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Table of Contents for Legal Documents & Statutes I. A copy of the Montana Fish & Wildlife Conservation Trust Agreement. II. A copy of the federal statutory provisions relating to the Montana Fish & Wildlife Conservation Trust. III. A copy of the federal statutory provisions authorizing the sale of the cabin sites at Canyon Ferry Reservoir, Montana. IV. A copy of the federal statutory provisions authorizing the sale of the cabin sites at Fort Peck Lake, Montana. Introduction: BKBH Attorneys have been involved with the Montana Fish & Wildlife Conservation Trust for nearly ten years -- well before the trust’s inception in 2002. Our firm is currently serving as legal counsel to the Trust Manager on various administrative aspects of the Trust, including legal restrictions associated with a distribution plan for the Trust. This section of the BKBH webiste was prepared to provide an introduction to the basic elements of the Montana Fish & Wildlife Conservation Trust, as well as verbatim copies of many of the legal documents and statutes that govern the Montana Fish & Wildlife Conservation Trust. BKBH's connection with the Trust started with its representation of a cabin owners association, known as the “Canyon Ferry Recreation Association” [or CFRA, for short]. CFRA represented the 265 people and organizations that owned cabins on leased land at Canyon Ferry Reservoir. CFRA's members wanted to own the leased land on which their cabins were sited. BKBH attorneys devised the concept of converting the value of the leased land into a public land trust that would provide mutual benefits to all parties while providing a permanent public land trust that would provide continuing benefits to everyone. Subsequently, BKBH attorneys represented a second cabin owner association [Fort Peck Lake Association] that was also successful in its pursuit of federal legislation authorizing the sale of federally owned cabin sites at Fort Peck Lake in Northeastern Montana. The sales proceeds from the Fort Peck Lake cabin sites, just as is the case with Canyon Ferry cabin sites, are required to be deposited into the Montana Fish & Wildlife Conservation Trust. The Fort Peck Cabin site sales are not expected to begin until 2004 at the ealiest. Also, unlike the Canyon Ferry sales funds, which are required to be part of a permanent endowment, the Fort Peck sales funds that are deposited into the Montana Fish & Wildlife Conservation Trust are not part of a permanent endowment and are available for immediate use to acquire lands within or adjacent to the Charles M. Russell National Wildlife Refuge. Background for The Montana Fish & Wildlife Conservation Trust: The Montana Fish & Wildlife Conservation Trust was authorized by federal statute in 1998 as a part of a larger law that also authorized the sale of 265 federally owned cabin sites at Canyon Ferry Reservoir in Montana. This was a totally unique development in that it called for the creation of a public land trust that is funded by the sale of land previously owned by the U.S. Government. The actual establishment of the Montana Fish & Wildlife Conservation Trust occurred in 2002, when the Secretary of the Interior formally executed the Trust document and named the Montana Fish Wildlife and Parks Foundation as Trust Manager. Funding of the Montana Fish & Wildlife Conservation Trust began in the summer of 2002 when the lessees of federally owned cabin sites at Canyon Ferry Reservoir began to purchase their individual cabin sites. By the end of 2003, the Montana Fish & Wildlife Conservation Trust contained approximately $14 million. These funds form a permanent public land trust endowment. Purpose of the Montana Fish & Wildlife Conservation Trust: The purpose of the Trust’s endowment is to provide a permanent source of funding for the acquisition of “publicly accessible land and interests in land, including easements and conservation easements, in the State of Montana from willing sellers at fair market value”. The land to be acquired with the help of grants from the Trust is to be used for one or more of the following four purposes: First, “to restore and conserve fisheries habitat, including riparian habitat” Second, “to restore and conserve wildlife habitat” Third, “to enhance public hunting, fishing, and recreational opportunities; and Fourth, “to improve public access to public land.” Initial grants from the earnings of the Montana Fish & Wildlife Conservation Trust are expected to be distributed beginning in 2004. The process for selecting these grants is the responsibility of two boards that were created by the same statute that authorized the Trust. The