RE: Debunking the DWR?s Frequently Asked Questions Re: Utah Expo Permits and Conservation Funding
FAQ #8 ? Q8: Is there accountability for the use of application fee revenue?
The 2017?2021 expo permit contract recently signed between SFW and the State of Utah clearly states that all of the money raised from expo permit application fees will be used specifically for "policies, programs, projects and personnel that support conservation initiatives in Utah." SFW and its partner, MDF, have committed to annually disclose how 100 percent of these funds are used to benefit Utah wildlife.
RESPONSE:
The question posed in FAQ #8 asks if there is accountability for the use of the application fee revenue from the Expo Tags. Accountability is exactly what sportsmen have been asking for over the last ten years. Rather than answering this question honestly and admitting the shortfalls of the past, the DWR appears to be using a smokescreen in hopes of getting sportsmen off its back. Let me point out a few of the problems with the DWR?s answer to FAQ #8.
First, the DWR fails to acknowledge that they failed to require any accountability for the first six years of the Expo. From 2007 to 2012, the DWR did not require the groups to spend one red cent on actual conservation and there was zero accountability from the Expo Tag revenues. As a result, sportsmen have no clue how the conservation groups spent the $5,436,655 that was raised during those years ? and neither does the DWR. That is simply inexcusable.
Second, the DWR fails to acknowledge that from 2013 until today, the DWR has only required that the groups spend 30% on approved projects. See R657-55-10(3) -
http://www.rules.utah.gov/publicat/code/r657/r657-055.htm. As a result, from 2013 through 2016, the groups generated $4,327,790, and 30% of that money or $1,298,337 has been earmarked for actual conservation and accounted for. While 30% is better than 0% it is still woefully insufficient given that these revenues are generated from our public tags and were supposed to be used for ?wildlife conservation activities.? R657-55-1. What is even more disappointing is the fact that the DWR was perfectly fine with zero accountability. The only reason that there is a requirement that 30% must be spent on approved projects is because sportsmen threw fit about the lack of accountability and transparency.
Third, the DWR states that ?Expo organizers must spend the remaining 70 percent on policies, programs, projects and personnel that support conservation initiatives in Utah.? This statement is referring to specific contract language that was recently added to the latest contract between the DWR and SFW in response to pressure from sportsmen and the media. Pursuant to Section 7.c of the contract, SFW and its partners retain $3.50 from every $5 application and that money must be used for ?
policies, programs, projects and personnel that support wildlife conservation initiatives in Utah.? See 2016 Contract, Section 7.e.4 ?
http://wildlife.utah.gov/pdf/expo_permit_contract.pdf. The highlighted language referencing ?wildlife conservation initiatives? is new language that was not included in prior contracts between the DWR and the groups. On the surface this sounds great but what does that language actually mean? Can the SFW/MDF pay salaries to SFW/MDF ?personnel? with that 70%? Can they lobby with that 70% in an effort to affect ?policies?? Did the parties simply draft a provision that authorizes them to do what they were already doing? Can anybody tell me what a ?wildlife conservation initiative? is? Why didn't the parties define that term in the contract? As a lawyer, I always define critical contract terms unless I am purposefully trying to leave the term ambiguous so that my client can take advantage of the ambiguous language. I am guessing that is what happened here. I have asked for some clarification from some of my contacts but I have not heard back yet. Do any of you know what that term means? On the surface, this statement sounds great but it has no real meaning. In theory, the groups could spend the 70% of the Expo tag revenues on nearly anything and argue that it somehow supports ?wildlife conservation initiatives in Utah.? I am guessing that this language was added to the contract as window dressing so the groups and the DWR can point to it and say that 100% of the revenues are spent on wildlife conservation. Hopefully, folks dig a little deeper into the issue.
Fourth, if the DWR was truly concerned about accountability then you would think they would audit the groups? use of the Expo Tag funds. However, there is no requirement in the Expo Tag Rule of the Expo Tag Contract that provides for an audit of the monies raised from the Expo Tags. This is surprising given that the DWR conducts annual audits on the monies the conservation groups raise from Conservation Permits that are auctioned off by the groups. See R657-41-9(6) -
http://wildlife.utah.gov/rules-regulations/970-r657-41--conservation-and-sportsman-permits.html. Why doesn't the DWR do the same thing with the Expo Tag revenues?
Fifth, the DWR may attempt to argue that the groups are going to self-report on how they spend the money generated from the Expo Tags. Pursuant to 7.e, SFW and its partners must submit a report to the Wildlife Board and the DWR by September 1st detailing among other things a description of each project funded with Expo Tag revenues. However, it is important to note that the annual reporting requirement in Section 7.e only applies to projects funded with the 30% of the Expo Tag revenues (which expenditures already require DWR approval). There is absolutely no audit or reporting requirement in the contract or the rule that applies to the 70% retained by the groups.
Finally, the DWR states that ?SFW and its partner, MDF, have committed to annually disclose how 100 percent of these funds are used to benefit Utah wildlife.? This statement is particularly troubling. The DWR states this as if it is a fact but where is this spelled out in the Expo Tag Contract or the Expo Tag Rule? The answer is there is no binding requirement in the contract (
http://wildlife.utah.gov/pdf/expo_permit_contract.pdf) or the rule (
http://www.rules.utah.gov/publicat/code/r657/r657-055.htm) that requires the groups to annually disclose how 100 percent of these funds are used to benefit Utah wildlife. In fact, that requirement is actually inconsistent with the requirement in the contract and the rule that the groups only have to account for the 30% that is earmarked for approved projects. If the DWR was serious about a 100% reporting rule then why didn't the DWR include that requirement in the contract? Instead, the DWR points us to press releases from SFW and MDF stating that ?we will annually disclose how these funds are utilized to benefit Utah wildlife.? See
http://sfw.net/2016/03/02/2492/ and
https://muledeer.org/hunting-expo-p...ervation-successes-of-10th-anniversary-event/. Did the new Expo partner (UFNAWS) issue a similar statement? If so, I have not seen it. So rather to including a binding requirement in the contract or rule, the DWR appears to be relying on a nonbinding statement from the groups that they will account for 100% of the Expo Tag proceeds. Let's hope SFW and MDF honor that commitment unlike the commitment that Don Peay made when the Expo Tags were created. See 3/31/2005 Wildlife Board Minutes at 12 (
?Mr. Peay said it is fair to ask how much comes in with the five dollar application fees and how much went onto the ground."). Time will tell if the public will get burned again as a resulting of leaving that requirement out of the contract. You know the old saying, ?Fool me once, shame on you. Fool me twice, shame on me.?
In conclusion, the DWR gets an ?F? when it comes to requiring transparency and accountability for the Expo Tag revenues. What little accountability exists today, is the result of sportsmen demanding it. The DWR would be fine with zero accountability and as explained to me they are comfortable ?simply trusting in good faith that the money would be used properly.? Additionally, the DWR did nothing to improve the accountability and transparency for the Expo Tag proceeds in the latest contract. Rather, the DWR is relying on the nonbinding statements from the groups that they will account for 100% of the Expo Tag proceeds. That is not how you watch over public assets. As a result, the DWR?s answer to FAQ #8 sounds great to the uninformed but when you dig into the details it is nothing more than smoke and mirrors.
-Hawkeye-