Texas Parks and Wildlife Commission
Regulations Committee Meeting
November 7, 2001
Commission Hearing RoomTexas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744
1 7 BE IT REMEMBERED that heretofore on the 8 7th day of November 2001, there came on to be 9 heard matters under the regulatory authority of 10 the Parks and Wildlife Commission of Texas, in 11 the commission hearing room of the Texas Parks and 12 Wildlife Headquarters complex, Austin, Travis 13 County, Texas, beginning at 9:35 a.m., to wit: 14 15 APPEARANCES: 16 THE PARKS AND WILDLIFE COMMISSION: REGULATIONS COMMITTEE 17 Chair: Katharine Armstrong Idsal, San Antonio, Texas Ernest Angelo, Jr., Midland, Texas 18 John Avila, Jr., Fort Worth, Texas (absent) 19 Carol E. Dinkins, Houston, Texas (absent) Joseph Fitzsimons, San Antonio, Texas, 20 Committee Chair Alvin L. Henry, Houston, Texas 21 Philip Montgomery, III, Dallas, Texas (absent) 22 Donato D. Ramos, Laredo, Texas Mark E. Watson, Jr., San Antonio, Texas 23 THE PARKS AND WILDLIFE DEPARTMENT: 24 Andrew H. Sansom, Executive Director, and other personnel of the Parks and Wildlife 25 Department. . 2 1 NOVEMBER 7, 2001 2 *-*-*-*-* 3 REGULATIONS COMMITTEE MEETING 4 *-*-*-*-* 5 CHAIRMAN IDSAL: The meeting is 6 called to order. Before proceeding with any 7 business, I believe Mr. Sansom has a statement to 8 make. 9 MR. SANSOM: Madam chairman and 10 members of the Commission, a public notice of this 11 meeting containing all items on the proposed 12 agenda has been filed in the office of Secretary 13 of State, as required by Chapter 551 of the 14 Government Code and referred to as the Open 15 Meetings Law. 16 I would like for this action to be 17 noted in the official record of the meeting. 18 CHAIRMAN IDSAL: All right. What's 19 next, Andy? I turn it over to the regulations 20 committee. Is that right? 21 MR. SANSOM: Yes, ma'am. 22 CHAIRMAN IDSAL: Joseph, with that. 23 I'm going to hand the meeting over to you. 24 COMMISSIONER FITZSIMONS: Thank you, 25 madam chair. The regulations committee -- first . 3 1 item on the agenda for the regulations committee 2 is the approval of the committee minutes from the 3 previous meeting. 4 COMMISSIONER FITZSIMONS: I have one 5 correction or clarification. Item 2, deer 6 management permit proclamation and the 7 presentation by Doctor Jerry Cooke. In the end of 8 the first paragraph, there's reference to the 9 release date of April 1st being amended regarding 10 the deer management permit. In the next paragraph 11 it suggests that the April 1 date also refers to 12 the deer management permits. 13 In consulting with Doctor Cooke, I 14 believe what was intended is that that second 15 April 1st date in the second paragraph relates to 16 Triple T. If that can be made clear, then those 17 two paragraphs will read correctly. 18 Anyone else have any changes to the 19 minutes of the regulations committee? 20 Okay. None. I need a motion to 21 approve the minutes. 22 COMMISSIONER RAMOS: I so move with 23 the suggested amendment. 24 COMMISSIONER MONTGOMERY: Second. 25 COMMISSIONER FITZSIMONS: All in . 4 1 favor? All opposed in same sign. Motion carried. 2 And the next item will be the 3 chairman's charges. 4 AGENDA ITEM NO. 1: BRIEFING - CHAIRMAN'S 5 CHARGES. 6 MR. SANSOM: I would only like to 7 point out, Mr. Chairman, that a couple of the 8 items on your agenda today relate directly to 9 authority given the department by the 77th 10 Legislature, those being the closed season for 11 crab traps and the floating cabins. 12 In addition, I want to make you 13 aware that as a result of direction from the 14 Sunset deal, the coastal fisheries division is 15 continuing its examination of the shrimp industry, 16 particularly with respect to economics. And we 17 anticipate reporting to you on that in due time. 18 Thank you. 19 COMMISSIONER FITZSIMONS: Thank you, 20 Andy. Now, as to the second -- or third item on 21 the agenda, "Closed Season for Crab Traps in Texas 22 Coastal Waters. Hal? 23 AGENDA ITEM NO. 2: BRIEFING "CLOSED SEASON" 24 FOR CRAB TRAPS IN TEXAS COASTAL WATERS. 25 MR. OSBURN: Thank you, Mr. . 5 1 Chairman, members. I'm Hal Osburn, coastal 2 fisheries division director. I'd like to present 3 to you for final action proposed rule changes for 4 the crab trap fishery. 5 These rules are primarily intended 6 to address the problem of abandoned or lost traps. 7 We do estimate that we have tens of thousands of 8 these derelict traps in our bays that continue to 9 kill crabs and other species. 10 They make a navigational hazard and 11 they also are an eyesore. Law enforcement has 12 been able to clean up several thousand of these 13 traps every year, but it is very labor intensive. 14 And to aid the department, the 15 Legislature this year provided the Commission new 16 authority. We're going to establish a ten to 30 17 day closure of the trap fishery. And during that 18 time, volunteers can aid the department in the 19 trap removal. 20 Staff worked with members of the 21 crab and fin fish fishery that are affected by 22 this rule earlier this summer. And we developed a 23 consensus on how the program should be structured. 24 The proposals that we had for you are basically a 25 16-day coast-wide closure of all crab traps, both . 6 1 commercial and recreational. 2 During the first seven days of the 3 closure, only game wardens would be able to 4 legally remove abandoned traps from the waters. 5 But during the last nine days, abandoned traps 6 would be defined as litter and they could be 7 removed by anyone. 8 Staff also concurs with the crab 9 industry members and their request to delete the 10 30-day dating requirement on the trap gear tag. 11 This will increase their efficiency without 12 compromising any of our conservation efforts. 13 We held six public hearings along 14 the coast. We got input from 23 people. 15 There was widespread support for a 16 closure, but the majority of comments we received 17 did favor shortening the closure to the minimum of 18 ten days to reduce the disruption of the fresh 19 crab markets. However, a vast majority of the 20 comments did favor removing the gear tag date 21 requirement. 22 After reviewing these comments, 23 staff continues to recommend the originally 24 proposed rule changes. We believe that an 25 effective trap removal program during the first . 7 1 year will require us to have two weekends at a 2 minimum to take advantage of the volunteer 3 efforts, and that would require a 16-day closure. 4 We have already begun advanced 5 planning for the cleanup program. We anticipate 6 that we're going to have hundreds of volunteers. 7 And we're looking forward to a successful effort. 8 We will review the success of this first year, if 9 you approve this. 10 And we will report back to you on 11 the successes and the impacts and any 12 modifications that we might need to make. That 13 concludes my presentation. I'll be happy to 14 answer any questions. 15 VICE-CHAIR ANGELO: What kind of 16 input did you feel like you got from the crabbing 17 industry? I mean, that wasn't very many people, I 18 guess, or did that represent a fairly 19 significant -- 20 MR. OSBURN: Actually, the only 21 one -- we had six hearings, and I believe three of 22 them had no shows. And the majority of folks came 23 to the one in Sea Drift, our Asian-American 24 crabbers attended that with about 16 people. 25 But we think that most of our . 8 1 efforts with the industry, beginning basically 2 last winter before the legislative session and 3 working through the legislative session to get the 4 bill passed, and then this summer when we met 5 several times with the advisory committee, and 6 those folks outreached back to their own 7 communities, provided the best input that we had. 8 And so I interpret the low turnout 9 at the public hearings as really sort of, it's a 10 done deal. We really don't need to do much on 11 this. 12 VICE-CHAIR ANGELO: So even though 13 the impression might be that we didn't get a lot 14 of input, you actually had a lot of input and -- 15 MR. OSBURN: Yes, sir. 16 VICE-CHAIR ANGELO: -- another 17 conclusion could be that they're satisfied 18 generally with what we're proposing to do. 19 MR. OSBURN: I believe they are. 20 Certainly, there's some concerns being the first 21 year. But I think given that this will be the 22 first ever closure of crabbing in Texas waters, 23 that we actually have got a phenomenal amount of 24 support in going forward with this. And I 25 anticipate that some of the industry members will . 9 1 be here tomorrow to testify in favor. 2 COMMISSIONER FITZSIMONS: Is it fair 3 to say that the shorter closure would not be an 4 effective or representative test of this program? 5 MR. OSBURN: The -- yes, sir. You'd 6 be putting all your eggs in one basket on that one 7 weekend where the weather, of course, in February, 8 March is very unpredictable. If we got a front 9 through or high winds, we wouldn't -- the boats 10 wouldn't be able to get out. 11 And so there's also -- obviously, 12 this will be the highest level of abandoned traps 13 we ever encounter, we hope. The limited entry 14 program and a few other things should basically 15 diminish the number of abandoned traps in the 16 future. 17 So this will be the first year we've 18 had a lot of enthusiasm. And we don't want to 19 have everybody ready to go but no time to go. 20 COMMISSIONER FITZSIMONS: Any 21 further questions from Mr. Osburn? If there are 22 no further questions or discussion, without 23 objection, I'll place this item on the Thursday 24 commission meeting agenda for public comment and 25 action. . 10 1 Next, floating cabins. Dennis? 2 AGENDA ITEM NO. 3: BRIEFING - FLOATING CABINS 3 MR. JOHNSTON: Thank you, Mr. 4 Chairman, committee members. My name is Dennis 5 Johnston, chief of marine enforcement. The 77th 6 Legislature through Senate Bill 1573 delegated to 7 Texas Parks & Wildlife Commission the authority to 8 regulate floating cabins moored in coastal waters. 9 The statutory requirements for the 10 issue of these permits included eligibility, 11 application requirements, fees, criminal and civil 12 penalties, location restrictions, and a cabin 13 removal process. 14 Senate Bill 1573 also provides 15 regulatory authority to the Commission for 16 implementation of this program. Proposed 17 regulations to implement this program were 18 published in the Texas Register for public comment 19 on October the 5th, 2001. 20 Two public meetings were conducted, 21 one in Dickinson, Texas and one in Corpus Christi, 22 Texas, and were attended by 93 persons. And 23 additional comments were taken on the web page, 24 Texas Parks & Wildlife web page. 25 Comments on the proposals were . 11 1 generally positive only minor changes were 2 requested from these comments at these hearings 3 and on the web page. These public comments have 4 been incorporated in the proposed rules and I will 5 tell you about those when we come to them. 6 Proposed language in 31 TAC 55200 7 floating cabins will establish an annual permit 8 period of September 1 through August 31. Renewal 9 will require an application and renewal within 90 10 days of expiration. Rules will require 11 notification of department prior to the sale of 12 the cabin and require the new owner to submit a 13 transfer application to the department upon 14 purchase of that cabin. 15 And we've also established a 16 relocation process to include a department 17 application and requirement to restrict the 18 location to two times a year except on show of 19 cause acceptable to the department. 20 Cabin owners may remove floating 21 cabins from coastal water for repairs and relocate 22 upon threat of natural disaster. We did go back 23 based on comment from these hearings and clarify 24 the ability to move those cabins when there is 25 imminent threat of a tropical storm, anything that . 12 1 would damage those cabins. And they do not need 2 to seek permission to do it. They can move it at 3 that time. And then once that threat is gone, 4 replace it back at the permitted location at that 5 time. 6 We will restrict floating cabins 7 from relocating within 500 feet of a floating 8 cabin or structure permitted by the Natural 9 Resource Commission under Chapter 33 and not 10 within 250 feet of a pipeline. 11 There is a change in the restriction 12 from location within 500 feet of a floating cabin 13 we had originally requested 1,000 feet. Comments 14 were generally that that is too restrictive. They 15 all felt like there should be some restriction, 16 where there is none now. But they felt like a 17 thousand feet was too restrictive and it would 18 cause some of them, especially in the areas of 19 bath and bay, to be have to be placed in areas 20 that might create some hazard to navigation. So 21 we changed that part of it. 22 Marking requirements will consist of 23 the permit number with the prefix FC followed by a 24 three-digit permit number and a validation sticker 25 on two opposite sides of the cabin. . 13 1 For safety purposes, we will require 2 an orange reflector measuring a minimum of three 3 inches to be mounted on each side -- on each end 4 of each side of the cabin. That's a total of 5 eight reflectors. 6 We did receive a comment on based on 7 you're original proposal that reflected nine 8 square inches of reflection, which is three inches 9 by three inches. And they felt like that was -- 10 they would be hard to find. The round three-inch 11 reflector is readily available at any hardware 12 store anywhere that they look. So we did make a 13 change there to meet those comments. 14 Regulations provide for our cabin 15 purchase program with an open bid period as set by 16 the department, provides criteria to determine 17 established maximum value based on the size of the 18 cabin, previous bid offers, and established market 19 prices. 20 We also defined in these proposals a 21 marine sanitation device to be a device designed 22 to facilitate the transport of sewage for lawful 23 on-shore disposal. 24 We require permanent installed 25 marine sanitation devices to be constructed to . 14 1 prevent overboard discharges and removal of 2 liquid-type container for an on-shore disposal. 3 We also restricted the pumping of 4 sewage to legally authorize pumpout facilities. 5 Anything that's certified by the Health Department 6 as far as a sewage system, pumpout facilities, or 7 conveyances that are in the business for pumping 8 out these facilities would be able to do this if 9 they are -- if they meet the requirements. 10 We have received a total of 150 11 applications for floating cabin permits and 12 identified approximately 33 that we do not have 13 applications for. We are in the process of -- at 14 this time, of conducting the final inspections of 15 these applications. And at the end of this 16 commission hearing, we should start issuing 17 permits by the end of the month to the cabin 18 owners. 19 We will be attempting to determine 20 the ownership of the cabins that are in violation 21 of the statute and notify -- if we can determine 22 who the owners are, and notify them that they are 23 in violation, that the cabin is about to be 24 removed. We will place notices on the cabins to 25 make sure that anybody sees them, knows it is a . 15 1 violation to use those cabins or be on them. 2 That concludes my comments. I'd be 3 happy to answer any questions. 4 CHAIRMAN IDSAL: I have a question, 5 Joseph. Can you tell me something about those 33 6 cabins that have not put in their applications? 