Texas Parks and Wildlife Commission
Regulations Committee

May 26, 2004

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 26th day of May, 2004, there came on to be heard matters under the regulatory authority of the Parks and Wildlife Commission of Texas, in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:




Robert L. Cook, Executive Director, and other personnel of the Texas Parks and Wildlife Department


COMMISSIONER FITZSIMONS: Good morning. The meeting is called to order. And before proceeding with any business, Mr. Cook has a statement to make.

MR. COOK: Thank you, Mr. Chairman. A public notice of this meeting, containing all items on the proposed agenda has been filed in the Office of the Secretary of State, as required by Chapter 551 of the Government Code, referred to as the Open Meetings law. I would like for this action to be noted in the official record of this meeting.

COMMISSIONER FITZSIMONS: Thank you, Bob. We'll begin today with the Regulations Committee, and therefore I call the Regulations Committee to order. And the first order of business is the approval of the Committee minutes, which have already been distributed. Is there a motion for approval?



COMMISSIONER FITZSIMONS: Motion by Commissioner Holmes. Second by Commissioner Holt. All in favor, please say aye.

(Chorus of ayes.)


(No response.)

COMMISSIONER FITZSIMONS: Hearing none, the motion carries. Committee item number one. Chairman's charges. Bob?

MR. COOK: Mr. Chairman, I would like to talk to you a little bit about where we are on our shrimp license buy-back funding strategy. One way to encourage others to contribute to this program is by clearly showing that the potential individual or organization that contributes will directly benefit as a result from the reduction of the harvest of shrimp, crabs, and saltwater fin fish, and by catch in these fishers.

That results from buying out the commercial fishermen from these fishers. And that we as an agency are doing as much as we can to fund our own programs, as the Legislature has directed. With that in mind, I have asked staff to propose a continuation of the $3 surcharge on the saltwater sport fishing stamp, which is set to expire September 1 of '05.

So we are a little out in front of that, but I want to give time for that discussion to take place and I think it would be wise to get that online and in people's minds, and out of the way. In that spirit, we will continue to earmark these funds for the commercial shrimp, fin fish and crab license buy-back programs as per your directions.

To accomplish this, I am asking permission to publish the proposed continuation of the $3 surcharge in the Texas Register for public comment. Now one issue that I would like perhaps, a little comment on from the Commission is whether or not to put a cutoff date on this. This is a Commission action. We can review it. We can extend it. We can increase that fee, as a matter of fact, here within the Commission. You have that authority.

My initial reaction was, and I think there was some discussion about this previously, my initial reaction on this was that we should probably put a cutoff date out there, somewhere in the future, at a time when we think we will have completed the buyout process, which in visiting with Doc some yesterday, and with Mr. McCarty, we think that's probably in the range of ten years. But I don't know that there is any particular advantage to that, other than setting that as a goal and keeping that in everyone's mind that that is the purpose. I would move that to your call, sir.

COMMISSIONER FITZSIMONS: Well, I would like to hear what some of the other Commissioners have to say. It seems to me it is always a good idea to Sunset, because it requires you to revisit any fee and justify what you are doing down the road.

COMMISSIONER HOLT: A question I had is, how is it done so far? I know we have gone through that, and I apologize for missing the retreat a few weeks ago. How many dollars have you raised? Have you had enough dollars to do the buy-backs that you wanted to do, relative to what has been offered, et cetera.

MR. COOK: And really, to get — Commissioner Holt, to get some really accurate information on that, I may have to call on staff here right quick.


MR. COOK: But in general, I think the pace of the buyout has been good.


MR. COOK: We anticipated that it would take a long time. Prices have increased as the buyout has continued. The opportunity for the buyout, like I say, the original $3 surcharge was set to expire September 1 of '05. We see that we are not going to be there by that time.

There are some other options being floated around out there, that I think we have to operate within our own realm of what we have to operate with, and I think that the — and again, I will ask Doc or Gene to come forward and address that. Why don't we do that, Doc? To get Mr. Holt a specific answer as to where we are in that process.

COMMISSIONER HOLT: Yes. And another part of the question would be, do we need more dollars, I guess, as you go forward. So maybe we can tie all that together.

MR. MCKINNEY: Hi, Mr. Chairman, and for the record, I am Dr. Larry McKinney, Director of Coastal Fisheries. Yes, Commissioner, we have been moving forward on that, we have gone through a number of rounds of buyback. We do two a year. We are about 30 percent of goal that we set when we first started this program. We are trying to reduce effort back to somewhere in the 70s.

That was a goal we set more or less arbitrarily, just to try to reduce that effort. What we have seen, as you would expect, as these buyback rounds have gone on, the participants, the license holders have gotten more sophisticated about what the value of their license is, as you would expect. So we are beginning to hit some plateaus.

So it's slowing down, again, as you would expect, and get a little more resistance as that sophistication increases. So, our time line to reach that goal is stretching out and as long as it is a voluntary program, and we are putting those funds into it, I think we're doing it at a good pace, but it will take a little bit longer.

COMMISSIONER HOLT: Let me ask, at the $3 surcharge, is it enough funds, as you have indicated, the license supply and demand-type situation and sophistication of the individual selling is it going to continue to go up, I assume.

MR. MCKINNEY: That's right.

COMMISSIONER HOLT: Is that enough dollars. Will it be able to create enough dollars, I guess is a better question.

MR. MCKINNEY: Over that period of time, obviously, we would like to move more quickly, and as situations occur, where the industry, the opportunity to buy back is higher, it would be great. I mean, right now, those shrimp are bringing 35 cents a pound.

And with the fuel prices going up, a lot more folks are now contemplating it's time to move out of that business, perhaps. So, if we had more funds available, we could move it more quickly, but we're moving at that pace, and it seems, it's a way to get there, and we will, sir.

COMMISSIONER HOLT: Well, then maybe, excuse me for keep asking the question, you are indicating that if there was more dollars, you could move at a quicker pace?

MR. MCKINNEY: That's right. We have more bids that comes in than we fund.

COMMISSIONER HOLT: That you can — oh, okay. Well, that's what I was trying to get to.

MR. MCKINNEY: I'm sorry. I should be more clear.

COMMISSIONER HOLT: Well, no. I wasn't clear asking the question.

MR. MCKINNEY: We cut it off. We do that because we set a price on it. We set a top price and we won't pay above.


MR. MCKINNEY: And so there is always a number of licenses just above that. We usually buy about 100 back, and around. We could typically, if we wanted to, buy 150 or more, if we wanted to put more money into it. But we try to pace ourselves and we want to keep that price down. We don't want to keep it this clinging, in fact.

COMMISSIONER HOLT: No, I understand that. But the reason that I would bring it up, is that I somewhat know the business and obviously that price of shrimp is down the tubes and the cost of the fuel is eating these people's lunch. I mean, it seems to me there could be a time a window here, there would be maybe an opportunity where you have got people that are willing to get out of the business and sell and be glad to get out with a few bucks in their pocket.

MR. MCKINNEY: That's exactly correct.

COMMISSIONER HOLT: That's one thing I would like to talk about.

COMMISSIONER FITZSIMONS: The point it, there's the levy point here and the opportunity to get more done, more bang for your buck.

COMMISSIONER HOLT: More bang for the buck.

MR. COOK: When we go out, we could discuss, when we go out for comment and proposal, we could discuss some different price range. Obviously, you don't want to price your fishermen out of the business. We're not talking about doing that, the people who are paying this $3 charge.

COMMISSIONER FITZSIMONS: No, but if it is consistent, with the raise that we already had in the base license, because otherwise it's behind, correct? Is my reasoning right?

COMMISSIONER HOLT: Well, that was going to be my next question. Did the $3 surcharges affect the sale of licenses? I remember they were up a bit, percentagewise. Is that not correct?

MR. MCKINNEY: Five years ago, it didn't really make the blip. When we did that five years ago.

COMMISSIONER HOLT: And that was five years ago. I mean, could you raise it a dollar or two? I wouldn't know what the elasticity of the marketplace is.

MR. MCKINNEY: That's certainly something we can look at during this period. That's appropriate to what we're doing.

MR. COOK: Gene, any thoughts and comments?

COMMISSIONER BROWN: One other question, as far as the optimum number, what level do we want to be at. I know we have talked about a number before, I think. And do we kind of gear this whole thing in process to reaching that level, and at that point, you do something else with the funding? What is the level that we want to be?

MR. COOK: Let me let Gene —

MR. MCCARTY: I guess my only thing I would bring up the dirty word, the appropriations. If we raised more money right now, we couldn't do anything with it. We do not have appropriations authority to spend it.


MR. MCCARTY: I would suggest that we get appropriation authority from the Legislature before we raise additional dollars for that initiative, so that's why I would say that I would —

COMMISSIONER HOLT: The Legislature is going to meet in January of 2005, and you are talking about this is for September of 2005.

MR. MCCARTY: We have appropriation authority to spend the $3 that we are collecting now, and since as we continue to hold that $3 until we get additional appropriation authority.

COMMISSIONER FITZSIMONS: I want to go back to Commissioner Brown's question, which is where is the goal line?

MR. MCKINNEY: When we first proposed the — stay here, Gene. When we first proposed this five years ago, laid out our models. We asked that same question, what would be our goal. And we looked back at our historic numbers, and looked at and basically picked a point of time, and said, look, the effort that was going on in the '70s would be what we hope would be a sustainable shrimp fishery from bays.

We would like to get back to that. Let's set that as our goal, to get back to that '70's level. Now several things happened, of course. As we have reduced the number of boats, the remaining boats have become more efficient. They do a better job. They put more into bigger boats, more powerful and all that.

So the effort goes up. But it is still — that was our goal. So, in that range of 30 to 40 percent of what we have now, is probably what we are looking at.

COMMISSIONER HOLT: Thirty to 40 percent of what you have now, even after the buybacks that you have done? Okay.

MR. MCKINNEY: Would be that we buy back that goal we set.

COMMISSIONER HOLT: You were doing it pretty dramatically, then.

MR. MCKINNEY: Right. And that's is why we looked at our ten-year window, and saying, well, at our present pace, even accounting for some resistance, we would hope to get there by then. A couple of other things that are happening on it, and not only are we looking at it, we are going to be talking with our private partners.

CCA and C [phonetic] and others? About a different approach. In the past, they have been buying licenses back.

COMMISSIONER HOLT: Yes, on a private basis.

MR. MCKINNEY: We're going to be discussing with them, for example, when we buy our hundred licenses back, there is 20 or 30 of those licenses above that that we won't pay above, but perhaps they can make best use of their money, if they wanted to, to pay that difference, and pick those extra 20 licenses.

So, instead of buying three or four or five licenses, they might help us buy 20 licenses back, if they were willing to pay. So we are going to be talking about those kinds of things as well to help them.


COMMISSIONER HOLMES: Doc, do you have kind of a queue? You said that you buy 100, but you have got 150 on offer. But the extra 50 are on offer at our price, right?

MR. MCKINNEY: At a higher price. They bid for higher prices. We cut it off at a level that we can afford and kind of negotiate with more.

COMMISSIONER HOLMES: But we are buying all the ones that are on offer at our price?

MR. MCKINNEY: That is — oh, at our price? No, we set our limits to stretch our money.

