Fresh Tracks Weekly - Conflicted Wildlife Trustees (Commissioners)

[Big Fin]

Many have listened to me talk about Trustee duties, standards, and responsibilities. Our wildlife Commissioners are some of our most important Trustees. One of the top standards by which a Trustee must adhere to is independence/impartiality/unconflicted if they are to fulfill their duty owed to Beneficiaries (citizens).

We see a rapidly changing trend of politicians using our wildlife appointments as more and more a political repayment process. It is a trend in every state. As such, the concern about who conflicted that appointee will be gets disregarded. As more of these conflicted Trustees get appointed, the appearance of conflicts arise, as do the actual number conflicts themselves.

A Trustee must act on behalf of all Beneficiaries equally, giving no preference to one group of class of beneficiaries. That is so paramount to Trusteeship that most states have passed statutes on such and court cases are littered with the judiciary holding Trustees to that requirement.

In this week's episode of Fresh Tracks Weekly, Marcus and I tackle that topic. Lots to think about. You are a beneficiary in your state's Public Trust of wildlife. Are your Trustees conflicted, either in appearance or in fact (many are)? If so, you might want to remind them of these Trustee requirements.

 

[Forkyfinder]

Interesting, thanks for sharing Randy. The appearance of a conflict of interest vs a conflict of interest in fact is the same, to me... It shows a failure to act in good faith when someone doesnt recuse themselves, regardless of intent. Frustrating the courts are the only way to deal with it.

 

[Joseph Peterson]

You always stress the trustees should manage the resource for the benefit of the beneficiaries. I agree, but you often limit the beneficiaries to just hunters and not all citizens. Many citizens gain the most benefit by non-resident and outfitted/guided hunts. Why is there an outfitter set aside of tags in Idaho? Because idaho sees the value of the outfitting industry to the public who are beneficiaries of the resource.

 

[Weimer]

You always stress the trustees should manage the resource for the benefit of the beneficiaries. I agree, but you often limit the beneficiaries to just hunters and not all citizens. Many citizens gain the most benefit by non-resident and outfitted/guided hunts. Why is there an outfitter set aside of tags in Idaho? Because idaho sees the value of the outfitting industry to the public who are beneficiaries of the resource.

Outfitter set aside of tags is nothing more than outfitter welfare.
If the outfitter is worth a crap he’ll have customers whether they’re on the welfare program or not.

 

[Forkyfinder]

You always stress the trustees should manage the resource for the benefit of the beneficiaries. I agree, but you often limit the beneficiaries to just hunters and not all citizens. Many citizens gain the most benefit by non-resident and outfitted/guided hunts. Why is there an outfitter set aside of tags in Idaho? Because idaho sees the value of the outfitting industry to the public who are beneficiaries of the resource.

Explain the benefit to non-hunters that comes with outfitted/guided hunts? I see how that individual group is benefitted - but im not seeing the benefit to all beneficiaries?

 

[Joseph Peterson]

Explain the benefit to non-hunters that comes with outfitted/guided hunts? I see how that individual group is benefitted - but im not seeing the benefit to all beneficiaries?

Each non-resident hunter brings in many fold the economic impact than a resident non-outfitted hunter does. The outfitter does not sit on the dollars he charges but it goes to the community he operates in. The costs of 40 horses, several vehicles, guides, cooks, groceries, fuel, Forest Service fees and so on go to the beneficiaries in jobs, taxes, direct and indirect $ to their pockets.

 

[Forkyfinder]

Each non-resident hunter brings in many fold the economic impact than a resident non-outfitted hunter does. The outfitter does not sit on the dollars he charges but it goes to the community he operates in. The costs of 40 horses, several vehicles, guides, cooks, groceries, fuel, Forest Service fees and so on go to the beneficiaries in jobs, taxes, direct and indirect $ to their pockets.

Now do NR hunter? They stay in motels, they shop and buy things, they eat at restraunts?

Im not convinced the economic benefit is there for anyone except outfitters.

 

[Joseph Peterson]

Outfitter set aside of tags is nothing more than outfitter welfare.
If the outfitter is worth a crap he’ll have customers whether they’re on the welfare program or not.