7 Are they different in way? Are they run down? 8 Are they abandoned? Can you give me some kind of 9 idea? 10 MR. JOHNSTON: I would say the 11 majority of them are in disrepair, appear not to 12 be used. There may be -- the way we determined 13 that was we had the game wardens go back out and 14 check every cabin on the coast from one end of 15 Texas to the other and determine what was there 16 and take pictures; take GPS coordinates, again, of 17 where they were and send those in. 18 And we tried to compare the pictures 19 that we got back with the applications that we 20 got. And some of the applications that we 21 received had photographs that were taken some 22 years back. They didn't take new ones. They sent 23 in old photographs. And it was -- we were not 24 able to determine for sure that some of that 33 25 may not be -- we could have applications for some . 16 1 of that 33. But at this time, that appears to be 2 the number that's out there. And it's really less 3 than we anticipated. 4 CHAIRMAN IDSAL: I also want to 5 comment on the change in the numbers from the last 6 meeting. And this is a significant rise in the 7 number of applications. I think there was some 8 concern expressed. 9 MR. JOHNSTON: It is. There were a 10 number of cabins that were built to meet the 11 deadline. There are brand-new cabins out there. 12 The value of the cabins is going to be more in the 13 future because it's limited to this number. There 14 will never be more than 150 cabins out there, 15 so... 16 CHAIRMAN IDSAL: Thank you. 17 COMMISSIONER RAMOS: I have a 18 question. What is the penalty for violating the 19 regulation? 20 MR. JOHNSTON: It's a Class C 21 misdemeanor. After two violations, it becomes -- 22 the second violation becomes a Class B 23 misdemeanor. 24 COMMISSIONER RAMOS: And do we also 25 have the right to physically remove a cabin that's . 17 1 in violation? 2 MR. JOHNSTON: Yes, we do. We can 3 place the owners on suspension, suspend the permit 4 in those cases. And once they have received 5 notice to remove those cabins and don't do it, 6 then we have, under the statute, have the 7 ability -- the Commission has the ability to 8 impose a thousand dollar a day penalty for failure 9 to remove that cabin, plus it is a criminal 10 violation to also not remove that cabin. 11 COMMISSIONER RAMOS: Thank you. 12 COMMISSIONER HENRY: Would you speak 13 to the change in distance requirements that you 14 spoke to a moment ago from a thousand back to 500? 15 And I was wondering, what is -- what is reasonable 16 and how -- what is the final decision -- how is it 17 being received? 18 MR. JOHNSTON: The 500 feet was 19 acceptable. There were a few comments that we 20 request 300 feet. But most of them felt like a 21 thousand feet was too far. 22 At the present time, there is no 23 requirement for a distance. They can put them 24 within ten feet of the next cabin to them. A 25 thousand feet was really an arbitrary figure . 18 1 that -- based on comments that we had put together 2 for the proposal. In talking to -- 3 COMMISSIONER HENRY: That was my 4 concern, cutting it in half. I wondered what the 5 impact of that would be, and it seemed to be 6 fairly substantial, a substantial reduction. 7 MR. JOHNSTON: And they seemed to be 8 agreeable to that. There were several comments 9 that they felt like that was -- they wanted some 10 separation but not as much as a thousand feet. 11 COMMISSIONER HENRY: So the 500 was 12 acceptable, you think, for the majority? 13 MR. JOHNSTON: I feel like it's very 14 acceptable, yes. 15 COMMISSIONER HENRY: Thank you. 16 COMMISSIONER FITZSIMONS: Dennis, at 17 our last committee meeting, there was quite a bit 18 of discussion about inspection upon transfer of 19 any of these permits from one holder to the other. 20 Has that changed? 21 MR. JOHNSTON: Yeah. We require 22 them to -- an application from them. Of course, 23 the statute allows them to transfer that at any 24 time, basically, is what the statute allowed. 25 We are, through regulation, . 19 1 requiring them to notify us before the owner sells 2 it and also the purchaser has to send us an 3 application with all the information that we would 4 need to continue that permit. 5 We can inspect the cabins at any 6 time and will continue to inspect them to make 7 sure that they fit all those regulations. 8 As far as the condition of the 9 cabin, there is no regulatory authority to take 10 condition of the cabin. But as far as 11 inspections, yes, we can do that every time we get 12 an application for a transfer. 13 COMMISSIONER FITZSIMONS: So just as 14 a policy matter, you can -- 15 MR. JOHNSTON: That's correct. 16 COMMISSIONER FITZSIMONS: As a 17 practice and policy, you can do an inspection 18 before the transfer. Because that was a concern 19 of some of the commissioners at the last meeting, 20 that some of these would be transferred under a 21 condition that didn't meet the requirements. 22 MR. JOHNSTON: And they will have to 23 meet those requirements at all times, and we will 24 continuously inspect those cabins to see that they 25 do that. . 20 1 COMMISSIONER FITZSIMONS: Okay. And 2 one last question. It's a $1500 bond. Is that 3 right? 4 MR. JOHNSTON: A $1500 bond was 5 initially required to be submitted by August 31st. 6 That's correct. 7 COMMISSIONER FITZSIMONS: All right. 8 So the cost of removing and disposing of the 33 9 that presumably will not be permitted will be -- 10 obviously, they don't have $1500 bond. That will 11 have to be absorbed by -- 12 MR. JOHNSTON: That's correct. That 13 money will have to be generated from gifts and 14 donations. There was no money provided to do 15 that. The legislative intent under clarification 16 on the $1500 deposit is that that deposit stays 17 with that cabin as long as the original owner owns 18 that cabin. Once it is transferred to a new 19 owner, then that $1500 becomes eligible to be used 20 to remove cabins. 21 COMMISSIONER FITZSIMONS: And a new 22 bond is put up by the new owner. 23 MR. JOHNSTON: No. There's no 24 requirement for a new bond. 25 COMMISSIONER FITZSIMONS: Does that . 21 1 mean that you could end up with more unbonded 2 cabins to remove, then? 3 CHAIRMAN IDSAL: So let me 4 understand this. Every time you transfer 5 ownership, you forfeit the bond money that is 6 attached to that cabin. 7 MR. JOHNSTON: That's correct. 8 VICE-CHAIR ANGELO: So that's 9 forfeited to the State. 10 MR. JOHNSTON: Forfeited to the 11 State. 12 CHAIRMAN IDSAL: No new bond is 13 required. So there could be unbonded cabins out 14 there in the future. 15 MR. JOHNSTON: That's correct. That 16 $1500 bond was for the original permit to be 17 issued. It had to be placed into that account for 18 that issue. But there was no provision to require 19 a $1500 bond once it's transferred to someone. 20 CHAIRMAN IDSAL: Can you enlighten 21 us on why that might be? 22 MR. JOHNSTON: I wish I could. I 23 really don't have any idea. 24 COMMISSIONER FITZSIMONS: So it 25 sounds as if you better keep that first 1500 until . 22 1 your -- until the final disposition of the cabin. 2 VICE-CHAIR ANGELO: Is that going to 3 the State's general fund or into some specific 4 fund? 5 MR. JOHNSTON: It stays in an account 6 of the general fund -- 7 VICE-CHAIR ANGELO: But it does stay 8 in the account. 9 CHAIRMAN IDSAL: So it will be 10 segregated? 11 MR. JOHNSTON: Yes, it is. 12 CHAIRMAN IDSAL: Okay. 13 COMMISSIONER FITZSIMONS: So that 14 ought to work. 15 MR. JOHNSTON: Yeah. They have 16 indicated some very -- some concern about making 17 sure that that stays in that fund and how that 18 fund was -- account was set up. 19 COMMISSIONER FITZSIMONS: Any 20 estimate in the cost removal and disposing of one 21 of these? Obviously, it depends on the size of 22 the -- 23 MR. JOHNSTON: There is so much 24 difference in one cabin to another. There are 25 some that are steel barges that are very large. I . 23 1 understand the CCA was involved in getting a 2 grant, $500,000 grant in removing one, and I heard 3 an estimate of $75,000 to have it removed. I 4 don't know that that's true. But there could 5 be -- some of these could be very expensive to 6 remove. 7 COMMISSIONER FITZSIMONS: Well, it 8 reads to the next question, which is, I presume 9 that we can sell them, salvage them if that -- 10 MR. JOHNSTON: The purchase program 11 is to purchase the cabin, and you get the permit 12 along with that cabin. It has to be removed and 13 Texas Parks & Wildlife can use their normal 14 process for destroying that or whatever, selling 15 it. 16 COMMISSIONER RAMOS: Is there any 17 reason why we could not forfeit the cabin in place 18 and then sell it in place to avoid the cost of 19 removing it, when it's going to go right back. 20 MR. JOHNSTON: I'm sure that would 21 be a possibility. 22 COMMISSIONER RAMOS: Then you would 23 eliminate the cost of having to move it and put it 24 back in. 25 Now, the next question is, if, in . 24 1 fact -- I guess if someone forfeits his cabin, you 2 necessarily forfeit that location. Correct? And 3 then how do you go about in assigning that? First 4 come, first serve? 5 MR. JOHNSTON: Locations are first 6 time, first served. That's correct. Where they 7 are now, if they decide to relocate, they give up 8 where they are. They don't have a right to go 9 back to that location. 10 So they -- in a relocation process, 11 they will notify us where they want to go, give us 12 the GPS coordinates, then we will survey that 13 location to make sure that it's not a threat to 14 the resources. And then once we okay it, then 15 that's where they have to move it and we'll check 16 it to make sure that it's where it's supposed to 17 be. 18 COMMISSIONER RAMOS: And we have a 19 mechanism in place to where you give notice to the 20 record owner prior to forfeiture any certain 21 procedure that we follow? 22 MR. JOHNSTON: Yes, that's required 23 in statute. 24 COMMISSIONER FITZSIMONS: And to 25 follow up Commissioner Dinkins' lead, refer to . 25 1 them as permittees rather than owners. 2 COMMISSIONER RAMOS: Well, they're 3 owners of the cabin. 4 COMMISSIONER FITZSIMONS: She made 5 it pretty clear they don't have a property right. 6 Any other questions on this -- on 7 the subject of floating cabins? 8 Then no further questions or 9 discussion, without objection, I'll place this 10 item on the Thursday commission meeting agenda for 11 public comment and action. 12 Thank you very much, Dennis. 13 MR. JOHNSTON: Thank you. 14 COMMISSIONER FITZSIMONS: Next is a 15 preview, briefing on statewide hunting and fishing 16 regulations. Phil Durocher and Hal -- they've 17 misspelled your name here. I don't know how -- 18 Hal Osburn and Gary Graham. 19 AGENDA ITEM NO. 4: BRIEFING - STATEWIDE HUNTING 20 AND FISHING REGULATIONS PREVIEW 21 MR. DUROCHER: Mr. Chairman, 22 commissioners, for the record, my name is Phil 23 Durocher. I'm with the inland fisheries division. 24 The proposals that we are going to 25 bring to you today are a year-long process that we . 26 1 go through in our division to review these 2 proposals. They are originally brought forth by 3 the staff and they go through an intensive peer 4 review. If they make it through that review, they 5 are reviewed by the senior staff and the advisory 6 board. And once they make it through that review, 7 then they are generally consulted with the 8 constituents. 9 Before talking about specific 10 issues, specific proposal, I'd like to spend a few 11 minutes discussing harvest regulations and their 12 use. Harvest regulations are one of the most 13 valuable management tools we have to manage 14 fisheries in inland fisheries. There's really 15 only three things that we can do to manage a 16 fishery: harvest regulations, stocking, and 17 habitat manipulation. 18 Although we do some habitat 19 manipulation work, that's generally the thing we 20 have less control over. Things like water quality 21 and water availability, which we have absolutely 22 no control over. And the two main tools that we 23 use are stocking and regulations. 24 Now, we use regulations to 25 restructure populations, fish populations towards . 27 1 goals. And these goals are based on fish 2 population dynamics and angler catch rates. 3 Since bass are the most important 4 species in the state, they are the species that's 5 preferred by about 60 percent of our anglers, I'm 6 going to talk a little bit about bass management 7 and our strategies. 8 Our bass regulations are designed to 9 address one of four strategies. The first one is 10 optimum sustained catch and harvest, which is 11 basic. Emphasis here on harvest, allowing some 12 harvest. 13 The second strategy is optimum 14 sustained catch and harvest with enhanced quality. 15 And here we're trying to produce just a little bit 16 larger fish, but still the focus is on harvest. 17 The third one, which is -- the last 18 two are less emphasis on harvest, is quality bass 19 fishing with enhanced trophy potential. 20 And the last one, of course, is 21 maximize trophy potential. Under strategy 1, 22 optimum sustained catch and harvest, the 23 regulations that we use to try to achieve that 24 goal are 14-inch and 16-inch minimum length 25 limits. The 14 inch is the statewide regulation. . 28 1 And this picture gives you what a bass population 2 would ideally look like under a 14-inch minimum. 3 The second strategy is optimum 4 sustained catch and harvest. Again, focus on 5 harvest with enhanced quality. The regulations 6 that we use to reach the goal of that strategy are 7 the 18-inch minimum, the 14- to 18-inch slot limit 8 and the new regulation you approved last year, no 9 minimum limit, with only two under 18 inches. 10 Again, this chart shows ideal bass 11 population under a 14- to 18-inch slot limit. 12 But, again, the focus here is on harvest and some 13 measure of quality. 14 Our third strategy is quality bass 15 fishing with enhanced trophy potential. And the 16 regulations we use there are 14- to 21-inch slot 17 limit and catch and release. Again, this chart 18 shows what a population -- what we hope a 19 population looks like under a 14- to 21-inch slot 20 limit. 21 And our last strategy is maximize 22 trophy potential. And the regulations we use 23 there are the 14- to 24-inch slot and the 16- to 24 24-inch slot. And, again, the chart shows a bass 25 population with the 14- to 24-inch slot. . 29 1 Now, what this chart shows are the 2 numbers and percentages of the major reservoirs in 3 Texas that are currently managed under each of 4 these strategies. We're sometimes accused of 5 managing for trophies in the state of Texas, but I 6 think the actual results here don't support that 7 contention. 8 As you can see here, 92 percent of 9 the lakes in Texas, the reservoirs in Texas, are 10 managed to optimize catch and harvest. And only 8 11 percent -- or 2 percent really are maximized 12 trophy potential. 13 The four proposals that follow are 14 the ones that made it through the -- through our 15 annual process and are the ones on the table at 16 this time. And let me just say, because we've had 17 some habitat changes, particularly in West Texas, 18 we had some reservoirs that caught some water this 19 past spring, we're still looking at one or two 20 other lakes that biologists are preparing 21 proposals, and we might add several lakes to the 22 list when we make our official recommendations to 23 you in January. 24 The first proposal this year, these 25 next two are the bass proposals, are at Gibbins . 30 1 Creek Reservoir, which is a 2500 acre power plant 2 reservoir in Grimes County, we're recommending to 3 change the limit for large-mouthed bass from catch 4 and release only, which it is now to a 14- to 5 24-inch slot limit. 6 And we're doing this at the request 7 of the Texas Municipal Power Agency who owns the 8 lake. They are building -- they have plans to add 9 a lot of camping facilities at the reservoir, and 10 they would like anglers who fish there to be able 11 to keep a few fish to eat when they are camping. 