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 Website: DECISION NO WIL-024(a) In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Robert J. Cutts APPELLANT AND: Regional Manager (Kootenay Boundary Region) RESPONDENT AND: British Columbia Wildlife Federation PARTICIPANT BEFORE: DATE: APPEARING: A Panel of the Environmental Appeal Board Alan Andison, Panel Chair Conducted by way of written submissions concluding on August 19, 2013 For the Appellant: For the Respondent: For the Participant: Robert J. Cutts Joseph G. McBride, Counsel Wilf Pfleiderer APPEAL [1] This appeal was filed by the Appellant, Robert J. Cutts, a licensed guide outfitter who operates in the Kootenay Boundary Region (Region 4) of British Columbia. He operates Sheep Mountain Outfitters and his guiding territory (423G001) is within Management Units ( MU ) 4-1 and 4-23, located in southeastern BC along the border with Alberta. [2] Each year, guide outfitters apply to the regional manager of the Recreational Fisheries and Wildlife Program, Ministry of Forests, Lands and Natural Resource Operations (the Ministry ), to renew their guide outfitter licence and request a hunting quota for specific animal species. The animal species that the Appellant requested quotas for were bull moose, bighorn sheep, mountain goat and grizzly bear. [3] In a decision dated January 24, 2013, Paul Rasmussen, Regional Manager, Kootenay Boundary Region (the Regional Manager ), advised the Appellant of his quotas for the licence year and his allocations (target harvest). The Appellant was given the following quotas and allocations:

2 DECISION NO WIL-024(a) Page 2 SPECIES ALLOCATION QUOTA bull moose 9 3 bighorn sheep 2 1 mountain goat 1 1 grizzly bear 0 0 [4] The Appellant appeals the allocations and quotas for bighorn sheep and grizzly bear only. [5] The Board has the authority to hear this appeal under section 93 of the Environmental Management Act and section of the Wildlife Act. Section 101.1(5) of the Wildlife Act provides that the Board may: a) send the matter back to the person who made the decision being appealed, with directions, b) confirm, reverse or vary the decision being appealed, or c) make any decision that the person whose decision is appealed could have made, and that the Board considers appropriate in the circumstances. [6] The Appellant seeks an order from the Board increasing his quotas and fiveyear allocations for bighorn sheep and grizzly bear. [7] This appeal is one of 28 appeals filed by guide outfitters in three different regions against their quota and five-year allocations. The appeals were all conducted by way of written submissions, and are the subject of separate decisions. However, the Panel notes that the issues and arguments in each of the appeals have many similarities. For each of the appeals, some of the submissions from the parties are identical. In those appeals where there are similarities, the Panel has adopted some of the findings and language that has been used by this Panel in the reasons given in those other appeals. For example, see Findlay v. Deputy Regional Manager, Recreational Fisheries and Wildlife Program (Thompson/Okanagan Region), (Decision No WIL-033(a), April 24, 2014). In spite of any similarities, each appeal is and has been adjudicated on its own merits. BACKGROUND Guide outfitters - general [8] Guide outfitting has a long history in the Province. As stated in the Findlay case referenced above, local hunters started guiding services in or around the late 1800s in order to meet the demand for quality big game hunts. Guiding licences were first issued in 1913 and guiding territories were established in the 1940s. In 1961, legislation provided guides with exclusive rights to guide hunters that live outside of BC (non-resident hunters) within his or her guiding territory.

3 DECISION NO WIL-024(a) Page 3 [9] Although a guide s clients are typically non-residents, residents may also hire a guide outfitter. [A guided resident hunter s harvest does not count against the guide s quota if the resident holds a limited entry hunting authorization for the species harvested, or if it is during a general open season: Quota procedure.] [10] According to a December 10, 2012 Information Bulletin issued by the Ministry, there are approximately 245 licensed guide outfitters in the Province, employing over 2,000 people, and providing services to roughly 5,000 nonresidents hunting in the Province each year. There is no dispute that this industry is a source of revenue for the government and for rural communities. In addition, for many guide outfitters the guide outfitting business is their primary source of income. The legislative context: guide outfitting in BC [11] According to section 2(1) of the Wildlife Act, ownership of all wildlife in the Province is vested in the government. As the owner of wildlife, the government is responsible for the management and protection of the Province s wildlife resource (Ministry of Environment Act, R.S.B.C. 1996, c. 299). [12] Under section 47 of the Wildlife Act, it is illegal for a non-resident of BC to hunt big game in the Province without a licensed guide outfitter. Section 47 states: 47 A person commits an offence if the person hunts big game unless he or she (a) is a resident, or (b) is accompanied by (i) a guide licensed under this Act,... [Emphasis added] [13] Guide outfitter licences are issued by regional managers under section 51 of the Wildlife Act, as follows: 51 (1) A regional manager (a) may issue a guide outfitter licence to a person if all of the following apply: (i) the person is a citizen of Canada or a permanent resident of Canada; (ii) the person has public liability insurance prescribed by regulation; (iii) the person has other qualifications prescribed by regulation, and (b)... (2) A guide outfitter licence authorizes the holder to guide persons to hunt only for those species of game and in the area described in the licence....