COMMISSIONER HOLMES: The other way to ask that is, if we had enough money to buy back all the ones that were offered at our price, how many would that be? Would that be another 50 or would that be?

MR. MCKINNEY: Up to not 50. Probably 20 or 30.

COMMISSIONER HOLT: So you are walking away from some that you could buy at your price.


COMMISSIONER PARKER: How many licenses do we have left out there?

MR. FITZSIMONS: In Bay or Bay Gulf?


MR. MCKINNEY: Both, there are 2,000. 1,000 bay, a 1,000 bait and about 60 or 70 percent of individuals hold both of those. They are not 2,000 individuals, but that's kind of a mix.

COMMISSIONER PARKER: 1,000 and 1,000.

MR. MCKINNEY: Yes. Maybe 800 or so hold both licenses, somewhere in that range.


COMMISSIONER HOLMES: Do I remember that you want to get down to about 400 bay license?

MR. MCKINNEY: No, that is the goal that you have seen in the paper, with the 2007 group. Ours is just trying to get, ours is a fishing effort. Our goal is to hit, we want to reduce that effort to that 70's level, whatever that is.

COMMISSIONER FITZSIMONS: Well, how do you quantify that? If you don't quantify it with a number of boats or a number of permits, how do you quantify that?

MR. MCKINNEY: We're trying to figure that out. How to do that. And we're watching efforts, our charts on efforts and those types of things, but we are trying to figure that out right now.

COMMISSIONER HOLT: So in pounds of shrimp, or that kind of thing.

MR. MCKINNEY: Typically, you would have effort, or fishing, and those types of things. And eventually we will need get it down to some boat number, we just don't know what that is. But that has been thrown out in that legislation.

COMMISSIONER FITZSIMONS: So we don't have a quantitative goal line.

MR. MCKINNEY: Not yet. That's why B

COMMISSIONER FITZSIMONS: Back to Commissioner Brown's question, there's not a place to where we are going to where we know we got there.


MR. MCKINNEY: Not yet.

COMMISSIONER HOLMES: We just know we're not there now.

COMMISSIONER FITZSIMONS: A place where we know where we got there, but we don't know where it is yet.

COMMISSIONER RAMOS: But won't that level B


COMMISSIONER RAMOS: But wouldn't we know, by what is out there? In other words, it's like a moving target? At some point, we feel that we have impacted it to a point at where our shrimp levels are at the level that we want them.

MR. MCKINNEY: As we see that level, fishing effort level off, not continuing to increase. As it levels off and perhaps to find then we're over in the ballpark of hitting something that we've made an impact.

COMMISSIONER RAMOS: But that's more of a moving target.

MR. MCKINNEY: It's going to be a moving target.

COMMISSIONER RAMOS: In answer to your original question, Bob, it seems to me, my preference would be that we have a five-year goal to where we're a little more aggressive. It seems to me that if we put the goal too far out there with the deadline, perhaps we may not be as aggressive in going after these licenses. That is just philosophy, I guess.

COMMISSIONER FITZSIMONS: Well, you mean a higher fee, or higher stamp price for a shorter period of time? Is that what you are saying. To get more bought? Ned?

COMMISSIONER HOLMES: Well, if we have a specific amount of money on an annual or biannual basis, and we have more offered at the price we are willing to pay, it doesn't help to raise the price because we are not spending. I mean, we are not buying all the ones that are on offer at our price anyway.

COMMISSIONER HOLT: We not raising the price, but we could raise the amount of dollars to be raised.

COMMISSIONER HOLMES: If we have raised the amount of dollars.

COMMISSIONER HOLT: That's what I am kind of heading towards.


MR. COOK: I don't think there is any question that having additional dollars available will expedite the process and give us B

MR. MCKINNEY: Without a doubt.


COMMISSIONER HENRY: Gene, is this being addressed in our Legislative priority plan? This subject?

MR. MCCARTY: You mean, in terms of getting additional legislative authority, appropriation authority? It is not on the list. No, sir.


MR. MCCARTY: If you would like it to be there, I will put it there.

COMMISSIONER HENRY: I mean, would that help to solve the problem?

MR. MCKINNEY: Again, if the desire of the Commission is to move more quickly, our limit right now is at appropriations authority. We can't particularly move more quickly, unless that is addressed legislatively.

COMMISSIONER FITZSIMONS: So, it's not on our present draft for the legislative initiatives, right, Gene?

MR. MCCARTY: That's correct.

MR. COOK: We had not anticipated reaching the $3.

MR. MCCARTY: We did not anticipate needing additional appropriation authority, because we have appropriation authority for the $3 that we are collecting right now.

COMMISSIONER HOLT: Would it hurt license sales, if you had a higher surcharge? I think that becomes the question there. I mean, is there any way to quantify that or study that, or look at that between now and when we have to submit to appropriations?

MR. COOK: I think that as we go through this process of airing this out, those are points that we should discuss and come back to the Commission with a kind of a feel of what the impact would be on licensed sales and on revenue generated and on that fishing effort.

MR. MCKINNEY: As we put that information together to do that, I will in the next couple of days for you. There have been several specific questions I haven't been able to give you some numbers on, but I do have those numbers.

I will put together a briefing for you all, a short window of those specifics and get you a chart exactly of where we have been and where we are going, dollarwise. That will be easy to do, and I will be glad to do that.

COMMISSIONER HOLT: And that's working from that side, but then we have got to work from the marketplace too. I mean, you can't — it would be nice to raise to ten bucks if you thought it wasn't going to affect anything, and then you could move even quicker, leading to your point, Donato.

But obviously then, your sales of your licenses are going to drop off, so we don't want that, obviously. We are not trying to discourage people from buying their licenses.


COMMISSIONER PARKER: Is it the consensus of the group that we not let this legislation Sunset out? That is what I would like to know, and I certainly hope that it is not. I hope that we will take the necessary steps with the Lege to B

COMMISSIONER FITZSIMONS: Your question is renewal.

MR. COOK: We don't need to go to the legislature. I'm going to make sure you understand. We don't need to go to the legislature to extend this.

MR. MCKINNEY: That's the Commission's project.

COMMISSIONER FITZSIMONS: But to increase the surcharge and spend the money, we do need to go to the legislative.

COMMISSIONER HOLT: We do have to go to the legislature, to increase it over the $3.

MR. MCKINNEY: It's a two-part deal. You could raise the fee, but as you were saying, we have no appropriations authority to expend those monies. We can't do that.


COMMISSIONER RAMOS: It seems to me that at a minimum, we ought to seek legislative appropriation authority to a certain level, then we decide whether or not what level we should raise it to. I don't think we have to commit to $5 or whatever. Seek authority up to a certain level, and then we do our own study and depending on the impact, then we can accordingly adjust it.

COMMISSIONER FITZSIMONS: Yes. That answered Robert's original question and Ned's and where exactly is the goal line, and how do you know when you are there? Well, plenty of interest in this topic.

MR. COOK: With your permission, we will publish to extend and proceed from there.

MR. MCKINNEY: And begin to gather the public comment and to put the information together and be prepared to come back to you in August with a recommendation.

MR. COOK: I think that's the first step in the process of legislative appropriation and it would be the next step if we decided to increase.

COMMISSIONER HOLT: I think there's the goal line issue and then the timing to the goal line, if we could speed it up, as Donato said. Take advantage of a window, let's say, that may be there for the next couple of years relative to the cost of fuel and the price of shrimp and other issues, that maybe allows you to buy that license at a price that doesn't continue rising. We need to graph that.

COMMISSIONER FITZSIMONS: Well at some point, when you get to those last few licenses, they are going to be the worst.

COMMISSIONER HOLT: Well, of course.

COMMISSIONER BROWN: If it is possible to make money shrimping, you know, that's the key too. I mean.

MR. MCKINNEY: That's a good point too.

COMMISSIONER HOLT: It's not happening now. You can't make money shrimping.

COMMISSIONER PARKER: They might be in a rush to sell those licenses.

COMMISSIONER HOLT: Well, that's part of it. We may have a window of opportunity.


COMMISSIONER FITZSIMONS: Any other comments before we wrap this one up, Ned?

COMMISSIONER HOLMES: Just the last piece. I would encourage us to take a strong look at asking the Legislature to increase our authority, and then, as Donato said, we can then worry about the price.

MR. COOK: We have a number of reasons to request an increase.


MR. COOK: This may be one of them.

MR. MCKINNEY: This may be one.

COMMISSIONER FITZSIMONS: Now, to get it all in perspective, for those of you who were at the coast, remember, and you probably saw in your update of Monday, there have been some significant improvements in biomasses as they say, down there. There's a lot of improvements in different fisheries and even all the way to the turtle populations that are recovering. And it's no one thing, is it Larry? It's a combination of the TEDS and the regulations and buyback.

MR. COOK: Be careful. Dr. McKinney will tell you it's new management.

MR. MCKINNEY: I'd like to. My executive director has. He takes full credit and I am fully supportive of him taking that credit. Yes, sir. I think it's quite phenomenal this year. It's a combination of those type. I think our shrimp regs are really taking effect. The conditions, we have had water, freshwater come down, and we kind of got back to the patterns, which will be there.

I would tell you that when we looked at, as you have seen in some of our press releases, we'll be doing more. When we've looked at our gill nets [phonetic] which we have just recently done, we have never seen the numbers and sizes of trout that we are getting now, redfish either. It is just off the charts for the last 30 years. So, and people are beginning to catch them a little bit too. So it could be a phenomenal next several years.



MR. COOK: Thank you.

COMMISSIONER FITZSIMONS: Committee item number two, proposed civil restitution proclamation. Kris Bishop? You are up.

MS. BISHOP: Good morning, Mr. Chairman, Commission Members, and Mr. Cook. I am Kris Bishop, the Assistant Chief for Fisheries Enforcement of the law enforcement division. One of my duties is to administer the civil restitution program for Texas Parks and Wildlife.

Today staff proposes amendments to Texas Administrative Code 69.22 and 69.30, concerning the department's rules for recovering monetary damages from persons convicted of taking wildlife resources in violation of the law. I would like to begin by reviewing the laws and regulations that pertain to our civil restitution program, and then inform you of some research that has initiated these proposals.

In 1985, the Texas Legislature passed amendments to the Parks and Wildlife Code by adding Chapter 12.301, a person who kills, catches, takes, possesses or injures any fish, shellfish, reptile, amphibian, bird or animal in violation of this code or a proclamation or regulation adopted under this code is liable to the state for the value of that fish, shellfish, reptile, amphibian, bird or mammal unlawfully killed, caught, taken, possessed or injured.

At that time, they also added Chapter 12.302 whereby the Commission shall adopt rules to establish guidelines for determining the value of those injured or destroyed fish, shellfish, reptiles, amphibians, birds or animals. The recovery value of injured and destroyed wildlife is determined on a per animal basis, under rules adopted by the Commission.

For each animal, a value is assigned for each of eight scoring criteria, those are recreation, aesthetics, educational, scarcity, environmental tolerance, economics, recruitment and ecological role. Those scores are summed to create a total criteria score, and then is multiplied by a weighting factor to adjust for a variance in public demand and/or perception of value.

The adjusted criteria score has a corresponding recovery value which the violator is then assessed; the value of trophy wildlife species is determined by a formula based on the animal's Boone and Crockett score. Current values by which restitution amounts for wildlife species are calculated have not been changed since 1985, with the exception of the rules governing the value of trophy wildlife species which were adopted in 1996.