first board is called the “Joint State-Federal Agency Board” [Joint Board]. The Joint Board has five members who are government employees working in Montana. These five members are from the following government agencies: The U.S. Forest Service, the U.S. Bureau of Land Management, the U.S. Bureau of Reclamation; the U.S. Fish and Wildlife, and the Montana Department of Fish, Wildlife and Parks. The second board is called the “Citizens Advisory Board” [Citizens’ Board]. It is composed of four members who represent the following types of Montana organizations: Agricultural landowners; hunters; fisherman; and a nonprofit land trust or environmental organization. The Citizens’ Board is required to prepare and periodically update a “Trust Plan” including recommendations for requests for disbursement by the Joint Board. The Trust plan is required to maximize the effectiveness of Montana Fish and Wildlife Conservation Trust expenditures considering the following four factors: First, public needs and requests; Second, the availability of property; Third, alternative sources of funding; and Fourth, the availability of matching funds. The two boards are required to follow the following procedures before granting funds from the Montana Fish & Wildlife Conservation Trust. After consulting with the Citizens Board, the Joint Board, by a vote of a majority of its members, may submit to the Trust Manager a request for disbursement if the Board determines that the request meets the purpose of the Trust. Before making any grants from the Trust, the Joint Board is required to notify members of the public, including local governments, and to provide opportunity for public comment. The balance of this portion of the BKBH website presents the following four legal documents and statutes relating to the Montana Fish & Wildlife Conservation Trust. WITNESSETH WHEREAS, Trust desires to establish a charitable trust hereafter referred to as the "Montana Fish and Wildlife Conservation Trust" pursuant to Title X, P.L. 105-277, October 22, 1998, as amended (Canyon Ferry Reservoir, Montana, Act) a copy of which is incorporated into this Agreement and attached as Exhibit A and the Water Resources Development Act of 2000, Pub. L. No. 106-541 §§ 801-810 (Title VIII - Charles M. Russell National Wildlife Enhancement Act) which is incorporated into this Agreement and attached as Exhibit B. WHEREAS, Trustee agrees to serve as Trustee of the Trust established in this agreement and perform the duties of Trust Manager as defined in Section 1007 of the Canyon Ferry Reservoir, Montana, Act and described herein. NOW THEREFORE, in consideration of the mutual covenants herein contained, IT IS AGREED, by and between the parties hereto as follows, to whit: I. DECLARATIONS 1.1 Status of Trustor. Trustor is the United States of America acting by and through the Secretary, Department of Interior. 1.2 Purpose of Trust. Trustor further declares to Trustee that the purpose of the Trust for the Canyon Ferry Reservoir, MT Act of 1998 shall be to provide a permanent source of funding to acquire publicly accessible land and interests in land, including easements and conservation easements, in the State of Montana from willing sellers at fair market value to– (1) restore and conserve fisheries habitat, including riparian habitat; (2) restore and conserve wildlife habitat; (3) enhance public hunting, fishing, and recreational opportunities; and (4) improve public access to public land. Furthermore, the purpose of the Trust for Title VIII of the Water Resources Development Act of 2000 is to provide funding to acquire land with greater wildlife and other public value for the Charles M. Russell National Wildlife Refuge in the state of Montana from willing sellers at fair market value. II. TRUST ESTATE 2.1 Trust Property. The Trust Estate shall be comprised of 90 percent of the proceeds from the sale of 265 cabin sites of the Bureau of Reclamation located along the northern end of Canyon Ferry Reservoir in portions of sections 2, 11, 12, 13, 15, 22, and 26, Township 10 N. Range 1 West, P.M.M. and 90 percent of the proceeds from lease payments from the continued lease of those properties in accordance with Section 1006 of the Canyon Ferry Reservoir, Montana, Act, which shall be referred to hereafter as the "Canyon Ferry Account". The Trust property shall also include, as a separate account within the trust, 100% of the proceeds from the conveyance of approximately 392 cabin sites under the provisions of Section 807, Pub. L. No. 106-541 which shall be referred to hereafter as the "CMR Account". 