4 DECISION NO WIL-024(a) Page 4 [Emphasis added] [14] According to section 60 of the Wildlife Act, regional managers may attach a quota as a condition of the licence. Section 60 states: Quotas 60 (1) 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. [15] Under section 1, quota is defined as: (a) the total number of a game species, or (b) the total number of a type of game species specified by the regional manager that the clients or a class of client of a guide outfitter may kill in the guide outfitter's guiding area, or part of it, during a licence year, or part of it, but does not include an angler day quota. [16] Regional managers exercise their discretion to attach a quota within a sustainable use framework. The framework is established by, and described in, various Ministry documents, including wildlife management objectives and Ministry policies. For the purposes of this background, the sustainable use framework takes into account the population estimates for a particular species and the hunter groups that seek an opportunity to hunt that species in the Province. The hunter groups referred to most often in this appeal are resident hunters and guided hunters. Guided hunters are typically non-residents and are generally referred to as nonresident hunters in this decision. [17] The way that the Ministry splits or allocates the harvest between these two groups has been the subject of controversy over the years, and has recently changed. The division (split) of hunting opportunities between guide outfitters (nonresident hunters) and resident hunters [18] In BC, the management of hunting is based, in large part, on the size and health of a species population. For species with healthy populations in a particular area there are general open seasons. With a general open season, there may be annual limits on the number of animals that a hunter may kill, but there is no limit on the number of hunters that can hunt, or the number of clients that a guide can take hunting. [19] For other species, there are insufficient animals to allow a general open season. This may be due to low productivity (mountain goats, grizzly bears), high demand (moose) or because a class of animal is critical to the productivity of a herd (female elk). For these species, deciding how many animals can be harvested by resident and non-resident hunters, without jeopardizing population sustainability,

5 DECISION NO WIL-024(a) Page 5 requires a careful consideration of different factors. The factors to be considered, and the way that the resident/non-resident split is determined, is established by Ministry policies and procedures. Once the split is determined, the number of these animals that will be available to resident hunters is generally set out in legislation; the number of animals available to non-resident hunters is set out in a guide outfitter s quota. Ministry policies and procedures describe the relevant objectives, considerations and procedures to be used by regional managers when issuing quotas to guide outfitters. [20] Prior to 2007, the Ministry s policies and procedures gave regional managers significant discretion to make quota and allocation decisions based on the factors and information that he or she considered relevant and significant. While this resulted in decisions that, some may argue, best reflected the local situation, it also resulted in the inconsistent application of principles across the Province, and inconsistent results. This was a source of concern and frustration for guides and resident hunters alike. [21] In 2007, after years of consultations with various stakeholders, including the Guide Outfitters Association of British Columbia (representing the interests of guide outfitters), and the BC Wildlife Federation (representing the interests of resident hunters) (the BCWF ), the Ministry adopted a new harvest allocation policy. This new policy is, in fact, a collection or suite of policies and procedures. The policies and procedures were approved by the Ministry s Director of Fish and Wildlife (the Director ) and the Assistant Deputy Minister. The main policies and procedures are as follows: Wildlife Policies Volume 4, section Harvest Allocation Game Harvest Management Resident Hunter Priority Commercial Hunting Interests Under-Harvest of Allocated Shares Wildlife Procedures Volume 4, section Harvest Allocation Quota Administrative Guidelines [22] One of the stated objectives of these policies and procedures is to guide provincial decision makers in determining the split [the percentage of the big game species that will be allocated to each group] between residents and non-

