, Mr. Morley sent Messrs. Fontana, Scott and Boardman letters stating that their 1998 quota would be zero and would remain zero in On March 25, 1998, Mr. Morley sent Messrs. Leuenberger, Leuenberger and Fercho letters giving them three-year allocations of one, one and two grizzly bears respectively for and 1998 quotas equal to those allocations. The 1998 quota allocation letters form the basis of these appeals. ISSUES 1. Whether the Regional Manager followed the proper procedures for calculating three-year Administrative Guidelines and annual quotas for the Appellants, and whether MELP used the best grizzly bear population estimates available as a basis for calculating these quotas? 2. Whether there is a simpler system that could be used for calculating annual grizzly bear quotas that is both fair and consistent with conservation objectives? RELEVANT LEGISLATION AND POLICIES 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.

3 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 3 The following are the policies and procedures of MELP considered relevant to this appeal; they are all taken from the Policy and Procedure Manual, Vol. 4, section Subsection 01.01: Allowable Harvest. Procedures: 1. Harvest Determination 1.1 Big Game Minimum regulations will be imposed on harvest of game animals consistent with meeting management objectives Allowable harvests are calculated on the basis of a) the status of the animal population; b) past harvest data ; 2. Subsection 01.02: Open Seasons. Reasons for Policy: c) population/area ratios - the ratio of the population harvest to the regional harvest of that species will be the same as the ratio of the area occupied by that population to the area occupied by the species in the entire region where it can be assumed animal productivity differences are not a major concern. To allow for optimal hunter opportunity consistent with meeting conservation objectives for the resource, and within specific allowable harvest limits. 3. Subsection 01.03: Allocation of Hunting Privileges. Reasons for Policy: 1. To state clearly the position of the Ministry on the allocation of hunting privileges in B.C. 2. To ensure the harvest of the wildlife resources of the province falls within the limits necessary to meet management objectives.

4 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 4 3. To provide Ministry personnel with guidelines that allow equitable and uniform allocation of hunting privileges to meet stated management objectives. 4. To maintain the opportunity for non-residents (Canadian and Aliens) to enjoy a hunting experience in British Columbia. 5. To support the economic viability of the guiding industry where consistent with the Wildlife Act and Ministry Wildlife Management objectives, policies and procedures. Procedures: 2.9 The allocation of harvest to non-residents will be provided by quota as a condition of a guide licence 2.10 Adjustments to allocations will be made to the nearest whole animal, i.e., 0.5 to 0.9 is the next greater number and 0.1 to 0.4 is the next lower number. 4. Subsection 01.04: Permit Allocation - Non-Resident (Canadian and Alien) Hunting. Reasons for Policy: 1. To prevent overharvest of big game populations in areas where limits have already been set, and to allow all hunters participating in those special hunting situations a fair opportunity for success. 5. Subsection 01.05: Quota Allocation - Guided Hunting. IT IS THE POLICY OF THE MINISTRY 2) that the Regional Manager will consult with guides affected by proposed quotas, guide outfitter representatives and resident hunter representatives before setting a quota. Reasons for Policy: 1. To ensure that hunting privileges for big game in B.C. are available to all hunter residency groups (Residents, non-resident Canadians, non-resident aliens) To provide Ministry of Environment personnel with guidelines for granting quota allocations in an appropriate and uniform manner.

5 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 5 Procedure: 1.2 Quotas established or recommended by the Regional Wildlife Section Head must not exceed the Non-resident portion (Canadian and alien) of the total allocated harvest for the big game population. 6. Subsection : Limited Entry Hunting. Calculation: 2.3: The quota allocation to non-residents is increased in an LEH area where the resident allowable harvest is not fully utilized in each of the immediately preceding three (3) years. 7. Subsection 01.07: Wildlife Harvest IT IS THE POLICY OF THE MINISTRY 2) that there will be no overrun allocation for game species (a) (b) under quota, or in Limited Entry Hunting areas; 3) that the stockpiling of unharvested animals for hunting in subsequent years will not be allowed; Definition: Overrun allocation means the allocation of the opportunity to harvest game animals beyond the intended harvest level in one year with the intent of reducing the allowable harvest in a subsequent year. Stockpiling means deferment of harvesting wildlife in one year to accumulate an increased number of animals for harvest in a subsequent year. Reasons for policy: 1. To prevent unbalanced harvest of wildlife populations by prohibiting stockpiling of unharvested animals for harvest in a subsequent hunting year. Stockpiling of unharvested animals can rarely be exercised and for most species only where the uncertainties of other causes of mortality can be predicted (i.e. weather, disease, accident, predation or poaching).