Since then, economic factors such as inflation and real dollar value equivalents have eroded the deterrent power of the current restitution values for wildlife species. In addition, the cost to the Department for administering and enforcing rules has increased for the same economic reasons.

Research indicates that the consumer price index has increased 1.677 points between 1986 and 2003. The proposed amendment would increase the criteria score values to reflect the change in the CPI, which is necessary to maintain recovery values that are similar to the original values relative to current economic factors. In the case of trophy animals, the proposal reflects the change in the CPI since 1996, which is 1.17 points.

The proposed amendment to the Texas Administrative Code 69.22 concerning wildlife recovery value changes the various monetary values across the continuum of the scoring range. The proposed values were produced by multiplying the current value by 1.677, which is the amount the CPI has increased since 1985 and then rounding to the nearest 50 cents. This table includes an example of a wildlife species for each current value and then its proposed increased value.

The proposed amendment to Texas Administrative Code 69.30 concerning trophy wildlife species changes the dollar value coefficient used to calculate the final restitution value for trophy white-tail deer, mule deer, pronghorn antelope, and desert bighorn sheep. The proposed dollar value coefficient was derived by multiplying the current coefficient for each species by 1.17, which is the amount the CPI has changed since 1996.

The amendment also removes references to elk, because the Texas Legislature in 1997 designated elk as an exotic species, thereby, we no longer have any regulatory authority with respect to that species. And then here we have an example of 150-class Boone and Crockett trophy white-tailed deer with the current values compared to the proposed values.

The formula at the top of the slide is representative of the current value, which is $3,025.50. The second formula utilizes the proposed changes in the dollar value coefficient and base price, resulting in a value of $3,806.50. And that concludes my presentation. I would be happy to answer any questions that you might have.

COMMISSIONER FITZSIMONS: Well, Kris, I didn't want you wondering what Bob and I were laughing about.

MS. BISHOP: I bet it was about the nutria, wasn't it?


COMMISSIONER HOLT: You don't want to get rid of those?

COMMISSIONER FITZSIMONS: Yes. And I was wondering, is that supposed to be a bounty or a fine?


COMMISSIONER PARKER: I didn't think we were trying to protect nutria.

COMMISSIONER HOLT: I didn't either.

MR. COOK: I didn't either.

VOICE: I hate those things.

COMMISSIONER HOLT: He does. He doesn't like possums, either.

COMMISSIONER PARKER: This will be fun to read the record on this one.

COMMISSIONER FITZSIMONS: That doesn't seem to me to be a significant difference, the $3,025 and the $3,806. Ned, you're the finance man.

COMMISSIONER HOLMES: No, it doesn't. I mean, percentage-wise, it sounds like a lot, but I wonder if you were going out to a day hunt, what would be the value that you would pay to shoot a 150-class deer and not I have an instinct it's probably going to more than $3,800. And it seems to me that B


COMMISSIONER HOLMES: There should be some market-pricing concept into this. And I know we are trying to get there with this formula. I am not sure we are quite there.


MS. BISHOP: We did have Clayton Wolf, who is in charge of our wild game animals. He did send out a little kind of a questionnaire to his fellows in the field, and we did like he did, prepared a little chart with this is today's values, this is the values if we increase them by 20 percent and this is if we increased them by 30 percent, and this is with that inflation factor.

And the response that he got, my understanding is that people thought, there is such a wide variance, because you know, you have some people that just have the small lease where they pay $1,000 a gun, and then you have some where they actually go, and they are priced that way. You know it, if you come back to the camp, you are going to be paying more, if you brought back a big one. So, in general, across the state, the consensus was that most of his biologists in the field felt like that was acceptable.

COMMISSIONER FITZSIMONS: But there is a pretty wide range in the market, depending on where you are hunting, and as Commissioner Brown pointed out, it could be anywhere between 5- and $10,000.

MS. BISHOP: Yes, sir.

COMMISSIONER FITZSIMONS: But, I guess my question is, what is the objective here? We are trying to, if we are really trying to tie it to the market value of the animal taken, it is restitution, right?

MS. BISHOP: Yes, sir.

COMMISSIONER FITZSIMONS: And that's the idea. I'm not a expert on the Penal Code and that doesn't make a difference, to get it over $5,000?

COMMISSIONER RAMOS: I'm not an expert either, but to me, I agree with you, Joe. Either the purpose of this is to compensate us for that resource that we have lost, then it is true market value, and I agree with Ned. I think it's on the conservative side. If the idea is not only to do that, but have a punitive portion to it, then it is grossly inadequate.

COMMISSIONER HOLT: Right. That's what I'm wondering.

COMMISSIONER RAMOS: But the argument may be that the criminal system takes care of the punitive part under the fine, and that this is merely to restore the asset. If it is only to restore the value of the asset, then it would be more conservative. But I still think it is not aggressive enough. That is just my opinion.

MS. BISHOP: Historically, trophy deer, when they are poached, which is kind of what we are talking about, they are, they do have enhanced penalties, especially since 2001, I believe. We made it a state jail felony if someone goes on hunts without someone's permission and they take a deer, white-tailed deer, any of our four big game animals.

And it is a state jail felony, which is up to two years in jail and $1,500 to $10,000. So, they are going to have that, in addition to the restitution. And one concern that has been expressed by several other people that I work with, is that if you make it too high, then not only are they not going to pay the restitution, but then we might lose a person in our hunting and fishing, because they won't be able to buy a license if they don't pay it. That was just a concern.

COMMISSIONER FITZSIMONS: I don't want them anyway.

COMMISSIONER HOLT: Yes. Those kind of people aren't going to buy a license.

COMMISSIONER HOLMES: Yes. They don't really need one.


COMMISSIONER FITZSIMONS: I'm not really concerned with saving that one. I don't know. Anybody? Stinebaugh, do you have anything to add to this from the enforcement standpoint?

MR. STINEBAUGH: James Stinebaugh, Law Enforcement. I tend to agree with you. That the value and we all know that the trophy value of deer, of 150 class deer is $5,000 or more. There are places of course, that you pay $1,000 per gun, but the chance of ever killing a deer like that are slim. If the chance was good, the price of the hunt would be a lot better.

And we are trying, if we are trying to make a deterrent, I think that is what Commissioner Ramos is talking about, I would think that we ought to put the value of what it would cost to go out and try and hunt a deer like that. If they will pay $3,800 — we can't get aggressive. That is our main problem. We can't get aggressive in collecting civil penalties. Only the Attorney General can do that for us.

COMMISSIONER FITZSIMONS: Okay. Now that is an important point we need to understand.

MR. STINEBAUGH: See, that's the problem.

COMMISSIONER FITZSIMONS: Explain that, the collections.

MR. STINEBAUGH: We cannot get a warrant and arrest someone because they didn't pay a civil penalty. If they didn't pay a fine, well, as you guys know, we can go out and get them and put them in jail. The civil penalties have to be enforced by the Attorney General, and it is something that they have lots of things to do, and that would take some interest from some important people to get them to help us collect those types of civil penalties.

COMMISSIONER FITZSIMONS: How many do we have uncollected?

COMMISSIONER HOLT: Do you collect much? Are you able to get much?

MR. STINEBAUGH: What is the percentage that we collect, Kris?

MS. BISHOP: On trophy, or on wildlife in general?


MS. BISHOP: On average, about 50 percent. We charge about $400,000 a year on the average. The last five years, it has been $400,000 that we charged. $257,000 or 60 percent of that was for wildlife. Twenty percent of that wildlife portion was for trophy, and it is about 24 a year, 24 trophies that we catch people with.

COMMISSIONER FITZSIMONS: That civil penalty is a lien, isn't it?

MS. BISHOP: I'm sorry?

COMMISSIONER FITZSIMONS: Isn't it a lien, like most civil penalties?

COMMISSIONER HOLMES: I wasn't clear. Kris, was the 400,000 a year, is that the civil penalty or is that what we collect?

MS. BISHOP: No, that is B

COMMISSIONER HOLMES: We collect half of that?

MS. BISHOP: About half of that. Yes, sir.

COMMISSIONER RAMOS: But are we classifying this as a penalty, or as restitution?

MS. BISHOP: Restitution.

COMMISSIONER HOLT: No, this is all restitution we are talking about now. These are not the penalties, this is not a felony. This is strictly restitution for the asset. This gets back to your point. Yes.

COMMISSIONER FITZSIMONS: Now, let me go through an example here. Stinebaugh is familiar with the problem in South Texas with professional poachers that have already sold the head that they are going to poach. And they backed in, cold camp, and the whole story. And they have already sold the head for 15 — $20,000 and they go in there and they kill it and they saw the head off and they're gone.

Now if you catch them, and do this arithmetic, it's not going to be close to the market value of that. And then you get it, you convict him and get the civil penalty, you are saying you can't go garnish wages, you can't file a lien like a tax lien, or some other civil penalty, like a tax deficiency. So, it just goes uncollected. There is no enforcement? Is that right?

MR. STINEBAUGH: I don't know that we have ever had a civil penalty collected by the Attorney General's office.

COMMISSIONER FITZSIMONS: Well, that is the answer to your question.

COMMISSIONER RAMOS: Jim, historically, is this restitution part of a plea bargain, to where as part of the plea bargain for committing a trespass, you make it a condition of probation that they make restitution per our formula?

MR. STINEBAUGH: Yes, sir. At times, it is. We have had good judges that make this a part of the plea bargain. If they pay their civil penalty, they will suspend jail time, and that type of thing, and we encourage our people to do this type of thing, particularly on high penalties.

And that is why I think it is wise if we wanted to go ahead and look at putting what we think the true value of a trophy deer is, because if they are not going to pay $5,000, they probably wouldn't pay $3,800 either. But our percentages went up, if you look across the board, when the law allowed us to suspend the license, not sell a license to anyone if they hadn't paid a civil penalty. But I don't think we are getting into that, when we are talking about somebody that is going to hunt the road for trophy deer.

COMMISSIONER RAMOS: But then, excuse me then, so if it is not a condition of probation, then how do we collect the restitution? How? Do we initiate a civil proceeding to recover that?

MS. BISHOP: First, we just start by requesting. We send them a letter, telling them that this is the value of it, and we even offer them a discount if they get on a payment plan, or pay in a timely manner. And then if they don't, after it goes through a series of five letters.

And if they still don't at the end of that, then we suspend their ability to purchase any license or permits from our Department. And if they were to continue to hunt or fish, it is a Class A misdemeanor jailable offense.

COMMISSIONER RAMOS: But it seems to me that the more effective way is as part of the criminal proceeding.

MR. STINEBAUGH: It is by far the most effective.

COMMISSIONER HOLT: Yes. Because I went through that.

MR. STINEBAUGH: And we encourage our wardens to do that.


COMMISSIONER PARKER: If we are only collecting 50 percent of them, then it seems like to me, if we go ahead and raise that to the true value of that trophy, then 50 percent of $5,000 is going to be more than 50 percent of $3,800.

MS. BISHOP: But it is 50 percent of the people are paying, is basically what that is amounting to.


MS. BISHOP: And that may go up. We have just recently started this last license season in September, people that were on hold, just finding out, because they are just going, because we didn't suspend anybody's license, we just didn't allow them to renew this last year, the 2003 year.