6 DECISION NO WIL-024(a) Page 6 residents. 1 the Board: The Regional Manager explains the split as follows in his submission to The government has planned that the harvest outside guiding areas will go fully to residents and that the harvest within guiding areas will be split in shares set by the government. [23] The new harvest allocation policies and procedures are clear that resident hunters will have priority in the harvest of big game species. However, the Ministry also states that, while resident hunters have higher priority than nonresident hunters, this does not imply that resident demand must be fully satisfied before non-residents can be granted harvest opportunities. Instead, it means that the share that goes to residents is considerably greater than the share that goes to non-residents. 2 For instance, under the Harvest Allocation procedure, category A species (i.e., big game species for which guided hunters harvest is limited by quota in any portion of a region), the Director is to begin with an initial split of 75/25; that is, 75% of the allowable harvest of the species to resident hunters, and 25% to guided hunters, in each region. Under the Harvest Allocation procedure, the Director may alter this initial 75/25 split in the region according to the relative importance of that species to each hunter group in the region, among other things. [24] One of the goals of the new policies and procedures is to provide a consistent method of determining allocations that is transparent, practical, and measurable. The new policies and procedures attempt to standardize the allocation procedures by taking out regional variations, such as the use of success factors. 3 [25] The allocation or split between resident and non-resident hunters applies for five-year periods (allocation periods), after which they are to be recalculated based on the previous five years of data. [26] Once the Director sets the resident/non-resident hunter split for each region, regional managers apply that ratio when determining a guide s quota. Setting quota [27] Some of the Ministry s policies and procedures also address the calculation of annual quotas and the application of administrative guidelines by regional managers. Quota decisions involve different considerations than those outlined in determining the resident/non-resident split or share of the harvest. The quota decision-making process is based upon an assessment of the number of animals available for a sustainable harvest over an allocation period. 1 December 10, 2012, Ministry Backgrounder on harvest allocation. 2 Ibid, page 1. 3 Some regional managers provided higher allocations to guides based on how successful the guide was historically, or on how successful the guides were in a region. It was used to account for the less than 100% harvest success rate of all guided hunters within a region, and was intended to allow guides to achieve their allocated harvest.

7 DECISION NO WIL-024(a) Page 7 [28] Wildlife harvest opportunities are managed according to four priorities. 4 The first priority is conservation. If the viability of a population is at risk, the Ministry will reduce or suspend harvest opportunities. [29] If the government determines that there are animals available for a sustainable harvest over an allocation period, there is first a deduction to satisfy First Nations needs (the second priority). The remainder is allocated to the third and fourth priorities (resident and non-resident hunters) according to the split determined by the Director. [30] To implement the allocation to residents, the government creates an opportunity for harvest. For higher value species, it is typically created by a Limited Entry Hunt ( L.E.H. ). A L.E.H. is created under section 16 of the Wildlife Act and allows the minister, by regulation, to limit hunting for a species of wildlife in an area of British Columbia. It may also be created through the regulationmaking powers given to the Lieutenant Governor in Council under section 108 of the Act. In general, a L.E.H. is created in an area when the government determines that it is necessary to limit the number of hunters, limit the number of animals that may be taken, or limit the harvest to a certain class of animals. It can be created anywhere in the Province. When species and maps for a L.E.H. are created by regulation, the Ministry accepts applications for this hunt by BC residents. L.E.H. authorizations are currently issued under section 16 of the Wildlife Act by means of a lottery. [31] After subtracting the estimated number of animals that will be killed pursuant to L.E.H.s, the remainder are assigned to guides by the issuance of quota, based on further policies and procedures. [32] As part of the quota assignment, regional managers also advise the guides of their five-year harvest allocation (target harvest) that is the maximum number of animals each guide s clients may take over that period. [33] A guide s quota may be subject to an administrative guideline. Administrative guidelines allow a guide outfitter to exceed the annual quota by a set number, but that number then counts against the total five-year allocation. The guidelines reflect the Ministry s recognition that the clients of guides rarely have a 100% harvest success rate. They provide guide outfitters with some flexibility in the number of animals harvested in a year, and are intended to be used by the guides for harvest planning purposes. Implementation of the new policies and procedures [34] When the Ministry adopted the new policies and procedures, it understood that many guide outfitters quotas and five-year allocations would be negatively impacted. To minimize the impact, the government adopted a transitional approach. In the allocation period, the policies and procedures were implemented in a piecemeal fashion. The allocation period was the 4 Ministry Backgrounder, supra note 1.