Hard to invest in what it takes to provide a quality, safe experience when you do not have a consistent customer base. Do you know why outfitters are allowed to work on BLM and USFS ground? Because those public land managers see the benefit of providing service to those members of the public who cannot engage in the activity on their own.

 

[Joseph Peterson]

Now do NR hunter? They stay in motels, they shop and buy things, they eat at restraunts?

Im not convinced the economic benefit is there for anyone except outfitters.

If the outfitter just was able to keep all the money you would be right but that is not very insightful. He has to spend it in the community.

 

[idahohuntr]

I think this episode is a little too biased via the lens of a CPA with common private trust asset management/fiduciary standards while somewhat ignoring our political system and differences between public and private assets/trusts/beneficiaries.

The checks and balances on political appointees is via the ballot box....not complaining about 'general' conflicts. In my view, to be a conflict for a commissioner it has to be a very direct, personal interest...e.g., if there is an action before a commission such as the Department purchasing a private parcel of land for conservation purposes...and a commissioner owns the parcel of land...they should be recused from voting/approving/discussing the transaction via their role as a commissioner. It does not, in my opinion, require a fishing or hunting guide to recuse themselves on all fishing or hunting matters. The conflict/interest of the individual has to be very direct...not just a general policy favorable to a commissioners business or views.

 

[Weimer]

Hard to invest in what it takes to provide a quality, safe experience when you do not have a consistent customer base. Do you know why outfitters are allowed to work on BLM and USFS ground? Because those public land managers see the benefit of providing service to those members of the public who cannot engage in the activity on their own.

If they are worth a nickel they will have work lined up for years.
Set asides are welfare for crap outfitters. To support these is a joke

 

[Big Fin]

You always stress the trustees should manage the resource for the benefit of the beneficiaries. I agree, but you often limit the beneficiaries to just hunters and not all citizens. Many citizens gain the most benefit by non-resident and outfitted/guided hunts. Why is there an outfitter set aside of tags in Idaho? Because idaho sees the value of the outfitting industry to the public who are beneficiaries of the resource.

I don't limit the beneficiaries to just hunters. I always say that the citizens of the state are the beneficiaries, hunters or not hunters.

If Idaho Trustees think that outfitter tags benefits the Trust, the Trust asset of wildlife, and the Trust Beneficiaries, then that is what the Trustee should do. Maybe the Trustees have strong supporting information the Trustees had accumulated to support that position. If so, they'd be fine.

The standard is that a Trustee action cannot benefit one class of Beneficiaries to the detriment of other Beneficiaries. Maybe the Idaho Trustees can demonstrate that standard is met.

 

[Big Fin]

I think this episode is a little too biased via the lens of a CPA with common private trust asset management/fiduciary standards while somewhat ignoring our political system and differences between public and private assets/trusts/beneficiaries.

Yes, surely through the lens of a CPA who deals in Trusts every day. But, all the court cases related to Public Trusts disregard the political reasons Trustees often claim for their actions. By the statutes enacted in most states I am aware of, the standards of a Public Trustee are the same as those for a Private Trustee. It's just that we let the politics sway the system and so long as it doesn't sway too far, nobody wants to pay the huge legal fees to enforce the standards upon the Public Trustees in the way it is often done with Private Trustees.

The checks and balances on political appointees is via the ballot box....not complaining about 'general' conflicts. In my view, to be a conflict for a commissioner it has to be a very direct, personal interest...e.g., if there is an action before a commission such as the Department purchasing a private parcel of land for conservation purposes...and a commissioner owns the parcel of land...they should be recused from voting/approving/discussing the transaction via their role as a commissioner. It does not, in my opinion, require a fishing or hunting guide to recuse themselves on all fishing or hunting matters. The conflict/interest of the individual has to be very direct...not just a general policy favorable to a commissioners business or views.

That is a pragmatic view and I suspect many hold the same view. Yet, if checks and balances on political appointees was via the ballot box, we wouldn't have all these lawsuits against Trustees or elected officials.