So, as it goes on, more and more people, they might have sat out a year because they were doing something else, but when they do come back, we are catching them every day. They do come back and get back into the license system, and then that is when we are still catching them. So, the overall percentage may eventually, hopefully go up.

MR. COOK: Kris, let me ask you a question. Clearly, the Commission desire here is on trophy white-tailed deer. I think that's the primary species involved.

MS. BISHOP: That is.

MR. COOK: The same issue applies in a mule deer or an antelope, I sure you are aware of that. How would you adjust your formula, given what you have heard this morning.

I think what we are talking about here is adjusting the numbers in that formula to get that example, the 150 deer, obviously, 170 would be considerably higher. 160 is higher. How would you adjust those numbers in order to reflect the Commission's desire?

MS. BISHOP: I would think the easiest way would be to adjust the dollar coefficient. Where we just went to kind of go with even. We went with the same thing that we went with before, which was the CPI index. But you could raise it to a $1.50, I think would hit about that point.

MR. COOK: I think that that would. I was just sitting here doing some doodling and somewhere in that range of $1.50 is probably going to put you in the ballpark.

MS. BISHOP: Yes, sir.

COMMISSIONER HENRY: You mentioned earlier that you had some concern with regard to raising the figure that you would drive some people out?

MS. BISHOP: Just that because the price would be so high, that if someone had to pay $5,000 and they couldn't afford to pay the $5,000, then they would be blocked from ever buying a hunting and fishing license until they did pay that amount. And so, that might keep them out indefinitely. We might lose someone from our B

COMMISSIONER HENRY: Do you have any idea of what that would do to that 50 percent figure that you are talking about?

MS. BISHOP: No. Like I said, we only, I think we filed — I averaged it out — it was about 25 cases a year that we're filing restitution on, that are the big trophies.


MS. BISHOP: An average of 25 a year, yes sir. That's white-tailed deer.

COMMISSIONER FITZSIMONS: This is a pop question and unfair, and I'll understand if you tell me you don't know it off the top of your head, but do you have any idea of what the balance of uncollected civil fines from wildlife violations is?

MS. BISHOP: From wildlife, I don't know. From everything, it is about $3.5 million.


MS. BISHOP: Restitution.

COMMISSIONER HOLT: Restitution. Not fines, but restitution.

MS. BISHOP: Total.

COMMISSIONER FITZSIMONS: I'm wondering, and this might be for Ann. I see Ann leaning forward. Does it help? I mean, I notice that with the Attorney General's office for efficiency purposes, does it help if you package these when they get to a certain level and deliver them for prosecution?

I know that with the child support, they have done that in the past. They wait until they get to a certain level.

MS. BRIGHT: Child support is a little bit different. I'm Ann Bright, General Counsel. The child support is a little bit different because they have really got sort of a child support collection machine over at the AG's office. It might help.

One of the things that we can definitely do is to talk to the folks over in collections at the Attorney General's office. They have been very helpful to us in other areas. And we can, I think this definitely something we can talk to them about, if there is a way that we can make these something that they would be willing to take on.

And it may be, I agree with you, I think it would be efficient if you have someone who can basically operate almost a collection machine. So and I suspect they are set up over there. I know that years ago, before I got here, there were a number of other kinds of cases that they sent over there. And you would have to have a good case, but that is definitely something we can pursue.

COMMISSIONER FITZSIMONS: Well, if you don't send them over there in nickel and dimes, but you send it over in a package to where it is worth their time to pursue them, a couple of million dollars over five years, you go B

MS. BRIGHT: Absolutely. One of the other things we may be able to offer them as well is to assist them. I mean, I think that the more that they get assistance from the agency attorneys, the more they are able to do.


COMMISSIONER HOLMES: It seems to me that the way that we really enhance this is through some other mechanism rather than trying to get the AG's office to go after them. If you could tie it, we tie it to a hunting or fishing license now. If you tied it to a driver's license, you really would get your money.


COMMISSIONER HOLMES: And so there, I'm just trying convey that.


COMMISSIONER HOLMES: I don't know. But it seems to me that that is not a completely unreasonable thing to ask for. I mean, this is the ultimate sin. It is a sin tax, right?

COMMISSIONER HOLT: Well, maybe that will get the Legislature's attention.

COMMISSIONER FITZSIMONS: I see your point. I am trying to drive that. You have gotten to the point that I was trying to get to, with the lien. How do you make it happen? Because sending five letters, that is just a waste of time.

COMMISSIONER HOLT: Yes. Most of these guys are bad guys anyway. They don't care.

COMMISSIONER BROWN: Are we bound to use the Attorney General's office to collect this, or can we use in down south a firm, that just like they do with collecting property taxes.

MS. BRIGHT: The Attorney General's office is required to represent all state agencies in litigation. However, if we want to hire outside counsel, that happens sometimes, but we just have to get permission from the Attorney General's office.

COMMISSIONER FITZSIMONS: I think Ned's idea of ramping it up from the hunting and fishing license to the driver's license is a pretty efficient direct way to get people to — just like when people go to a closing and they have never paid a judgment, there's no pass.

COMMISSIONER HOLMES: I think that there is an argument that you could make that they probably utilize the motor vehicle in the process of taking that illegal deer or whatever it was. And so there might be some argument that you could tie it.


COMMISSIONER RAMOS: And do you know whether we could go to the AG and if they decline to accept a case, whether we then automatically then have the authority? In other words, we give them the first option, and they say, no, we decline. Do you know if that would then give us authority to pursue it?

MS. BRIGHT: That actually is part of the process. One of the things that usually happens is usually there is a request for representation for a particular case or matter and if the Attorney General's office, usually they are sort of deal in alternatively, if they don't have the resources or the inclination, and probably it is just a resource issue for them, then along with that is usually a request to select outside counsel.

One other, just sort of an aside, on the lien. Right now, I can't imagine this being terribly effective, because I don't know how many people actually get money from the state, but as a general rule, if a person owes money to the state, they cannot obtain money from the state.

So if someone has any money coming from the Controller's office, if they win the lottery or whatever, they won't get it until they pay whatever funds they owe the state. But that's just such a small percentage.

COMMISSIONER FITZSIMONS: I think it would be interesting for us to know, though, by the next meeting is what the balance is. Because that to me is the driving issue of the balance of uncollected.

COMMISSIONER HOLT: It's $3-1/2 million today?


COMMISSIONER HOLT: Is that what you are asking.

COMMISSIONER FITZSIMONS: Total fines, that was what I thought that was.

MS. BISHOP: That was total. They are divided usually into three. Wildlife, recreational fishing and commercial fishing.

COMMISSIONER HOLT: Oh that's it. I'm sorry. I apologize.

MR. STINEBAUGH: Mr. Chairman? My opinion is that if the Commission decided that we wanted to — we are talking about trophy deer, am I correct? Mainly about trophy deer and the difference in prices.

If we decided to put those prices of what we think the true market value of them are, I mean, it's a fairly rare case. When one of our wardens makes a case on the 150, 170-class deer it is fairly rare. That person is going to have — that defendant is going to have an attorney.

And I don't think our collections would go down any on trophy class deer by you raising that price, because that attorney is going to get in there and try to argue to set it somewhere between the fine and the restitution. And if we can get restitution paid, I believe we would collect as much as we would if it was smaller.

MS. BISHOP: A note about that, that price or that amount, that $257,000, even though that 73 percent of that wildlife is the four big animals, but the majority of the money is there. So there is still, by numbers-wise, there is more things like one or two ducks here and there, or some squirrels, or there's a whole lot more of those cases out there that are on hold, than the couple of big ones. In dollars, it looks good, but like I said, on average about 25 trophy animals are assessed restitution a year.

COMMISSIONER HOLT: As long as we catch them.

MS. BISHOP: Correct.

COMMISSIONER FITZSIMONS: As I understand it, the directive is before you publish is to change the modifier.

MS. BISHOP: Yes, sir. I think that would be the easiest thing to do.


MS. BISHOP: When I did the research on it, we haven't had any bighorn sheep filed in the last five years. We have only had a few pronghorn antelope and a handful of mule deer. The majority of them is the white-tailed deer. Of the ones that B

COMMISSIONER FITZSIMONS: Clayton, do you want to add to this? You did some of the background work.

MR. WOLF: Clayton Wolf, Director of Big Game. Yes, when we evaluated the prices, we weren't really looking at it from a punitive standpoint or a deterrent. We were kind of trying to decide what is the animal worth? If our directive is to look at it from those at market of these type hunts, an alternative may be to actually just plot the pricing scheme that is out there, because obviously there is still going to be variability and then let our new age computers develop the relationship, whether it is curvilinear or linear as opposed to looking at just changing that factor, we could get something that probably is a little bit more accurate and truly reflects the market out there.

In addition, I don't know at what level of complexity we want to go, but potentially, typical and non-typical deer may be, that relationship may be different on the scale, and I don't know if we want to do that or not. It will add some variability.

COMMISSIONER FITZSIMONS: For 25 cases, you know, I'm not going to get to that level, I don't think.

MR. WOLF: But I would suggest that we just look at what the average 150 class, 160, 170 prices for out there. And then plot that, and let that develop the formula for deciding restitution values.


COMMISSIONER RAMOS: Just a point of clarification. Is that gross Boone and Crockett or net?

MR. WOLF: That's gross.

COMMISSIONER FITZSIMONS: So, do you have what you need to make that change, and then publish it?

MR. WOLF: Yes.

COMMISSIONER FITZSIMONS: Good. All right. Any other questions? Discussion by the Commission on this one? If there is no further B

COMMISSIONER HENRY: Mr. Chairman, as a matter of procedure?


COMMISSIONER HENRY: That will have to come back to us, then publish.

COMMISSIONER FITZSIMONS: They can make that change.

COMMISSIONER HENRY: Would it have to come back to us? Are we trying to get this in for August?


MR. MCCARTY: You authorize to publish with that change.

COMMISSIONER FITZSIMONS: All right. Very good. Does that answer your question. If there are no further questions or discussions with that added directive?


COMMISSIONER FITZSIMONS: Yes, Commissioner Parker.

COMMISSIONER PARKER: Can we pursue that driver's license angle.

COMMISSIONER FITZSIMONS: All right. I don't think that is an issue for this item.

MR. COOK: We can look into it from a legislative standpoint.

COMMISSIONER FITZSIMONS: Right. We can go look into that.

MR. COOK: There would be a lot of opposition to it, I can tell you that.

COMMISSIONER FITZSIMONS: If there are no further questions or discussions with the added directive regarding the market value, without objection, I'll authorize staff to publish this item in the Texas Register for the required public comment period. All right. On to item number three, proposed cormorant control permit. John Herron?

MR. HERRON: Thank you, Mr. Chairman and Commission. My name is John Herron. I am the Program Director for Wildlife Diversity and today I will be talking to you about cormorant control. One of our other successful trophy programs, as we have been quite successful in bringing cormorants back to the state. Too successful.

The item I am going to discuss with you today is a proposal, requesting permission to go to the Texas Register to publish a regulation that would then be considered by the Commission in August. Just a little bit of background, we have two species of cormorants in Texas. The double-crested cormorant and the neotropic, or what was used to be referred to as the Olivaceous cormorant.