8 DECISION NO WIL-024(a) Page 8 first time that the harvests for all applicable species, in every region, were set in the context of the new policies and procedures; i.e., full implementation. The Decision [35] In a decision dated January 24, 2013, the Regional Manager advised the Appellant of his five-year allocations and annual quotas for various animals. The Regional Manager s states, in part, as follows: I write to advise you of your quotas for the licence year 2013/14 and your allocations for the allocation period. An allocation is a target harvest of a species over a period of years that normally informs annual setting of quota. An allocation may change over the course of an allocation period, e.g. because of changes in population estimates or permissible harvest rates.... Quota need not be the same as in the previous licence year, but often is. Quota in any licence year is firm (subject to appeal) once I have set it. I derived your quota for this year by applying an administrative guideline. That quota reflects a permissible harvest rate that will very likely be unsustainable over the allocation period. The benefit to you of having a higher than sustainable quota in any given year is flexibility around when you harvest animals. My goal is for you to come as close as possible to taking your entire allocation. That goal will be achieved by the annual setting of quota, keeping in mind your harvest to date in the allocation period. Note that if you fully harvest the quota set here, I may need to set your quota lower for later years in the allocation period, so that the [fiveyear] allocation will not be exceeded. You should keep that in mind when choosing how many animals to harvest this year.... [36] The Regional Manager also attached a two-page appendix to the decision explaining how the quotas were calculated for the year (the Appendix ). The Appendix sets out how administrative guidelines were used in 2013 for all species, how the bighorn sheep, grizzly bear, mountain goat and moose allocations were calculated, and how the new calculations differ from the allocation period calculations. [37] The Regional Manager set out the Appellant s five-year allocations and annual quotas for each requested animal, and gave a brief explanation for why the allocation differed from the previous ( ) allocation period. The Panel has summarized the Regional Manager s decisions for bighorn sheep and grizzly bear as follows:

9 DECISION NO WIL-024(a) Page 9 Bighorn sheep 5-year allocation quota 2 1 [38] The Regional Manager explains that the Appellant s allocation differs from his allocation because of full implementation of the harvest allocation policy, and because of a decline in Annual Allowable Harvest. However, given that the calculation of the Appellant s allocation resulted in a decrease of more than 30% from his previous allocation, the Regional Manager increased the Appellant s allocation from one sheep to two. Grizzly bear 5-year allocation quota 0 0 [39] The Regional Manager explains that the Appellant s allocation and quota were reduced to zero due to a high female kill. The Appeal [40] By Notice of Appeal dated February 22, 2013, the Appellant appealed the above-noted quotas and five-year allocations. He maintains that the population estimates used by the Regional Manager are too low. He submits that the bighorn sheep population has at least doubled in size over the past 33 years, and that the grizzly bear population is currently at record highs. He submits that the Regional Manager s decision is unfair to his business and that his allocations and quotas should be increased. [41] In his written submissions, the Appellant further submits that the guide outfitters have been unfairly singled out by the Ministry. He argues that the animals should be divided fairly between residents and guide outfitters. [42] In response, the Regional Manager submits generally that the Director, not the Regional Manager, sets the shares or split as between guided hunters and residents. The harvest share is already set when the Regional Manager determines quota. In addition, the Regional Manager determined the Appellant s five-year allocations and quotas based on the number of animals within the guiding area, determined by the relative size of the guiding area, in accordance with the government s policy. The Regional Manager further submits that: Although a reduction in quota can have an economic impact on a guide, fairness to all harvesters, and protection of the wildlife resource, is paramount. If the Board increases the Appellant s allocation as requested, the allocation to other guides must go down. The other affected guides have not been

10 DECISION NO WIL-024(a) Page 10 joined to this appeal. It would be unfair for the Board to order increased quota to the Appellant without hearing from those whose allocations would be correspondingly reduced. Increasing quota risks overharvest, infringement of aboriginal hunting rights, and unfairness to guides who have not appealed. The Board should defer to the Regional Manager s judgment in this case as he actively administers the Wildlife Act on a daily basis, and makes all of the decisions on setting guide outfitter quotas. In other words, he has the best information and understanding of the particular facts and the repercussions of allocation and quota decisions in the region. [43] The Regional Manager submits that he properly applied the Ministry policies and procedures, properly exercised his discretion, and that his decision should be upheld. [44] The BCWF represents the interests of resident hunters in BC. It applied for participant status in this appeal on the grounds that the appeal could directly impact resident hunters by altering wildlife allocations, and by potentially reducing resident hunting opportunities. In addition, the BCWF submits that the appeal will directly impact the new harvest allocation policies. [45] On May 3, 2013, the Board granted the BCWF limited participant status in this appeal. The BCWF was granted the opportunity to make a brief submission limited to addressing the potential impact of this appeal on the 2007 policies and procedures, and the resident hunters share of the harvest in this region. ISSUES 1. Should the Appellant s five-year allocations and quotas be increased for bighorn sheep and grizzly bear? DISCUSSION AND ANALYSIS 1. Should the Appellant s five-year allocations and quotas be increased for bighorn sheep and grizzly bear? [46] To understand the Appellant s arguments, it is helpful to first set out the Regional Manager s decision-making process. Regional Manager s submissions i) Considerations applicable to all guides [47] The Regional Manager provided full submissions on his decision-making process. He explained how the policies and procedures were applied, and described his approach to calculating the allocations and the quotas for all guide outfitters in the Kootenay Region using a detailed four-step process.