6 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 6 8. Amendments to procedures for allocation of hunting opportunities (Subsection ) and quota allocation guided hunting (Subsection ) (Ray Halladay, Acting Director Wildlife Branch, March 31, 1992): Definitions: Administrative Guideline means the maximum number of a big game species specified by the Regional Manager that non-resident clients of a guide outfitter may kill over a multi-year period. It is based on the annual non-resident allocation and past non-resident success in the region and/or each guide area in the region over a period of time as determined by the Regional Manager. An administrative guideline shall include the maximum number of animals the non-resident clients of a guide outfitter may kill in any single licence year. Minimal Opportunity means a small quota that is so restrictive as to disallow reasonable expectation of being fulfilled. Where the Regional Manager believes that the calculated non-resident share for a guide outfitter, based on the regional allocation of the annual allowable harvest, would provide that guide outfitter with minimal opportunity, the manager may use an administrative guideline. Should the single year or multi-year allocation to a guide outfitter under the guideline be exceeded, the Regional Manager may set a quota as a condition of that guide outfitter s licence to reduce the harvest in the following years. The use of administrative guidelines will have no effect on the regional allocation process. It will not reduce resident hunter opportunity. Harvest data will be reviewed annually to ensure that the regional nonresident allocation is not exceeded. Perhaps the most pertinent of these policies is number 8, with its definition and discussion of the Administrative Guideline process. DISCUSSION AND ANALYSIS 1. Whether the Regional Manager followed the proper procedures for calculating three-year Administrative Guidelines and annual quotas for the Appellants, and whether MELP used the best grizzly bear population estimates available as a basis for calculating these quotas? The Appellants argued that the Regional Manager did not follow proper procedures for calculating three-year Administrative Guidelines and quotas, raising the following points:

7 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 7 three-year allocations, with no accounting for hunting success rates, were assigned instead of proper Administrative Guidelines fractional bears are not rounded up until the last step of the quota calculations, sometimes resulting in reduced allocations for some areas the 1998 quota cuts were made without consultation, and indeed after assurances in meetings that no cuts would take place consultations and quota negotiations are often held very close to the start of the hunting season or even after it has started, making it difficult to reach fair agreements the Regional Manager had stated that resident hunter harvest data, particularly those involving high numbers of female bears, would adversely affect future allocations to non-resident, guided hunters The Appellants also presented information that suggested that grizzly bear populations in the region were higher than the figures used by MELP to calculate harvest allocations. They were also concerned that previous studies had shown grizzly bear populations to be increasing at 8 percent annually in the region, but this increase had not been accounted for in harvest allocations. To assess this issue properly, some further background is necessary on provincial grizzly bear harvest guidelines, how grizzly bear populations are estimated, how harvest allocations are divided between resident and non-resident (guided) hunters, how grizzly bear quotas are calculated for individual guides, how non-hunting mortality of grizzly bears is dealt with, and other related issues. Since 1982, grizzly bear hunting in the Kootenay Region has been regulated by quotas given to guide outfitters and Limited Entry Hunting (LEH) authorizations to resident hunters. In 1989, the maximum provincial harvest level was decreased from 5 percent to 4 percent of the grizzly bear population, including kills from all sources (hunting, poaching, road-kills, animal control, etc.). The 1996 British Columbia Wildlife Harvest Strategy added further guidelines, suggesting a maximum annual human-caused mortality of 2 to 6 percent of the population, with less than one-third of that mortality involving females. In order to follow these guidelines in setting hunting quotas for guides, managers must have a good estimate of the grizzly bear population in the region and in each guiding territory. Since direct counts of grizzly bears across the province would be impractical if not impossible, MELP uses a habitat-based method of population estimation called the Fuhr-Demarchi method. This method involves mapping the habitats of the province, then estimating the population density of grizzly bears in each of those habitat types. This method allows managers to obtain reasonable population estimates of bears in their region, or any portion of it, including individual guide territories. These estimates are calibrated by intensive benchmark population studies in small parts of the province. Coincidentally, one of the main studies used in this process