Double-crested cormorants are really the species of concern right now. Their numbers have increased dramatically in Texas over the past 30 years. Federal estimates right now are about 2 million birds nationally, and we have seen a population growth in double-crested cormorants at about 7-1/2 percent per year over the past 25 years, having slowed a little bit recently.

It's an interesting species in that much like the brown pelican, it is native to Texas. The double-crest cormorant at one point was actually a species in trouble, also affected by DDT. The double-crested cormorants breed mostly in the upper Midwest and winter here in Texas.

There always has been concerns for us by anglers about the impact the cormorants may have on sport fisheries, and based on that, for the past ten or 15 years, southeastern states have been asking the U.S. Fish and Wildlife Service, who has ultimate authority over the species, to give us some more leniency. Give us some more flexibility to deal with these, where we think there's a problem.

They have responded in the past by allowing fish hatcheries and aquaculture facilities a great deal of latitude in controlling cormorants. But haven't really addressed the sport fish side until recently. And really, what pushed them over the edge finally, was when the upper Midwest states began to complain as well.

Those states, some of which used to list the cormorant as a state threatened species were now expressing concern that cormorants were having effects on fish up in the breeding grounds as well, such as the Great Lakes, Lake Erie, et cetera. So with that, in the early 2000s, subsequently resulting in 2003, the U.S. Fish and Wildlife Service issued a public resource depredation order.

And part of that order has authorized state wildlife agencies to establish double-crested cormorant control programs. It hasn't given us any money, it has just given us the authority to do that. And so we now have an opportunity to try and address the issue.

I mentioned earlier, just a little bit of background about the species. These two maps show the distribution of the double-crested cormorant. The upper left map basically shows wintering distribution and as you can see, that yellow area is the area of highest population density on the wintering grounds and squarely in East Texas and parts of Louisiana.

You can also see that most of the wintering double-crested cormorants do reside along the Gulf Coast, particularly in Texas. From a breeding standpoint, the lower right graph shows the breeding areas. We do have a couple of populations of breeding colonies of double-crested cormorants in Texas, now.

Historically, we have always had a few, recently, with the reservoir habitat being a new element relatively in the ecosystem. We have seen more and more double-crested cormorants staying here and breeding here as well.

Just to show you the other species that we have in Texas, in this case, the map referred to as the Olivaceous cormorant. This is a resident native species, mostly restricted to the coast in terms of breeding. Those coastal counties tends to frequent more marsh and saltwater habitat. The order does not apply to Olivaceous or neotropic cormorants and we are not, they don't seem to pose the same problem the double-crested cormorants have.

One of our challenges in developing a program is going to be teaching the public the difference between the two species because even under the depredation order, if they should kill a species other than double-crested cormorants, they will be in violation. These species remain protected, which is why I am kind of dwelling on that.

Our proposal, in short, would be to establish a permit system, allowing landowners, lessees and authorized agents to conduct control activities on their own lands and waters. This permit system would not apply to public lands and waters, only to private. We would be issuing permits to individuals.

We have estimated that the cost of this permit, in order to recoup our administrative costs will need to be $12. We are trying to strike a balance between making this easy for the public, keep this a simple process, easy for the Department as well.

With that in mind, we also have language, and one thing I should point out is, some of the items that I am pointing out here are a little bit different than what you have in your briefing book and one of those is this next item. We are proposing that a permittee be allowed to authorize others to shoot or control cormorants on their property, just with written permission.

Currently, the draft you have in front of you talks about the fact that at the time of application, they would have to tell us who their shooters are. And in hindsight, this has been a continuing discussion internally, and we have decided that that is just too complex. We are asking the landowner to do too much there.

So when we do send this forward in the next week for publication, this is one change we are proposing from the draft you have. Basically, I have my permit. If I want to authorize someone to shoot cormorants on my property, I put their name, I sign it. I hand them a copy of the form, and they can then go out and do that on my property.

The form that we are working on also has a reporting log on the back, so it is just one piece of paper. If I go out and shoot some cormorants, I write down what I have done, hand it back to the landowner, they can later send that in. So we are trying to keep this very simple.

As I mentioned before, again, this only authorizes the take of double-crested cormorants, not any other species. Reporting, I talked about that. The one requirement the Fish and Wildlife Service has imposed on state wildlife agencies is that we annually report the number of cormorants taken under this depredation order.

We will have to submit an annual report to them, basically, showing the date, location and numbers of cormorants killed, from a period of October 1, to September 31, and that report has to be in to the Fish and Wildlife Service, December 31. This regulation as proposed would take effect after September 1. We would be talking about doing a report about it a little over a year later.

We are still playing around internally with what sort of deadline we would establish for permittees at the state level. It might be September 15. We want to make sure of one thing is that people get their report in to us in an adequate time that we can issue them a second permit by October 1, if they want to continue doing that. So I am not certain that we are going to say that the deadline at the state level would be September 31, but we are trying to work out something there.

Permit conditions, the federal rule does specify what limits and what methods can be used. We are not proposing this as part of the regulation. Instead, the language that you have in front of you talks about the fact that it is a violation for an individual to not comply with the permit conditions.

We are basically proposing to put means and methods and disposal of birds in the permit itself, rather than regulation. So that when the permit, when they get it, it will tell them that they can use the following means, firearms. If they are using a shotgun, it needs to be nontoxic shot.

Shooting during daylight hours, calls and decoys allowed. Landowner permission required, and then particularly in larger operations where it is being done by the Government, cervical dislocation, which is twisting their neck, and carbon dioxide asphyxiation is also allowed methods by the federal government and so we'll include that in our list as well.

And then it does stipulate that the individuals do need to dispose properly of those birds. You cannot shoot these and just let them lay. And so, we will put that in the permit as well. I think that covers the basics.

As we said, we are asking permission to — we will be tweaking the proposal you have, and we are basically asking permission to take this forward to the Texas Register for public comment and then future consideration by the Commission. And with that, I would be happy to answer any questions you might have.

COMMISSIONER FITZSIMONS: An annual permit, is that what I understand?

MR. HERRON: Yes. We are proposing it at an annual, at this point. That is one of the ways we think we can assure that the individuals do indeed submit their annual reports, is that their issuance of a second permit would be contingent upon us having gotten a report from them.

COMMISSIONER FITZSIMONS: Okay. And the annual report will contain, tell me again?

MR. HERRON: Basically, we have a log, a table. I probably have a rough copy of it here. But it is just a basic, this will be on the back of the form. But just a basic table. It is going to be much shorter than this. This gives them a place to put down the date, the number they killed and the location. And that's really all they have to tell us.

COMMISSIONER FITZSIMONS: And that is turned in once a year?



MR. COOK: John, those are stipulations basically required by the feds?

MR. HERRON: The reporting requirement is. For us to be able to do this, again, they are allowing the agencies to do this without a permit. In order to do that, we really have to have a program in place, and part of that program does require that we report back to them annually. So we need to, our obligation is to know what the impact is that we are having on cormorants.

COMMISSIONER FITZSIMONS: And the permittee is the landowner?

MR. HERRON: Yes, sir. That is what we are proposing.

COMMISSIONER FITZSIMONS: In other words, it is not tied to a piece of land.

MR. HERRON: Well, we will be asking that landowner to stipulate where their property is. From an enforcement standpoint, the easiest thing for a warden to do, is to be able to walk up and see someone shooting cormorants. Show me your permit, and on that permit it is stating this is where you have permission to do this.

COMMISSIONER FITZSIMONS: So, if an individual that is permitted, in other words, if someone has three or four properties and seven or eight employees, they could have - they have to get a permit for each person?

MR. HERRON: No. They could still do that on one permit. They would just have to stipulate to us where their properties are.


COMMISSIONER PARKER: These birds can be trapped?

MR. HERRON: Good question. Yes, there is nothing in the federal order that restricts trapping.

COMMISSIONER PARKER: You know, on how you can dispose of them, you said carbon dioxide.

MR. HERRON: Yes. That's a very good question. I could not see trapping listed in the federal order as an allowable means, but they clearly have allowed us to capture them and kill them by the means, so my presumption is, yes, you could potentially net them, you could potentially trap them. I'll look into that and make sure that we know. Yes, sir.

COMMISSIONER PARKER: Because it's kind of double-crested cormorant you are saying one thing on one page and something else on the next page.

MR. HERRON: Well, there's no sense in shooting one and then trying to suffocate it. You can make sure it's really dead. That's a very good question. I will look into that, and make sure that we get an answer for you on that.

COMMISSIONER FITZSIMONS: Any other questions for John on the cormorant control permit?

COMMISSIONER BROWN: It's a good thing. I was in the fish farming business and I know the impact that they can have on your operation.




MR. HERRON: There are also other provisions in law that allow the service and the Texas wildlife damage management services to issue. There is a separate order that addresses aquaculture facilities. They could apply for our permit, but they are under a different order, where aquaculture facilities basically can do this right now without permit.

COMMISSIONER FITZSIMONS: Any other states that have had any experience with this that we need to know about?

MR. HERRON: I think we're the first one out of the chute, to tell you the truth. I am not aware of anybody else and I don't believe any other states have maybe been as creative as we are in terms of thinking of issuing permits to landowners. I think most other states are trying to figure out how they can have staff do this on a limited basis, particularly in the breeding grounds.


COMMISSIONER HOLMES: Is the permit only to the landowner or to the lessee as well?

MR. HERRON: It could be to the lessee. I mean, we basically issue this to an individual. They have to tell us what property they are doing their control on. Part of that is we also want to make sure there is no confusion on the part of the permittee that they cannot do this on public lands and waters. We want them to know where there activities are limited to.

COMMISSIONER FITZSIMONS: All right, any other discussion or questions? If there is no further questions or discussion, without objection, I authorize staff to publish this item in the Texas Register for the required public comment period. John, thank you.

MR. HERRON: Thank you, Mr. Chairman.

COMMISSIONER FITZSIMONS: You're back up in a little bit. Don't run off.

MR. HERRON: I won't go too far.

COMMISSIONER FITZSIMONS: All right. Committee item number four, proposed rule review.

Ann Bright?

MS. BRIGHT: Good morning, I am Ann Bright, General Counsel, and I am here to talk about rule review. Every state agency — every Texas state agency is required by the Administrative Procedure Act to review our rules once every four years. Every rule has to go through some review process every four years.

As part of this review, we have to determine whether the reasons for originally adopting the rule continue to exist. The process involves, first of all, publishing a notice of proposed review in the Texas Register, and in that notice, we indicate the rules that we are intending to review.

Following the review, the rules are either readopted, adopted with changes or repealed. And any of those changes will come back to the Commission. The rules that we are proposing to review this time around are Chapter 51, 58, and 61. And I should point out that these are little bit different than what is listed in your agenda.

We realized that 52 and 55 we previously have obtained authorization from you to publish and those have already gone to the Texas Register. We have already notified the public that we are reviewing those rules. Chapter 58, the same thing with subchapter A, as part of some previous work on those rules.

We went ahead and initiated the rule review of that chapter, so the Chapter 58 rules we are looking at doing right now are everything except subchapter A. And what we are looking, we are planning to do with your approval is go ahead and publish the notice of proposed review in the Texas Register, and begin the process of reviewing these rules. I would be happy to answer any questions.


Ann, you are getting off easy here.

