FWP Game Damage Isn't Broken, It's Not Properly Being Used by FWP.

At the June FWP Commission meeting, I expressed to FWP Commissioners, during the elk shoulder seasons discussion, that people keep saying that game damage is broken, but I don't think it's broken, I think it isn't being used properly. Little did I know that there was recently a Legislative Services Audit, just published in May, that backs up all my examples from Park County and the statements I made to the Commissioners that day, and then some.

Recently the FWP released a "Notice of Public Hearings on Proposed Amendment", announcing 8 hearings (Aug. 11th & 12th), in various cities to consider the proposed amendment on Game Damage Administrative Rules of Montana. This is bad news for Montana public hunters, worse news is that fewer of them are discussing this. I was going to write up a bullet point list of some of the major red flags I saw, was looking up a particular detail on Google when I came across an audit report - a performance audit by our Montana Legislative Services, on this very game damage process.

On the next to last page of the Proposed Amendment public notice, it states the reason for this proposition being that the Legislative Audit Division just recently completed a performance audit of their Game Damage Program. To say that FWP was lacking would be a gross understatement, it is heinous and in some cases illegal what has been taking place, all with our sportsmen's dollars. The short, quick quote from their audit that pretty much sums things up is - "The department does not have accurate, reliable, or complete information related to the Game Damage program. Consequently, it does not have an accurate, comprehensive picture of game damage issues around the state." This is basically what I told the commissioners in June, that they and the public needed proper data to access the bigger picture, which FWP had not supplied to them. 

With all the "concurring" in the FWP response to the Audit, you would expect some substantive changes to be in the Proposed Amendment, like properly defining "public access", but there is not, just an attempt to legalize all the things they are currently doing that are illegal or not sanctioned by the Administrative Rules of Montana (ARM). Basically, a lot of "Cover My Ass" measures and some additional privatizing and subsidizing to really stick it to the Montana hunting public. So before I can bullet point some concerns in the Proposed Amendment to Game Damage, you need to see some of the key points of this  audit to understand the context for the changes.

"Performance Audit, Game Damage Program" (Click for document)

The 56 page audit covers 2010-2014, a total of 586 complaints in those 5 years, in Regions 2,3,4 and 5.