12 So we have no problem with that and we are making 13 this recommendation at their request. 14 The second is bass change Brushy 15 Creek Lake in Williamson County, a small 39-acre 16 lake. And we're asking that this lake be opened 17 with an 18-inch minimum length limit for 18 large-mouthed bass. 19 Again, the goal here is to protect 20 bass from initial overharvest that generally 21 occurs when a new lake is opened. This is 22 standard that the regulation we apply on new lakes 23 as they're opened in Texas. 24 The third proposal is for red drum. 25 And this is for Coleto Creek reservoir in Goliad . 31 1 and Victoria Counties. It's a 3100-acre 2 reservoir. And what we're asking is to change the 3 current regulation on that reservoir from the 20- 4 to 18-inch reverse slot, which is the limit that's 5 on the coast for red drum, to a 20-inch minimum, 6 which is the standard regulation that we use on 7 red drum in fresh water lakes. We have red drum 8 now that are being stocked. And with the addition 9 of Coleto Creek, in seven lakes in the state of 10 Texas, and we generally manage those with a 11 20-inch minimum. 12 There's no reproduction there and we 13 don't want people taking the fish when they're too 14 small. 15 The last one on the table this year 16 is Purtis Creek State Park Lake. It's in 17 Henderson County. It's one of our more popular 18 fishing lakes at state parks. And we're asking to 19 change the regulation on sun fish from a 7-inch 20 minimum 25 fish a day to a no minimum and no daily 21 bag. 22 Our goal here is to simplify 23 regulations. We experimented with this 7-inch 24 minimum to see if we could create a quality sun 25 fish fishery in this lake. And after five years, . 32 1 it has not done what we expected it to do, so 2 we're recommending that this be moved back to the 3 statewide regulation. 4 And that concludes my presentation. 5 I'll be glad to answer any questions. Thank you. 6 COMMISSIONER FITZSIMONS: Thank you, 7 Phil. 8 Hal, you're up again. 9 MR. OSBURN: Thank you, Mr. 10 Chairman, members. I'm Hal Osburn, coastal 11 fisheries division director. 12 I'd like to brief you today on 13 several items that staff has been gathering 14 information on for possible changes to the 15 statewide hunting and fishing proclamation. 16 At the top of our list is the 17 management of our spotted sea trout, which 18 together with red drum, has created a premier 19 sport fishery on the Texas coast. 20 And I need to tell you it wasn't 21 always that way. It's taken two decades of 22 conservation and stocking efforts to reach the 23 current peak in trout abundance that we've 24 measured with our monitoring programs. 25 It should also be noted that we . 33 1 still likely have the potential for even higher 2 population levels with further conservation 3 efforts and gains in proficiency in our 4 stocking program. But at present, our monitoring 5 program has documented that we have record high 6 spawning biomass. 7 We also know from our creel surveys 8 that trout landed today are twice as large as in 9 the early 1980s. And anglers are flocking to the 10 coast to take advantage of this success story. 11 Trout are the primary bay fish targeted with over 12 one million fish landed each year. 13 The conservation success can be 14 compromised if management doesn't address changes 15 in the fishery. And changes have been occurring, 16 with increases in fishing pressure and efficiency. 17 One of the first biological complications of this 18 has been a decrease in the proportion of large 19 trout, which means basically that trout on average 20 now are not living as long. 21 Trout can live for nine years and 22 they can grow to 30 plus inches. They begin 23 spawning at one year old, and that's about 12 24 inches. And our current 15-inch minimum size 25 limit means that we're starting to harvest the . 34 1 fish when they're about two years old. 2 The vast majority of our anglers are 3 bringing in trout that are less than 20 inches. 4 That 20-inch fish is about four years old or less 5 than half of their life span. 6 Some anglers have inquired of us how 7 we could better take advantage of the trout's long 8 life and fast growth. And certainly there is the 9 potential for doing that. 10 The first question that needs to be 11 answered, however, is do anglers want larger trout 12 at the expense of catching fewer, smaller trout? 13 And the answer to that question is complicated by 14 very real differences among angler types and the 15 populations in different bay systems. 16 Staff's goal in this scoping effort 17 that we began this summer has been not to advocate 18 a position, but, rather, provide scientific 19 information so that our stakeholders could make an 20 informed opinion. 21 We already have had a lot of input, 22 a wide variety from up and down the coast. We've 23 gotten both pros and cons. We believe that we 24 need to extend our scoping efforts through next 25 year to more fully educate and receive input from . 35 1 our constituents on this issue. 2 But I did want to go over some of 3 the management options. And I hope you'll see 4 some similarities in what Phil was telling you. 5 Raising the -- raising the minimum size is a tried 6 and true method for increasing spawning success in 7 size of fish landed. One thing that is contingent 8 on is that we have good release mortality and we 9 do have a number of scientific studies that all 10 confirm a 90 percent plus survival rate of 11 released trout. 12 Raising the minimum size, for 13 example, from 15 to 16 inches would allow trout 14 for grow about three months longer but they would 15 gain about 27 percent in weight. 16 For those fish that reach larger 17 size, optimal management suggest that they be 18 distributed among more anglers for a longer period 19 of time. One per day, for example, over a maximum 20 size of 24 to 26 inches, which is about a 5 to 21 6-pound trout, would give all anglers a greater 22 likelihood of hooking a trophy fish. 23 Currently 92 percent of private boat 24 anglers and 76 percent of guide boat anglers land 25 six or less fish per day. And that's trout. . 36 1 Lowering the bag would help more fish to live to a 2 larger size, but there is an important 3 consideration, psychological, in terms of what the 4 bag limit is for our coastal tourists. And we 5 want to -- we want to scope that -- the 6 implications there for an additional amount of 7 time. 8 Another suggestion that we've heard 9 even from numerous guides and guide groups is 10 reducing the guide limit to zero. Our studies 11 indicate that guide boat trout landings would drop 12 about 10 percent with this proposal. 13 I need to tell you that guided boat 14 trips have been one of the areas of strongest 15 growth in fishing pressure. And I think that's 16 due in part to the success -- successful rebound 17 of our trout and red fish populations, which has 18 created a very strong customer base for these 19 guides. 20 With these three-fold increase in 21 licensed customer guides will be an area for 22 future management attention. We've already heard 23 several viable idea from the guides. One is that 24 the currently required Coast Guard certification 25 for being a guide on navigable waters would be . 37 1 required to be shown before they could get a Parks 2 & Wildlife guide license. A vessel ID and an 3 increase in the current $75 license fee are other 4 issues that need to be considered. 5 But these issues do have statewide 6 ramifications because our current guide license is 7 valid in both inland and saltwater. So the 8 coastal staff is going to work with -- 9 cooperatively with the inland staff and we're 10 going to evaluate our -- the guide license changes 11 options for you that we can bring back to you 12 later next year, hopefully in sort of coordination 13 with our trout regulations. 14 The last issue that we are scoping 15 and anticipate providing you some recommendations 16 in January relates to that petition that we heard 17 from the folks from the Sabine Lake area last 18 November. The Commission denied that with the 19 intent that we look at it closer. We are doing 20 that. 21 And it basically revolves around the 22 concern in Sabine Lake locally that the Louisiana 23 limit of trout, which is 25 12-inch trout is being 24 abused on the Texas side of the lake. And the 25 possible resolution there is to require that all . 38 1 fish landed in Texas saltwater conform to the 2 Texas limits. 3 That concludes my presentation. 4 I'll be happy to answer any questions. 5 VICE-CHAIR ANGELO: Mr. Chairman, I 6 had a question regarding -- this is -- I didn't 7 understand exactly what you meant by eliminate the 8 guide limit. That's -- 9 MR. OSBURN: The guides have 10 suggested -- some of the guides have suggested 11 that their bag limit would go to zero when they're 12 on an actual fishing trip. And probably the way 13 they would want it structured would be that there 14 would be boat limit that be the daily bag times 15 the number of paying customers. 16 VICE-CHAIR ANGELO: So the guide 17 himself wouldn't have a limit. I see what you're 18 saying. 19 MR. OSBURN: Yes, sir. 20 VICE-CHAIR ANGELO: Okay. I 21 understand. Makes sense. 22 COMMISSIONER FITZSIMONS: Thank you. 23 And Gary Graham. 24 MR. GRAHAM: Chairman and members of 25 the committee, I'm Gary Graham, director of the . 39 1 wildlife division. And I'm pleased to introduce 2 Jerry Cooke, who is the chief of the game branch, 3 who will provide today's presentation. 4 DR. COOKE: Mr. Chairman, members, 5 my name is Jerry Cooke, game ranch chief of the 6 wildlife division. And I'll be presenting to you 7 the issues that we currently have on the table for 8 possible inclusion in the statewide hunting and 9 fishing proclamation incoming cycle. 10 The first one is one corner of a 11 much larger issue that Doctor McKinney will be 12 presenting to you in the conservation committee 13 related to state-owned river beds. Currently -- 14 let me back up. 15 We have a statutory obligation to 16 review all of our regulations minimally every four 17 years. This is essentially the remaining section 18 that we have not reviewed, and that's why we're 19 bringing it before you now. 20 Basically, in the state-owned river 21 beds of Uvalde, Zavala, and Dimmit Counties one 22 may not hunt game animals or game birds or 23 fur-bearing animals in those state-owned river 24 bottoms. You may still hunt non-game animals. 25 You may still shoot. You may possess a firearm. . 40 1 You can do all those things. But you cannot hunt 2 the species that are covered by the statewide 3 hunting and fishing proclamation, fur-bearing 4 proclamation, and the migratory game bird 5 proclamation. 6 The original justification for the 7 regulation is not clear. However, it was 8 successfully defended in court one time based on 9 the hunting impact of Rio Grande turkeys along 10 those river bottoms. However, it needs to be made 11 clear that this river bottom is 200, sometimes 300 12 yards wide. Hunting is allowed on both sides of 13 the river currently, and that needs to be part of 14 the conversation, as well, I believe. 15 So unless you have any questions, 16 that's what we're laying -- we would like to scope 17 that before the January meeting. 18 COMMISSIONER FITZSIMONS: Scope the 19 repeal of that or -- 20 DR. COOKE: The repeal of that 21 regulation. 22 COMMISSIONER HENRY: Did I 23 understand you to say you don't have information 24 on why the regulation was enacted? 25 DR. COOKE: It is not clear why it . 41 1 was originally enacted. 2 VICE-CHAIR ANGELO: You can probably 3 guess. 4 COMMISSIONER HENRY: Do you have a 5 guess? I was going to ask if you'd care to share 6 with us -- 7 VICE-CHAIR ANGELO: He can probably 8 guess, but he might not want to. He didn't wear 9 his bullet-proof vest today. 10 DR. COOKE: We would be happy to get 11 you transcripts from that meeting. 12 VICE-CHAIR ANGELO: It was a long 13 time ago. 14 DR. COOKE: It was a long time ago. 15 It was a very long time ago. 16 For pronghorn antelope, an unskinned 17 head is required as proof of sex. Basically, this 18 is a species where both sexes have horns and the 19 only real way to clearly distinguish sex of an 20 animal is to look at the cheek patch of the 21 pronghorn. 22 We currently have the same 23 requirement for white-tailed deer. And there are 24 much better ways of telling sex among white-tailed 25 deer, other than having an unscanned head. And . 42 1 having to keep up with an unscanned head, along 2 with meat and everything else for the hunter. So 3 perhaps removing this requirement of an unscanned 4 head for white-tailed deer would be a good -- a 5 good change, as well. 6 In Texas, with the exception of the 7 yellow and red counties, when a deer has been 8 wounded by a hunter, he may use no more than two 9 dogs to trail that wounded deer in recovery. Now, 10 this goes straight to our waste -- you know, we 11 don't want to waste game. And we want an 12 individual to make a reasonable effort to 13 recovery. 14 However, in East Texas, when the 15 Commission prohibited hunting deer with dogs, it 16 was necessary to close the potential loophole of 17 allowing a man to have a dog in the field while 18 hunting. And so all those East Texas Counties 19 where this was potentially a problem were closed. 20 Both the warden commander and the 21 district biologists believe that those counties in 22 yellow, along the Red River, this regulation is no 23 longer required. And the hunters in those areas 24 should be allowed the same opportunities as our 25 hunters elsewhere in the state. . 43 1 VICE-CHAIR ANGELO: So that would 2 leave it closed in the red areas still. 3 DR. COOKE: It would leave it closed 4 in the red areas, unaffected in that regulation. 5 The late youth only season for deer 6 and turkey included the language and no permit 7 from TPWD is required to take anterless deer. This 8 was an oversight. We should not have included 9 that language that way. 10 We have permitted hunting for 11 anterless deer for a reason. Parts of Texas where 12 populations are not as strong as they are 13 elsewhere. And by removing that language from 14 that regulation, it would essentially say if a 15 permit is required to take anterless deer in a 16 county, then the youth need to use the same 17 permit. 18 There are two issues related to the 19 level II MLD regulations. One is this, when you 20 have an anterless hunt, spike deer will be killed. 21 It can't be avoided. It can't be helped. No 22 hunter, myself included, can go hunting anterless 23 deer without the possibility of taking a young 24 spike. 25 This is not intended -- would not be . 44 1 intended to encourage the harvest of spikes in 2 this instance, but to allow an animal that was 3 already taken, even inadvertently taken, to be 4 tagged and legal in the state because this would 5 be an insignificant fraction of the harvest. And 6 this needs to be considered, as well. 7 Also, because the level II MLD early 8 season is anterless only and this is the month of 9 October, the traditional time when archers hunt, 10 they can't hunt buck deer on these properties. 11 The way it's been handled up until now is, if you 12 want to archery hunt a piece of property, hunt it, 13 when you're through, then we'll issue the level II 14 permits and go from there. But this is an issue 15 that we were requested to discuss and scope before 16 the January meeting. 17 In 17 counties of the Panhandle, 18 anterless harvest is vanishingly small. It's 19 very, very light harvest of anterless deer, 20 despite the fact that they have 16 doe days 21 available to them. 22 One way of increasing the 23 opportunity to take anterless deer would be to 24 allow anterless deer to be taken without a permit 25 from opening day through the Sunday following . 