8 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 8 was carried out by Dr. Bruce McLellan and others in the Flathead Valley, one of the areas directly involved in these appeals. There is no place to use population growth estimates in this method of estimating population. If new data suggest that populations in the benchmark areas are significantly higher or lower than previous estimates, the new density figures must be used to calculate revised population estimates for other areas. Ideally these recalculations should be done before each three-year allocation process if suitable data is available. Dr. McLellan found that the female/male ratio in the population was 0.55 and 0.45 respectively. The Kootenay Region of MELP has determined that the harvest rate should be 2 percent of the female population and 6 percent of the male population: (.02 x.55) + (.06 x.45) = 3.8 percent total harvest. Again, this 3.8 percent, by policy, includes all known human-caused mortality. MELP estimates that unknown man-caused mortality amounts to 1.2 percent, bringing the total man-caused mortality to 5 percent annually. MELP estimates the total grizzly bear population in the Kootenay Region to be 2123 bears, 107 of which occur in unhunted areas (e.g. National Parks). This leaves a harvestable population of 2016 bears and an annual allowable harvest of 76.6 bears (3.8 percent of 2016). Mr. Fontana presented evidence based on studies done by two consultants that the grizzly bear population in his guiding territory was significantly higher than the figure used by MELP. Bob Forbes, Regional Wildlife Section Head, testified that MELP had indeed raised the population figure they were using for Mr. Fontana s territory, resulting in increased quota for the territory. Mr. Morley and his witnesses agreed that the grizzly bear population in the Kootenay Region was stable or increasing. The Appellants pointed out that a 15-year study ( ) in the Flathead area by Frederick Hovey and Bruce McLellan found that the grizzly bear population there was increasing at the rate of about 8 percent per year. Hovey and McLellan caution that their study covers only a small area. Witnesses for the Respondent again stressed that estimates of population growth rates could not be used in the Fuhr- Demarchi method. MELP is undertaking further studies to assess populations of grizzly bears in the Kootenay Region and these results should be available soon for reassessments of harvest allocations. Resident/non-resident share The Provincial Allocation Policy was put in place in 1989 to deal with the allocation of hunting permits between resident and non-resident (guided) hunters. The split of the allowable harvest is negotiated between the BC Wildlife Federation and local guide outfitters associations (the Southern Guides and Outfitters in this case) during allocation meetings, normally conducted at three-year intervals. If an agreement on the harvest split cannot be reached between the two residency groups, the Regional Manager decides on the allocation based on input from both groups. In the Kootenay Region, the split for grizzly bear harvest is presently set at 70 percent for resident hunters and 30 percent for guided hunters.

9 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 9 Although the resident/non-resident allocation was not really an issue in this appeal, it does limit some of the action that MELP can take to alter harvest quotas for guides and outfitters. Rounding Procedure 2.10 under Allocation of Hunting Privileges states that Adjustments to allocations will be made to the nearest whole animal, i.e., 0.5 to 0.9 is the next greater number and 0.1 to 0.4 is the next lower number. The procedure is silent on whether numbers should be rounded off at each step in a complex calculation or whether they should only be rounded off after the last step in calculating an annual quota. Administrative Guidelines In 1992, Ray Halladay, then Acting Director of Wildlife, introduced the concept of Administrative Guidelines to the big game hunting allocation process in British Columbia (para. 8 in Relevant Legislation and Policy above). Administrative Guidelines have two advantages over simple annual quotas they provide hunting opportunities for guides who would normally receive no quota because of low game populations; and they allow more flexibility in annual quota allocations so that it is easier for guides as a group to come very close to or reach their share of the regional harvest allocation. Normally, annual quotas cannot be varied by more than 20 percent per year, but under Administrative Guidelines, they can be varied in future years beyond that which would normally be allowed, if it is within the multiyear guideline. A three-year administrative guideline is normally calculated by taking the one-year allocation for a guiding territory, multiplying by 3, then dividing by the success rate for guides in that area. For example, if the one-year allocation is 2 bears and the success rate is 50 percent, the 3-year administrative guideline would be 2 x 3 / 0.5 = 12. Since the success rate is factored in, the Administrative Guideline is two times the three-year allocation. Halladay s 1992 directive defining Administrative Guideline states Harvest data will be reviewed annually to ensure that the regional non-resident allocation is not exceeded [emphasis added]. Quotas for guides in year 1 of a 3-year allocation period should therefore not exceed the three-year allocation (6 bears in the previous example); one-third of the Administrative Guideline would be an even safer figure (4 bears in the previous example). This quota could be kept in year 2 if the harvest rate in year 1 was low, and even increased in year 3 if harvest rates in years 1 and 2 were very low. Conversely, if the full quota is taken in year 1, quotas would have to be reduced in year 2 and perhaps dropped to zero in year 3 to ensure that the non-resident allocation is not exceeded over the three-year period. The Appellants argued that, in the Kootenay Region, MELP has been calculating Administrative Guidelines incorrectly for grizzly bear quotas. This seems to stem from a May 20, 1993 directive from W. T. Munro, Deputy Director of Wildlife, following an appeal by Mr. Fontana concerning moose quotas. Mr. Munro directed Mr. Morley to calculate the three-year allowable harvest (or allocation) for a guide outfitter and set that as the administrative guideline. Success rates would then be

