Trouble is brewing in the outfitter world as the Montana Board of Outfitters awaits a replacement for long-time board member Robin Cunningham.
When it met Thursday, the seven-member Board of Outfitters was down to six after the Montana Senate refused on Feb. 24 to confirm Cunningham on a 32-18 party line vote. Cunningham was a year into his final three-year term as the fishing outfitters' lone representative. But he’d sat on the board since 2012 and served an earlier stint from 1994 to 2000.
During all that time, Cunningham was employed as the executive director of the Fishing Outfitter’s Association of Montana. That is what his opponents said should bar him from serving on the board.
During the Feb. 23 hearing of the Senate Business, Labor and Economic Affairs committee, seven of the nine who testified against Cunningham are or have been among the leadership of the Montana Outfitters and Guides Association and another opponent is a member of MOGA. MOGA represents primarily hunting outfitters, although some outfitters also organize fishing trips.
MOGA representatives testified, among other things, that Cunningham’s employment with FOAM created a conflict of interest for his role on the board. To counter that, some sportsmen argued that MOGA board president Patrick Tabor is also on the Board of Outfitters and could cast votes that favor MOGA. But MOGA executive director Mac Minard said Tabor doesn’t have a conflict of interest because MOGA doesn’t pay Tabor.
“Pat (can’t push MOGA’s agenda) because he is one member of seven, and it’s a collective decision among seven. And that seven wouldn’t be dictating (Pat’s) decisions any more than they would be for anybody else,” Minard said. “(Cunningham) is answering to (FOAM's) seven-member board that sets policy and direction, and he’s going to have to act on that direction or lose his job. How do you know how many of his decisions are pushed by the FOAM board?”
The law governing state board members says members with “a personal or private interest that would directly give rise to an appearance of impropriety… shall disclose the interest creating the conflict prior to participating in the official action.”
Cunningham said he never hid the fact he worked for FOAM and was careful to be sure his votes were fair. A conflict of interest occurs when a board member’s vote results in him gaining an advantage or more money, and that never happened, Cunningham said. Plus, an attorney serves as counsel at each meeting to ensure the board follows proper procedure.
But Cunningham said he knew the question of his employment could be a sticking point if anyone wanted to push it.
When MOGA sponsored a bill in the 2015 Legislature requiring Board of Outfitter members to be confirmed by the Senate, he knew that day was probably coming.
FOAM board president Russell Parks said Cunningham would never have been fired due to a Board of Outfitters vote.
“There’s never been or would ever be a decision that Robin made on the Board of Outfitters that would ever lead to us to consider firing him. That is an asinine reason that they’re giving,” Parks said.
If they weren't really concerned about conflicts of interest, what could explain MOGA’s opposition to Cunningham?
Some claim that MOGA is making a power play for the Board of Outfitters, which would give MOGA more authority to set the rules for their own industry. MOGA already has a voice in three of the seven board seats.
The board must include two regular sportsmen, one public representative and four outfitting-industry representatives. Of the outfitter representatives, Tabor holds the one seat reserved for a big-game outfitter, and Rob Arnaud, former MOGA board president, holds one of two seats reserved for an outfitter who offers both hunting and fishing. The other hunting and fishing outfitter seat is held by John Way, also a MOGA member.
In spite of the fact that almost half - 49 percent - of Montana’s 665 outfitters are exclusively fishing outfitters, only one of the four industry board seats is reserved for a fishing-only outfitter, and that seat is now vacant.
Parks said a highly qualified FOAM member is applying for the vacancy. But FOAM is concerned that its candidate, if nominated, could run into similar MOGA opposition in the Senate. In addition, MOGA might try to propose its own candidate.
“This goes back two years or more. The way they’ve been able to influence the Board of Outfitters and the Legislature – I’ve actually been fairly impressed. But I challenge anyone to look at how many fishing outfitters they actually have,” Parks said
Minard said he represents some of the largest fishing organizations in Montana, but he has no problem with a member of the FOAM board applying for the job.
“I would not portray it as FOAM in one corner and MOGA in another corner. But within those groups, there are probably some differences of opinion about what the role of the Board of Outfitters is on records retention and filing requirements. And those things are being discussed right now in the Legislature,” Minard said.
Public hunters say it comes down to record-keeping and transparency, and MOGA has managed to whittle away at those.
It started in 2013 when MOGA sponsored the Paperwork Reduction Act, which reduced the amount and kind of information outfitters had to supply in their year-end reports and operations plans.
Minard said the kind of information that outfitters were required to provide was out-dated, going back to when the Board of Outfitters started in 1988 under the Department of Fish and Game. It has since moved twice and now sits under the Department of Business and Labor.
However, MOGA has continued to pick away at the amount of information the Board collects, even as the number of outfitters has increased.
Most recently, in December, the Board of Outfitters passed, on a 4-3 vote, a rule removing the requirement for hunting outfitters to report the species and sex of game taken by a client, whether it was shot on public or private land and in which hunting district.
Cunningham was one of the three who opposed that change, just as he opposed other efforts to reduce other information-gathering. Then on Feb. 14, he testified in favor of Senate Bill 290, which would have reversed the December vote and required species, sex and location to be reported by law. SB 290 was tabled in committee on a 8-11 party-line vote.
“We make private money on a public resource. We have a responsibility to make available to the public records that show how and where and to what degree we use that resource,” Cunningham said.
Meanwhile, another MOGA-sponsored bill, SB 264, is still alive and will be heard Friday in the House Business and Labor Committee. SB 264 would further reduce the information collected by the Board of Outfitters to only that required to justify outfitter licensing. In other words, details regarding clients’ names, trip dates, and animal species, sex and location would be eliminated.
Minard said it was a costly burden on outfitters to supply that information, and then the information was never used.
However, fishing outfitters need to keep similar information on their use of specific streams, especially as rivers get more populated. For example, Fish, Wildlife & Parks is considering a management plan for the crowded upper Bitterroot River, and outfitters are agreeing to cap the number of commercial trips. Only outfitters already working the river will get those trips, so they need the recorded stream-and-stretch data to prove their legacy.
Hunters don’t face such concerns of over-use yet. But Minard said even fishing outfitters shouldn't require a third party to keep that data – they should keep their own records and provide them if and when needed. If FWP wants the information, they should pay the cost of collecting and processing it, Minard said.
“When you consider the (reported) harvest data, and you understand that it constitutes less than 2 or 3 percent of the total harvest, why is it so critical to have that at such expense and not be willing to pay for it?” Minard said. “Is it appropriate for the Board to collect information that really isn’t their responsibility to collect, house or hold?”
That said, Minard said that outfitters have been working hard to provide up-to-date data that will soon result in a new public map showing all the lands outfitters use in Montana. However, the data used to produce the map will not be publicly available. Last April, the Board of Outfitters released an erroneous map that over-estimated the amount of outfitted lands, renewing the distrust between public hunters and outfitters.
Part of the reason public hunters want the information is they are often barred from private lands that are leased by outfitters. This is part of the reason that elk herds have grown to the point that they're causing property damage. Landowners often penalize FWP, which can do little unless public hunters are allowed to access the herds. So the problem persists while outfitters make money, which frustrates hunters. So hunters see any appearance of an unwillingness to divulge outfitting information as suspect.
Current legislation and the loss of Cunningham on the Board of Outfitters have not helped heal those wounds, according to FOAM and sportsmen's groups. Groups that testified on Cunningham's behalf include Montana Trout Unlimited, Montana Wildlife Federation, Montana Sportsmen's Alliance, Russell Country Sportsmen of Great Falls and the Public Wildlife Private Lands Advisory Council.