11 DECISION NO WIL-024(a) Page 11 [48] Of note, the first step in the process is the population estimate for the animal in question. The Regional Manager states that the government estimates the number of animals and determines how many are available for a sustainable harvest over an allocation period. He states that this is determined by others in government, using the best available science. The government also estimates how many animals First Nations will harvest during the allocation period. The remaining animals, after considering human caused (non-hunting) mortality, are then split between resident hunters and non-resident (guided) hunters. The split, or share, is determined by the Director, according to the formula set out in the Harvest Allocation procedure. [49] The Regional Manger submits that his calculation of the five-year allocations and annual quotas is performed after these other steps have been taken by other government officials. He states that the setting of guide outfitter quotas is but one part of the government s process of allocating the harvestable population of species among hunters. It is a step that is informed by other factors that effectively precede it and constrain it. [50] Once the Regional Manager had the species population estimates and the resident/non-resident split, he calculated the five-year allocations and annual quotas for the Kootenay guide outfitters. In doing so, he applied certain standard percentages and/or considerations which were described in the two-page Appendix that was attached to all of the decisions that the Regional Manager issued to the guide outfitters in the Kootenay Region. As stated earlier, the Appendix explains how administrative guidelines were used to calculate the quotas for all species, how bighorn sheep, grizzly bear, mountain goat and moose allocations were calculated, and how the new calculations differ from the allocation period. [51] For all species, the Appendix explains that regional administrative guidelines were used. It states that the regional guidelines were based on success rates for guides in the region. Under the Ministry s Administrative Guidelines procedure, the administrative guideline is 30%, which means that 30% of the five-year allocation can be harvested in any one year. [52] However, in the Kootenay Region, the Appendix explains that there will be regional species specific administrative guidelines which are calculated as follows: o o 1 Success 5 Where success is based on total harvest (all guides) relative to total allocation (all guides) at the regional level during the allocation period. [53] Although success is taken into consideration in the species-specific guidelines, the Appendix states that Success factors, previously applied to sheep and grizzly bear allocations, will not be applied to allocations, in accordance with Minister direction. For instance, in the case of bighorn sheep and grizzly bears, the Appendix states that quotas were calculated with a success factor and an administrative guideline in the allocation period; however, in 2013, the quotas were calculated using an administrative guideline only (which incorporates regional success, not individual success). For bighorn sheep, the

12 DECISION NO WIL-024(a) Page 12 guide outfitter success in the Kootenay Region was 48%; therefore, the speciesspecific guideline for bighorn sheep is 0.41 (41%). For grizzly bears within the Appellant s MU 4-23, the Appendix states as follows: The non-hunter kill was high in 4-20 and 4-23 during the last allocation period and the past data is used to predict the non-hunter kill in the next allocation period. These units remain closed in The grizzly bear season will be lengthened in 2013 and this will likely increase success. Therefore we used an admin guideline of 0.30 to avoid overharvest and limit conservation risk. A similar process was used to set resident hunter Limited Entry Hunt permits for 2013 (i.e., we assumed success would increase with the longer season and calculated LEH permits accordingly). [54] Another difference explained in this Appendix relates to the split or share of the harvest. It states that, in the previous allocation period, guide outfitters received 29% of the Annual Allowable Harvest for bighorn sheep within the region, which equated to 33% of the share within guide outfitter territories since there are bighorn sheep in areas without guide territories. However, in 2013, the Appendix states that guides will receive 32% of the share within guide outfitter territories, following the results of the updated allocation calculator and provincial policy. For grizzly bears, guides will receive 24% of the share within the guide s territory in 2013, following the results of the updated allocation calculator and provincial policy. [55] In his submissions on the appeal, the Regional Manager provided further information on the management of the grizzly bear harvest. He explains that the harvest of grizzly bears is managed very intensively, more intensively than any other game species. The Regional Manager states that the general process used by the Ministry is similar to that described by the Board in Deveny et al v. Regional Manager (Decision Nos WIL-001(a)-031(a), July 8, 2005), as follows at page 4: The Ministry provided considerable detail at the hearings on the methodology behind the determination of grizzly bear allocations and quotas. Matt Austin, the Ministry s Large Carnivore Specialist ( LCS ), consulted with regional staff and recommended the break down and categorization of areas into Grizzly Bear Population Units ( GBPU ) on the basis that they make up reasonably distinct population groups. Each GBPU is assigned a conservation status of either threatened or viable based on the size of the current population estimate and the estimated habitat capability of the GBPU. Where the estimated population is less than 50% of the habitat capacity the GBPU is listed as threatened. Threatened GBPUs are closed to hunting if they are below the GBPU s population objective. The LCS consults with regional staff to estimate the population in each GBPU. The first choice option for estimating populations is through a multiple regression model, which was recently refined by the Ministry. As alternatives, the LCS may make use of the previously employed