•  "Overall, we found 82 percent of game damage complaint files had missing or incomplete complaint forms or landowner eligibility worksheets. Audit work found documentation was problematic in every region we visited." - Chapter III - Game Damage Assistance Eligibility Reviews.
• "Several landowners received game damage assistance even though documentation indicated they were not eligible for assistance. For example, we found 20 game damage complaint forms which stated landowners were not eligible for assistance. However, seven of these landowners still received game damage assistance including cracker shells, herding contracts, propane cannons, and plastic fencing. Eligibility reviews were not documented for three landowners so it was not possible to determine why the department decided these landowners did not qualify. Eligibility reviews for the other four landowners indicated they had hunting restrictions which disqualified them for assistance. However, a lack of documentation prevented the department from explaining why assistance was still provided to them." - Inconsistent and Undocumented Game Damage Decisions
• "We reviewed 35 management seasons and found 23 did not have evidence the department reviewed landowner eligibility. Consequently, it was not possible to determine if landowners met eligibility requirements to participate in the management season. Where documentation did exist, we found examples of landowners being included in management seasons despite landowners having limited or no public hunting access."
• "A typical stackyard provided to landowners costs the department between $2,000 and $2,600. We found examples where stackyards were provided to landowners despite no documented instances that game damage occurred. For example, one landowner received a total of six stackyards in four years. Department staff agreed to replace five stackyards that were destroyed in a wildfire and another stackyard was replaced because it was over 20 years old and was beginning to deteriorate. Staff stated these were replaced to prevent potential game damage from occurring in the future."
• "There are questions as to who is responsible for administering regional game damage activities and we found limited documented involvement from regional managers. This included regional supervisors, wildlife managers and warden captains... Our regional visits found no regions had formally designated anyone as the game damage program coordinator...However, interviews found neither was responsible for reviewing and approving documentation for game damage complaints...Based on our review, there needs to be more supervisory oversight and responsibility over regional game damage program activities... We found the department could not always provide documentation showing that the department director or the local Fish and Wildlife commissioner approved game damage hunts and management seasons prior to implementation. " - Limited Supervisory Oversight of Eligibility Review Process
• "During audit work, we found 26 instances where the department deemed landowners ineligible for game damage assistance. However, 23 (88 percent) of the denials did not have evidence landowners were issued written notification stating why they were denied or instructing landowners how to appeal the decision if they disagreed with it. We found no landowner appeals for any of the denied game damage assistance reviewed." - Denials of Game Damage Assistance Requests
• "File review and interviews found wide variances both within regions and between regions in how department staff defines public hunting access and restrictions that 'significantly' reduce public hunting on a landowner’s property." - Public Hunting Definition Needs Clarification
• "Staff also said they included landowners that did not meet all eligibility criteria to help foster better relationships with local landowners. Specifically, if landowners had public hunting restrictions or did not allow any public hunting, they believed providing assistance would help improve public access in the future. The current eligibility criteria do not allow the department to use this as a consideration for making decisions on whether a landowner qualifies for game damage assistance." - Comprehensive Effort Needed to Improve Public Access Definition
• "However, we determined the department should not be using supplemental game damage hunts or supplemental management seasons to address game damage issues because it has no authority pursuant to administrative rules to use them." - Chapter IV - Supplemental Game Damage Hunts and Supplemental Management Seasons
• "For most hunts and seasons we reviewed, the department allowed landowners to select between 25 to 50 percent the hunters with the remainder selected from the game damage hunt roster. We found one example where the department allowed a landowner to select all of the hunters. In any of these situations, individuals on the game damage hunt roster are not being provided an opportunity to participate in game damage hunts or management seasons in areas where they applied." - Inappropriate Hunter Selection Procedures Are Used
• "There are currently no rules authorizing supplemental game damage hunts and supplemental management seasons. This includes rules describing the hunter selection process... The department either should end its use of supplemental game damage hunts and supplemental management seasons or amend administrative rules to specify the percentage of hunters that will be selected from the game damage hunt roster and selected by landowners for game damage hunts and management seasons. Department management indicated they will likely seek administrative rule amendments to allow landowners to select a percentage of hunters for game damage hunts and management seasons." - Department Lacks Authority to Use Supplemental Game Damage Hunts and Supplemental Management Seasons
• "We noted several instances where the department was not requiring hunters to turn in all unused valid elk licenses when they were issued supplemental game damage licenses. The department was allowing hunters issued supplemental game damage licenses to possess more than one elk license when selected for these hunts... We found the department is allowing individuals to use a general elk license, an elk B license they may already possess, or to purchase an elk B license to participate in the supplemental game damage hunt...In no instance did we find hunters being required to return unused elk licenses or special permits prior to participating in supplemental game damage hunts or supplemental management seasons. " - Supplemental Game Damage License Issuance
• "During the course of our audit work, we identified several deficiencies with department information for game damage activities. This included inaccurate and missing data for the regions we reviewed... There were several cases where game damage complaints in regional files were not included in the department’s game damage spreadsheets. In addition, there were also several instances where game damage information on the spreadsheets had no corresponding documentation in the regions. We also found numerous instances where the game damage spreadsheets and regional documentation had different information regarding assistance provided to landowners. For example, we found instances where the department’s spreadsheet indicated fencing materials were provided but a game damage hunt was documented on the complaint form. There were also cases where hard copy documentation noted some type of game damage assistance was provided but the department’s spreadsheet was blank...The department does not have accurate, reliable, or complete information related to the Game Damage program. Consequently, it does not have an accurate, comprehensive picture of game damage issues around the state." - Game Damage Program Has Missing and Inaccurate Data
• "These weaknesses included issuing cracker shells and ammunition to landowners and limited oversight of herding contracts."
• "ATF information also indicated it is unlawful to provide any explosive devices to anyone unless they have a federal explosives permit... Audit work also identified instances where various kinds of ammunition, including buckshot and shotgun shells were provided to landowners to address game damage issues. In most cases we identified, department staff gave these items directly to landowners to deal with game damage issues... Providing landowners with any of these items puts both the department and the state at risk for potential lawsuits if a serious injury were to occur." - Issuance of Cracker Shells and Ammunition to Landowners
• "However, we found limited evidence that department staff were overseeing herding activities to ensure compliance with the terms of contract." - Oversight of Herding Contracts
• "From 2010 to 2014, the Game Damage program has had operating expenditures totaling over $1.5 million, most of which was used to acquire game damage materials... We found some regions we visited were exceeding $5,000 in stackyard purchases but were not acquiring them from contracted vendors... In regions that do have contracted vendors, we found stackyard materials being purchased from noncontracted vendors... The department should use these contracted vendors when they are available. Until that happens the department cannot ensure it is getting the best possible price for stackyard materials." - Purchase of Game Damage Materials
• "Audit work found the department lacks formal inventory controls related to game damage materials both regionally and in Helena. Audit observations generally found unrestricted employee access to the game damage materials. There was no process to document what inventory was acquired, what was on hand, or where it was located. There was also no formal process to document how game damage materials were used, where materials went, or which staff took materials from the warehouse where it was stored. The department currently relies on game damage complaint forms to document what materials were used and which landowner received them. However, audit work identified weaknesses in this process. For example, review of game damage files found 37 percent of compliant forms did not document the amount of game damage materials issued to landowners. Currently, the department is not tracking game damage materials from acquisition to issuance. Game Damage program policy requires a system to ensure accountability for game damage materials... Under current practices the department is at high risk for the misuse of game damage materials. Materials such as fencing could easily be used by department employees for their own personal gain. The department currently does not have mechanisms in place that would help prevent this from occurring or assist the department in detecting potential misuse of these materials." - Inventory Controls Over Game Damage Materials