45 1 Thanksgiving. And we, of course, would monitor 2 this to insure that nothing inadvertent happened 3 there. But this would be a proposal to increase 4 opportunity in those circumstances. 5 We have talked in several meetings 6 about the very intense harvest of buck deer in 7 one-buck counties. In some counties, as much as 8 50 to 65 percent of the bucks taken in a given 9 year are yearlings. They were fawns the previous 10 year, which is a very, very intense harvest 11 pressure. 12 There's not many ways of restricting 13 harvest. There's some that's quite draconian, but 14 there's not very many that still allow a 15 reasonably relaxed hunting season. One way that 16 has been brought to us in more than one occasion 17 is the possibility of using antler restrictions to 18 reduce harvest. 19 In Austin, Colorado, Lavaca, 20 Fayette, Lee, and Washington Counties, one 21 potential regulation that has been discussed, is 22 being discussed and we would like to scope until 23 January, is the possibility of, for lack of a 24 better term -- I've never done this with game 25 animals, although the fish guys do it all the . 46 1 time -- a slot limit, you know, for antlers, which 2 basically would allow a spike to be taken, 11 3 points or better to be taken. Or if there is a 4 13-inch spread, which is approximately the width 5 of the years of a deer, and would assist in 6 compliance with these circumstances. 7 We've discussed it with the law 8 enforcement people in the area. Our district 9 people would be willing to commit to a very 10 intense harvest evaluation and follow-up studies 11 in the areas, with the assistance of the 12 landowners in the area, as well. 13 But we would like to scope this to 14 see if it would be acceptable in those counties to 15 try at least for a temporary, a window, for three 16 years, to see if it actually did change the age 17 structure of the buck herd. 18 This particular regulation, if you 19 looked at what has been harvested in the county, 20 those counties in the past, about 60 to 65 percent 21 of the bucks that were taken would not have been 22 taken if this regulation were in place, just to 23 give you an idea of the potential impact. 24 Rio Grande turkey traditionally have 25 been hunted in the fall in Texas. And some years . 47 1 back, in the early '70s, late '60s, we began to 2 open spring seasons across the state. And 3 basically where you have spring seasons in Texas, 4 you have fall seasons in Texas, with the exception 5 of Hill County. We have a spring season there and 6 no fall season. And there's no real biological 7 justification for not having a fall season. And 8 we would like to scope that in that area to see if 9 it would be acceptable in the area. 10 Eastern wild turkey is one of the 11 great success stories in Texas is the restoration 12 of this species across East Texas. There are four 13 more counties along the Texas coast that have 14 populations that we feel are as strong, if not 15 stronger, than many of the counties that we 16 currently have open. And we would like to scope 17 that issue in those counties as a potential of 18 opening a spring eastern wild turkey season there. 19 When we were discussing the one-buck 20 counties last year, we felt that one way that this 21 could be addressed is if a licensed log were used, 22 a log on the back of the license, reporting where 23 a tag was used, et cetera, et cetera, to allow a 24 greater flexibility for the hunter because, first 25 of all, he doesn't have to spend 15 minutes trying . 48 1 to figure out which tag to use. Any deer tag 2 could be used in the enforcement of those tags 3 would go to the log rather than the sometimes 4 difficult descriptions on the front of the tags. 5 Because of the POS problem that we had last year, 6 we withdrew that proposal but we would like to lay 7 that back on the table for consideration in the 8 coming year, if you don't object. 9 And those are they, if you have any 10 questions. 11 COMMISSIONER FITZSIMONS: Questions? 12 COMMISSIONER RAMOS: I have a 13 question. You mentioned that you were considering 14 extending the doe season in certain areas until 15 the Sunday after Thanksgiving? 16 DR. COOKE: Sunday following 17 Thanksgiving. 18 COMMISSIONER RAMOS: Okay. 19 DR. COOKE: That's the way -- we 20 had -- in East Texas, we had 23 doe-day counties. 21 And we realized that often that excluded the 22 weekend following Thanksgiving. It wasn't 23 consistent. So rather than miss that great 24 opportunity for kids to be out of school and be 25 hunting with the family and whatnot, we just said . 49 1 the Sunday following Thanksgiving, then we knew we 2 had that weekend included each time. So we're 3 going to propose to use the same language in the 4 Panhandle. 5 COMMISSIONER RAMOS: Okay. But it 6 would be limited to the Panhandle or -- 7 DR. COOKE: Yes. 8 COMMISSIONER RAMOS: As compared to 9 statewide? 10 DR. COOKE: Oh, no. This is not a 11 statewide regulation. It would only relate to 17 12 counties in the Panhandle. 13 COMMISSIONER RAMOS: Thank you. 14 DR. COOKE: Thank you. 15 COMMISSIONER FITZSIMONS: I have a 16 question, Jerry, on the last issue -- well, 17 second-to-last issue we discussed about the age 18 structure problem in those -- 19 DR. COOKE: Yes, sir. 20 COMMISSIONER FITZSIMONS: -- 21 counties, and those are Austin, Colorado, Lavaca, 22 Fayette, Lee, and Washington? 23 DR. COOKE: Yes, sir. 24 COMMISSIONER FITZSIMONS: Those 25 counties have a pretty high number of co-ops, . 50 1 don't they? 2 DR. COOKE: They do. 3 COMMISSIONER FITZSIMONS: Are the 4 co-op harvest records any better, better meaning 5 over extra? 6 DR. COOKE: While I will tell you 7 that I believe that they are, I cannot assure that 8 they are. I know that these regulations are 9 essentially co-op regulations in most of the 10 co-ops in those counties. But I can't tell you 11 what -- I can't answer your question. Bob 12 Carroll, I know, can, and I'd be more than happy 13 to get in contact with him and have you an answer 14 sometime today. 15 COMMISSIONER FITZSIMONS: I'm 16 interested that the co-ops may be doing -- I would 17 suspect are doing a better job than the average 18 property. And I'm reluctant to manage four people 19 if a grass roots group will -- 20 DR. COOKE: Right. 21 COMMISSIONER FITZSIMONS: And it may 22 be an education opportunity for these co-ops to 23 show what they can -- 24 VICE-CHAIR ANGELO: Are they not the 25 ones that are heavily behind changing this? . 51 1 DR. COOKE: In each of the previous 2 times that such a regulation was brought before 3 you, it was sponsored by the Texas Sportsman's 4 Association and/or co-ops in those -- in the 5 various counties. 6 VICE-CHAIR ANGELO: You know, I seem 7 to remember we've asked them in hearings why it 8 was that what they were doing wasn't achieving the 9 results. And I don't recall exactly, but I think 10 maybe their comment was that in spite of the fact 11 that they had some fairly sizable tracts, there 12 were still a lot of interaction with adjoining 13 properties that was affecting the overall 14 population. 15 DR. COOKE: The average size of 16 tracts in those counties is breathtakingly small. 17 COMMISSIONER FITZSIMONS: So they 18 need this in order to really get the maximum 19 effect of their own co-op -- 20 VICE-CHAIR ANGELO: They're saying 21 they can't do it, is what they -- is what I 22 remember. 23 COMMISSIONER FITZSIMONS: Well, I 24 tend to listen to the co-ops. Nobody is closer to 25 the issue than they are. . 52 1 DR. COOKE: Well, certainly before 2 the January meeting, we'll have some input for 3 you. 4 COMMISSIONER FITZSIMONS: Gary, are 5 you just standing next to Jerry today? 6 MR. GRAHAM: Well, no. And Jerry 7 did a great job, so I don't have a whole lot to 8 add other than the Texas Sportsman's Association 9 has been involved with the development of this 10 regulation. And we anticipate they will be 11 supportive of it. They've asked for similar sorts 12 of things in the past, and this provides a way for 13 us to provide their wishes. 14 COMMISSIONER FITZSIMONS: Okay. Any 15 other questions? Any others for the inland 16 fisheries or coastal? 17 Thank you, gentlemen. 18 Hal, I think you're next up for rule 19 review and statewide shrimp fishery proclamation. 20 AGENDA ITEM NO. 5: BRIEFING - CHAPTER 58 RULE 21 REVIEW AND STATEWIDE SHRIMP FISHERY 22 PROCLAMATION REVIEW. 23 MR. OSBURN: Thank you, Mr. 24 Chairman, members. I'm Hal Osburn, coastal 25 fisheries division director. . 53 1 I'd like to present to you for final 2 action the rule review for portions of Chapter 58 3 in our proclamation, as well as cleanup items in 4 the shrimp proclamation. I should note that this 5 item is scheduled to be reviewed during executive 6 session today in regards to pending litigation. 7 The rule review is legislatively 8 mandated to be conducted every four years to 9 justify continued existence of the rules. This 10 Chapter 58 rule review deals with the shrimp, 11 crab, and fin fish subchapters, which are B, C, 12 and D. Subchapter A, which deals with oysters, 13 will be presented to you later today. No comments 14 were received on subchapters C and D. And it is 15 staff's recommendation that subchapter C and D for 16 crabs and fin fish be readopted without change. 17 There is a continuing conservation need for these 18 management measures on our public resources. 19 Staff does propose some minor 20 changes to subchapter B dealing with shrimp. 21 These changes are restricted to housekeeping 22 measures and clarification of original commission 23 intent. They also address some industry requests 24 that were heard by the Commission at their August 25 public hearing. . 54 1 Highlights of these changes include 2 allowance for a try net in the sea bob Fishery and 3 clarification of the Bait Bay Boundary in west 4 bay, which is part of the Galveston bay complex. 5 We would also modify the by-catch 6 reduction device and turtle excluder device 7 exclusion requirements to better match federal 8 rules and industry standards. And an exemption 9 for bird and TED use would be established on a 10 concurrent exemption established by the -- for 11 TEDs by the National Marine Fishery Service. 12 These proposals were announced in 13 the Texas Register. They were distributed through 14 a wide set of our shrimp fishery and resource 15 stakeholders. But we received very little in the 16 way of public comments. We did have two comments 17 in support of the changes, as well as a couple of 18 comments that requested additional labilizations 19 of the shrimp net requirements in the Gulf. 20 Based on the Commission and 21 legislative guidance, we have received "Staff 22 Recommends Readoption of Subchapter B with the 23 Amendments as Proposed." Further, labilizations 24 or restrictions of the fishery at this time would 25 conflict with provisions in House Bill 305, passed . 55 1 this year, which mandates that new rule 2 initiatives should be based on a shrimp fishery 3 study scheduled for completion in September 2002. 4 The legislative request on this 5 study included that we receive input from the 6 industry, the comptroller's office, and outside 7 peer review, which we will do. Staff has made 8 substantial progress on this study. We have 9 established special teams to address all of the 10 relevant aspects of the fishery and its impacts on 11 coastal resources. And we will continue to 12 provide you updates on this effort. 13 That concludes my presentation. 14 I'll be happy to answer any questions. 15 COMMISSIONER FITZSIMONS: Hal, you 16 may have touched on this. But what -- I 17 understand that the shrimp fishery study to be 18 completed by September 2002? 19 MR. OSBURN: Yes, sir. 20 COMMISSIONER FITZSIMONS: And what's 21 the status now on the planning -- 22 MR. OSBURN: We established, in 23 anticipation of that study, actually established 24 teams almost a year ago and have got outlines 25 completed for all of them. We also have first . 56 1 drafts of some of the sections. We look to having 2 draft copies by middle of the spring so that we 3 can send those out for peer review and review by 4 some of the interested stakeholders' work on 5 modifications through the summer and be back and 6 meet the deadline in September. It is a very 7 large task. I will tell you that the shrimp 8 fishery and its impacts are certainly very 9 widespread. A lot of issues to deal with. But my 10 staff has risen to the occasion. 11 COMMISSIONER FITZSIMONS: So you 12 feel like you're on schedule to make the 2002 -- 13 September 2002 deadline? 14 MR. OSBURN: Yes, certainly. 15 COMMISSIONER HENRY: Question, Mr. 16 Chairman. 17 COMMISSIONER FITZSIMONS: Yeah. 18 MR. OSBURN: Yes, sir. 19 COMMISSIONER HENRY: Are there 20 industry reps on each of these committees or 21 working groups that you're talking about? 22 MR. OSBURN: No. Those teams are my 23 staff. Right. Those are scientists. We're doing 24 it as a scientific study, as we were requested to 25 do. . 57 1 And then we will provide that 2 information to our shrimp advisory committee, 3 which has been reformulated with a larger, more 4 comprehensive group of people by Chairman Idsal. 5 And we will be using them several times, I'm sure, 6 during the summer and spring to review what we 7 have. And I think that that -- that's -- well, 8 that's our plan. 9 COMMISSIONER HENRY: This department 10 and the Commission was roundly criticized by 11 industry reps that came before the Commission for 12 the lack of industry participation in the 13 regulations that we were talking about adopting 14 last time. 15 How do we address that, given the 16 procedures that you're following here? That's the 17 first part of the question. And the second part 18 is, when would they have an opportunity to 19 participate in these discussions or promulgation 20 of these regulations? 21 MR. OSBURN: I need to point out 22 that the study that we will be doing and 23 completing by September 2002 will not be providing 24 regulation changes. It will not be suggesting 25 changes in the regulation. It was designed to be . 58 1 the groundwork baseline, scientific study on which 2 rules would be formulated after that. 3 So the scientific -- I mean, it's a 4 scientific study. We will use the advisory 5 committee and all members of the public that want 6 to get involved in the spring and summer in 7 reviewing the scientific information that we've 8 developed. 9 But when we get to making rule 10 changes, which would be after September 2002, we 11 will assure once again that the advisory committee 12 and the members of the industry are involved in 13 that process even more extensively. I will tell 14 you they were involved extensively in our first 15 set of regulations. I know they claimed 16 otherwise. And we will make sure that -- that 17 that is not a confusing point for the Commission 18 when we have shrimp rules in front of you again. 19 COMMISSIONER HENRY: So your study 20 group is strictly internal, dealing strictly with 21 the scientific data. 22 MR. OSBURN: Well, it's not strictly 23 internal. We have a member of the Comptroller's 24 office to provide us feedback on the economic side 25 of this. That was a request in House Bill 305. . 59 1 And we also have elicited the -- elicited this 2 outside study of the social and economic aspects 3 through Texas A&M University. 4 So we're going to use outside 5 researchers that will be independent of my staff. 6 And then we will, of course, use outside 7 researchers to review what the staff has put 8 together. But it was -- the house bill charged 9 the department to put together the study, but 10 not -- and based on that to promulgate rules. So 11 we will only be providing the study and not a 12 formal set of new regulations. 