13 DECISION NO WIL-024(a) Page 13 habitat-based design (the expert based approach), or a direct inventory approach. The multiple regression model, which was used to estimate the grizzly population in the majority of GBPUs, derives a population density based on: precipitation, salmon presence, connectivity, human-caused mortality, and human and livestock density. The population density is then multiplied by the area of a GBPU to derive the population estimate for the GBPU as a whole. This model was successfully used in determining populations in the interior, but showed some inaccuracies in the coastal regions. The expert based approach, used largely in coastal regions, is based on the model used in British Columbia since the late 1980s. This model was updated and refined in accordance with suggestions from the Expert Panel. The expert based approach is determined by examining the habitat capability and suitability of known ecological units. Habitat capability is the inherent, idealized ability of the land to support a specific density of grizzlies. The direct inventory approach uses direct information that has been collected in a specific area, including: bear sightings, DNA evidence and other direct information regarding bears in the area. This model was used in the Kootenay Region. After estimating the existing population of each GBPU through one of the three models, the maximum allowable human-caused mortality rate is determined. The maximum allowable human-caused mortality rate (5%) was recommended by the Expert Panel and is consistent with scientific literature on sustainable levels of human-caused mortality in bear populations. [56] The data which goes into the calculation of multi-year allocations and quotas for all animals is shown in spreadsheets that were provided to the Panel by the Regional Manager. According to one of the grizzly bear spreadsheets, the Appellant s guide territory 423G001 (within both MUs 4-23 and 4-1) is located within the Flathead GBPU. ii) How the Regional Manager calculated the Appellant s five-year allocations and quotas [57] The Regional Manager identified the species population estimates that he used, the applicable harvest rates, the non-resident (guided hunter) share of the harvest, and any additional factors, policies and administrative guidelines that he applied to arrive at the Appellant s allocation and quota for bighorn sheep and grizzly bear. [58] For bighorn sheep, the government estimates that there are 30 sheep in the licensed area. The Regional Manager goes on to explain that he applied a harvest rate of 3% to this population, which is the same rate applied to all guide outfitter

14 DECISION NO WIL-024(a) Page 14 allocations for bighorn sheep in the region. The Appellant s Annual Allowable Harvest for his area was calculated as 0.9 sheep. [59] Of that 0.9 sheep, the non-resident share of the harvest (as calculated by the Director under the Harvest Allocation policy and identified in the Appendix) was 32% = 0.3 sheep. The Regional Manager then considered whether this allocation met the substantive impact threshold. According to a December 14, 2012 letter from the Director, guides are substantively impacted if their allocation is reduced by more than 30% compared to their harvest allocation. However, this 30% decrease must exclude any changes in allocation not attributable to the allocation policy (e.g., changes in population size or harvest rate, and hence changes in Annual Allowable Harvest). In the present case, the Regional Manager determined that the Appellant s allocation met this threshold and he increased the Appellant s allocation to two bighorn sheep. [60] The Regional Manager then applied the species-specific administrative guideline of 41% to the allocation, which yielded a rounded quota of one bighorn sheep for the licence year. [61] For grizzly bear, the government estimates that there are 23 grizzly bear in the licensed area. The Regional Manager states that, from its complicated analysis of the grizzly bear population, the government determined that the allowable harvest in the area was below zero. Therefore, he found that the Appellant was not entitled to harvest any grizzly bears over the allocation period. Appellant s submissions [62] The Appellant provided brief submissions in support of his appeal. Regarding bighorn sheep, he submits that the population has at least doubled in size over the past 33 years. Based upon his experience guiding in the area, the Appellant estimates that there are 45 (mostly mature) rams within his guide territories, and a further 15 rams in the guide territory to the south of him. [63] The Appellant submits that bighorn sheep range from North Kootenay Pass to Andy Good Creek. He estimates that there are approximately two ewes per ram, for a population of 150 sheep in his guide territory. He submits that the ewes stay in the Tent Mountain area, part of which is in MU 4-23 (Corbin) where there is no Guide Outfitter. The Appellant states that the next guide area to the north is approximately 30 kilometers away. [64] Given the number of bighorn sheep that he has observed in his territory, the Appellant believes that he should be able to harvest one ram per year, without causing any conservation or other issues (e.g., impact to resident hunters). The Appellant submits that there are many hunting opportunities for resident hunters. [65] Regarding grizzly bear, the Appellant submits that his territory is within the Upper Flathead (MU 4-1) and the Lower Elk Valley (MU 4-23). He states that these have slightly different grizzly bear habitats but, based on his observations and experience over the past 34 years, he believes that the populations are higher than the Ministry estimates suggest. In fact, based upon his observations of grizzlies in the Lower Elk Valley area over the past 34 years, the Appellant believes that the

