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The NM State Game Commission held its second meeting of 2019 at New Mexico Tech in Socorro, NM on July 24th. There was greater than average attendance at the meeting most likely because wolves, bears, cougars, the big game draw allocation, and stream access were all on the agenda. All agenda items were listed to be heard by the Commission for discussion purposes only.
Update on the Mexican Wolf Program
The Dept. provided the Commission with an update on the Mexican Wolf program in NM/AZ as well as Mexico. The update began with a historical perspective of the biology of the species (which is a subspecies of the Gray Wolf), the listing of the species under the endangered species act, and the subsequent reintroduction efforts that began in the late 1970s up to the condition of the recovery efforts today.
According to Wildlife Chief Stewart Liley, Mexican wolf populations are currently in an exponential growth period. Minimum populations estimates are currently 131 wild wolves between the recovery zones in NM and AZ. However, according to Chief Liley that number is just a minimum estimate and true population numbers are likely higher. Most of the animals on the landscapes today are wild born or cross fostered (captive born puppies placed in a wild den within 14 days of birth). Today’s recovery efforts are boasting a 45% survival rate of puppies which basically mirrors the success of fully wild populations. With this exponential growth there have also been 114 confirmed livestock depredations so far this year. Problem wolves must be either removed and re-released elsewhere, placed into captivity, or lethally removed (in the event of a habitually troublesome wolf); all of which requires NMDGF and/or USFWS intervention and complicates recovery efforts.
Chief Liley also provided a summary of the current recovery plan which was approved by the USFWS in 2017 and accepted by the previous Game Commission. The ultimate goal of the recovery plan consists of the following criteria: the US population of Mexican wolves can be considered for “de-listing” when the wolf population reaches an abundance 320 wolves maintained over 8 consecutive years with at least 22 genetically diverse, captive bred wolves have been released into the wild and survive to “breeding age” (>2 years) AND Mexico’s Mexican wolf population achieves an abundance of 200 wolves maintained for 8 consecutive years with at least 37 genetically diverse wolves survive to breeding age.
This item was on the agenda for discussion purposes only and no action was taken by the Commission however, the Commission did ask several questions about what the recovery might look like if the NMDGF established a MOU with the USFWS to take on a more active role in the recovery efforts.
Draw Allocation Process
Chief Liley provided the Commission with a summary of how the big game draw functions. First and foremost, the Commission sets the level of take by Rule every 4 years. Every year when the application period ends for the draw, each individual application is assigned a random sequence number. A computer program then examines each application in numerical order starting with the application randomly assigned #1. When an application
is examined, the computer attempts to fulfill the first, second, then third hunt choices subject to the quotas (84% resident, 10% outfitter pool, 6% non-resident DIY).
The Dept. always runs into an issue in making this draw allocation work exactly according to the quota statute because there is an inherent flaw in the mathematics written into the law. According to the statute the Dept. must allocate a minimum of 84% to resident hunters (the 10% and 6% pool do not have that caveat). The statute also states that if the allocation results in a fraction of a tag than the Dept. shall round-up for anything over 0.5 and otherwise round down. However, mathematically it is impossible to follow both requirements in the statute. In the past the Dept. has handled this fractional remainder by adding tags to the draw. However, Department Director Mike Sloane and the new Commissioners seemingly do not wish to follow this practice in the future.
According to Chief Liley this issue can be fixed legislatively OR through rule by issuing the draw strictly based on the minimum 84% (no longer adding tags to the draw). For example, if the fraction of a tag in either the 10% pool or the 6% pool is 0.8 the Dept. would no longer “round-up” and any time the draw resulted in a fraction no tag would be issued.
There was much discussion from the Commission regarding this issue and the sentiment seemed to be that the Commission would like to see the issue corrected legislatively. What this means for the outfitting industry is that it is highly likely that the quota statute will be opened in the very near future (perhaps as soon as January 2020).
Initiation of Bear and Cougar Rule
The Dept. provided a preliminary presentation to the Commission on their proposed changes to the next 4-year cycle of the Bear and Cougar Rules. The changes will not be voted on by the Commission until November and the Commission will hear several more updates on the rule development over the next several months. The following are the current recommendations being proposed.
The Dept. has also scheduled the following public meetings to discuss the proposed changes. Please attend one of these meetings if you have an interest in hunting Bear and/or Cougar.