10 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 10 built into the annual quotas, not the three-year administrative guideline. Mr. Munro also states that If a guide outfitter achieves his three year administrative guideline in year one or two he should expect a zero quota in each remaining year. Guy Woods, Regional Biologist in the Kootenay Region, testified that a 33 percent success rate was factored into annual grizzly bear quotas, so that annual quotas for guide outfitters have generally been equal to their three-year allocations. In 1996, the third year of a three-year allocation period, MELP maintained this policy of the annual quota equalling the three-year allocation (in an effort to ensure that the non-resident share was reached) despite the fact that there was the risk that the non-resident allocation would be exceeded if most or all the quota was taken. This is what happened, and the allocation was exceeded by six bears. For example, Mr. Fontana s grizzly bear quota in 1996 was set at 2 bears. Under normal procedures, his three-year Administrative Guideline would be equal to three times his annual allocation (3 x 0.86 = 2.58) divided by the agreed success rate. If a 33 percent rate was used, the guideline would be 2.58 / 0.33 = 7.82 bears, or 8 when rounded up. His first annual quota (in 1994) would then be set at three bears, and reduced if necessary over the next two years so that the non-resident allotment was not exceeded. The Southern Guides and Outfitters ( SGO ) recommend in their MOU of April 18, 1995 that a 50 percent success rate should be used to calculate Administrative Guidelines for grizzly bears. Mountain Block System In 1995, MELP instituted a Mountain Block system of managing grizzly bear harvest in the Kootenay Region. In this system, several Management Units are grouped together for management purposes. The Mountain Block system allows MELP to manage harvest levels over areas larger than the standard Management Unit system. This is more in line with the large ranges of individual grizzly bears and thus is a more realistic way to manage bear populations. MELP sets allowable harvest levels for each Mountain Block, rather than for an individual Management Unit or guide territory. Messrs. Fontana, Scott and Boardman s territories are within the Southern Rocky Mountain Block ( SRM Block ); Messrs. Fercho, Leuenberger and Leuenberger s territories are within the Flathead Mountain Block. The Mountain Block system, in combination with Administrative Guidelines, offers MELP more flexibility in allowing guides to reach their allocation as a group. If some guides are inactive in years 1 and 2, for instance, quotas for all guides in their Mountain Block can be maintained at high levels in year 3. However, it does result in the success or failure of some guides having an impact on the subsequent quotas of other guides. For example, if half of the guides in a Mountain Block harvest their full quotas in the first year or two of a three-year allocation period, the three-year allocation for the Mountain Block as a whole may be reached after year 2, resulting in reduced or zero quotas for all guides the following year.