The court cases say that the courts impose a much higher standard, more inline with the "appearance of conflict = conflict in fact" theory. I suspect if a case was brought to force a Trustee to recuse themselves on an issue they are conflicted with, whether in actuality or in appearance, the appellant would prevail. But, who wants to incur $30K in legal fees to enforce such actions? Not many of us feel that is a good return on the investment compared to what personal damage we feel we're incurring.

In the Montana examples used for the video, should a commercial fly fishing outfitter who happens to be a Commissioner be allowed to lead the Department effort on trying to allocate fishing opportunity between the general public and the fly fishing outfitters?

Should an Commissioner who is an outfitter, who was the past President of the state outfitting association, be allowed to bring forth a motion that benefits only a small handful of hunting outfitters and such is to the detriment of the general public and an already depleted bull elk population?

I suspect we all would have different personal opinions on those answers. I doubt a court of attorneys trained in Fiduciary Duty and Trusteeship would have a very lenient position to either of those scenarios.

Point of the video is that this stuff happens a lot. It happens to differing degrees. Each year it seems there is a bit more erosion to those standards a Trustee signs up for when they accept such position. The valid question is, "When will the action/decision be enough that some of the Beneficiaries are willing to pay $30K, or more, to see the action/decision booted by the court?"

I'm not sure I have an answer to that question, but I do know that as we have more and more appointees nominated for the purposes of repaying political favors, we get closer and closer to the day that a Beneficiary(ies) sues a Public Trustee(s).

I'm glad to see people watched the video and are discussing it, both from a theoretical standpoint and from the practical/pragmatic standpoint.

 

[Forkyfinder]

"When will the action/decision be enough that some of the Beneficiaries are willing to pay $30K, or more, to see the action/decision booted by the court?"

Have any orgs, RMEF, BHA, Bowhunters association, etc ever done this?

If not - how do i/we lobby them to? If so, please share. Seems like a worthwhile place to give money.

 

[Joseph Peterson]

I spearheaded and paid the legal fees to draft, introduce and pass legislation in Idaho to the effect of outfitters and guides not needing to pay sales tax on consumables purchased to provide service where the service was charged sales tax bringing outfitting in line with ag and other industries. The chairman of the committee where the bill was introduced owned a shooter bull operation so was hesitant to even hear the bill in committee given the perceived conflict. He recused himself from both the committee vote and the floor vote. He took the devil's advocate position during committee hearing. We could use more politicians with spine.

 

[SAJ-99]

Hard to invest in what it takes to provide a quality, safe experience when you do not have a consistent customer base. Do you know why outfitters are allowed to work on BLM and USFS ground? Because those public land managers see the benefit of providing service to those members of the public who cannot engage in the activity on their own.

I concede that the economic value of an outfitter NR is higher than a non-outfitted NR. We might disagree on the difference in the value, but it is certainly higher. NR Tags are a limited resource issued by the trust. To specifically allocate tags to an outfitter pool simply allows the outfitter pool to have stability in the client base. In other words, you don't want to have to find new clients every year. I get the attractiveness of this from the outfitter's point of view, but let's call it what it is - a regulation - and admit that it detracts from the potential efficiency of the businesses. The outfitters don't try to offer anything different to a potential new group because the "welfare" is built into the system. Someone could pay the outfitter to take them to photograph rutting elk in September, but they most will be hunters and so the process doesn't change.

 

[idahohuntr]

Yes, surely through the lens of a CPA who deals in Trusts every day. But, all the court cases related to Public Trusts disregard the political reasons Trustees often claim for their actions. By the statutes enacted in most states I am aware of, the standards of a Public Trustee are the same as those for a Private Trustee. It's just that we let the politics sway the system and so long as it doesn't sway too far, nobody wants to pay the huge legal fees to enforce the standards upon the Public Trustees in the way it is often done with Private Trustees.



That is a pragmatic view and I suspect many hold the same view. Yet, if checks and balances on political appointees was via the ballot box, we wouldn't have all these lawsuits against Trustees or elected officials.