13 COMMISSIONER HENRY: It seems -- I'm 14 missing something here. We're getting outside 15 input, yet we're not getting any outside input 16 from the industry itself. Is there a specific 17 reason for that. 18 MR. OSBURN: We intend -- and I'm 19 sorry if I didn't make that clear. When we have 20 our draft reports next spring, we will send those 21 to members of the industry, both those on the 22 advisory committee and those who we know to be 23 leaders. 24 COMMISSIONER HENRY: Well, what I'm 25 missing is -- tell me I'm missing something here. . 60 1 It appears that outside input is a part of the 2 study committee that's going to bring forward the 3 report on which recommendations would be based. 4 Is that a fair statement? 5 MR. OSBURN: I may have to ask you 6 to repeat if because I -- I may not have heard you 7 correctly. I think it is, but would you say that 8 again. 9 COMMISSIONER HENRY: When I asked 10 you the question earlier whether or not it was 11 strictly an internal study, you indicated that 12 there was outside input coming from the 13 Comptroller's office, from A&M and possibly 14 others. 15 MR. OSBURN: Right. 16 COMMISSIONER HENRY: But not from 17 the industry. And I was a bit concerned that 18 although we were getting outside input, we weren't 19 getting any from the industry. And I think this 20 is what we were criticized for last time. 21 MR. OSBURN: Yes. And when we -- 22 before we finalize the report, we would have input 23 from the industry because they would have our 24 report in their hands and in a draft form. And 25 they would make comments. We would pull the . 61 1 advisory committee together and go over it and 2 actually see what their input is. But the A&M 3 study will actually send a mail questionnaire to 4 every shrimper, both bay and gulf, and every 5 shrimp dealer in the entire state, and ask for 6 specific comments about their status of their 7 fishery, their recommendations for changes, their 8 profit levels. So from that -- 9 COMMISSIONER HENRY: So you will 10 have -- 11 MR. OSBURN: Yeah. And I guess now 12 I'm understanding what your concern is, and it's 13 valid and I appreciate it being brought up. That 14 was our very first thing that we thought of, is 15 we're going to go and ask everybody in the 16 industry; not just, you know, a working group, but 17 everybody in the industry; shrimpers, dealers, to 18 please respond in a very extensive way, in an open 19 format on some of the questions and very specific 20 numbers on others. But, yes, we're going to 21 involve everybody from that standpoint, and then 22 their leadership will give us feedback on how we 23 put that in a report format. 24 COMMISSIONER FITZSIMONS: I shared 25 your confusion there, but I think, if I understand . 62 1 it right, Hal, what you're saying, it's a two step 2 process. The shrimp fishery study, gathering the 3 facts and the data compilation is not the stage 4 from which you're drawing the conclusions. You're 5 doing the study. And then at the stage where you 6 draw the conclusion from those facts is where you 7 have the industry input. 8 MR. OSBURN: Right. And we will -- 9 we will -- 10 COMMISSIONER FITZSIMONS: And you're 11 still at the stage of doing the -- on the -- 12 MR. OSBURN: Of just putting the 13 information together that we would hope we could 14 all agree on. This is what we would base it on, 15 but we would walk hand in hand with the industry 16 once we're ready to make regulation changes. 17 COMMISSIONER HENRY: When we 18 announced the study last time, one of the things 19 that we were criticized at some length for was not 20 having industry input from start to finish. And 21 that was the reason for my question. 22 And I think the fact that you have 23 at least the survey information going out to them 24 and coming in asking a number of questions that 25 would then be a part of and the basis for the . 63 1 recommendations in the report would certainly 2 satisfy that to some degree. 3 MR. OSBURN: I hope so. 4 COMMISSIONER FITZSIMONS: Al, you 5 make a good point, which is does the industry have 6 their own baseline data and research. 7 COMMISSIONER HENRY: They claim that 8 they did. And I don't know if this is true or 9 not. Andy, you know where I'm coming from here? 10 MR. SANSOM: Absolutely. 11 COMMISSIONER FITZSIMONS: Well, is 12 there scientific data being included in that -- 13 with that other baseline data? I don't know. 14 MR. SANSOM: Yes. Yeah. 15 MR. OSBURN: All of the information 16 that they provided us during the comment period 17 last year is going to be reviewed by the teams. 18 And most of it actually already has been. There 19 was confusion whether there was differences in the 20 data. We thought we cleared those up. We will do 21 a better job on the next study. But they will 22 be -- 23 COMMISSIONER HENRY: When we 24 finished last time, you know, I felt like I had 25 been rode hard and put up wet. I don't mind . 64 1 taking, you know, a licking if it's justified. 2 But I don't want to take the same thing again next 3 time for the reasons that we -- that were brought 4 to our attention. 5 MR. SANSOM: I think it's important. 6 What I'm hearing here is, I think it's really 7 important how that when the initial surveys go out 8 from A&M, that the members of the industry 9 understand what the purpose of that is, that they 10 are contributing to this, you know, mandated 11 study. And then there will be a knowledge level 12 that it's -- they're participating in this 13 process. 14 And, Commissioner Henry, I can 15 assure you that there are some other, you know -- 16 there is other scientific work going on. And we 17 hear from those guys every day and our guys will 18 include the consideration of those reports in 19 their deliberations. 20 COMMISSIONER HENRY: Right. I'm not 21 questioning the scientific work that's going on. 22 I think it's commendable. But I just remember the 23 beating that we took last time when this issue was 24 brought forward. 25 MR. SANSOM: I think we can solve a . 65 1 lot of that by making sure that those stakeholders 2 understand what they are being asked to do and 3 that they're part of this process. 4 COMMISSIONER FITZSIMONS: 5 Commissioner Ramos? 6 COMMISSIONER RAMOS: Just briefly, 7 but I think I've got it. I think what your 8 concern and my concern is that as part of the 9 scientific study to the extent that there's 10 industry data that would influence that, where we 11 incorporate that. And I think that's what you're 12 saying. 13 MR. OSBURN: Yes. 14 COMMISSIONER RAMOS: Okay. No 15 problem. 16 MR. OSBURN: And I happen to 17 remember that beating, too. We will not repeat 18 it. But we will never have full consensus on how 19 to manage that fishery. But we will do our 20 absolute best to make sure all of the different 21 views are incorporated and that you have the 22 chance to make an informed decision on that. 23 COMMISSIONER HENRY: We're counting 24 on you, Hal. 25 COMMISSIONER FITZSIMONS: We can get . 66 1 a new meeting. 2 MR. SANSOM: And I will also say in 3 Hal's -- in these guys' behalf that no matter how 4 much we do, you will still have people before you 5 and say we were not included. 6 COMMISSIONER HENRY: Oh, yeah, I 7 agree with that. 8 COMMISSIONER FITZSIMONS: All right. 9 Thank you. Any other questions? 10 MR. OSBURN: Thank you. 11 COMMISSIONER FITZSIMONS: Thank you. 12 If there are no further questions or 13 discussion, without objection, I'll place this 14 item on the Thursday commission meeting agenda for 15 public comment and action. 16 And next, Chapter 58 rule review and 17 state wide oyster fishery proclamation. 18 AGENDA ITEM NO. 6: BRIEFING - CHAPTER 58 RULE 19 REVIEW AND STATEWIDE OYSTER FISHERY 20 PROCLAMATION AMENDMENTS 21 MR. RIECHERS: Thank you, Mr. 22 Chairman, commissioners. My name is Robin 23 Riechers, and I'm the management director of the 24 coastal fisheries division. And as that 25 indicates, I'm here to present you proposals of . 67 1 the oyster fishery proclamation. 2 This item proposes, as Hal 3 indicated, a rule review for the last subchapter 4 of Chapter 58, subchapter A, the oyster fishery 5 proclamation. In addition to that, it also 6 proposes amendments that will basically align us 7 with the requirements as prescribed in Senate Bill 8 305. We're seeking your approval to publish this 9 item in the Register and go for public hearings. 10 The oyster release program is 11 confined to the Galveston bay complex with a total 12 of 43 separate leases. These leases range in size 13 from 11 to a hundred acres currently. And the 14 lease program basically allows for oysters to be 15 removed from polluted areas of Galveston bay to 16 nonpolluted areas and then to cleanse themselves 17 or depurate for a period of time. 18 Senate Bill 305 had particular 19 provisions in dealing with the oyster lease 20 program. It must be noted this program has been 21 ongoing since 1891. It has 2,327 acres currently 22 under the lease program. 23 The production from these leases 24 ranges anywhere from 50 pounds per acre to 1600 25 pounds per acre on these different leases, so . 68 1 there's a large variation in production per acre. 2 These leases account for about 1.5 million pounds 3 total landings in meat weight each year, which are 4 close to about a $3 million dock-side value. This 5 is about one-third of the total oyster fishery in 6 Texas. 7 Throughout the legislative session, 8 we met with both the oyster leaseholders and the 9 oyster advisory committee to advise them of the 10 pending legislation. More recently, we have again 11 pulled the oyster advisory committee together, 12 which I might add is really made up of about half 13 the leaseholders association, as well, so there's 14 really good communication there. 15 And we basically have reviewed their 16 comments and reviewed the guidances provided in 17 the oyster fishery management plan. And the 18 proposed rules now incorporate their comments and 19 suggestions and requirements as provided by Senate 20 Bill 305. 21 So in accordance with the 22 legislation, the term of the lease will now be set 23 at 15 years. The rental fee will be changed from 24 $3 per acre to $6 per acre. A 10-percent penalty 25 will be applied if the rental fee is not due to . 69 1 the department or is not in the department's hands 2 by March 1. They will have 90 days in which to 3 make that payment. If they do not make that 4 payment, the lease will be terminated. 5 Further provisions of Senate Bill 6 305 provided specific guidance for the transfer 7 and renewal of these leases. Upon renewal or 8 transfer of the lease, the department will receive 9 $200 and we will set procedures basically to 10 accommodate these transactions. 11 In the past, there wasn't a specific 12 procedure. They basically had them come to the 13 department and register that they have now changed 14 that lease. So we want to create a transaction 15 that will allow that. 16 We are proposing that upon renewal 17 of these leases in the next year at March 1st, 18 that an updated survey be provided to the 19 department with one year of renewal -- or within 20 one year of renewal. Basically, right now, we 21 have GPS technology and some older technology on 22 the books. And so the corner markers of these 23 various leases have a tolerance associated with 24 them. And basically everyone, including the 25 leaseholders, are in agreement that we need to . 70 1 have these surveys basically documented within the 2 department so that everyone knows where their 3 leases are and everyone can comply to the current 4 regulations there. 5 Each current leaseholder -- each 6 current leaseholder also would be offered a first 7 right of refusal. If they choose not to renew, 8 the department will have the opportunity to 9 auction that lease. 10 The proposals do include provisions 11 for that auction, and they allow for the 12 department to establish an acceptable minimum 13 price. And that price would be based on previous 14 auctions that we may have had, if it's the second 15 or third auction, any open market prices that we 16 know of during the transactions, and any other 17 factors such as lease production from a particular 18 surveyed area. 19 That concludes my comments. Are 20 there any questions? 21 COMMISSIONER HENRY: Mr. Chairman? 22 COMMISSIONER FITZSIMONS: Al? 23 COMMISSIONER HENRY: During the 24 legislative hearings, there was some discussion 25 concerning the leases and rental fees and all. . 71 1 Are we confident that the fee that we are 2 proposing would satisfy the general questions that 3 we were asking in this area, the concerns that 4 were expressed? Or how would you address that? 5 MR. RIECHERS: Well, the state 6 auditors report specifically addressed the oyster 7 lease program. And the fee that would have 8 basically created a dollar-in/dollar-out value, as 9 presented by the state auditor's report, would 10 have been $24. And that was originally proposed 11 in the legislation. The legislation was then 12 changed to $6. And we are certainly needing that. 13 The Commission has the authority still to raise 14 that fee, though. 15 COMMISSIONER FITZSIMONS: That was 16 going to be my next question, is we do have the -- 17 COMMISSIONER HENRY: I remember that 18 was something of a -- 19 MR. SANSOM: Big issue. 20 COMMISSIONER HENRY: Yeah, a sizable 21 issue in the committee. But I also remember that 22 was something of a catch 22 that was presented to 23 us at that time, in that although there were 24 proposals to raise it, there wasn't local support 25 from the legislators to do so. So has any of that . 72 1 changed, I guess -- 2 MR. SANSOM: Proposals have no 3 values in their districts. 4 COMMISSIONER FITZSIMONS: Well put. 5 But just so I'm clear on the procedural, it's 6 still within our rule-making authority to increase 7 that from $6. That $6 was just, for want of a 8 better term, a legislative floor? 9 MR. RIECHERS: That's correct. 10 That's correct. And it is our anticipation when 11 we renew those leases for that 15-year period next 12 March, that within that contract, we basically 13 leave that option -- we make that very clear, that 14 that fee may increase through time. 15 COMMISSIONER FITZSIMONS: And for 16 how many years was the $3 effective? 17 MR. RIECHERS: Since 1950s, I 18 believe? 19 MR. OSBURN: No. It was raised in 20 the '80s. 21 MR. RIECHERS: I think it was $1.50 22 before that, is what I'm remembering. 23 VICE-CHAIR ANGELO: The terms of the 24 15-year lease don't specify that the rental is 25 going to stay the same. The option is there to . 73 1 change the rental. 2 MR. RIECHERS: Yes. Yes, the option 3 is there. 4 COMMISSIONER FITZSIMONS: Now, you 5 asked my question better than I did. We have the 6 rule-making authority to, I assume, renew 7 annually? 8 MR. RIECHERS: Yes. 9 VICE-CHAIR ANGELO: Renewal. Pay 10 annual, when the annual fee is due to be changed. 11 MR. RIECHERS: Right. They renew 12 each March. They make their payment each March. 13 And, yes, I think you have the authority. You 14 could do it more than one once a year, but -- 15 CHAIRMAN IDSAL: The lease -- so I 16 understand, the lease is for 15 years but the rate 17 is negotiable every year. 18 MR. RIECHERS: That's correct. 19 CHAIRMAN IDSAL: Okay. 20 VICE-CHAIR ANGELO: And at the end 21 of the 15 years, they have the option to renew it 22 but it can go up for auction. 23 MR. RIECHERS: That's correct. 24 VICE-CHAIR ANGELO: They have a 25 first refusal on it? . 74 1 MR. RIECHERS: They have a first 2 right of refusal. And if they don't accept it, it 3 would go for auction or it could go for auction, 4 yes. 5 CHAIRMAN IDSAL: May I ask one more 6 question? In the past, did you have that kind of 7 flexibility as to the negotiating of a price on an 8 annual basis or was it -- 9 MR. RIECHERS: No, it was set in 10 statute in the law. 11 CHAIRMAN IDSAL: It was set. Okay. 12 So that gives us considerable flexibility going 13 forward. 