Any discussion by the Commission? If no further questions or discussion without objection, I authorize staff to publish this item in the Texas Register for the required public comment period. Thank you, Ann.

Committee item number five, Governing Body TCLEOSE resolution.

Randy Odom.

MR. ODOM: Yes, sir. My name is Randy Odom. And at least until noon today, I am the Chief of Training at the Game Warden Academy. The colonel said, before the meeting started, says come by and see me after lunch and when he says that, I know it's different than let's visit. So maybe I'll see you tomorrow or maybe not. He's a great boss.

This TCLEOSE resolution, as you all know, TCLEOSE is the acronym for Texas Commission on Law Enforcement Officer Standards and Education and in 1984, we, the Texas Game Warden Academy, along with DPS and many other training agencies throughout the state were licensed as instructors or as academies to teach state peace officers. They are the regulatory commission that sets the minimum standards for peace officers throughout the state of Texas.

It was an open-ended license. As TCLEOSE has continued to develop and improve their program, and in an attempt to make those academies more accountable for their curriculum and the rules for which they are responsible to comply, we no longer have an open-ended license. We have to renew our license every four years and part of that requirement is is that we submit an application.

For years, since 1984, we have been operating as an academy and we never applied. We were kind of grandfathered in when they came on board and required a license. So I submitted that application, this resolution of support from our governing body is something that they have also requested and mandated.

Our license renewal is not until 2006, but I took this opportunity to move ahead with this and take care of this along with the application process, before we get to the renewal and any other future audits we have with them.

COMMISSIONER FITZSIMONS: Is that it? Any questions?

COMMISSIONER HOLT: Straightforward.

COMMISSIONER FITZSIMONS: No questions for Randy? Randy, you are getting off easy. Good luck later this afternoon.

MR. ODOM: Yes. Thanks.

COMMISSIONER HOLT: Let us know how it turns out.

COMMISSIONER FITZSIMONS: Hope it goes just as smoothly for you.

With no further questions or discussion, without objection, I will place this item on the Thursday commission meeting agenda for public comment and reaction.

Next committee item number six, gear tag requirement for minnow traps.

Jerry Cooke?

MR. COOKE: Mr. Chairman and members, my name is Jerry Cooke with the Coastal Fisheries Division. And I am bringing to you an item related to minnow trap use in saltwater.

At your last meeting, as part of the statewide hunting and fishing proclamation, you adopted a provision that would allow the use of minnow traps in saltwater. At the time of that adoption, a public comment expressing concern that we would be treating these devices differently than other devices that fished without attendance. And there was no provision that would allow our game wardens to deal with traps that might be abandoned or lost.

As a result of that, we propose a new section for the hunting and fishing proclamation that will require a gear tag to be attached visibly on any minnow trap used in saltwater. And if this gear tag could be dated no older than 30 days, so if a warden encountered a minnow trap in saltwater that had no gear tag, or it had a gear tag older than 30 days, it could be recognized as abandoned or lost and removed from the saltwater of Texas. We had 62 public comments on this proposal. About 82 percent of them, 50 individuals were in support of the proposal. And basically, those who disagreed with the proposal didn't really understand it. They thought they were having to buy a tag from us to use, and simply didn't understand that they could make their own tag to attach to their device.

Also, there were those who felt that these were not devices that fished unattended, that people watched their minnow traps or ran them more regularly than any that I have ever run. And there are also those who thought that they would decompose within months of being lost, so, those were the eleven individuals who were opposed to the proposal, which concludes my presentation. If you have any questions I would be happy to answer them for you if I can.

COMMISSIONER FITZSIMONS: Any questions for Jerry?

Jerry, you did it again. Good job.

Any discussion? Questions? Without objection, I will place this item on the Thursday commission meeting agenda for public comment and action.

MR. COOKE: Thank you, sir.


Next up, public hunting, Vickie. Vickie Fite? Are you back there?

MS. FITE: Good morning. Mr. Chairman, members of the regulations committee, my name is Vickie Fite. I am the Public Hunting Coordinator. My presentation today addresses the candidate state parks proposed for public hunting and to open a hunting season on public hunting lands for 2004-2005.

The candidate state parks, last year, 42 state parks were hunted. This year, staff is recommending hunting on 44 parks. Seminole Canyon and Guadalupe River North Unit are the two additions from the ones that were hunted previously last year.

This agenda item was posted on our departmental website for public comment and received 58 comments. 52 were in agreement, 4 were in disagreement, in which 2 wanted more bowhunting opportunity. One was a non-park response. It was addressing Mason Mountain Wildlife Management Area.

One was an adjacent landowner to Lake Brownwood State Park, who stated that last year was a bad year for deer hunting and was not in favor of hunting Lake Brownwood State Park this year, and two had no opinion. Since the April meeting, there has been one change that was made to the statewide hunting seasons that affects this agenda item.

The eastern spring turkey season was increased statewide from 14 days to 30 days. At this time, I would like to offer an amendment to Exhibit A to the hunting season for Caddo Lake State Park WMA to change the spring turkey season from April 11 through the 24 to April 1 through the 30th to allow the additional hunting opportunity.

There would be no restriction or visitation that would be required to increase this opportunity. In order for public hunts to be conducted on TPWD public hunting lands during the period of September 1, 2004 through August 31, 2005, an open season must be established.

Chapter 62 and 81 of the Parks and Wildlife Code gives the Commission the authority to establish open seasons for hunting on state parks, wildlife management areas and public hunting lands. Mr. Chairman, this concludes my presentation. I would be happy to answer any questions.



COMMISSIONER HENRY: The last time we discussed this topic, there was some concern expressed with regard to the lack of general information to the public.

MS. FITE: Yes, sir.

COMMISSIONER HENRY: With regard to public hunting lands. Has that been addressed at all, and if so, would you tell us where we are?

MS. FITE: Yes, sir.

COMMISSIONER HENRY: And on top of that, if you would please, with any new information with regard to youth hunts.

MS. FITE: Okay, sir. We are putting together a media task force. Lydia Saldana and her group are going to be meeting with us as soon as we get our season open and established, we are going to start getting our news releases together. They have several pieces that we are looking toward putting together in the future to highlight public hunting.

Lydia, if you want to come up, you are more than welcome to, but we are going to put that in high gear as soon as we get this step out of the way. Youth hunting, this year, we are going to be offering hunts and a special drawing program for six categories. This is the first time we have had six categories.

So, we are making every effort possible. We have increased on our annual public hunting areas. We have several new opportunities that we are going to be offering out there. They are going to be by postcard drawing, that we haven't had in the past on some of our areas.

And what that will do will allow the people who pay the $48 annual public hunting permit, there is no cost involved for taking children that is under 17 years of age out there. They'll just send them a postcard, and if they are selected, then they'll get to go out and hunt on those areas.

So we are making some strides forward. We are trying to think outside the box. Next year, we are hoping to come with some really exciting things from both our wildlife management areas and our state parks.

COMMISSIONER HENRY: Just editorially, we get a great deal of help from writers in the major metropolitan newspapers on issues like this. And I would hope that we would pay special attention and be sure that that information gets to them.

MS. FITE: Yes, sir.

COMMISSIONER HENRY: I am thinking that in the major urban areas where people are raising the question openly with regard to availability of lands to hunt, it would be a great benefit to them, if we could do that.

MS. FITE: Yes, sir. We are hoping to hit them statewide. So we will definitely pay attention to the urban areas also.

COMMISSIONER FITZSIMONS: Another thought, or an angle has great distribution of hunting goods stores and other places, does the separate public hunting brochure or magazine that we publish, is that usually provided also?

MS. FITE: Okay, any Outdoor Annual, we do have a page that is dedicated to public hunting opportunities. It is in the back of the Outdoor Annual.

COMMISSIONER FITZSIMONS: Well, I am aware of about that, but I know we have separate publications.

MS. FITE: Right. Yes, sir. We have the free drawings applications booklet. We send out 40,000 of those to people who have applied in the previous year. We also send out press releases that they are available. People can call a 1-800 number and we will mail those out. It is also posted on the website, the entire book is there on the website. We also have a program up there to where you can fill out the cards on the web, and send them in. We are working very diligently toward moving toward an online capability to apply for those drawings, hopefully within the next two years.

COMMISSIONER FITZSIMONS: My specific question, maybe Lydia is the one for this, is that at Wal-Mart, Academy, places where people will naturally be that are interested in this sort of thing. The Outdoor Annual, and I know it has a section on public hunting, but your public hunting publication is excellent and has great detail of WMAs and parks and what is available and dates.

Is it possible to have that sort of distribution of that publication in the same sort of areas? I know not as many, certainly.

MS. FITE: Well actually, the reason why we have not made that available through those is the cost that is involved in printing that. We print about 70,000 of those, most of which are available in our law enforcement offices, but getting them out to all of the Wal-Mart stores has been an obstacle due basically to the cost of printing the booklet.

MR. COOK: Vickie, correct me if I am wrong, the book that the Chairman is talking about here, which is an excellent book. It provides great maps and details information and dates, that book is principally provided to the people who acquire the public hunting permit.

MS. FITE: Right. That one that with the full-page maps and all is part of the permit fee that is the $48 annual public hunting permit. However, we have placed that book on the web, starting last year, to where people can view it before they have to buy it, which was a huge step.

MS. SALDANA: And if I might add, Lydia Saldana, Communications Director. As Vickie mentioned, we are going to be exploring a much broader communications strategy related to public hunting. And one of the things that we might explore is partnering with one particular retailer, a Wal-Mart or Academy and try that out this year and see how that goes.

COMMISSIONER FITZSIMONS: Well, anecdotally, it is a great publication. I was sitting in a meeting some years ago, at TWA, and somebody said, the problem is, Texas doesn't have any public hunting. And David Lang from typical style pulls that book out of his briefcase and drops it in front of the guy, and they spend the next 30 minutes going through page after page of opportunities, and it is a great publication.

COMMISSIONER HENRY: I'd like to address this to Lydia, since you are supervisor for outreach programs.

MS. SALDANA: Yes, sir.

COMMISSIONER HENRY: I would hope that this would become part of your orientation to your outreach workers. The one complaint that I have heard the most from groups in the Houston area hunters, has to do with the lack of hunting opportunities given and increased costs of leases. And if we could let those people know that there are the possibility of public hunts, and I think outreach workers would be an ideal group to do this.

I think it would be very helpful to let them know that the Department not only is aware of their concerns, but is trying to assist in developing opportunities for them in this area. So to the extent that your people could do this, I think it would be very helpful.

MS. SALDANA: Yes, sir.


COMMISSIONER RAMOS: First of all, I want to commend you on you have done a good job of offering the youth hunts over Christmas. And I think the November date is like 26 or 28th, I think, tie into Thanksgiving, I'm not sure.

MS. FITE: Yes, sir. They sure do.

COMMISSIONER RAMOS: And the area that I would like to see developed somehow, and I know this would impact perhaps our revenues on the state parks is that there are no summer hunts, as you might say, included here. It's where otherwise, perhaps we could identify some period during the summer where the youth could participate in youth hunts.

COMMISSIONER FITZSIMONS: Because these are exotics.

COMMISSIONER RAMOS: Well, the squirrels. It is more the experience of the actual hunt. Feral hogs and stuff like that. Because that's really when the youth has the greatest time.

