Does interest earned on Idaho hunting and fishing license revenue belong to the Fish and Game Account or to the state general fund?

Plain-English summary

The Idaho State Treasurer asked a narrow but consequential question: under Idaho Code § 67-1210, interest on state-account balances goes to the general fund "unless otherwise specifically required by law." Did anything specifically require Idaho to credit interest on Fish and Game license revenue back to Fish and Game?

The AG's answer was yes, because federal regulation now required it.

The Pittman-Robertson Wildlife Restoration Act (16 U.S.C. § 777) and the Dingell-Johnson Sport Fish Restoration Act (16 U.S.C. § 669i) condition federal aid to state wildlife agencies on the state's promise that hunting and fishing license revenue won't be diverted to other purposes. Idaho had accepted that condition by statute (Idaho Code §§ 36-1801, 36-1802). Effective May 17, 1989, the U.S. Fish and Wildlife Service amended its regulations (50 C.F.R. § 80.4(a)) to define "license revenue" as including "[i]nterest, dividends, or other income earned on license revenues." After that amendment, diverting that interest to the general fund put Idaho out of compliance and put federal aid at risk.

Idaho Code § 67-1210 already had a built-in escape hatch: interest goes to the general fund "unless otherwise specifically required by law, including federal laws and regulations." So the Treasurer didn't need new state legislation to begin routing fish-and-game-related interest correctly going forward; the federal regulation was the "specifically required by law" hook.

For the current fiscal year, the AG said the Treasurer could simply make the accounting correction administratively. For prior fiscal years, however, recovering wrongly-credited interest required a legislative appropriation under Idaho Const. art. 7, § 13 and State v. Adams (Idaho 1965). Once a fiscal year closes (Idaho Code § 67-3604 directs the state auditor to close appropriations on July 1), money cannot be moved out of the treasury without a bill.

This is a "Treasurer needs to know what to do tomorrow morning" opinion: change the procedure now, ask the legislature later if you want to make Fish and Game whole for past years.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

50 C.F.R. Part 80 has been substantially revised since 1990 (most notably in 2011 and again in subsequent rulemakings). The Idaho code sections cited (§§ 67-1210, 67-3604, 36-1801, 36-1802) have also been amended. The constitutional rule under art. 7, § 13 (no money out of the treasury without an appropriation) has not changed. Any reader applying this analysis today should confirm current federal regulatory text and Idaho code sections.

Background and statutory framework (as it stood in 1990)

Two competing statutory streams collided here. State law (Idaho Code § 67-1210) sent investment interest from state accounts to the general fund as a default rule. But Idaho also voluntarily participates in two long-running federal aid programs that carry strict anti-diversion conditions:

• Pittman-Robertson (16 U.S.C. § 777): excise taxes on firearms and ammunition fund state wildlife restoration; participating states must agree that license revenues won't be diverted from administration of the state fish and wildlife agency.
• Dingell-Johnson (16 U.S.C. § 669i): excise taxes on fishing tackle fund state sport-fish restoration; same anti-diversion condition.

Idaho Code §§ 36-1801 and 36-1802 codify Idaho's participation. Until 1989, the federal regulations addressed only license fees themselves. The May 1989 amendment to 50 C.F.R. § 80.4 expanded the definition of license revenue to include the interest it generates, closing the loophole that had let states earn interest on fee revenue and route it elsewhere.

The Federal Register notice gave most states a three-year grace period to enact any legislation needed to comply, but Idaho already had § 67-1210's "unless otherwise specifically required by law" carve-out, so no new Idaho legislation was needed to start crediting the interest correctly.

Common questions

Could Idaho have just refused the federal aid and kept the interest in the general fund?
Yes, but Idaho had already opted in by statute. The opinion didn't recommend opting out; it told the Treasurer how to comply.

How big a penalty would Idaho face if it didn't comply?
The opinion didn't quantify the federal-aid risk, but the Pittman-Robertson and Dingell-Johnson programs are structured around all-or-nothing eligibility: a state found to be diverting license revenue can lose its federal aid entirely until it brings itself back into compliance.

Why did the AG cite State v. Adams for the prior-year-correction point?
Adams held that Idaho Const. art. 7, § 13 prohibited the state from refunding to a county the state's pro-rata share of a court-ordered tax refund from earlier years without a legislative appropriation. The principle is the same: the treasury can't pay out for closed fiscal years on its own initiative. A legislative bill is the constitutionally required vehicle.

Is interest on highway funds different from interest on fish-and-game funds?
Yes, and the AG had explained why in Opinion 89-8 (the highway-fund-interest opinion seven months earlier). Highway interest is constitutionally dedicated under art. 7, § 17. Fish-and-game-license interest isn't constitutionally dedicated, but it is federally dedicated by the regulatory amendment, and Idaho Code § 67-1210 expressly bows to federal law.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP90-01.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
JIM JONES, ATTORNEY GENERAL
BOISE 83720

ATTORNEY GENERAL OPINION NO. 90-1

TO: The Honorable Lydia Justice Edwards
Idaho State Treasurer
Statehouse Mail

Per Request for Attorney General's Opinion

QUESTION PRESENTED:

Are interest earnings upon license revenues in the fish and game account required to be credited to the fish and game account?