14 MR. RIECHERS: Yes. And when I said 15 it was set in statute, but the Commission had the 16 authority to raise it but it was a smaller floor. 17 But it was an annual lease at the time. 18 CHAIRMAN IDSAL: But in the past, 19 were we -- did we have the authority to raise? 20 MR. RIECHERS: Yes. 21 CHAIRMAN IDSAL: Did we raise? 22 MR. RIECHERS: One time. One time 23 that I'm aware of. 24 CHAIRMAN IDSAL: In the '80s? 25 MR. RIECHERS: Yes. . 75 1 COMMISSIONER FITZSIMONS: Well, that 2 leads to my next question, which is, it's got to 3 be a uniform price. In other words, you used the 4 term "negotiation," which leads me to think you're 5 not -- we don't have the power to negotiate them 6 individually. It's one price. 7 CHAIRMAN IDSAL: Right. 8 COMMISSIONER HENRY: For everybody. 9 COMMISSIONER FITZSIMONS: Right. So 10 if you have one more capable lessee willing to 11 lead, that will set the price for all the renewed 12 ones. Correct? 13 CHAIRMAN IDSAL: But that's not -- 14 except for one instance, that has not been the 15 practice in the past. 16 MR. RIECHERS: That's correct. 17 COMMISSIONER FITZSIMONS: Well, but 18 it can be now. 19 CHAIRMAN IDSAL: And it could have 20 been then, too. It could have been in the past, 21 as well, but it was not. 22 MR. RIECHERS: Right. 23 COMMISSIONER RAMOS: So then in line 24 with that, you can't consider the -- as you might 25 say, the priority or how good a particular lease . 76 1 is. Either you raise all of them at a certain 2 price, but you can't analyze it on a lease basis 3 and say, "Well, this, one is extremely good" or 4 rate them to where you can have varying -- 5 MR. RIECHERS: I wouldn't say you 6 couldn't do it that way, but it certainly hadn't 7 been the previous intent. I'm not certain whether 8 the statute allows us enough flexibility to do 9 that. 10 COMMISSIONER FITZSIMONS: For the 11 11 acre and a hundred acre, are they the same 12 price -- 13 COMMISSIONER RAMOS: Well, what I'm 14 saying is -- 15 COMMISSIONER FITZSIMONS: -- per 16 acre. 17 COMMISSIONER RAMOS: -- do we have 18 data to where we could evaluate each lease and 19 say, "This one for whatever reason is not as 20 favorable or prolific as this other one"? 21 MR. RIECHERS: We do have those 22 production figures, yes. 23 COMMISSIONER RAMOS: To where we 24 could vary the number, depending on the production 25 perhaps, or how well they have taken care of it. . 77 1 MR. RIECHERS: Yes. We do have 2 those kind of harvest figures from each lease. 3 VICE-CHAIR ANGELO: How was the 4 15-year term determined? Is that statutory also 5 or -- 6 MR. RIECHERS: That is in statute. 7 We don't have any flexibility -- 8 VICE-CHAIR ANGELO: They actually 9 farm these leases. Is that right? Do they do 10 things to enhance it or not? It's not just a 11 natural progression. 12 MR. RIECHERS: Yeah. They actually 13 shed bottom substrate, so that when they move 14 oysters from the polluted to a non-polluted area, 15 it will have an opportunity to basically -- when 16 we allow them to transplant, they transplant them, 17 they put them there, they leave them there for a 18 period of time, and then they go back and harvest 19 them. 20 So, yes, some of the people who put 21 more in the leases may get a better term. Some of 22 it may be just where those leases happen to be in 23 relation to occurrence and other factors in the 24 bay. 25 CHAIRMAN IDSAL: In your -- excuse . 78 1 me. 2 MR. SANSOM: In -- 3 CHAIRMAN IDSAL: In your -- excuse 4 me. 5 MR. SANSOM: Go ahead. 6 COMMISSIONER FITZSIMONS: I'll 7 recognize the chairman. Go ahead. 8 CHAIRMAN IDSAL: Can you give me 9 your opinion as to what were the practical 10 barriers in the past for raising the price? 11 MR. RIECHERS: The argument from 12 industry is that they spend a lot of money, in 13 fact, in capital improvements, if you will, in 14 putting substrate down and that in reality the 15 money they make from these leases is very small. 16 In addition, because a portion of 17 this has always been in the Legislature and we 18 were under the impression that these leases were 19 imperpetuity until an attorney general's ruling as 20 of last year, which made them a year-to-year 21 lease, there really hasn't been a -- I mean, that 22 was kind of the hurdle, basically, is that these 23 people owned these leases forever and were 24 benefiting from them. 25 It just came down to a public . 79 1 support issue. And those people really worked 2 hard to make sure that their prices stayed where 3 they were. 4 COMMISSIONER HENRY: Worked hard and 5 lobbied well. 6 COMMISSIONER RAMOS: Do these leases 7 have a provision to where they can or cannot 8 sublease? In other words, is it personal as to 9 the -- 10 MR. RIECHERS: They can have other 11 agents work on their behalf. And, in fact, it 12 used to be that in the previous statute, it was a 13 hundred acres that was supposed to be under one 14 person's control. And that was raised to 300 15 acres during this -- in Senate Bill 305. 16 COMMISSIONER FITZSIMONS: You can 17 have an agent working, but it's not assignable or 18 it is assignable? 19 MR. RIECHERS: Well, I mean, it's an 20 agent. It could be a lease, if you will. 21 COMMISSIONER RAMOS: And if you have 22 an -- or if you sublease or if you have an agent, 23 are we aware of that or is that something that's 24 beyond our control? 25 MR. RIECHERS: It's really beyond . 80 1 our control. 2 COMMISSIONER HENRY: Would it be 3 fair to say that, come legislative session next 4 time we're going to be criticized again, in all 5 probability, for leaving this at the $6 level when 6 the auditors are suggesting going to 24, but that 7 my friends and neighbors who represent the 8 constituents in this area, hold a considerable 9 hammer on us because their constituents don't want 10 the price raised at all? Would you say that 11 that's a -- 12 COMMISSIONER FITZSIMONS: May I? 13 CHAIRMAN IDSAL: You're the chairman 14 of the committee. 15 COMMISSIONER FITZSIMONS: I'm going 16 to answer your question this way. From what I 17 see, it took us since 1891 to get in this 18 situation and we're not going to get out that 19 quickly. It's going to take some time. But I 20 think we're showing that we're paying attention to 21 these leases and their economic value without 22 trying to, if I may use an analogy, wrench these 23 people immediately from 1891 to 2001. But we're 24 definitely looking at it with a more practical 25 approach. . 81 1 Sure, we'll be criticized, I'm sure, 2 by not -- I understand the $24, Rob, help me, if 3 it was based on cost -- 4 MR. RIECHERS: That's correct. 5 COMMISSIONER FITZSIMONS: -- of 6 administration. 7 MR. RIECHERS: That's correct. 8 COMMISSIONER FITZSIMONS: So there 9 still will be a loss in administering them, but it 10 will be less than it was before. And it sounds as 11 if we're making some progress in putting some 12 objective standards on this. Does that -- 13 COMMISSIONER HENRY: No, I don't 14 disagree with you, Joe. I'd like to see you 15 present that to the committee, as well. 16 COMMISSIONER FITZSIMONS: I'll be 17 glad to be the fall guy on that one. I'll be the 18 oyster lease bad guy. I already am. What am I 19 saying? 20 COMMISSIONER HENRY: Yeah, you are. 21 COMMISSIONER RAMOS: In your 22 opinion -- excuse me, Mr. Chairman. In your 23 opinion, is there a great demand for these leases? 24 I mean, is there -- 25 MR. RIECHERS: There have been . 82 1 people on the books who have signed up, if you 2 will, to get extra leases or more leases or 3 additional leases. But it's been practiced since 4 actually the passage of the oyster fishery 5 management plan, practice of the General Land 6 Office. 7 And given that we already have 8 enough leases to depurate the polluted areas that 9 we currently have, it's been practice not to issue 10 new leases. It's been policy. 11 COMMISSIONER RAMOS: But there's 12 enough people out there that want leases. 13 MR. RIECHERS: There's certainly 14 people out there who want leases, yes. 15 COMMISSIONER FITZSIMONS: Robin, 16 thank you. You've taken on a lot more questions 17 than you probably anticipated on this one. You 18 handled it well. Thanks. 19 Any further questions or discussions 20 on the oyster bed lease? And if no further 21 questions or discussion, without objection, I 22 authorize staff to publish this item in the Texas 23 Register for the required public comment period. 24 AGENDA ITEM NO. 7: BRIEFING - EQUINE ANEMIA 25 REGULATIONS. . 83 1 COMMISSIONER FITZSIMONS: And next, 2 Doctor Cooke, again, on proposed Coggins equine 3 anemia regulations. 4 DR. COOKE: I believe this one will 5 be simple. Mr. Chairman and members, my name is 6 Jerry Cooke, game ranch chief of the wildlife 7 division. And I'm bringing you an issue without 8 slides. It's a short conversation. 9 We invite the public onto our 10 properties, and the people come on to our 11 properties with the reasonable expectation that 12 their persons and their property will be 13 reasonably protected. 14 One issue that has not been 15 addressed in our rules in the past is our equine 16 visitors to our state parks and our wildlife 17 management areas have not received the kinds of 18 protections that they would, say, if they went to 19 a county fair or a rodeo or a parade. 20 The proposal would require an 21 individual bringing a horse or mule or burro or 22 whatever onto one of our properties to have in his 23 possession and to present a VS form 1011, which 24 essentially can be used for any of the official 25 equine immune -- infectious anemia tests -- and . 84 1 there are several -- to show that the animal was 2 negative in the previous 12 months. If they don't 3 have the form, then we would not be required to 4 allow them onto the property. 5 We've been asking for the form in 6 the past as a matter of policy, but you couldn't 7 tell them no and you couldn't do anything about it 8 if, you know, they wanted to stop it. So we would 9 propose to place this in our public hunting 10 proclamation, which is the rules for all of these 11 kinds of issues. 12 If you have any questions, I will 13 try to answer them. 14 CHAIRMAN IDSAL: Have we had any 15 examples of the equine anemia being transmitted 16 from a state park animal -- 17 Dr. COOKE: I don't know the answer 18 to that, ma'am, I really don't. 19 CHAIRMAN IDSAL: We don't know of 20 any? 21 DR. COOKE: No. But we do know on 22 management areas, we've had as many as 4,000 23 horses, mules, et cetera, brought onto our 24 management areas just in the past year. State 25 parks is probably more so. I really don't know -- . 85 1 CHAIRMAN IDSAL: This is getting 2 ahead of the issue. We're not reacting to an 3 identified situation? 4 DR. COOKE: No. All we're saying is 5 that people who come to our properties should feel 6 as comfortable as those who would go to a rodeo or 7 a county fair or any other public event where that 8 certification is required. 9 VICE-CHAIR ANGELO: We've had 10 testimony or correspondence indicating that some 11 of them are not comfortable as it is now. 12 DR. COOKE: Exactly. That's the 13 whole source of this proposal, is the equine users 14 themselves. 15 COMMISSIONER FITZSIMONS: That -- 16 maybe you're referring to the same correspondence 17 I received, but that there was -- under the -- 18 correct me if I'm wrong, Texas Animal Health 19 Commission regulations and a positive reactor has 20 to be branded. And there was a positive reactor, 21 I believe, on -- at our park, Lake Ray Roberts? 22 DR. COOKE: I don't remember 23 which -- 24 CHAIRMAN IDSAL: Ray Roberts. 25 COMMISSIONER FITZSIMONS: At least . 86 1 that's the allegation. The point is this, that 2 we're now doing the same thing at every -- when my 3 children take their horses to a 4-H meeting, they 4 have to have this; if you go to the state fair. 5 And we're just in compliance with what everyone 6 else does with them for the Commission. 7 COMMISSIONER HENRY: I'm just 8 curious. What about trail rides? 9 DR. COOKE: On our properties? 10 That's what we're talking about. We have trail 11 rides on some of our management areas that's 40 or 12 50 animals -- 13 MR. SANSOM: I think his question 14 is, for example, Jerry, before Expo, we sponsored 15 a trail ride that came all the way over from 16 Bandera to the Expo event. So it was not -- 17 DR. COOKE: This would not affect 18 that. This would not have any impact on that 19 event itself, other than what the Animal Health 20 Commission rules would be for having such an 21 event. 22 COMMISSIONER FITZSIMONS: Which will 23 require every stock show, Houston Stock Show, have 24 that trail ride in there -- all those animals are 25 required to have -- . 87 1 CHAIRMAN IDSAL: When -- say I was 2 going to Lake Ray Roberts to ride my horse and I 3 went through the gate and paid my entrance fee. 4 Is that where I would be checked for my form, with 5 my horse trailer in the back? 6 DR. COOKE: Yes. Before we took 7 your money, that's when it would be checked. If 8 you have a horse, you will produce the document. 9 COMMISSIONER FITZSIMONS: Just for 10 those of you who are not familiar with horses, 11 have the bad horse habit that I have, there is no 12 cure. That's why it's important. 13 MR. COOKE: Right. 14 COMMISSIONER FITZSIMONS: And they 15 cannot be vaccinated and stuff. If they're 16 expose, that's it, the horse has to be either 17 quarantined or destroyed. 18 MR. COOKE: And being a viral 19 disease, it's easily transmitted. 20 COMMISSIONER FITZSIMONS: With no 21 further questions or discussions, without 22 objection, I'll authorize staff to publish this 23 item in the Texas Register for the required public 24 comment period. 25 Thank you, Jerry. And you're up . 88 1 again. There you go. All right. 2 AGENDA ITEM NO. 8: BRIEFING - TEXAS CERVID 3 DISEASE ISSUES 4 DR. COOKE: Mr. Chairman and 5 members, I'm still Doctor Jerry Cooke. 6 COMMISSIONER FITZSIMONS: I think 7 you have a change, a little mistake in the 8 materials. The first two, chronic washing 9 disease. 10 DR. COOKE: And that would 11 be incorrect. 12 COMMISSIONER FITZSIMONS: Which 13 hopefully some of us have, but that's -- 14 DR. COOKE: We'll see if it's still 15 there on the screen. 16 COMMISSIONER FITZSIMONS: It was in 17 the printed materials we received. 18 DR. COOKE: I will discuss that with 19 my staff who, by the way, is me. 20 This presentation is a briefing at 21 your request to discuss some of the diseases that 22 have an impact on deer in the United States and 23 potentially in Texas. I will not be discussing 24 any of the many diseases that are in Texas that 25 are in our deer populations that other states . 89 1 worry about because they are a part of our system. 2 But I will be discussing diseases that have an 3 impact on deer herds and agriculture that are not 4 currently with us. 5 Once such disease is brucellosis, 6 which really is the success story, which is why 7 I'm beginning it. It's caused by brucella 8 abortus, a bacterial disease. It can be -- it's a 9 cattle disease. It can be deer, it can be in 10 people, it can be in dogs. It can travel through 11 the country in a lot of different forms. 12 Basically Texas is -- basically, we 13 don't have any brucellosis in Texas except 14 sporadically it comes and goes, or anywhere in the 15 United States, with the exception of within that 16 circle it is occurring in Yellowstone National 17 Park, the Yellowstone Basin, the Roosevelt Elk 18 Preserve there. 19 And this is primarily because those 20 animals are fed. It's in the population. You 21 feed animals in one concentration. And the 22 organism can remain in the feces for up to two 23 months, you know, so it's easy to move from one 24 animal to another. It's normally ingested. 