COMMISSIONER HENRY: Great article in the magazine this month about rabbit hunting. This is ideal.

COMMISSIONER RAMOS: But you have done a real good job of incorporating them over Christmas. And I would also take weekends in the fall for whatever reason, there's a three-day weekend, you know, for the youth, to maybe we could work something in there.

MS. FITE: Yes, sir.

COMMISSIONER FITZSIMONS: Vickie, do we have any idea of the total I am trying to get to the supply and demand here. What the real supply of public hunting is, hunter days and what the resource on our various properties would withstand.

And if we are anywhere close to that, back to that fellow's original point, are we anywhere close to reaching the supply with the demand for public hunting, anyone here? Or do we have more public hunting that people take advantage of?

MS. FITE: Well, in the $48 annual public hunting permit system, we offer over a million acres of land. We usually own annually, average close to 40,000 permits that are sold.

MR. COOK: And that is over a 15, 20-year period?

MS. FITE: Yes, sir.

MR. COOK: We have never exceeded, correct me if I am wrong, Vickie, 42, 43,000 people.

MS. FITE: I believe that's 43,000.

MR. COOK: When it was $30 or something like that.

MS. FITE: Yes, sir.

COMMISSIONER FITZSIMONS: But the amount of acreage has been level or gone up?

MS. FITE: Actually, we are seeing a slight decline in some of the acreage, just due to the fact that we just cannot offer those landowners the same amount that people are willing to pay them on the open market. We do it on a pro rata share of the money that is brought into the program, and we are averaging like, a $1.03 an acre, is what we are paying these people, and right now, people are offering them a lot more.

COMMISSIONER FITZSIMONS: So this million acres is not necessarily on publicly owned land that is open to public hunting?

MS. FITE: Right. It is a mixture of the state parks, the wildlife management areas, lands that we have under a long-term lease, like the Temple-Inland lands, U.S. Forest Service lands, those types of properties and there are private landowners.

COMMISSIONER FITZSIMONS: But those are still being hunted, just by somebody else.

MS. FITE: Right. Yes, sir.

MR. COOK: Vickie, correct me if I am wrong. One of the interesting things that we have seen, Commissioners, in this process, and I'll use a couple of examples, one being back in the 80s, when we first really accelerated this public hunting program, we initially involved a lot of timber company land that was in early planting stages, that road to recovery time.

You know and it was for many of those folks, very frankly, it was an issue of somebody helping them control the hunting and access that was going onto their land. And we had a great partnership. But as that evolved, and as people got the message that, hey, this is private land. It is controlled. It is managed.

Many of those acres, many of those acres were taken back by that private landowner who is producing timber and leased to other entities to hunt. So, not a bad outcome, just someone else is hunting it.

We have seen the exact same thing in our government claims, where all of a sudden people realize here is this incredible sunflower field that they used to just go out there and mow, because they didn't have any use for the things. But now, we are talking about five or $6 an acre easy.

COMMISSIONER FITZSIMONS: So we are educating landowners to become less horse, and that's good.

MR. COOK: That's right.

COMMISSIONER FITZSIMONS: What percentage do you think of that $40,000 involved in the dove hunting. Any way to know?

MS. FITE: I would say that the bulk of our license sales or our permit sales occur within that early period, probably, I would say about 35 to 40 percent of it is geared toward the dove hunting. We do have a die hard group out there that are the deer hunters that spend most of their time over in East Texas; however, we do have pheasant hunting, and those types of things.

We have some great waterfowl hunting in this program also. So it is kind of diversified over the entire hunting year. It's just that they can gear this program to what fits their needs. So when they find out about it, they really hang on to it. They enjoy it and use it.

COMMISSIONER FITZSIMONS: How many of those public dove hunting leases do we have for the upcoming year?

MS. FITE: Right how, we are just in the process. We had the closure date on obtaining those leases of June 15. We are probably, we are more than halfway to where we were last year, but like I said, I have still got 15 days.

Those guys are getting those into as fast — last year, we were at 160. So, we are hoping to be at that area, about the same level again.

COMMISSIONER FITZSIMONS: 160 separate units?

MS. FITE: Units. Yes, sir.

COMMISSIONER PARKER: How many acres is that?

MS. FITE: There was over 60,000 acres.

COMMISSIONER FITZSIMONS: Is the demand for that flat, increasing?

MS. FITE: I believe that the more people find out about those, and the fact that we are getting those areas more diversified instead of really close to the urban areas, that we are seeing a lot more youth. We are seeing more interest. We are getting some new leases this year.

So I believe that the interest, with the help of the media and stuff like that, I believe that will be one of the facets that we see an increase in.

COMMISSIONER FITZSIMONS: And how do you staff those.

MS. FITE: There is no staffing on those.

COMMISSIONER FITZSIMONS: Right. But there is no, other than the warden's checking those.

MS. FITE: Right. Basically what we do, is some of them, we have an on-site registration, to where people sign in and sign out and basically, we will go by and check the boxes.

On the opening weekend of the dove fields, we usually will have our biologist to go out and check the parking lots. Count the number of cars that sit there for a period of time. Count the number of shots. Those types of things, so that we can get utilization numbers.

MR. COOK: The main thing, Vickie, is we sign those areas well.

MS. FITE: Yes, sir.

MR. COOK: So that the boundaries are identifiably signed, the parking areas, flag those areas. It is in the book.

MS. FITE: Yes, sir.

MR. COOK: One of the issues that we have to be real careful because there is our adjacent landowners, our neighbors that we want to be careful of. Great.


MS. FITE: All right sir.


COMMISSIONER HOLT: Glad you expanded at least and added two more. We can keep expanding.

COMMISSIONER FITZSIMONS: I think you are hearing real support for the public hunting and specifically the dove hunting programs.

MS. FITE: One thing to remember, you guys only see the candidate state parks. The WMAs and our numbered units and those kinds of things are under the authority of our executive director to sign with the parks, you guys have to give us approval on. So the program is a lot bigger than what you are actually seeing with these 44 sites.


COMMISSIONER FITZSIMONS: Good. Thank you, Vickie. Any others? Bob?

MR. COOK: Mr. Chairman, I don't want to take a lot of your time, but I want to mention something to you that an ongoing process that particularly the folks in wildlife and law enforcement work together on this, looking for these properties out across the state.


MR. COOK: One of the interesting things that has come up recently with reduction in funding in federal agencies, I just want to take a minute here, the U.S. Forest Service has come to us wanting us to incorporate more and more and more of the Forest Service lands into our public hunting program.

Now on the surface, that sounds wonderful. On the other hand, there are people who have hunted U.S. Forest Service lands, their entire lives, without any permit program or anything.


MR. COOK: Now, people are realizing, as is the Forest Service, who have been greatly cooperative. Let me say that again up front. The U.S. Forest Service has been a great cooperative with us. But they are running out of funds and they have seen our programs work. They like our hunting program.

But if we go in there and we'll be coming to you and we'll be looking like heroes, and we're increasing our acreage. But the actual impact is the folks who will continue to hunt there will be buying our $48 permit. Now they will be getting some benefit. I will tell you, we will be doing some things that makes hunting a better quality experience, which I think is important.

And we'll be providing some signage and parking areas and camp here, not here. You know, those kind of things that make for a better hunt. But those are one of the issues that we are wrestling with in addition to just overall trying to increase our program. There are those kind of factors a lot.

They are not free programs. Those programs cost us time, effort, manpower, FTEs, law enforcement, additional commitment of enforcement, and all of those issues we have to weigh as we proceed along. This issue of the federal agencies wanting to give us more and more is what we are dealing with on a daily basis. The state parks, the wildlife management areas, the Corps of Engineers. Very much the same issues. And you may hear of us having to say no.

COMMISSIONER FITZSIMONS: What's available? What numbers are we talking about?

MR. COOK: Of the three U.S. Forest Service in Texas today, we have one.

MS. FITE: Entire forest. We have one entire forest.

MR. COOK: We have the Sam Houston.

MS. FITE: In its entirety.

MR. COOK: But they are right now offering us Angelina, which is another 160, 180,000 acres.

COMMISSIONER HOLT: That's a lot of acres.

MR. COOK: The other two forests, there's another couple of hundred thousand acres. So there's a big number involved, but in actual hunting opportunity for hunters in Texas, it could be a negative.

So we have to balance it. We have to manage that. If we go there, I think we have to provide something better. And that's what we said before. If we are going to go there, we are going to provide a better experience. So just some food for thought.

COMMISSIONER FITZSIMONS: So you are working on that plan?

MR. COOK: You bet.


COMMISSIONER HENRY: Bob is telling us that you are thinking outside the box.

MR. COOK: We're trying.


COMMISSIONER PARKER: On that issue, I think we may be better off if we stayed in the box.

MR. COOK: That's one reason B

COMMISSIONER FITZSIMONS: It's safer in the box.

COMMISSIONER PARKER: As Mr. Cook said in his remarks, this would be an issue that we would have to wrestle with. Looking around this table, I don't think there's any wrestlers here that would be competing with those people over there at East Texas if you were to.

MR. COOK: Well, it's just something that I wanted you folks to know that as well as the price demands people who see good things resulting and then continue hunting program. That's a good thing. That's a positive thing for habitat and for hunting, for wildlife. This issue is one that has some other sides to it also.

COMMISSIONER PARKER: I think we ought to do it, right after Montana, and Colorado.

COMMISSIONER BROWN: Precedent for transferring forest lands to states, is there?

MR. COOK: No, sir. We are by far, Texas is by far in the lead in our association with them. Most U.S. Forest Services lands are hunted. Most of it is basically uncontrolled, unmanaged, free access, open access and I can tell you from my experience in Texas with the Texas Parks and Wildlife Department, and my experience in Montana from an adjacent landowner basis, it is a nightmare. It is an absolute nightmare.

But the hunting opportunity is one that people benefit from greatly. And a lot of the perceptions about public hunting include that opportunity just to walk out there and hunt, whenever I and however I. It's an interesting issue. Mr. Parker's point is absolutely on our mind, from the standpoint that there are families who have hunted there for generations. It is their hunting ground.

COMMISSIONER FITZSIMONS: They're not asking us to regulate them.

COMMISSIONER HOLT: They do not want to be. They do not want to pay that $48.

MR. COOK: They're not the ones that are beating on our door, asking us to take over and charge them $48.

COMMISSIONER FITZSIMONS: I think the point is, we are not invited to take this on by those who are presently hunting those lands.

MR. COOK: It's an important program and our folks, both as you mentioned, particularly at the state parks division, doing a wonderful job, of doing everything we can. And I appreciate your support.

COMMISSIONER FITZSIMONS: On that note, any other questions for Vickie on public hunting? I will place this item on the Thursday Commission meeting agenda for public comment and action.

Thank you, Vickie. Thank you very much. All right.

Number eight, raptor proclamation. John Herron, you're back.

MR. HERRON: Thank you, Mr. Chairman, Commission. Yes. My name is John Herron. I am Program Director for Wildlife Diversity at Parks and Wildlife, and today I will talking to you about our raptor proclamations.

This is a follow-up to an item we discussed with the Commission at the last Commission meeting, and we are bringing this forward for Commission consideration tomorrow for adoption. The changes that we are talking about in regards to the raptor proclamation basically deal with the practice of falconry.