15 DECISION NO WIL-024(a) Page 15 grizzly bear population has tripled. He submits that the grizzly bear population in this area is mostly made up of old large sows, females with cubs and juveniles. The Appellant states that several of the bears that his clients have harvested in MU 4-23C were large, old, non-lactating females, and that he does not believe that the harvest of these bears has hurt the grizzly bear population. [66] The Appellant believes that the Upper Flathead population has also tripled over the past 34 years. He further states that, over the past five years, his clients were able to harvest two very large book males. The Appellant submits that, With the season opening longer I will be able to hunt Grizzly Bears in parts of my territory that were not accessible in past years due to snow pack, we will be able to harvest more larger males. [67] Finally, the Appellant argues that reducing the allocation and quota does not ensure that the grizzly bear populations are protected. As the bears move into Sparwood and Fernie, the Appellant states that some will be killed by conservation officers as nuisance bears, while others will be killed on railway tracks and roads. The Appellant submits that this is a waste of a resource and that the resource is far too valuable to be wasted in such ways. He also states that both of his MUs have an open season for resident hunters. He does not believe that his allocation and quota should be reduced below one animal. The Regional Manager s reply [68] The Regional Manager does not agree with the Appellant s assertion that the bighorn sheep population has increased, and submits that the Appellant has not provided any evidence in support of his population estimate. [69] Regarding grizzly bear, the Regional Manager submits that the grizzly bear population is not at record highs and there is no data to support the Appellant s assertion that it has tripled in 34 years. The Regional Manager explains that the government s experts have estimated the population and its harvestability using the best available science. He states that the government s estimate of 23 bears was derived through a complicated process which takes into account non-hunting mortalities and any overkill. He agrees with the Appellant that non-hunting mortality is a significant reason for the Annual Allowable Harvest not being higher than it is. BCWF s submissions [70] The BCWF made detailed submissions on the new policies and procedures and the importance of upholding them. [71] In relation to the Appellant s appeal, the BCWF notes that the guide outfitters share of the bighorn sheep and grizzly bear harvest in the Kootenay Region actually increased this allocation period when compared with the period. It states that the resident/non-resident split for bighorn sheep rams in the allocation period is 68/32, a 2% increase for the guides over the previous period. For grizzly bear, the resident/non-resident split is 74/26, a 3% increase for guide outfitters from the previous allocation period. The BCWF submits that the guide outfitters quotas will be down simply because of the new and

16 DECISION NO WIL-024(a) Page 16 different methods of calculating and administrating quota under the policies and procedures. The Panel s Findings [72] The main basis for the Appellant s appeal is that the Ministry s population estimates for grizzly bear and bighorn sheep in his territory are too low. Consequently, his five-year allocations and quotas for these animals are too low. Grizzly Bear [73] The information before the Panel is that the Regional Manager relied upon the population estimates provided by Ministry staff. The Ministry s spreadsheets show the population estimates for grizzly bear in the various GBPUs, broken down further into the MUs, and broken down again by guide outfitter territory as a percentage of the MU. The Ministry s analysis of the population and whether that population has sufficient numbers for a sustainable harvest over the allocation period is shown in a number of spreadsheets. Those spreadsheets identify many factors that are considered in order to answer this question. The factors taken into consideration include estimates of non-hunting mortality, overkill and First Nations harvest. The spreadsheets also take into consideration resident and non-resident harvest to date in the allocation period. They show the maximum mortality rate, the allowable mortality rate, as well as the allowable female mortality rate. As stated by the Regional Manager, the factors and variables that are considered before allowing a harvest of grizzly bears by residents and non-residents is more complex than for other species. [74] The resident/non-resident allocation split that was determined by the Director was 74/26. This split was applied to the Annual Allowable Harvest for grizzly bear in the Kootenay Region. [75] Although the Regional Manager provided no information on how the population estimates were derived, and disagreed with the Appellant s estimate of grizzly bears, on balance, the Panel prefers the population estimates relied upon by the Regional Manager. [76] The Panel finds that the Regional Manager may reasonably rely upon the grizzly bear estimates, the allowable harvest rates and the resident/non-resident allocation split, all of which are determined by other Ministry staff with expertise in these matters. The Ministry is responsible for ensuring that the grizzly bear population is protected and that the population is not jeopardized by legal hunting. [77] The Appellant submits that he has witnessed a tripling of the population over three decades. Even if the Panel accepted this as fact, this increase alone would not justify an increase in the Appellant s quota without further information and analysis. For instance, the Panel would require answers to the following questions. What was the state of the population 30 years ago? Was the population healthy then? Is the population healthy now? What is the composition of the population in terms of males/females/juveniles? What is the rate of reproduction and is it changing? What is happening to the habitat in the territory? How many other guide outfitters and resident hunters are competing for these animals? In addition,