11 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page Allocations and Quotas On November 4, 1993, Mr. Morley sent a letter to Kootenay Region guide and hunting associations outlining his decisions for the 1994 to 1996 grizzly bear allocations. He stated that Guide quotas will be calculated based on historical quotas, distribution of harvest among guides based on minimum estimated bear populations in each territory, a harvest allocation of 23 bears per year over 3 years (69 bears), and a provision for harvest success during the first and second year. Mr. Morley did not include a three-year allocation in his 1994 quota letters to guides in the Kootenay Region. On Dec. 20, 1994, a note from Mr. Woods revealed that 24 bears had been harvested by guided, non-resident hunters in 1994, one more than the annual allowable harvest. He further stated that if quotas were not reduced there would likely be an overharvest of the three-year allocation in several blocks in 1995, resulting in no guide quotas for On March 30, 1995 a proposal was put forward by the SGO that dealt with, among other things, how a reduction in quotas after an overharvest of a three-year allocation could be distributed among the guides in any Mountain Block. This proposal suggested the following criteria be used to distribute overharvest within a given Mountain Block: 1. Anyone who has taken a full Administrative Guideline with multiple female harvest within the Mountain Block; 2. Anyone who has taken a multiple female harvest within the Mountain Block; 3. Anyone who has taken a full Administrative Guideline with any female harvest within the Mountain Block; 4. Anyone who has taken any female harvest within the Mountain Block. 5. The Regional Manager, Mr. Morley added the following criteria to this list: 6. Anyone who has taken a full Administrative Guideline; 7. Anyone who has taken a grizzly bear, in order of proportion of Administrative Guideline. Mr. Morley presented the amended criteria as part of a Memorandum of Understanding (MOU), which was signed by the guides on April 18, In 1995, landfills were fenced throughout the Elk Valley, and 18 grizzly bears were killed at these landfills by provincial Conservation Officers. In the same year, guide-outfitters in the SRM Block harvested 5 bears, bringing their two-year total to 12. The fact that this was getting close to the three-year allocation of 16 for that Mountain Block was a cause for concern among the Kootenay Region biologists, but full quotas (i.e. equal to their three-year allocations) were allocated to all guides in the region in 1996 despite the potential problem of overharvest. The three-year

12 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 12 allocation in the SRM block was indeed exceeded when 10 bears were harvested in 1996, bringing the three-year total to 22, six more than the allocation for nonresident hunters in that Mountain Block. On November 27, 1996, Mr. Forbes met with Messrs. Fontana and Scott and agreed to consider raising their quotas for 1997 based on a new area calculation for Mr. Scott s territory and a new population estimate for Mr. Fontana s. Mr. Scott s quota was subsequently raised from 1 to 2 bears on MELP spreadsheets and Mr. Fontana s from 2 to 3. Late in 1996 the SRM Block was reduced in size as the Front Ranges Block was split off from the northern section. This automatically reduced the allowable grizzly bear harvest for the new, smaller SRM Block Quota Allocations On April 10, 1997, Mr. Morley sent out quota letters to guides in the SRM Block. In these letters he outlined the quota calculation process as follows: The 1997 quotas have been determined by applying the step-down process identified in our 1995 signed agreement on grizzly bear quotas. This was done for all guides as there was a 6 bear overharvest in the previous 3 year allocation period ( ). The current total 1997 quota for the Mountain block was reduced from 16 to 10 bears as a result of this overharvest. Thus, 10 bears equals the total 3 year grizzly bear allocation available for the mountain block. One guide s quota was reduced by one bear because of multiple females harvested, and Mr. Scott s was reduced from two to one because he harvested a single female. Mr. Boardman and another guide, Mr. Zorn, also had harvested a single female, but Mr. Morley chose not to reduce their quota since it would have given them a zero quota. Instead he reduced Mr. Fontana s quota from three to two since he had harvested the highest proportion of his Administrative Guideline (five of seven bears). By chance or design, the 1997 quotas thus were identical to the 1994 quotas. The 10-bear quota for the SRM Block in 1997 was also equal to the threeyear allocation for that Block. More importantly, Mr. Morley had apparently neglected to take into account the smaller size of the SRM Block as a whole. If he had, the three-year allocation for the SRM Block would have been only 10.3 bears less the 5.7 overharvest for a total of 4.6 bears. He also did not take into account the non-hunting mortality that had taken place in the previous three-year period ( ). That would have reduced the allocation by a further 2.6 bears to a total of 2 bears. As mentioned above, Mr. Fontana appealed his 1997 quota reduction on the basis that Mr. Morley had not followed the agreed upon formula to distribute an overharvest. The appeal was dismissed.