2.2 Additional Trust Property. Trustor or any other person, business entity, or government agency may add property to the trust hereby created by transferring such property to Trustee by deed, assignment, bequest, devise, or otherwise, including a transfer of loan proceeds. If so added, such property shall be governed by the provisions of this Trust Agreement with like effect as if constituting initial Trust Property. III. CHARITABLE TRUST 3.1 Charitable Purposes. The Trust is established for charitable and educational purposes, in order to promote and enhance the recreational opportunities for the general public. The Trust will further assist Trustor and other public agencies in providing such services to the public. 3.2 Exempt Organization. The Trust is intended to qualify as an exempt organization under I.R.C. §501(c)(3), or corresponding provisions of subsequent federal law. All provisions shall be interpreted in a manner consistent with this qualification, and Trustor may amend provision of this Trust to maintain this qualification. 3.3 No Political Activities. The Trust shall not carry on propaganda or otherwise attempt to influence legislation, nor shall it participate or intervene in any political campaign on behalf of any candidate for public office. 3.4 No Benefit for Private Individuals. No part of the net earnings, properties, or assets of the Trust hall inure to the Benefit of any private person or individual, on dissolution or otherwise. On liquidation, dissolution or termination, all assets of this trust remaining after payment or provision for all debts and obligations shall be distributed to such fund, foundation, or corporation organized and operated for charitable purposes as Trustor and Trustee shall determine, and shall at the time qualify as a tax exempt organization under I.R.C. §501(c)(3) of the Internal Revenue Code, or corresponding provision of federal law. IV. MANAGEMENT OF TRUST ASSETS 4.1 Distribution. The Trustee shall manage and distribute the Canyon Ferry account Trust assets in accordance with section 1006 and 1007 of the Canyon Ferry Reservoir, Montana, Act, and the terms of this Agreement. The CMR account shall be managed in accordance with the terms of Section 807 of Pub. L. No. 106-541 and the terms of this Agreement. The Trustee shall review and respond to requests for disbursement from the trust within 30 days from receiving a request for disbursement from the Board. 4.2 Principal. The principal of the Canyon Ferry Trust account shall be inviolate. The principal of the "CMR account" shall be available for those purposes specified in the Section 807 of Pub. L. No. 106-541. 4.3 Earnings. Earnings amounts in the Trust shall be used to carry out the purpose of this Trust in accordance with Section 1007 of the Canyon Ferry Reservoir, Montana, Act, Section 807 of Pub. L. No. 106-541, section 1.2 of this Agreement and to administer the Trust and Citizen Advisory Board. 4.4 Local Purposes. Canyon Ferry Account. Not more than 50 percent of the income from the Trust in any year shall be used outside the watershed of the Missouri River in the State of Montana, from Holter Dam upstream to the confluence of the Jefferson River, Gallatin River, and Madison River. CMR Account - The income from the CMR account shall be used for the purposes specified in Section 807 of Pub. L. No. 106-541. V. POWERS AND DUTIES OF TRUSTEE 5.1 Powers of Trustee. Without limitation on, but in extension of, the powers, authority, and discretion granted to Trustee by other provisions of this Trust Agreement, Trustee (including any successor trustee) during the continuation of this trust and including every division, share, and part thereof, shall have all of the powers, authority, and discretion conferred upon trustees generally by the Montana Trust Code, Mont. Code Ann. Title 72, Chapter 33 to 365 (as amended from time to time) provided, however, Trustee is prohibited from exercising any of such powers, authority, and discretion in such a manner as to violate any of the limitations expressed elsewhere in this Trust Agreement. 5.2 Bond: Compensation of Trustee. No bond or other security shall be required of Trustee. The Trustee shall be entitled to payment for trust fees in the amount of 1.25% of the market value of the trust assets on an annual basis, assessed quarterly. This fee is inclusive of all management cots, custodianship of assets, and administration. 5.3 Receive Assets. To received, hold, maintain, administer, collect, invest and re-invest the trust assets, and collect and apply the income profits and principal of the Trust in accordance with the terms of this Agreement, the Canyon Ferry Reservoir, Montana, Act and Section 807 of Pub. L. No. 106-541. 5.4 Receive Additional Assets. To receive additional assets from other sources. 