The court cases say that the courts impose a much higher standard, more inline with the "appearance of conflict = conflict in fact" theory. I suspect if a case was brought to force a Trustee to recuse themselves on an issue they are conflicted with, whether in actuality or in appearance, the appellant would prevail. But, who wants to incur $30K in legal fees to enforce such actions? Not many of us feel that is a good return on the investment compared to what personal damage we feel we're incurring.

In the Montana examples used for the video, should a commercial fly fishing outfitter who happens to be a Commissioner be allowed to lead the Department effort on trying to allocate fishing opportunity between the general public and the fly fishing outfitters?

Should an Commissioner who is an outfitter, who was the past President of the state outfitting association, be allowed to bring forth a motion that benefits only a small handful of hunting outfitters and such is to the detriment of the general public and an already depleted bull elk population?

I suspect we all would have different personal opinions on those answers. I doubt a court of attorneys trained in Fiduciary Duty and Trusteeship would have a very lenient position to either of those scenarios.

Point of the video is that this stuff happens a lot. It happens to differing degrees. Each year it seems there is a bit more erosion to those standards a Trustee signs up for when they accept such position. The valid question is, "When will the action/decision be enough that some of the Beneficiaries are willing to pay $30K, or more, to see the action/decision booted by the court?"

I'm not sure I have an answer to that question, but I do know that as we have more and more appointees nominated for the purposes of repaying political favors, we get closer and closer to the day that a Beneficiary(ies) sues a Public Trustee(s).

I'm glad to see people watched the video and are discussing it, both from a theoretical standpoint and from the practical/pragmatic standpoint.

I enjoyed the video - even though it's one of the only times I can recall not quite seeing eye-to-eye with your take on a public land/wildlife policy issue. It is an interesting, thought-provoking topic.

I still see a major difference in private v. public trustees as the much more narrow/discrete nature of the corpus and beneficiaries of private trusts. Holding 'wildlife' in public trust for x million citizens is just not the same as a small number of private citizen beneficiaries with private assets held in trust. This difference, in my view, makes it much harder to argue a conflict/recusal requirement unless the action has an extraordinarily direct effect on the appointee (e.g., my land purchase example).

In the MT examples cited, it is certainly questionable, but I also think it depends on the outcome/what's proposed and whether there is a public process/input into the decision. If the commissioner is fair and does a good job, he/she may be the right person to lead the effort and I have a hard time supporting a blanket recusal requirement simply because the individual has a special interest.

An interesting topic for another day - what about the trustee relationship between the United States and federally recognized tribes with treaty resources held in trust (e.g., fish, wildlife, and their habitat)? In making a case for very stringent trustee responsibilities, one could argue a lot of implications for non-tribal public land hunters...

 

[Rie Bread]

With that lens, I’d say the private land “beneficiaries” are grossly over compensated in tags for a public resource.
Edit to add- at the expense of the public in terms of extracting a resource for a private financial gain.

 

[Rie Bread]

Have any orgs, RMEF, BHA, Bowhunters association, etc ever done this?

If not - how do i/we lobby them to? If so, please share. Seems like a worthwhile place to give money.

I was thinking the same thing. Certainly a local chapter of the RMEF can bring these funds together and would also be part of the public trust as a beneficiary

 

[abqbw]

You always stress the trustees should manage the resource for the benefit of the beneficiaries. I agree, but you often limit the beneficiaries to just hunters and not all citizens. Many citizens gain the most benefit by non-resident and outfitted/guided hunts. Why is there an outfitter set aside of tags in Idaho? Because idaho sees the value of the outfitting industry to the public who are beneficiaries of the resource.

That’s an exceedingly weak argument for removing the tags from the resident public domain. Once that is done, a non beneficiary is paid out of the trust. There is only one beneficiary. All residents equally. If a trustee pays out of a private trust to a non benificiary they most show that without any doubt that it was done for direct measurable benefit to or requirement for to the trust beneficiaries. Like attorney fees and accountants. The “trickle down” economic argument for outfitters and landowners receiving tags doesn’t come close to passing the public trust sniff test.