17 DECISION NO WIL-024(a) Page 17 any new numbers would also need to be subjected to the analysis undertaken by the Ministry to determine how many bears would be available for a sustainable harvest over the allocation period. [78] Therefore, although the Appellant s observations of the composition and the size and gender of the bears that he has killed in his territory are relevant and important pieces of information, more data and analysis would be required for the Panel to reject the Ministry s estimates, and to increase the Appellant s five-year allocation and annual quota. [79] It is apparent from the years of controversy over the grizzly bear hunt that these animals are of particular interest and concern to British Columbians, and therefore, the harvest of these bears is carefully regulated and managed. The nonhunting mortality caused by vehicles, trains and by conservation officers killing problem bears is, as the Appellant puts it, a waste of a resource. This nonhunting mortality is taken into account by the Ministry when it determines whether there will be any harvesting allowed. Despite the unfortunate loss of bears by human-caused, non-hunting mortality, the answer is not simply to allow more hunting. [80] In an appeal to the Board, an appellant has the ultimate burden of proving his or her case on a balance of probabilities; that is, an appellant has the burden of establishing that it is more probable than not that his or her claim is true. Unless the issue in the appeal is a pure question of law, an appellant will need to provide evidence to meet this burden. [81] Based on the evidence and submissions before the Panel, the Panel finds that there is no basis for the Panel to change the Appellant s allocation and quota for grizzly bear on the basis of an error in the population estimate. This ground for appeal is denied. Bighorn Sheep [82] As with grizzly bears, the Regional Manager relied upon the population estimate for bighorn sheep that was provided by Ministry staff in order to determine the Appellant s five-year allocation and annual quota. For the Appellant s guide territory, the government s estimate is 30 sheep within the Appellant s territory. No information was provided to the Panel on the method used by the Ministry to arrive at this number. [83] The resident/non-resident allocation split determined by the Director for bighorn sheep was 68/32. This split was applied to the Annual Allowable Harvest for bighorn sheep, resulting in the Appellant s Annual Allowable Harvest in his territory of 0.3 sheep. The Regional Manager found that the Appellant would be substantively impacted under the Director s policy, and increased the Appellant s five-year allocation from one sheep to two. [84] The Appellant submits that an increase to his multi-year allocation and quota would not raise conservation issues because the population has not declined as alleged; rather, it has significantly increased. [85] For the same reasons given by the Panel in relation to grizzly bear, the Panel finds that the Regional Manager reasonably relied upon the Ministry s population

18 DECISION NO WIL-024(a) Page 18 estimates for bighorn sheep. The Appellant s submission that the population has significantly increased, even if accepted as true, cannot be relied upon to justify an increase to his five-year allocation and quota without more information and analysis. [86] Based on the evidence and submissions before the Panel, the Panel finds that there is no basis for the Panel to change the Appellant s allocation and quota for bighorn sheep on the basis of an error in the population estimate. This ground for appeal is denied. Unfair division between residents and non-residents (guided hunters) [87] In his written submissions, the Appellant further submits that the guide outfitters have been unfairly singled out. He argues that the animals should be divided fairly between resident hunters and guide outfitters. [88] The Panel notes that the resident/non-resident split or share of the harvest is determined under the Ministry s Harvest Allocation procedure ( ). This procedure uses a five-step process to arrive at the resident/non-resident share of the Annual Allowable Harvest, which applies to the five-year allocation period. The Harvest Allocation procedure is a lengthy, detailed procedure which relies upon a great deal of data and numerous factors to arrive at the ultimate percentages of the harvest. Under the procedure, the share is determined by the Director, not the Regional Manager. Therefore, this is not a matter that is properly before the Panel in this appeal. Conclusion [89] Based on the evidence and submissions before the Panel, the Panel finds that the Regional Manager calculated the Appellant s allocations and quotas for bighorn sheep and grizzly bear on the basis of the information before him. He applied the policies and procedures relevant to the situation (e.g., substantial impact) where appropriate, and there is no basis to increase the Appellant s quotas and allocations as requested. DECISION [90] In making this decision, the Panel of the Environmental Appeal Board has carefully considered all relevant documents and evidence before it, whether or not specifically reiterated here. [91] For the reasons stated above, the Panel finds that the January 24, 2013 decision should be upheld. [92] The appeal is dismissed. Alan Andison Alan Andison, Panel Chair Environmental Appeal Board July 17, 2014