5.5 Standard of Care. To acquire, invest, re-invest, exchange, retain, sell, and manage trust assets, exercising the judgement and care, under the circumstances prevailing, that persons of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of that standard, the Trustee is authorized to acquire and retain every kind of property, real, personal or mixed, and every kind of investment, specifically including but not by way of limitation, bonds, debentures and other corporate obligations, and stocks, preferred or common, that persons of prudence, discretion and intelligence acquire or retain for their own account. 5.6 Settle Claims. To compromise, settle, or abandon claims in favor of or against the Trust. 5.7 Employ Professional Assistance. To employee and compensate counsel and other persons deemed necessary for proper administration and to delegate authority when such delegation is advantageous to the trust. Trustee shall provide such professional services as may be necessary to effectuate real property transactions funded through the Trust. These services will be in additional to the established 1.25% annual fee. If professional services are required, the Joint State-Federal Agency Board will be notified 30 days in advance and be provided cost estimates for services to be rendered. Such services shall be compensated under a Special Services Agreement between the Trust Manager and the Joint Board and the Citizens’ Advisory Board. 5.8 Enter contracts. To bind the Trust by contracts or agreements without assuming individual liability for such contracts. 5.9 Exercise Stock Ownership Rights. To vote, execute proxies to vote, join in or oppose any plans for reorganization, and exercise any other right incident to the ownership of any stocks, bonds or other properties of the Trust. 5.10 Hold Trust Assets as a Single Fund. To hold the assets of the Trust, shares or portions of the Trust created by this instrument as a single fund for joint investment and management, without the need for physical segregation, dividing the income proportionately among them. Segregation of the Trust assets need only be made on the books of the Trustee for accounting purposes. 5.11 Trustee shall perform the duties of "trust manager" as described in Section 1007 of the Canyon Ferry Reservoir, Montana, Act. The Trustee shall be available to meet with the Joint state-federal agency board on at least a quarterly basis. 5.12 Accounting and Reports. Trustee shall keep accurate records and accounts of the administration of the trust estate. Trustee shall, upon request of trustor, or quarterly, furnish to trustor a full and complete statement of all receipts, disbursements, gains, and losses of the trust estate. VI. MISCELLANEOUS PROVISIONS 6.1 Irrevocability. This Trust is irrevocable, and shall exist in perpetuity to accomplish the purposes of the Trust. 6.2 Power of Amendment. Trustor shall have the right, at any time and from time to time, by instrument in writing subscribed by Trustor and delivered to Trustee, to amend this Trust Agreement in order to more fully accomplish the trust purposes. Such amendment shall not alter any provision required by the Canyon Ferry Reservoir, Montana, Act, Section 807 of Pub. L. No. 106-541, nor jeopardize the trust’s qualification under the provisions of I.R.C. §501(c)(3). 6.3 Situs. All questions concerning the meaning and intention of the terms of this Trust Agreement and concerning the validity hereof, and all questions relating to performance hereunder, shall be adjudged and resolved in accordance with the laws of the state of Montana. 6.4 Right to Direct Investments. At any time that the Trust has investments, trustor may direct trustee to purchase, sell, or retain any trust investment. 6.5 Severability. If any portion of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 6.6 Communications. Trustor hereby states that all correspondence from the Trustee regarding the Trust shall be directed to Chan Worley Telephone number 406-247-7810 Trustee hereby states that all correspondence regarding the Trust shall be directed to Spence Hegstad Telephone number 406-444-6759. Both Trustor and Trustee agree that in the event of their respective addresses and telephone numbers are changed, each will advise the other of the change within sixty (60) days following the date of the change. IN WITNESS WHEREOF, the parties have caused these presents to be duly executed on the day and year first above written. __________________________________ By: U.S. Department of Interior, "TRUSTOR" __________________________________ By: Montana Fish, Wildlife, and Parks Foundation, "TRUSTEE" SEC. 1007. MONTANA FISH AND WILDLIFE CONSERVATION TRUST. (a) Establishment.