The Problem is that this conflicts with a first principle of the allocation law, that is:
- Unless there is a reduction in tag numbers, outfitters that use their designated tags will maintain that designated tag number as they move forward. (i.e., absent a reduction in the number of tags allocated for use by the outfitted public in a given hunt, tags are to be designated, first, according to an outfitter's use of the tags previously designated to their operation).
Here is the language from statute that addresses this first step:
(a) Designate allocated tags using a formula that prioritizes an individual outfitting operation's use, including the transfer of allocated tags previously designated to it;
The rule which was used to designate tags is as follows:
- 04. Use of Previously Designated Allocated Tags. For established capped or controlled hunts, allocated tags will first be designated to each outfitting operation in an amount equal to the outfitting operation’s use of the allocated tags previously designated to it for the same hunt. (11-17-21)
- a. In a capped hunt, the use of previously designated allocated tags is the average use of allocated tags in the preceding two (2) years. (11-17-21)
The rule (a.) was interpreted to mean “...the average use of [designated] allocated tags."
During calendar year 2020, no tag designation existed for all outfitters in the newly limited hunts. Moreover, [non-designated] historic outfitted tag use from 2020 was not recognized/included in the first step of the designation formula, as this historic [tag] use was not the use of designated tags.
Without any designated tag use data for 2020 (because there were no designated tags in 2020 for these hunts) the Board decided to use the numerical value of zero (0) for all 2020 outfitted designated tag use. The result being that every outfitter's average allocated designated tag use number in step 1 of the designation formula was cut in half.
This is not the intent of the rule, which was not developed to deal with a recalculation after only one year of tag designation.
Nor is this the intent of law, which directs that the Board "designate allocated tags using a formula that prioritizes an individual outfitting operation's use, including the transfer of allocated tags previously designated to it." Again, no tags were designated in these hunts in 2020, but by inputting the value of Zero (0) in place of such in the designation formula, the use of tags designated in 2021 is not prioritized, but halved.
Ultimately, it would seem that the Board decided on the outlined approach as the most cautious alternative, and as a result some Outfitters were designated fewer allocated tags than they used in 2021.
The application of this use of the rules governing tag designation puts an undue hardship on those outfitters who have been counting on the Allocation Law to prioritize the use of their designated tags in order to have those tags available to them in the future. The total estimated value of the hunts associated with those ~70+ designated tags in question is in the ballpark of $350,000.
If the Fish & Game Commission allocates tags for all the newly limited hunts for the 2023/2024 seasons at their July Commission meeting, then IOGLB will again be designating tags for the two following years using the same formula and data. Should the Board apply the designation formula as they have just done with regard to the aforementioned hunts, some Outfitters will again face losing allocated tags that they have historically used and would otherwise stand to be designated.
How can Outfitters who have lost designated tag numbers address this problem?
IOGA has brought the issue to the IOGA Allocation Committee, who recommended to staff that IOGA primarily serve to inform our members about the issue, what their options are for addressing it, and helping provide the information and resources for them to do so.
1. Outfitters have the option of getting together with the other outfitters in a given hunt to decide among themselves how the tag numbers in their hunt should be divided (who should receive how many). This stipulation agreement can be recognized by the Board and so designated.
2. Outfitters may object to the outcome of the designation numbers as provided for in the letter from IOGLB. (The letter carries an April 8, 2022 date, but the Board approval happened on April 12th. We think the clock started then.)
3. Outfitters may also petition the Board (a) to rescind the designation orders, (b) for variance from the specific [part of] rule in question (IDAPA 24.35.01 057.04.a), and (c) to recalculate and designate tags for the hunts in question. Below is a link to a draft template for a request for variance from rule (we are not lawyers and this is neither legal advice nor a professionally drafted document. We are providing this template at the request of a number of members. ) Rule Variance Request Template
The Board meets April 26 to consider the next steps.
Follow this link for the OGLB Calendar of Events page: https://elitepublic.oglb.idaho.gov/OGLBCalendar/Default.aspx