Soon we will all fill out our ballots (or head to the polls) to join in the 2021 election. One of the initiatives we are asked to decide is Amendment 78, officially known as the Custodial Funds Appropriations Initiative. Custodial funds are state revenues that are not generated through taxes. Custodial funds come from federal grants, pension funds and court-approved settlement funds. There is currently a lawsuit seeking to either remove the question from the ballot or have the votes go uncounted. The basis of the suit is that, by Colorado statute, initiatives in odd numbered election years should be related to TABOR, the taxpayers bill of rights. Here's where it gets sticky. TABOR oversees tax changes. It is legally questionable if custodial funds even fall under TABOR's guidelines; thus, the suit questioning the initiative's placement on the ballot during an off year election.
Amendment 78 seeks to bring more accountability to the way these funds are spent - on the surface, a worthy goal. However, for hunters and anglers, there could be unintended consequences; the typical $25 M that Colorado receives annually through the U.S. Fish and Wildlife service from Dingell-Johnson and Pittman-Robertson excise taxes on hunting and fishing equipment and boat fuel sales could be jeopardized if this initiative is successful. Those trust fund dollars collected from excise taxes are housed within the Wildlife and Sport Fish Restoration (WSFR) program, which the Service administers, and it has long been considered the foundation of fish and wildlife conservation in the United States. Colorado's Department of Natural Resources has confirmed that WSFR grants are set up on a reimbursable basis and the state only receives funds after incurring expenses, suggesting that funding would not necessarily be transferred to a new custodial fund under Amendment 78 and the interest on those funds would also remain separate from the General Fund. BHA's legal analysis, however, indicates that there may be some ambiguity in how this might ultimately be interpreted and questions remain about whether these funds could be conveyed as custodial dollars and subject to appropriation by the legislature.
Placing WSFR funds in a special account overseen by the legislature directly contradicts federal laws and guidelines on how those monies may be overseen and spent. Should Amendment 78 pass and WSFR funds remain safe from diversion under the best possible legal scenario, it would still establish unnecessary bureaucracy in the administration of state funds by creating redundancies in legislative oversight processes that already exist through the normal course of budgeting. So while Colorado Parks and Wildlife (CPW) may be able to fulfill legal guidelines with the federal government under Amendment 78, legislative intervention would likely slow the dispersement of those funds. If there is too much delay, the funds would then be lost to the state altogether and reallocated by law under the Migratory Bird Conservation Act.
Accountability on how state dollars are spent is a worthy goal and BHA supports greater transparency in decision making. This initiative, however, fails to pass muster on achieving that goal without potentially jeopardizing conservation funding generated by sportsmen and women. Hunters and anglers are proud of these self-taxed contributions to fish and wildlife conservation and CPW has a proven track record in strategically directing these funds annually with oversight by the Parks and Wildlife Commission, a decision-making body that has well-established venues for public input.
Let's leave it to them, not superfluous legislative committees or the outcome of future litigation.
If you hunt or fish, vote NO on Amendment 78.
About Robert Shettel