Notice of Public Hearings on Proposed Amendment  (Click for document)

• One of the first things that jumps out at me in this proposal is the striking of "season" replaced by "hunt" - season hunt. To some that may not seem important, but it is for the public process. See Montana Code Annotated defines the duties of the FWP Commissioners in MCA 87-1-304 and one of those duties is to fix "seasons". This requires the public commission process and the votes of the whole commission and the public can submit written and oral public comments, which are part of the public record. BUT, management "hunts" only requires the regional supervisor and the regional commissioner to sign off on it, no public process. Since the audit found that FWP was not following the ARMs concerning Game Damage, instead creating a hybrid situation at their discretion, FWP is trying to make themselves legal, but at the expense of the public process, by changing everything to a management "hunt".
• The current process for choosing game damage hunters is from an established Hunt Roster for each region which has a set time period for registration and therefore a fixed list which is randomly generated. With a game damage program in such disarray, lack of oversight and compliance, as the audit showed, including matters of the Hunt Roster, FWP has  decided again to alter the roster process to conform to their noncompliant actions by adding, " or lists of names supplied by landowners" in a number of places and striking from ARM 12.9.1101, "If sufficient numbers of hunters cannot be identified through use of the game damage hunt roster,". This is a clear indication that they favor the landowner supplied lists, instead of utilizing the democratic hunt roster. Game Damage requires public hunter access for FWP assistance to landowners, as well as materials and such paid for with our sportsmen's dollars. With the growing issues of privatizing of our public trust wildlife, harboring and some landowners either outfitting their own lands or leasing to outfitters, to have landowners choosing the hunters rather than the established hunt roster, I feel this is removing the checks and balances, as well as the potential abuses of showing preferential treatment. 
• On that same vein, the removing of the June 15 through July 15 Hunt Roster registration time frame, creates an open ended scenario that could get complicated where the later inserted hunters are added, again, possibly showing preference.  For example, a private landowner can claim a game damage situation, get a hunt set up, with the removal of the registration time period, have an out of state client ready to be added to the Hunt Roster list, if the landowner gets to supply a list of hunters, you are looking at privatized elk hunting any time of the year. 
• Concerning the game damage licenses, since FWP got caught with their pants down on not following the rules requiring hunters to turn in unused valid elk licenses when they were issued supplemental game damage licenses with an elk management "season", they are wanting the closed to the public, limited process of the "hunt", instead of the public process "season". This means the "return for refund to the department of any unused valid A9/B12 antlerless elk license...prior to the supplemental elk game damage license being issued", instead of the surrendering of the unused general either sex valid elk license and special elk permit, if applicable, prior to the supplemental elk game damage license being issued.

As I see it, this doesn't make the game damage process better, but simply legitimizes the illegal or not regulated actions that FWP has been committing until they got caught. 

The only really good thing I saw in all this was the striking of the male gender possessive pronoun "his", in relation to the commission chair for "the chair's". Does that mean we may see a wildlife/habitat qualified woman, to" set the policies for the protection, preservation, management, and propagation of the wildlife, fish, game, furbearers, waterfowl, nongame species, and endangered species of the state and for the fulfillment of all other responsibilities of the department related to fish and wildlife as provided by law"? 

It bears repeating, "The department does not have accurate, reliable, or complete information related to the Game Damage program. Consequently, it does not have an accurate, comprehensive picture of game damage issues around the state."

Please take the time to go to one of the public hearing meetings listed on the front page of the Proposed Amendment document (Aug. 11th and 12th) and object to these "Cover My Ass" changes, especially the changing from a public process "season" to a "hunt", and hold FWP to the regulations we currently have that are not being followed.



Kathryn QannaYahu
www.EMWH.org