13 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page Quota allocations Mr. Morley sent out quota letters to Messrs. Fontana, Scott and Boardman on March 25, 1998, explaining that there would be no quotas for grizzly bear in the SRM Block and outlining the reasons for this. He stated that The calculated harvest allocation to guides in this mountain block was 10 grizzly bears for the 1997 to 1999 period. The harvest use was: an overharvest carry over of 5.7 grizzly bears from the 1994 to 1996 period, a non-hunting bear mortality carry over of 2.6 bears (29% non-resident hunter share of 9) from the 1994 to 1996 period, one grizzly bear killed by non-resident hunters in 1997, and one non-hunting man caused share of.9 bear for 1997 (29% of 3 bears). The sum of this mortality allocation is 10.2 bears or 10 bears, exactly the same as the grizzly bear nonresident allocation. The 1998 quota allocations therefore took into consideration the smaller size of the SRM Block, unlike the 1997 allocations. Non-hunting Mortality MELP has been directed by policies outlined in the provincial Wildlife Harvest Strategy to include non-hunting mortality in calculating grizzly bear quota allocations. The non-hunting mortality in the period was taken off the three-year allocations for , while that in 1997 was immediately taken off the 1998 allocation. As mentioned above, conservation officers killed 17 or 18 grizzly bears in the Elk Valley in This figure was so large it would have resulted in almost no opportunity for guide outfitters to hunt grizzly bears in if it had been included in the non-hunting mortality figure. Regional biologists instead decided to take that number off the population estimate for the SRM Block, then recalculated the number of bears available for harvest. The Appellants believe that non-hunting mortality is related to high bear populations, and that taking the non-hunting mortality off the hunting allocations would perpetuate or even aggravate the problem bear situation. Female Grizzly Bear Harvest As mentioned above, one of MELP s objectives in managing the harvest of grizzly bears is to keep the harvest of females to a maximum of 2 percent of the population. There are no mechanisms to carry out this objective, however, other than the MOU signed by the SGO on how to distribute any overharvest of bears. This MOU suggests that guide outfitters who have taken female grizzly bears should have their quotas cut before guides who have not taken any females. In the absence of an overharvest, however, MELP can only issue statements of concern when female harvest seems high. This concern was noted in the quota letters sent to guide outfitters in the Flathead Mountain Block (including H. Leuenberger, S. Leuenberger and H. Fercho) on March 25, 1998: Please note that in the Flathead Mountain Block the female grizzly bear harvest is of concern.... In 1997 a total of zero female grizzly bears were harvested by guides and four female grizzly bears by resident hunters. Since the total

14 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 14 available female harvest in the mountain block is only 6.4 female grizzly, a female grizzly harvest of over two by either residency group could result in closure of the block to grizzly bear hunting. Resident LEH permits have been reduced to 50 percent of normal in 4-01 and only 1 permit in 4-02 to avoid exceeding the desired female harvest. The three Appellants in the Flathead Mountain Block submit that this linkage between resident and non-resident harvests was unfair, and could result in the closing of non-resident hunting because of overharvest by non-residents. A point system has been proposed by the SGO that would assign two points for every female killed and one point for every male killed. Guides would receive a three-year allocation of points. DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the evidence and testimony before it, whether or not specifically reiterated here. 1. Whether the Regional Manager followed the proper procedures for calculating three-year Administrative Guidelines and annual quotas for the Appellants, and whether MELP used the best grizzly bear population estimates available as a basis for calculating these quotas? The Panel finds that MELP has been calculating the three year Administrative Guidelines incorrectly. These should be calculated by taking the annual allocation for a guide outfitter, multiplying by three, and then dividing by a predetermined success rate. Unless otherwise agreed upon between MELP and guide outfitter representatives (e.g. the SGO), the Panel recommends that a 50 percent success rate be used. A quota equal to one-third the Administrative Guideline should then be assigned in year one. Harvest rates should be monitored annually, so that if harvests are very low, quotas can be increased in year three to ensure that guide outfitters can come as close as possible to their allocation. Conversely, care must be taken that the total annual quotas assigned do not exceed the remaining allocation. Thus, if guide outfitters have harvested 10 bears in the first two years in a Mountain Block with a three-year allocation of 14 bears, the total annual quotas assigned in year three should not exceed four bears. While the Administrative Guideline is defined as the maximum number of a certain big game species the guide outfitter can expect to be allowed to harvest over the three-year period, it should not be considered a guaranteed three year quota. If, in the second or third year of an allocation period the non-resident allocation could be exceeded if all guides are allowed their full Administrative Guidelines, then quotas would be reduced using the process agreed upon by the guides in the MOU of April 18, The 1997 quota letters sent out by Mr. Morley inferred that quota reductions would indeed take place before the end of the three-year allocation period if initial harvest was high.

