State Parks’ rush to pass rule coincides with legal challenge
Laura Lundquist
(Missoula Current) The State Parks Board hurriedly passed a rule for Smith River outfitters, but the affected outfitters question why Fish, Wildlife & Parks rushed to create the rule. One outfitter says it’s because FWP revoked his permits without just cause.
On Tuesday, the State Parks and Recreation Board passed a rule related to commercial outfitters on the Smith River, including a section on how revoked or abandoned outfitting permits would be reissued. As routine as that seems, the rule has a controversial backstory that gave the board members enough pause that they broke the motion into two parts.
The first motion dealt with noncontroversial details of the rule, such as correcting a date, and it passed unanimously, since the board already approved those details as part of its recurring biennial rule for the Smith River State Park. Those details also received no opposing public comments.
However, the second motion went less smoothly, and after a fair amount of discussion by the board, it passed with only three of the five board members in favor. It, too, was mostly a reiteration of the existing biennial rule, but FWP had added language requiring the reallocation of any revoked or abandoned commercial launches.
Of the five outfitters who submitted written comments on the rule, all said they were neutral on the rule itself. But they questioned why the language was added, pointing out that no Smith River permit has ever been revoked or abandoned. They also said the language was vague as to how the permits would be reallocated.
The timing of FWP’s desire to create the rule coincides with a legal battle that erupted between one of the longtime Smith River permit holders, Mike Geary, and FWP. Some say the lawsuit, filed in Lewis and Clark County District Court in March, prompted FWP’s push to write the rule.
According to court records, Mike Geary, owner of Lewis and Clark Expeditions, Inc., has outfitted on the Smith River for 30 years and has 26 of the 73 launch permits. After buying Healing Waters Lodge in Twin Bridges in 2013, he also acquired commercial permits to guide on the Beaverhead and Big Hole rivers.
Geary recently decided to retire and made a deal in September 2023 with Steve Mackey and Scott Gallivan. The two buyers would get the buildings, boats and vehicles, and Geary would continue to run the outfitting end of the business until Mackey, already a guide, gained enough experience to get his outfitting license.
Montana law says FWP commercial-use permits can’t be transferred. When outfitters sell their business, their old permits become void, but the new business owner is entitled to receive new permits with all the associated units or launches. So whenever Mackey gets qualified as an outfitter, Geary will sell the outfitting business and his permits will become void, but identical permits with the 26 launches would be issued to Mackey.
At least that’s what should happen. But when Geary informed FWP about the sale, FWP employees apparently misunderstood the situation and assumed that Geary was transferring everything, including the permits, before Mackey was qualified as an outfitter.
According to court documents, from November through February, Geary, Mackey and Gallivan tried to iron things out with FWP attorneys and had several conversations and a meeting with FWP Director Dustin Temple and Lt. Governor Kristin Juras. But the department wouldn’t change its position that Geary had voided his permits by selling the business.
On March 15, Temple sent a letter to the other six Smith River outfitters saying that 26 Smith River trips - Geary’s trips - had “returned” to FWP so those trips would be available via a lottery to currently permitted Smith River outfitters “to protect existing businesses.”
Upon learning of the letter, Geary filed for an injunction to stop the department from giving his permits away. On April 5, Lewis and Clark County Judge Christopher Abbott granted the injunction, saying Geary is likely to win the case against FWP and he would be harmed if he lost the permits.
“Because Geary is substantially likely to show that he has not yet sold the entirety of his outfitting business using the commercial use permits, Geary is substantially likely to show that his commercial use permits have not been voided,” Abbott wrote.
The lawsuit is still proceeding through the courts. But following the injunction ruling, State Parks acting administrator Deb O’Neill wrote the new rule on reassigning revoked permits.
The rule was first publicized at a May 20 State Parks board meeting. Then, late in the afternoon on May 31, a Friday, FWP announced the State Parks Board would have a special meeting the following Wednesday, June 5, to approve rulemaking for Smith River permits. The public would have until June 4, a total of four days including the weekend, to comment on the proposal.
That minimal notice and comment period didn’t go over well with the Smith River outfitters who had the largest stake in the rule change. The season for outfitting on the Smith River is short, and early June is right in the middle of it. FWP ended up canceling that meeting and rescheduled it a week later on June 11. At that meeting, the board voted to allow state parks staff to start the rulemaking process, which included taking more public comment. Tuesday’s vote was the culmination of that.
In the interim, the Smith River outfitters contacted the State Park board members, questioning the need for the rule, Geary told the Current.
“We had talked to the board members, and they understood they didn’t want to reallocate (permits), but then it was 'hurry up and move this thing through.' This hasn’t been addressed in 30 years - what’s one more year?” Geary said. “A lot of this is based on a false premise that you’re going to have revoked or abandoned trips. That’s never happened in the state of Montana. They haven’t defined the lottery system and why have a lottery system? How about discussing other options that will be more seamless?”
On Tuesday, Parks Board member Jodi Loomis tried to discourage the board from passing the second motion in favor of having Parks staff organize a working group of outfitters to find a solution. In the meantime, the biennial rule would allow flexibility and the board could approve a special condition, if need be, Loomis said.
“I would rather see us step back and pause on the new rule. I would like to see a working group established. We had a working group established the last time we did this,” Loomis said. “I think these rules should have more input from the outfitters and the outfitting community.”
O’Neill said the public comments questioned the reason behind the development of the rule about revoked permits but didn’t question the rule itself, so the comments weren’t pertinent. O’Neill also said the Parks Board had to pass the rule on Tuesday because any delay would push it past a deadline to get it to the Secretary of State before the 2025 Legislature meets for the next biennium.
FWP attorney Jeff Hindoien, who started with the agency in February just as FWP dug its heels in against Geary, said that nothing about the rule had anything to do with the lawsuit. He also said the legal unit “didn’t have any concerns about vagueness or inconsistency.”
But he suggested that maybe the lottery for reallocation of the permits could use the same language as is used for the Bitterroot River permits. The board adopted the Bitterroot lottery language, with Loomis and John Marancik voting against.
“Any discussion of transfer of permits in succession should fall under the Board of Outfitters that already has addressed that in rules. I don’t think the things I’m talking about are radical,” Geary said. “We’re advocating for good government. Tweaking stuff, having discussions, making it open - that’s good government.”
Former State Parks acting administrator Tom Reilly told the Current that FWP was treating Geary poorly by doubling-down on revoking his permits. Reilly, who retired from FWP in 2021, is familiar with the Smith River outfitters and the laws related to Geary's legal battle with the department.
“The department says (the lawsuit) isn’t the reason for this (rule), but I think it is,” Reilly said. “I think there’s a latitude to work with somebody, especially somebody with 30 years and such an impeccable record, and not have such a harsh reaction. It’s just unnecessary.”
Reilly said Loomis’ suggestion to create a working group would have been a good way to temper any controversy and keep a better relationship with outfitters.
“I was the assistant administrator for 20 years. There was just a whole different vibe or atmosphere when I was there. There was much more of a focus on relationships and respect; for whatever reason, that has all changed,” Reilly said. “Years ago, (a working group) is the kind of thing that the department would have initiated. That’s just what we did. It was much more cooperative and respectful.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.