25 There's no real effective treatment for it. There . 90 1 are vaccines but they're difficult to deliver. 2 So basically the problem in the 3 United States with brucellosis is the free-ranging 4 bison and elk in that area. 5 Bovine tuberculosis, as are many of 6 the tuberculosis, a microbacteria, a basialis, it 7 forms tubicals in the lung, which makes it very, 8 very, very, very difficult to treat. It's very 9 easy to transmit, just from aerosol from one new 10 individual to another. 11 Most of the tuberculosis organisms 12 are quite species specific, with the exception of 13 bovis, which is the cattle form of the 14 tuberculosis, which basically any warm-blooded 15 animal can get, including humans. 16 Those states that I show in yellow 17 are those that have had brucellosis in -- excuse 18 me, bovine tuberculosis in penned animals in the 19 last ten years. I don't believe any of those 20 states are still lit up now, just to show you the 21 scope of it. In that circle, however, it is free 22 ranging in Michigan. 23 It first occurred in 1975 in a 24 penned deer. In 1993, it was found in a 25 hunter-killed deer. It now covers a great deal of . 91 1 the state. It's a very big problem for Michigan. 2 17,000 animals tested annually. The cost of 3 putting your hands on those beasts, as well as the 4 costs of the clinical tests, is enormous and eats 5 a great portion of their budget in that area. 6 And despite the depopulation, 7 despite all the treatment attempts, all the 8 quarantining, all the vaccinations that's going 9 on, the disease is still moving. Three more 10 counties were added or were identified as being 11 infected in the past year. This is not one we 12 want. 13 Chronic washing disease -- 14 infectious spongiform ensepolopathy is the correct 15 name of the disease. It's a -- we don't really 16 know what causes the disease. There's a preon 17 protein which is associated with the disease, but 18 it's not clear whether it causes the disease or 19 it's a product of the process of the disease. 20 It's totally debilitating. It's 21 always terminal. There is no live animal test for 22 it. There is no cure. There's no vaccine for it. 23 It can be transmitted from one animal to another 24 using cell-free brain fluids. And you can take 25 that fluid and autoplate it, you can boil it, you . 92 1 can freeze it, you can put chemicals in it, and 2 you still can transmit the disease. That's the 3 spooky part of it. 4 Currently, the states that are lit 5 up on the map are states in which there are 6 chronic CWD positive animals in pens. These are 7 all associated with elk farms, not hunting areas, 8 but feed lot situations. They're raising venison 9 in pens, basically, in those states. 10 However, in the circled area it is 11 free ranging. In fact, that was where the disease 12 basically originated in the United States. And it 13 occurs in mule deer and elk in that circled 14 free-ranging area. 15 I mention anthrax only because it's 16 in the news, and we just had a recent outbreak of 17 it. Anthrax is a sporozoan disease. It's 18 basically a soil-borne disease. It can occur 19 anywhere that there's ever been bison, you know, 20 in the past. It can occur anywhere in Texas and 21 has occurred in most corners of Texas at one time 22 or another. 23 It's most common in calcarious use 24 soils because the sporozoan forms more completely 25 and more readily in an alkaline environment. It . 93 1 occurs basically when you have a big flush of 2 rain. You get a good flush of for growth. You 3 moisten the soil. You get a bloom. You follow 4 that with a drought, which forces the animal's 5 nose closer to the soil. And warm humid 6 conditions, and you've got it. 7 Also, however, what I just described 8 is the same kind of circumstances in which you 9 have nutritional die-offs. This case that we just 10 had this last year was just such an event. We 11 were losing deer for months in that area before 12 anthrax showed up. Anthrax was just an overlay. 13 But, of course, it's a scary disease. One should 14 be concerned. 15 You can inhale it, you can ingest 16 it, you can get it through a break in the skin. 17 It's not one that I -- I'm fortunate to say this 18 is one of the few days diseases of deer in Texas 19 that I haven't had, and I hope to keep it that 20 way. 21 Now, those were not very many, but 22 they were big ones. They're important disease 23 where they are occurring. What is the potential 24 impact in Texas of these kinds of four animal 25 diseases and what are the sources of risk for . 94 1 those? 2 Basically, excluding cattle, sheep, 3 goats, horses, there's about 7 million animals in 4 Texas that would be susceptible to these kinds of 5 diseases. And the map shows you basically how 6 they're distributed over the state. 7 Of that 7 million, 4 million of them 8 are white-tailed deer. And I don't have to tell 9 you the importance of white-tailed deer to this 10 state. Last year, 474 white-tailed deer were 11 imported into Texas. They were imported from the 12 states that I have in yellow on the map. 13 Note, please, that one of those 14 states is Michigan. Note also that one of the 15 states is Missouri. And the reason I point out 16 Missouri is because of a peculiar problem with 17 deer. This is one of the things that makes the 18 USDA very uncomfortable. 19 If you put your hands on a cow, you 20 can trace its history pretty readily. It's 21 branded. It's tattooed. It's marked. Everybody 22 is doing it more or less the same way. You can 23 trace back its history. You can't do that with a 24 deer. In fact, 41 of -- let me back up. 25 Recently, a very small number of elk . 95 1 came into Texas from some infected herds in 2 Colorado for chronic wasting disease. They were 3 identified, immediately quarantined. They're 4 making arrangements to acquire the animals, to 5 destroy them, to test them, and hopefully they 6 will all be negative. But there were 41 elk that 7 went into a sale barn in Missouri and vanished 8 because there was no way to trace where they came 9 from. So anything that comes from Missouri didn't 10 necessarily come from Missouri. It could have 11 come from anywhere, any source. 12 In 2001, 1,397 white-tailed deer 13 were liberated from scientific breeding facilities 14 into the wild in Texas. Some of those were direct 15 imports. They came -- they never hit a facility. 16 They just came from outside the state and was 17 released into the wild. 18 And I point out that of that almost 19 1400 deer, 45 percent of them were released in 20 three counties: Kerr, Medina, and Uvalde, which 21 are among the highest density -- deer density 22 counties that we have in Texas currently. 23 Deer were liberated from scientific 24 breeder pens basically in the way that I have 25 shown in this graph. Most of the animals are . 96 1 moved or a large percentage of the animals are 2 moved immediately before the hunting season. 3 There's almost none moved during the hunting 4 season because you have to cut off the antlers 5 before you can move them. There's almost none 6 moved during the summer months because of the 7 heat. That makes it very difficult to transmit 8 deer in a healthy condition. 9 Now, moving from scientific breeder 10 facilities to our Triple T program, the Triple T 11 program is a permit program, as you know, that 12 allows an individual to trap wild white-tailed 13 deer or mule deer or actually any game animal, for 14 that matter, on a piece of property, transport 15 them across the state and release them on another 16 piece of property. 17 The counties on the map on the left 18 are the counties in which deer were trapped. The 19 map on the right are the counties in which they 20 were released. And you will probably notice that 21 there's a lot of counties that's lit up on both 22 maps. 23 From 1939 until 1990, the Texas 24 Parks & Wildlife Department and its predecessors, 25 the game, fish, and oyster commission and other . 97 1 names to the same entity, during that period of 2 time this agency created the deer herd in this 3 state, basically. They restored white-tailed deer 4 to Texas. And they did that by a judicious 5 application of trapping of moving and releasing 6 stock currently in Texas. 7 During that period from '39 to 1990, 8 to restore white-tailed deer to Texas, 31,279 deer 9 were trapped and moved. Since the Triple T 10 program came into existence in 1993, 32,736 11 white-tailed deer have been trapped and moved in 12 this state. 13 So, in conclusion, I -- conclusion 14 of this briefing is essentially to lay out two 15 questions and to make a statement. Question no. 1 16 is, is it truly worth it to the wildlife and the 17 agriculture of Texas, the economy of Texas, to 18 continue to import white-tailed deer and mule deer 19 into this state? And that's all it is, is a 20 question. 21 Question no. 2, is it worth the risk 22 to the wildlife and agriculture and economy of 23 this state to continue to move white-tailed deer 24 from one portion of the state to another portion 25 of the state, outside of restoring, you know, a . 98 1 lost population? 2 Then the final statement to this 3 briefing is basically this: in order to buy, sell, 4 move, release or anything else, a deer held by a 5 scientific deer breeder permit holder, the animal 6 must be in healthy condition. Healthy condition 7 is not defined anywhere in our rules. 8 If it were defined in our rules 9 within the context of Texas Animal Health 10 Commission testing and monitoring programs, 11 existing programs, or within the context of their 12 herd health management program, then at least a 13 reasonable effort would be shown that animals, in 14 fact, would be in a healthy condition before they 15 were released from a pen facility into the wild. 16 Do you have any questions? 17 VICE-CHAIR ANGELO: Would it require 18 a statute to restrict the imports or eliminate the 19 imports? 20 DR. COOKE: No. 21 VICE-CHAIR ANGELO: We've go the -- 22 the department has the authority to do that? 23 DR. COOKE: The department has the 24 authority to do that. You have the authority to 25 regulation possession for white-tailed and mule . 99 1 deer. White-tailed and mule deer. But the 2 scientific breeder permit is the means and method 3 of bringing them into Texas. You have the 4 authority to regulate possession and everything 5 that goes with that. 6 COMMISSIONER FITZSIMONS: And what 7 coordination -- I'm sorry. Ernie, were you 8 finished with that? Ernie -- 9 VICE-CHAIR ANGELO: Yes. 10 COMMISSIONER FITZSIMONS: What 11 coordination would you require with the Animal 12 Health Commission, who has the jurisdiction at the 13 borders with live animals? 14 DR. COOKE: Explain that. What 15 could you mean? 16 COMMISSIONER FITZSIMONS: Well, 17 would it require the Animal Health Commission to 18 have a similar regulation? 19 DR. COOKE: No. 20 COMMISSIONER FITZSIMONS: It would 21 not. 22 DR. COOKE: They can require 23 testing. They can quarantine to other states. 24 And the reason they don't necessarily do that is 25 because of Missouri, you know, the way that they . 100 1 so easily go through those sales. 2 COMMISSIONER FITZSIMONS: So if we 3 prohibited the possession by any scientific 4 breeder permittee of an animal from a, for want of 5 a better term, hot state, that would not require 6 any Animal Health Commission concurrence, if 7 that's the right term? 8 DR. COOKE: No. 9 VICE-CHAIR ANGELO: You'd almost 10 have to prohibit it from any state. You'd have to 11 prohibit the importation period if it's going to 12 be effective. 13 DR. COOKE: Basically. Right. 14 COMMISSIONER FITZSIMONS: Because 15 you don't know which state -- there's no source 16 for -- 17 VICE-CHAIR ANGELO: There's no 18 source for verification. 19 DR. COOKE: Right. 20 CHAIRMAN IDSAL: Mr. Chairman, I 21 have a question. Could you talk to us about the 22 states currently that restrict the importation or 23 deny the importation of these animals altogether? 24 DR. COOKE: No, I can't. 25 CHAIRMAN IDSAL: Are there any? . 101 1 DR. COOKE: I don't know the answer 2 to that question. 3 CHAIRMAN IDSAL: What does 4 California do? Somebody mentioned that California 5 was -- 6 DR. COOKE: I'm sorry. I really 7 don't know. 8 CHAIRMAN IDSAL: Okay. 9 DR. COOKE: I'd be more than happy 10 to get some of that information. 11 CHAIRMAN IDSAL: I'd like to hear 12 what some other states do about this. 13 DR. COOKE: Well, there are some 14 states like Wyoming, for instance, that don't 15 allow a single exotic in their state, period. If 16 you have an axis deer or a red deer or what else, 17 they don't want it. 18 COMMISSIONER WATSON: Okay. I've 19 got -- obviously, as you know, these are some 20 tough topics that are very dear to my heart. 21 Number one, I think it just doesn't make any sense 22 at all to import white-tailed deer into Texas when 23 we have an overabundance of white-tailed deer. 24 I mean -- and I think that we ought 25 to do everything we can to maintain the integrity . 102 1 of white-tailed deer of Texas. You know, these 2 aren't Saskatchewan deer. These are white-tailed 3 deer and I think that those of us who are rather 4 involved in intensely managing these deer can 5 demonstrate that under the right management 6 programs, you know, they can certainly reach the 7 maturity and the quality that everybody would like 8 to have. 9 It just doesn't make any sense to me 10 to bring -- if we have 4 million white-tailed deer 11 in Texas, you know, why do we need 500 deer 12 brought in from origins that -- you know, my 13 experience with it has also been that very few of 14 these deer will live. 15 And, therefore, I think it begs the 16 question I think a lot of them are brought in not 17 to live. I think that that's one of the loopholes 18 in the scientific breeder permit regulation, is 19 that I can bring -- if I've got a scientific 20 breeder permit, I can bring in all the deer I want 21 to from out of state. And we all know that that's 22 being done. And I think it's going to jump up and 23 embarrass us because many of these deer are 24 brought in and they don't survive, you know, 90 25 days. . 103 1 And, you know, I don't think that 2 that's something that's good for us. And just in 3 passing, it would look like to me, if your numbers 4 are right here, on one slide you show there's 7 5 million deer and exotics susceptible to deer. On 6 the next page, you say there's 4 million 7 white-tailed deer. I guess that means there's 3 8 million exotics. 9 And, you know, if there are 3 10 million exotics, I realize that this right now 11 isn't part of our -- you know, our regulations. 12 But if we are concerned about the habitat in the 13 state of Texas, and we have almost -- it looks 14 like to me, if those numbers are right, almost as 15 many exotics as we do white tails, you know, the 16 exotics are causing a lot of trouble in the areas 17 where they exist. 18 And, you know, some day we're going 19 to have to, I think, address that. I think it 20 would be interesting for you to know that Darling 21 International, which is a substantial rendering 22 company, will no longer pick up deer carcasses. 23 And so the individual locker plants, I don't know 24 what they're doing with them. And they have told 25 us that they won't pick up deer carcasses anymore . 104 1 because of their concern about the disease. 2 And I feel like that, you know, we 3 shouldn't wait until the disease, you know, gets 4 here. I think we need to be proactive. And if a 5 commercial company is turning down this business, 6 I mean, they're turning it down for, you know, 7 what they consider to be a pretty good reason. 8 And, you know, I'm very much in 9 favor, as you know, of closing our borders to 10 importing, you know, any hoof stock in Texas. 