15 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 15 This method would allow guides to meet or come very close to reaching their regional share of the harvest without ever exceeding it. It would reward active and successful guides by allowing them a greater share of the Mountain Block allocation through early success in reaching quotas, while giving less successful guides an opportunity for some success in the latter year(s) of an allocation cycle. The SGO advocate a procedure, used by MELP in 1996, whereby the three-year allocation for guide outfitters can be exceeded in an attempt to ensure that guide outfitters achieve this allocation. The overharvest, or amount by which the allocation was exceeded, is then distributed as quota cuts to guide outfitters in the next three year allocation period. The Panel finds that this procedure goes against policies outlined in paragraphs 5 and 7 of the Relevant Policies section above: 1.2 Quotas established or recommended by the Regional Wildlife Section Head must not exceed the Non-resident portion of the total allocated harvest for the big game population ; and It is the policy of the Ministry 2) that there will be no overrun allocation for game species [where] Overrun allocation... means the allocation of the opportunity to harvest game animals beyond the intended harvest level in one year with the intent of reducing the allowable harvest in a subsequent year. The Panel finds that rounding off is best carried out at the end of a long series of calculations. Thus, an annual allocation for a guide outfitter should not be rounded off before calculating the three-year allocation and then the three-year Administrative Guideline, but the latter figure should be rounded off. Annual quotas would then be calculated from the Administrative Guideline, then rounded off. This allows some guide outfitters with minimal opportunity to be given quotas; for example a guide with an annual allocation of 0.4 bears would receive no quota at all if rounding was done at the first stage, but would receive a three year allocation of one bear if the number was rounded off later. This method also allows wildlife managers to meet harvest objectives more accurately, since the three-year allocation for a Mountain Block would be calculated by adding unrounded three-year allocations for all guides in the block, then rounded off. The Panel finds that the combination of Administrative Guidelines and the Mountain Block system is useful for providing guide outfitters with minimal opportunity to be given quotas, allows guide outfitters to come closer to attaining their share of the harvest as a whole, and allows provincial biologists to manage bear populations on a more realistic spatial scale. Using this system to help the guide outfitters to obtain their share of the harvest, however, does result in the successes of some guides affecting the quotas of others. The Panel finds that based on the 50 percent success rate used by the SGO in their MOU, the Administrative Guidelines and annual quotas for for the Appellants should be adjusted as follows: H. Leuenberger: 1.4 (three-year allocation)/ 0.5 (success rate factor) = 2.8, rounded to 3; first annual quota = 1 H. Fercho: 2.0 / 0.5 = 4; first annual quota = 1 S. Leuenberger: 0.9 / 0.5 = 1.8, rounded to 2; first annual quota = 1

16 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 16 R. Fontana: 2.6 / 0.5 = 5.2, rounded to 5; first annual quota = 2 W. Boardman: 0.8 / 0/5 = 1.6, rounded to 2; first annual quota = 1 B. Scott: 1.6 /0.5 = 3.2, rounded to 3; first annual quota = 1 Annual quotas in the second and third years should then be adjusted based on past harvest and non-hunting mortalities so that the three year allocations for each Mountain Block come close to being reached but not exceeded. Since guides in the Flathead Mountain Block (H. Leuenberger, S. Leuenberger and H. Fercho and others) have already harvested eight of the ten bears in their allocation (two in 1997 and six in 1998), a total quota of two remains for The Panel directs the Regional Manager to allocate those after consultation with the guide outfitters of the Flathead Mountain Block or their representatives. For guide outfitters in the SRM Block some other adjustments are necessary. The Panel finds that the 1997 and 1998 quota allocations in the SRM Block were flawed in several ways. Firstly, the Block was reduced in size before the 1997 allocations, but the Regional Manager neglected to reduce the allocation until This mistake apparently went unnoticed until just before this appeal hearing, despite the fact that the 1997 quotas were appealed by R. Fontana. Secondly, the non-hunting mortalities suffered in 1994 to 1996 were supposed to be factored into the allocations, but this was not done until Thirdly, the non-hunting mortality for 1997 was factored into the 1998 quota calculations, when previous policy had it taken off the following three-year allocation (i.e ). Finally, the overharvest of 5.7 bears incurred in the period was apparently taken off the allocations of only those guide outfitters remaining in the SRM Block, despite the fact that some of that overharvest (6 of 22 bears) is clearly attributable to guide outfitters now in the Front Ranges Mountain Block. Since the guide outfitters in the SRM Block were clearly led to believe from their 1997 quota letters and a subsequent appeal that the allocation for their Block, after the adjustment for overharvest in 1996, was to be 10 bears, the Panel finds that this should figure should stand. The Panel notes, however, that this allocation cannot be established by law as contended by Mr. Fontana--the Mountain Block allocation is simply a biologically based figure used by the Regional Manager to calculate individual quotas. The Panel recognizes that conservation of grizzly bear populations is of paramount importance, but finds that the evidence presented at this hearing supports the contention that the Elk Valley population can support this one-time allocation in order to rectify the serious error made by the Regional Manager in his 1997 allocation and quota letters and subsequent appeal. The non-hunting mortality (2.6 bears) incurred in should be taken off the 10 bear allocation, as well as the one bear harvested by non-resident hunters in The non-hunting mortality incurred in 1997 and 1998 should be totalled with the amount incurred in 1999 and taken off the following three-year allocation. This leaves 6.4 bears (rounded to 6) for allocation in The Panel directs the Regional Manager to allocate this total among the Appellants and other guide outfitters in the SRM Block.