CONCLUSION:

Yes. Regulations of the U.S. Fish and Wildlife Service (50 CFR 80) were amended effective May 17, 1989, to require this result as a condition to remain eligible to receive federal aid funds (Pittman-Robertson and Dingell-Johnson Act funds). Since the state is receiving such federal aid funds, it should credit interest earnings on revenues from fish and game license fees to the fish and game account.

ANALYSIS:

Idaho Code § 67-1210 provides, in pertinent part, with respect to interest earnings on state accounts:

The interest received on all such investments, unless otherwise specifically required by law, shall be paid into the general account of the state of Idaho. Provided, unless otherwise specifically provided by statute, funds received by the state pursuant to a federal law, regulation, or federal-state agreement which governs disposition of interest earned upon such funds shall be classified in the agency asset fund provided by section 57-811, Idaho Code. Any interest earned upon such funds shall be accounted for separately to give effect to the federal law, regulation, or federal-state agreement.

Thus, interest earnings upon balances in the various state accounts are credited to the general account unless otherwise specifically required by law, including federal laws and regulations.

Pursuant to Idaho Code §§ 36-1801 and 36-1802, the state assents to the provisions of the Pittman-Robertson and Dingell-Johnson Acts, which provide aid to the states for wildlife restoration and fish restoration projects. Those federal acts (16 U.S.C. 777 and 16 U.S.C. 669i) and the regulations implementing them (50 CFR 80) provide that revenues from license fees paid by hunters and fishermen shall not be diverted to purposes other than administration of the state fish and wildlife agency. 50 CFR 80.4(a) was amended effective May 17, 1989, to provide:

License revenues include income from: . . . (3) Interest, dividends, or other income earned on license revenues.

Since license revenues may not be diverted and since license revenues are defined to include interest earnings thereon, the state is now required to credit the fish and game account with interest earnings upon license revenues.

We have also considered the required timing of our implementation of the requirement to credit interest earnings to the fish and game account. The effective date of the federal amendments is described in the Federal Register of April 17, 1989, page 15209, in pertinent part, as follows:

The effective date of this revision is 30 days after publication in the Federal Register. However, it is recognized that some states may need to enact legislation to meet the requirements of this provision. Therefore, for those states a period not to exceed 3 years after the effective date of the rule will be allowed in order to enact the needed legislation. All other states will need to be in compliance, and remain in compliance, on or after the effective date.

Idaho statutes do allow crediting of interest to the fish and game account for the current fiscal year. As noted previously, Idaho Code § 67-1210 authorizes the crediting of interest as required by federal regulations. Consequently, no legislation is required to implement a change in procedures to begin crediting the fish and game account with interest earnings from the fish and game account. However, as discussed below, crediting interest to the fish and game account for interest lost during the last fiscal year would require legislation.

Idaho Const. art. 7, § 13, provides:

No money shall be drawn from the treasury, but in pursuance of appropriations made by law.

Since appropriations are made on a fiscal year basis, it is not a violation of Idaho Const. art. 7, § 13, to make necessary corrections in accounts within a fiscal year. By making corrections within a fiscal year, each account merely receives the correct amount of revenue for the fiscal year and the correct amount of revenue is available for the legislative appropriations made from each account.

However, the result is not the same for corrections beyond a fiscal year. Idaho Code § 67-3604 requires the state auditor to close his accounts as to all appropriations on July 1 of each year. Thus, in State v. Adams, 90 Idaho 195, 409 P.2d 415 (1965), the Idaho Supreme Court held that Idaho Const. art. 7, § 13, prohibited the state from refunding to a county the state's share of a court-ordered refund of taxes collected wrongfully in prior years without a legislative appropriation.

Accordingly, for the current fiscal year, necessary corrections in accounts can be made to reflect interest earnings due to the fish and game account. A legislative appropriation would be required to credit the fish and game account with interest earned in the last fiscal year.

AUTHORITIES CONSIDERED:

1. Constitutions
   Idaho Constitution, art. 7, § 13.

2. Statutes
   16 U.S.C. 777.
   16 U.S.C. 669i.
   Idaho Code § 36-1801.
   Idaho Code § 36-1802.
   Idaho Code § 67-1210.
   Idaho Code § 67-3604.

3. Cases
   State v. Adams, 90 Idaho 195, 409 P.2d 415 (1965).

4. Other
   Federal Register, April 17, 1989, page 15209.
   50 CFR 80 (Regulation of the U.S. Fish and Wildlife Service).

DATED this 31st day of May, 1990.

JIM JONES
Attorney General
State of Idaho

Analysis by:
DAVID G. HIGH
Deputy Attorney General
Chief, Business Regulation and
State Finance Division