--The Secretary, in consultation with the State congressional delegation and the Governor of the State, shall establish a nonprofit charitable permanent perpetual public trust in the State, to be known as the ``Montana Fish and Wildlife Conservation Trust'' (referred to in this section as the ``Trust''). (b) Purpose.--The purpose of the Trust shall be to provide a permanent source of funding to acquire publicly accessible land and interests in land, including easements and conservation easements, in the State from willing sellers at fair market value to-- (1) restore and conserve fisheries habitat, including riparian habitat; (2) restore and conserve wildlife habitat; (3) enhance public hunting, fishing, and recreational opportunities; and (4) improve public access to public land. (c) Administration.-- (1) Trust manager.--The Trust shall be managed by a trust manager, who-- (A) shall be responsible for investing the corpus of the Trust; and (B) shall disburse funds from the Trust on receiving a request for disbursement from a majority of the members of the Joint State-Federal Agency Board established under paragraph (2) and after determining, in consultation with the Citizen Advisory Board established under paragraph (3) and after consideration of any comments submitted by members of the public, that the request meets the purpose of the Trust under subsection (b) and the requirements of subsections (d) and (e). (2) Joint state-federal agency board.-- (A) Establishment.--There is established a Joint State- Federal Agency Board, which shall consist of-- (i) 1 Forest Service employee employed in the State designated by the Forest Service; (ii) 1 Bureau of Land Management employee employed in the State designated by the Bureau of Land Management; (iii) 1 Bureau of Reclamation employee employed in the State designated by the Bureau of Reclamation; (iv) 1 United States Fish and Wildlife Service employee employed in the State designated by the United States Fish and Wildlife Service; and (v) 1 Montana Department of Fish, Wildlife and Parks employee designated by the Department. (B) Requests for disbursement.--After consulting with the Citizen Advisory Board established under paragraph (3) and after consideration of the Trust plan prepared under paragraph (3)(C) and of any comments or requests submitted by members of the public, the Joint State-Federal Agency Board, by a vote of a majority of its members, may submit to the Trust Manager a request for disbursement if the Board determines that the request meets the purpose of the Trust. (3) Citizen advisory board.-- (A) In general.--The Secretary shall nominate, and the Joint State-Federal Agency Board shall approve by a majority vote, a Citizen Advisory Board. (B) Membership.--The Citizen Advisory Board shall consist of 4 members, including 1 with a demonstrated commitment to improving public access to public land and to fish and wildlife conservation, from each of-- (i) a Montana organization representing agricultural landowners; (ii) a Montana organization representing hunters; (iii) a Montana organization representing fishermen; and (iv) a Montana nonprofit land trust or environmental organization. (C) Duties.--The Citizen Advisory Board, in consultation with the Joint State-Federal Agency Board and the Montana Association of Counties, shall prepare and periodically update a Trust plan including recommendations for requests for disbursement by the Joint State-Federal Agency Board. (D) Objectives of plan.--The Trust plan shall be designed to maximize the effectiveness of Montana Fish and Wildlife Conservation Trust expenditures considering-- (i) public needs and requests; (ii) availability of property; (iii) alternative sources of funding; and (iv) availability of matching funds. (4) Public notice and comment.--Before requesting any disbursements under paragraph (2), the Joint State-Federal Agency Board shall-- (A) notify members of the public, including local governments; and (B) provide opportunity for public comment. (d) Use.-- (1) Principal.--The principal of the Trust shall be inviolate. (2) Earnings.--Earnings on amounts in the Trust shall be used to carry out subsection (b) and to administer the Trust and Citizen Advisory Board. (3) Local purposes.--Not more than 50 percent of the income from the Trust in any year shall be used outside the watershed of the Missouri River in the State, from Holter Dam upstream to the confluence of the Jefferson River, Gallatin River, and Madison River. (e) Management.--Land and interests in land acquired under this section shall be managed for the purpose described in subsection (b). |