17 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 17 The Panel finds that it would be unfair to link an overharvest of female grizzly bears by resident hunters to future quotas for non-resident hunters. If resident hunters harvest too many females, LEH quotas should be reduced; if non-resident (guided) hunters harvest too many females, guide outfitter quotas should be reduced, preferably using a system such as that agreed to by the SGO in The appeals on this issue are allowed. 2. Whether there is a simpler system that could be used for calculating annual grizzly bear quotas that is both fair and consistent with conservation objectives? It is difficult to design a quota allocation system for grizzly bear harvest in British Columbia that is both fair and simple. The Regional Manager must take the following elements into account when setting quotas: the population of grizzly bears in the area; known recent mortality of bears in the area; and the allocation of harvest between resident and non-resident hunters. This analysis must be made in a way that is as fair as possible and in a manner that is more or less consistent with other regions in the province. The Panel finds that the Fuhr-Demarchi system for estimating grizzly bear populations in British Columbia is the best method available at present, in that it allows biologists to make these estimates in both a reasonably objective and consistent manner across the province. The Regional Manager must also be fair in ensuring that resident and non-resident hunter groups achieve their share of the grizzly bear harvest, and that guides with minimal opportunity (because of small bear populations in their territory) are given a reasonable quota. The Administrative Guideline policy was brought in to maximize fairness in these areas. Implementing these fair policies quickly becomes complicated. The Fuhr-Demarchi method creates fractional bears when a guiding territory, Mountain Block, or Management Unit is divided by the appropriate population density of bears. The Administrative Guideline process, especially when implemented within a Mountain Block system, must use detailed spreadsheet calculations to ensure that resulting quotas are both fair and consistent with conservation objectives. The Mountain Block system does add complexity to an already complicated system, especially in that the harvest successes of some guides can affect the quotas of others. Somewhat intricate systems must then be devised to distribute this effect. Grizzly bears can be managed without a Mountain Block system (that is done in other parts of British Columbia), but it would be much more difficult for guide outfitters as a group to obtain their allocation of the harvest under a system that treats each guide territory separately. The Panel recommends that the Mountain Block system be retained unless negotiations with MELP, guide outfitter representatives and resident hunter representatives result in a system that is more satisfactory to all three groups.

18 APPEALS NO. 98-WIL-09 & 98-WIL-13 through 17 Page 18 A point system to take into account the numbers of female grizzlies harvested would only add to the complexity of any method used to allocate quotas. The appeals on this issue are dismissed. COMMENTS There are issues in this appeal which are technically outside of the Panel s jurisdiction, on which the Panel offers comment. It was clear to the Panel that both the Appellants and MELP shared basic concerns for the conservation of grizzly bears in the region as well as for the health of the guide outfitting industry. It was equally clear, however, that the Appellants did not understand MELP s method for calculating bear populations and that MELP had paid little attention to the guide outfitters suggestions for improvements to the system. A process of dialogue that informed the guide outfitters on the methods used by MELP and the very real constraints MELP is working under, as well as allowing MELP to use wherever possible, the field experience and knowledge the guide outfitters have, would go a long way to minimize the need for future appeals. This process should allow for decisions to be made and quotas assigned well in advance of the spring bear hunting season. Secondly, new information on the populations of grizzly bears in the Kootenay Region needs to be taken into account in population estimates for quota allocations as soon as possible. Grizzly bear populations are dynamic, and stakeholders such as guide outfitters find it hard to trust a system that uses data that is 10 years old. Richard Cannings, Member Environmental Appeal Board October 26, 1998