Landowner Certification of Non-navigable Waters Rule
The Dept. provided the Commission with a summary of the Landowner Certification of Non-navigable Waters Rule which was established by the previous Commission as a result of the “Stream Access” Law which passed in 2015. Unfortunately, the presentation made it painfully obvious that the Dept. staff does not fully understand the history behind why the legislation was necessary nor the reason why the previous Commission was required to draft a Rule to determine the navigability of waters. The Dept. misrepresented the case law that was the catalyst for the legislation back in 2015 and additionally misstated the findings of subsequent case law that deals with the Public Trust Doctrine as it relates to an existing state statute. The Dept.’s presentation created more confusion than clarity and caused a tremendous amount of frustration among those of us who have been involved in this issue since the beginning. The Commission ultimately voted to put a 90-day moratorium on the Rule to give time for yet another attorney general opinion to be acquired.
NMCOG continues to support the Landowner Certification of Non-Navigable Water Rule as it was approved in January 2018. And we also support the 30 year old NMDGF regulation (codified into law in 2015) which states that in order for an angler to walk or wade up a stream-bed (where there is private property on both sides of the waterway) they must obtain the written permission of the landowner. Below is a detailed summary regarding the basis of our support for the Law and subsequent Rule.
This issue has always been about the ownership of the stream-bed not the ownership of the water. We agree with the opponents of this law that the water of the state of NM belongs to the public. We have never wavered from this stance. If a waterway can be floated or fished from a boat without stepping onto the stream-bed than the individual has the right to recreate on the water.
The opponents of this law continue to confuse the issue by stating the Red River Valley case as their basis for disputing the statute. The Red River case attempted to ban members of the public from fishing in a lake from boats. And while former AG Gary King's 2014 opinion, which referred to the Red River case, was the catalyst that prompted the need to codify in law the NMDGF "stream access" regulation, the case does not deal with stream-bed access or the ownership of the stream-bed.
And while the opponents also point to an opinion released in 2016 by current AG Hector Balderas as further basis for their dispute of the statute; in-fact the opinion clearly states that it upholds the constitutionality of the 2015 Stream Access Law.
The 2015 Stream Access Law gave the NM State Game Commission the ability to adopt rules to establish a process for determining stream-bed ownership. The New Mexico Council of Outfitters and Guides continues to support NMAC 19.31.22 the Landowner Certification of Non-Navigable Water Rule which provides a clear process for landowners to determine whether the waters within their private property are considered navigable. If the opponents of the Stream Access Law wish to continue their dispute as to the constitutionality of the statute, they should do so in a court of law or in the Legislature.
There are several reasons that the NM guided fishing industry supports the Stream Access Law, water being the number one factor. Approximately 70% of NM's waterways are already located on public land. And of the 30% located on private land only about 10% of these are fish-able (most waterways are dependent on torrential events and are essentially dry ditch banks for ninety percent of the year). The only reason that there is such a heavy push for the public to obtain access to this 10% is because in NM the fish-able waterways on private land are world class fisheries. The reason for this is that landowners have spent thousands upon thousands of dollars, over many decades, restoring, developing, and establishing the riparian areas located within their private lands. These efforts should not be disregarded.
And because there has historically been a NMDGF regulation that stated that anglers need the permission of the landowner in order to fish in waterways on private lands, the outfitting industry has spent nearly 30 years fostering relationships with landowners to establish a multi-million dollar per year guided fishing industry. Outfitters are small business owners who contribute substantially to NM's rural economies, pay NM gross receipts taxes, and employ individuals in very rural NM communities where unemployment rates are the highest. They also provide integrity to the angling industry by protecting the pressure to the fisheries resource on private waterways. The importance of guided fishing industry to the conservation and profitability of angling in NM cannot be understated.
Odds, Ends, and Public Comment
In addition to the above agenda items the Commission also heard an update on the current and future financial condition of the Dept. including the process of making budget recommendations to the state legislature. During the general public comment segment of the meeting Brandon Wynn of Albuquerque, the NMWF, and a representative of the Back-Country Hunters and Anglers provided comments regarding the quota statute and the draw allocation. Each group implied that they feel the resident hunter is somehow being slighted in the number of tags distributed through the draw and encouraged the Dept. to attempt to change the statute.
Next Commission Meeting – August 22, 2019 (Santa Fe, NM)
COMMISSIONER CONTACT INFORMATION
(You are welcome and encouraged to contact the Commissioners any time to voice your opinion)
Joanna Prukop - Chairwoman
District 4: Santa Fe, Taos, Colfax, Union, Mora, Harding, Quay, San Miguel, Guadalupe and Torrance counties.
Roberta Salazar-Henry – Vice Chairwoman
District 2: Catron, Socorro, Grant, Hidalgo, Luna, Sierra and Doña Ana counties.
District 1: Curry, De Baca, Roosevelt, Chaves, Lincoln, Otero, Eddy and Lea counties.
District 3: San Juan, McKinley, Cibola, Valencia, Sandoval, Los Alamos and Rio Arriba counties
District 5: Bernalillo county.
Appointed At-large – Conservation Position