11 COMMISSIONER FITZSIMONS: As you 12 point out, Mark, it's not just deer, though. With 13 exotics, if I'm correct, Doctor Cooke, the survey 14 chronic wasting disease is not any different for 15 our wildlife tail as it would be for an exotic 16 deer, or is it? 17 DR. COOKE: As far as I know, no. 18 COMMISSIONER FITZSIMONS: It would 19 be the same. So unless the Texas Animal Health 20 Commission is also regulating the importation of 21 exotic deer, it really wouldn't make -- you 22 wouldn't have the intended effect, would you? 23 DR. COOKE: Well, if the intended 24 effect is so no one could point their finger at us 25 and say "A white-tailed deer brought it into . 105 1 Texas," you know, then, no. 2 COMMISSIONER FITZSIMONS: I would 3 hope the intended effect is to have the intended 4 result and not just to protect ourselves from 5 criticism. My question is a technical one. Don't 6 you really have to regulate all surveyed 7 importations? 8 DR. COOKE: All livestock. 9 COMMISSIONER FITZSIMONS: All 10 livestock. And the Texas Animal Health 11 Commission -- 12 CHAIRMAN IDSAL: All domestic and 13 wildlife -- 14 DR. COOKE: Could potentially be 15 involved. 16 COMMISSIONER FITZSIMONS: Well, the 17 exotics are considered in Texas law to be 18 livestock. If you're in possession, you're 19 responsible for them. 20 DR. COOKE: Right. 21 COMMISSIONER FITZSIMONS: What's the 22 status now with the Animal Health Commission on 23 exotic -- bringing whatever works -- or you would 24 know this better than I -- for an infected area? 25 DR. COOKE: I don't want to speak . 106 1 for them. But I did meet with them a week or so 2 ago at their annual meeting. We were talking 3 about a lot of things. But our -- their 4 epidemiologists has come to visit with several of 5 you in the past to talk about these kinds of 6 issues. They are concerned. They're quite 7 concerned. And whatever can be done, they would 8 like to try to do. But they're like us, they 9 don't want to work alone. 10 COMMISSIONER FITZSIMONS: A 11 coordinated effort? 12 DR. COOKE: Yeah, a coordinated 13 either. 14 COMMISSIONER FITZSIMONS: That's 15 really my question. 16 CHAIRMAN IDSAL: Has the level of 17 coordination and interest decreased to your mind 18 in the last couple of months? I know the level of 19 interest that I've gotten through phone calls and 20 letters and whatnot from people with a rather 21 large vested interest in the wildlife population 22 has increased dramatically, as you know, within 23 the last few weeks. 24 DR. COOKE: Are you speaking in 25 terms of the public itself or the Texas Animal . 107 1 Health Commission? 2 CHAIRMAN IDSAL: How -- has the 3 level of our cooperation, Texas Parks & Wildlife's 4 cooperating with the Animal Health Commission and 5 other appropriate institutions and agencies want 6 it increased as a result of these concerns in your 7 opinion? 8 DR. COOKE: In my opinion, no. 9 Because we've always been -- since I've been here, 10 I've been a part of the cervid committee for the 11 Animal Health Commission. They have had no rules 12 or regulations of which we were not part of the 13 conversation. They call on us for advice as it 14 relates to wild animals -- 15 CHAIRMAN IDSAL: So you are happy 16 with the level of cooperation -- 17 DR. COOKE: Yes. Now, the level of 18 concern has changed. 19 CHAIRMAN IDSAL: The concern is -- 20 but the cooperation is a healthy one. 21 DR. COOKE: Yes, it's very healthy, 22 in my opinion. 23 COMMISSIONER FITZSIMONS: Mr. Ramos? 24 COMMISSIONER RAMOS: Let me 25 understand something. Are you saying that . 108 1 currently as we speak, if I want to bring a deer 2 Michigan, that there's not a set of standards or 3 testing procedures that would be employed before 4 it entered the state of Texas. 5 DR. COOKE: There are Texas Animal 6 Health Commission regulations related to 7 tuberculosis tests, yes. And there are some other 8 tests, as well, that I may not be familiar with. 9 COMMISSIONER RAMOS: But do you 10 know, for example, as you described, we have other 11 problems other than just tuberculosis or 12 brucellosis? 13 DR. COOKE: Yes, sir. 14 COMMISSIONER RAMOS: Do you know if 15 we're currently testing an animal before it 16 accesses the state for those potential problems? 17 DR. COOKE: You can't -- 18 CHAIRMAN IDSAL: You can't. 19 COMMISSIONER FITZSIMONS: You 20 can't -- well, there is a test. They won't like 21 it. 22 COMMISSIONER WATSON: That's 23 predicted. 24 COMMISSIONER RAMOS: And as an 25 animal, is there any procedure where they're . 109 1 permanently identified, be it tattooed or 2 otherwise, where you could you trace an animal 3 back? 4 DR. COOKE: No. We have 5 requirements for a unique number to be tattooed in 6 the year of a white-tailed deer or a mule deer at 7 the time that it leaves a scientific breeder 8 facility. And technically if they're on the road, 9 they need to be tattooed. And that was the 10 purpose of it. 11 COMMISSIONER RAMOS: But they get 12 tattooed as they come in from out of state. 13 DR. COOKE: I'm going to have to 14 visit our rules to see. I don't think they do. 15 COMMISSIONER RAMOS: Because if we 16 did that, then we could trace them back to point 17 of origin. 18 COMMISSIONER WATSON: Well, you 19 know, I think the best solution -- because you're 20 going to have lots of trouble with enforcement, I 21 think the best solution is you just don't bring 22 them in. 23 CHAIRMAN IDSAL: Mr. Chairman, one 24 story that I've read about -- and if it's true, 25 I'd like to know it -- was that an elk that ended . 110 1 up with -- with a chronic wasting disease in 2 Colorado had originated in Boerne. Is that true 3 or not true? 4 DR. COOKE: It's not true. 5 CHAIRMAN IDSAL: It's being reported 6 as true. 7 DR. COOKE: It isn't. 8 CHAIRMAN IDSAL: Okay. 9 DR. COOKE: In my last conversation 10 with the Texas Animal Health Commission, there 11 were no Texas animals going into those facilities 12 before anything happened. We do not have any in 13 Texas at the moment, that we know of. 14 COMMISSIONER FITZSIMONS: And just 15 so everyone is clear about this, if I'm right, 16 Jerry, there is no live test for CWD? 17 DR. COOKE: There is one that is 18 being tested now. It's essentially a DNA test, 19 looking for a preon that could be associated with 20 that. It has not been blessed, you know, by the 21 world. But there's a lady in Wyoming and there's 22 someone over at the Center for Disease Control 23 that's testing a test as we speak because -- 24 CHAIRMAN IDSAL: For chronic -- 25 DR. COOKE: For chronic wasting . 111 1 disease. 2 COMMISSIONER FITZSIMONS: Does the 3 U.S. Animal Health Association have any sort of 4 position paper on this year that interplay between 5 domestic -- or exotic and wildlife, in regulation? 6 DR. COOKE: I don't know about 7 regulations. I've looked at lots and lots of 8 papers on the Internet through the International. 9 And, by the way, Texas Animal Health Commission is 10 very, very, very heavily represented in all of 11 those publications that I have seen on the 12 Internet. But as far as rules, I do not know. 13 COMMISSIONER FITZSIMONS: The reason 14 I'm bringing that up is the U.S. Animal Health 15 Association is usually the source of model 16 legislation in these areas. And I just suggest 17 that you make a contact there to see what's being 18 discussed in other states. 19 CHAIRMAN IDSAL: Do you -- Mr. 20 Chairman, I'd like to ask him a question. 21 What is the -- do you have any idea 22 what the numbers are of exportation of wild game 23 from Texas to other states? 24 DR. COOKE: Well, the biggest one, 25 obviously, is going to be some of the municipal . 112 1 removals with urban deer -- you know, removal 2 permits to Mexico. But as far as -- you know, a 3 purchase permit is required when you sell a beast. 4 CHAIRMAN IDSAL: Are we testing 5 those deer that are being exported. 6 DR. COOKE: No. 7 CHAIRMAN IDSAL: Thank you. 8 COMMISSIONER FITZSIMONS: I think we 9 could go on with this one. I have one last 10 question. You've told me this before and 11 obviously I need to write it down this time. 12 What's the number of scientific breeder 13 permittees? 14 DR. COOKE: There is about 300, 15 between 300 and 350. I'd have to check. 16 VICE-CHAIR ANGELO: Is it the sense 17 of the Commission that we ought to be pursuing 18 some kind of restrictions, either total or 19 otherwise? I mean, I don't believe I'll let this 20 drop today without some idea of what we -- where 21 we go from here. 22 COMMISSIONER FITZSIMONS: I would 23 quote our former chairman of this committee and of 24 the Commission, that if we ever looked back on 25 this and saw that we had destroyed one of the . 113 1 greatest white-tailed deer -- wild white-tailed 2 deer populations in the world by trying to improve 3 it one percent, we sure would be sorry. 4 COMMISSIONER RAMOS: And I echo Mark 5 Watson's comments. I think this is a big problem 6 and we need to protect our own game. And I think 7 we have enough deer. I agree with you. 8 COMMISSIONER WATSON: Well, Joseph, 9 I just couldn't agree with you more. I just think 10 that there's absolutely no basis for bringing 11 these deer in. And I think also, I mean, if y'all 12 want to accept the -- the risk, I mean, I think 13 you have to realize that a lot of these deer are 14 being brought in and being shot within a few 15 weeks. And I don't think that's right. 16 COMMISSIONER FITZSIMONS: They can 17 go to Michigan and shoot them. 18 VICE-CHAIR ANGELO: That's right. 19 COMMISSIONER RAMOS: And maybe at 20 some point, our science will reach a level where 21 we can test against these, with DNA or otherwise. 22 When we reach that level, then we can insure that 23 we don't have a problem. But it's a tremendous 24 risk. 25 COMMISSIONER WATSON: I don't want . 114 1 to see, you know, hybrid white-tailed deer. You 2 know, and I think in a lot of respects, it's 3 almost what people are trying to get to. They're 4 trying to get a white-tailed deer that looks like 5 a mule deer. 6 COMMISSIONER RAMOS: Well, the F1 -- 7 CHAIRMAN IDSAL: That's already 8 happening in nature. 9 COMMISSIONER FITZSIMONS: Yeah. The 10 animal health issues, I think, is certainly my 11 primary concern. The only caveat that I would 12 offer to taking aggressive action, Ernie, would be 13 that we be careful to recognize that we're not 14 operating in isolation, that this is also a 15 livestock, an exotic wildlife issue. And we have 16 to work very closely with the -- with frankly the 17 people who have a heck of a lot more experience in 18 managing these problems than we do. 19 CHAIRMAN IDSAL: I also feel that 20 it -- and believe that we try to stick to the 21 health issues here, that we don't get into other 22 issues. That's for another day. The health 23 issues are important enough and that's what we 24 should focus on, so we don't get off track. 25 COMMISSIONER FITZSIMONS: I agree. . 115 1 This is not a hunting ethics issue. This is not a 2 trade intrastate issue. This is a protection 3 animal health issue. 4 COMMISSIONER RAMOS: Agreed. 5 VICE-CHAIR ANGELO: So what do we 6 do? 7 COMMISSIONER FITZSIMONS: Well, I'd 8 like to learn, as I said, what the Animal Health 9 Commission would recommend that we do because we 10 are one rock in the stream. And it goes around us 11 if we're not coordinated with the Animal Health 12 Commission whose jurisdiction is in livestock. 13 And, you know, a lot of these 14 diseases don't recognize that boundary between 15 wild and exotic and domestic. So I'm not passing 16 the buck here. I want to learn from them, from 17 the Animal Health Commission, what they think we 18 could do in concert with the Animal Health 19 Commission to get in front of the problem. 20 CHAIRMAN IDSAL: Jerry, would it be 21 possible, and being mindful of our time frame 22 between, I guess -- have we got time to do 23 something about this year, on this cycle? 24 DR. COOKE: Well, the answer to the 25 question is yes. I mean, if you choose. . 116 1 CHAIRMAN IDSAL: Could we have -- 2 I'm trying to figure out a way right here how to 3 further this discussion that -- in a way that will 4 lead us to some kind of a decision sometime maybe 5 this spring, whether to keep going or what exactly 6 to do. Would it be appropriate to have a briefing 7 from the Animal Health Commission at our January 8 meeting and have you-all, you know, continue your 9 discussions? 10 COMMISSIONER FITZSIMONS: Is it 11 appropriate for that to be joint with Jerry so 12 that we can sort of speed up the process? 13 CHAIRMAN IDSAL: Uh-huh. 14 DR. COOKE: I'm sorry that I didn't 15 invite -- actually, you know, they asked if they 16 needed to be here for this, and I told them that I 17 didn't know where you were going with it, to be 18 very frank with you. And they would be more than 19 happy to send one or more of their epidemiologists 20 to come and speak with us. 21 COMMISSIONER FITZSIMONS: With the 22 purpose of making specific recommendations, not 23 just -- 24 VICE-CHAIR ANGELO: Not just to talk 25 about it. . 117 1 COMMISSIONER FITZSIMONS: I'm ready 2 to hear some recommendations from the experts. 3 COMMISSIONER RAMOS: And I would 4 like to see staff prioritize this. I think this 5 is a huge issue that could have a tremendous 6 impact. 7 DR. COOKE: It would be easy -- it 8 would be relatively easy to discuss with Animal 9 Health Commission, to discuss with scientific 10 breeders that we have in the state, as well, for 11 some of their input and bring you a proposal, as 12 well as a briefing in January, if you choose 13 that -- 14 CHAIRMAN IDSAL: Mr. Chairman, I 15 think in addition to that, I'd like to charge 16 Joseph with meeting with you and the 17 representatives from the Animal Health Commission 18 between now and that time so that -- well, really 19 in the interest of speeding up this process. 20 COMMISSIONER FITZSIMONS: So we're 21 coordinated. 22 CHAIRMAN IDSAL: So if the chairman 23 and vice-chairman of the regulations committee 24 could meet at an appropriate time with you and the 25 Animal Health Commission, I think that would be . 118 1 productive, and then report back in January. 2 COMMISSIONER FITZSIMONS: Yes, 3 ma'am. 4 DR. COOKE: It shall be done. 5 COMMISSIONER FITZSIMONS: Any other 6 questions or comments? Thank you very much, 7 Jerry. 8 Any other business to come before 9 the regulations committee? Recognizing that we 10 are not the only committee -- 11 VICE-CHAIR ANGELO: Used up the 12 whole morning. 13 COMMISSIONER FITZSIMONS: Do I have 14 a motion to adjourn? 15 COMMISSIONER RAMOS: So moved. 16 COMMISSIONER FITZSIMONS: All in 17 favor? Motion. Take a short break or -- 18 CHAIRMAN IDSAL: Short break. I was 19 assured that the November meeting is dull. These 20 are important issues. A short break and then I 21 think we can at least get through the finance 22 committee. 23 *-*-*-*-* 24 (MEETING ADJOURNED.) 25 *-*-*-*-* . 119 1 REPORTER'S CERTIFICATE 2 3 STATE OF TEXAS ) 4 COUNTY OF TRAVIS ) 5 I, MELODY RENEE DeYOUNG, a Certified 6 Court Reporter in and for the State of Texas, do 7 hereby certify that the above and foregoing 118 8 pages constitute a full, true and correct 9 transcript of the minutes of the Texas Parks & 10 Wildlife Commission on November 7, 2001, in the 11 commission hearing room of the Texas Parks & 12 Wildlife Headquarters Complex, Austin, Travis 13 County, Texas. 14 I FURTHER CERTIFY that a stenographic 15 record was made by me at the time of the public 16 meeting and said stenographic notes were 17 thereafter reduced to computerized transcription 18 under my supervision and control. 19 WITNESS MY HAND this the 9th day of 20 January, 2002. 21 22 MELODY RENEE DeYOUNG, RPR, CSR NO. 3226 23 Expiration Date: 12-31-02 3101 Bee Caves Road 24 Centre II, Suite 220 Austin, Texas 78746 25 (512) 328-5557
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