None of the changes we are proposing at this point are large, and all the proposals that we have for consideration were developed in cooperation with the Texas Hawking Association as well as our ad hoc falconry advisory board. The changes we are proposing are fairly simple.

The first item, we are basically clarifying the qualifications for, there are three categories of falconers, apprentice, general and master. These are set up in both state and federal permits and all falconers must have both the state and federal permit.

But in our statute, it has never really been clear what the distinctions are. People often ask questions about it. So, I am putting this in regulation.

It will be right there, that people can understand exactly what the difference is between the three categories and what they need to do to move on to the next level.

In addition, we are proposing to allow apprentice falconers under supervision to display their raptors for educational purposes. Many of our falconers, the real purpose of this is to allow people to take hawks, and other raptors that are normally a protected bird, but they are allowed to take them, if they are practicing falconry. In other words, hunting with the use of these birds.

But given the fact that we have allowed people to have these birds, it's certainly no harm in allowing them to also use them for incidental educational purposes. They have a trained bird. If they are going to take it to school programs and that sort of stuff, that's something that we do allow. And we want to allow apprentices to do that, but given the fact that they are trainees, only allow them to do that under supervision of a more-experienced falconer.

A third point, we are going to stipulate that apprentice falconers must trap their own wild bird. For falconers, there is basically two ways of getting a bird to hunt with. One is to buy a captive bred bird. The other one is to go out and trap a wild bird. Many people do buy them these days.

We do have propagators that I'll be talking about who sell them, but it is very important for an apprentice to learn the skill of trapping a wild bird, because at some point, even if you have a captive bird, it may escape, and it may not come to hand, and you may have to lure it down. The traps they use do not harm the bird. It's basically a gerbil trap with a bunch of loops of monofilament around it they get tangled in.

So, in order to make sure that apprentice falconers develop that skill, we are going to stipulate that they must trap their wild bird. Another portion of the regulation basically says that each of these categories, a falconer can only possess so many birds in a year, but we have never said what the calendar dates of that year are.

So we are now going to stipulate that those dates are July 1 through June 30, which corresponds to the permit year, the time period that the permits are valid for. As I mentioned earlier, we do have a category called raptor propagators. These are people who are authorized to rear raptors in captivity for sale. Currently, the way our regulations read is an apprentice could conceivably qualify for a propagators permit and we really don't think apprentices have the experience necessary, so we are going to stipulate that propagators must be either general or master level falconers.

Finally, the only other change we are proposing is the issuance of leg bands. We do require certain species of raptors to be banded. Currently, under regulation, if a person is going to go out and trap one of these species, they have to get a band from us prior to trapping the bird. If they are not successful, then they end up having to send the band back. We are now proposing to allow a falconer several days to report that bird to us, and then we would send them the band after they have trapped the bird, which would save everybody a lot of hassle and paperwork.

Just to give you an example of the type of qualifications we are talking about, these are the qualifications for an apprentice falconer. These mirror what is already in federal rule and regulation. They must be 14 years of age. They must have a sponsor. I mean, when we say apprentice, we mean this is an apprentice program. That is how you learn the practice of falconry is by learning from someone who has more experience.

We required in the past a written falconry test, which is administered by our agency. We do allow an apprentice to possess either one kestrel, red-tailed hawk or red-shouldered hawk, all three of which are very common species. And if we are going to have somebody learn how to be a falconer, we want them to learn with a common species. And then, we do allow them to replace one bird a year, at the apprentice level.

And just for comparison, a general falconer must be 18 years. Must have two years of apprentice experience, and one of the things we have done in this regulation is define what we mean by two years of experience. We don't expect an apprentice to possess a bird for 24 months. We are basically saying that you have to have a bird for two hunting seasons, which is generally four months. And so we have clarified that.

Once you become a general falconer, you can have two birds. Once you become a master falconer, you are allowed to have up to three, and to possess some rarer species as well.

In regards to public comment, actually, we have had much more comment than I expected. We had about 36 individuals comment via our website, which is pretty large, considering there is only 210 falconers in the whole state. And generally, the comments we got were largely in support of the regulation.

I think in most cases, we had anywhere from, of those 36, 31 to 30 agreeing with all of the things we have talked about. We did have a few concerns expressed. There was some confusion about our requirement that an apprentice fly their bird for four months a year.

I think that got misprinted in one of the falconry publications, and they thought we were going to require them to prove they had hunted with the bird for those four months. That is not in the regulation and some of those comments were just in error.

We also had some comments about how many birds an individual can take during the year, and as I said, we either require someone to replace, if you are a apprentice, one, if you are a general, two, if you are a master, three birds a year. And some people were asking that we allow more flexibility.

That the determination be based on the conditions or something. And I certainly understand their concern that situations vary, but we think that given the number of falconers we have, it's just simpler just to set a number, and we really don't think that has proven to be much of a problem.

There was a couple of comments opposing the ability of apprentices to display their birds, but again, the vast majority of comments were in support. And there was a suggestion that I think we have it in the regulation, that they have to report that they have trapped a bird, I think it is two days, and then we issue them a band, and some people are asking for a little more time.

But again, most of the comments were in support. So we are not proposing any changes to what was published at this time. With that, I would be happy to answer any questions.

COMMISSIONER FITZSIMONS: So the falconry groups are in support?

MR. HERRON: Yes. I believe we will have Texas Hawking Association here tomorrow and that they will be testifying in support.

COMMISSIONER FITZSIMONS: Did our falconry advisory board work on this, presumably?

MR. HERRON: Yes, sir.


MR. HERRON: As well, and we have made them aware of the comments as well. And I expect they may address some of those tomorrow. And I believe they will be coming, still stating support for our regulation.

COMMISSIONER FITZSIMONS: All right. Very good. Any other questions for John regarding the raptor proclamation? Anyone? With no further questions or objections.

Oh, I'm sorry. Ned?

COMMISSIONER HOLMES: Mr. Parker and I had a question.


COMMISSIONER HOLMES: A joint question, yes. Last meeting, you told us that, we were told that many of these falconers will release their bird at the end of the season and catch a new one, another bird next season.

MR. HERRON: Yes, sir.

COMMISSIONER HOLMES: Do many of them, are they required to do that? Or could they keep that bird?

MR. HERRON: They are allowed to keep it. I mean, particularly in the apprentice things, that's one reason why we do not require an apprentice to keep that same bird for two years. I think the majority of falconers do keep their birds, even if it is wild caught bird. Once you have had experience, it is not too difficult.

But for someone with less experience, keeping a bird in healthy condition during the winter molt is a little bit difficult. And so you really, the presumption is you are doing the bird a favor, by, at the end of the hunting season, if you have a wild trapped bird, letting it go and forage for itself.

It is able to keep itself in better condition than you can during that long dry spell that you are not hunting it. Keeping its weight proper, keeping it in good condition.

So yes, there are a number of falconers, I don't know what percent, Philip will be here tomorrow and can probably address that better than I can. But yes, there are people who do that. The thing about falconry, these wild-caught birds never become tame. They are never pets. You simply —

COMMISSIONER PARKER: So, they can be released back into the wild and they can fend for themselves?

MR. HERRON: They can be released, absolutely. There is no harm. They are not imprinted. They were wild birds, they remain wild birds. They just learn to take advantage of the relationship they have with the falconer as an easier way of getting food.

Whereas captive bred birds, it is a whole different situation. Some of those are imprinted. We see that with rehab as well, where if an imprinted bird is released, it will approach people, which we don't want to have happen. You don't want an owl landing on your shoulder, begging for food, like it is a baby or something. But falconers understand this, and as I said, when they do release an animal in the wild, it is one that came from the wild.

COMMISSIONER FITZSIMONS: Okay. Any other questions for John?

MR. HERRON: Thank you, Mr. Chairman.

COMMISSIONER FITZSIMONS: Thank you, John. I will place this item on the Thursday Commission meeting agenda for public comment and action. And our final committee item, number nine, fur-bearing animal proclamation. Mike Berger?

MR. BERGER: Good morning, Mr. Chairman, Commissioners, I am Mike Berger, Director of Wildlife, and here to talk to you this morning about the fur-bearing animal proclamation and its simplification. We have a number of recommendations that were brought to you at the last commission meeting, and we have printed those in the Texas Register, and received comment on those.

The first of these is the removal of some unnecessary regulations that appear both in the rules and in statute. And that is unnecessary to have them in both places, so we are proposing the deletion of those. We are also proposing that there be no bag or possession limit for the recreational harvest of fur-bearers.

Currently, there is a bag and possession limit of one per day and two in possession. We are recommending the deletion of that. There is no daily bag limit or possession limit for commercial trappers, nor is there any bag or possession limit for the taking of fur-bearers depredating. So, there should not be any additional reason for the recreational harvest of fur-bearers to be so limited.

We would also recommend the condensing of the means and methods section of the rules by deleting the allowed section. There are two sections. One for allowed means and methods, and one for disallowed. This would remove the allowed means and methods and retain those practices which are not allowed, again, offering a little greater flexibility.

Not listed on here is the removal of the prohibition against using rifles to harvest river otters. That is the only fur-bearer so delimited. And this would make it standard across the board. And the final part here would allow the sale by trappers to out-of-state fur buyers. Currently, that is not allowed.

Trappers are required to sell their furs to wholesale fur dealers in the state. And that is from those fur dealers is where we get records of fur harvest and we use that as an index of the status for our fur-bearer populations.

By allowing the trappers to sell their furs out of state, which they have asked for, and which we endorse, we would also have to ask them to report their out-of-state sales, so that we would maintain our records of harvest and have those records on file. We did receive a number of comments through our website with regard to bag and possession limits, the removal of those bag and possession limits.

We had 83 comments in favor and 16 in opposition to that. Most of the opposition was that people believe that there just should be bag and possession limits. With regard to river otters, we had 74 folks agree, and 14 disagree. Again, some people believe that there should be bag and possession limits, or that it unsafe to shoot a rifle over water.

For selling outside of the state, we had 88 in favor of allowing that practice and seven disagreed. In addition, as a general comment, we have heard from the Sportsmen Conservations of Texas, who have expressed their concern about several of the provisions in this proposal.

And they along with the trappers and fur-hunters association, who we work closely with in developing these changes, and who have previously expressed their support for these, now believe there are some other items that they would like to discuss and they have recommended to us, and requested that we withhold the adoption of these regulations and have an additional meeting, and bring this back to you at a later date.

COMMISSIONER FITZSIMONS: Any indication of what those issues are?

MR. BERGER: I think they have some concerns about the recreational bag limits and they have some concerns about deleting the allowable harvests, or the allowable means and methods. That this would unrestricted means and methods would not be in the best interest, and would be seen as —

COMMISSIONER FITZSIMONS: It's a resource issue? Is that what you are saying?

MR. BERGER: — allowing some unethical practices there. They have concerns of that.


MR. BERGER: They are concerned that it may lead to an over-harvest of resources as well. They have expressed that concern.

COMMISSIONER FITZSIMONS: Is it a resource issue?

MR. BERGER: I do not believe it is a resource issue. We allow the unrestricted harvest through trapping of fur-bearers, a wide range of fur-bearers. We allow the unrestricted harvest for fur-bearers depredating, to take and to so restrict the recreational harvest, I don't believe that it would affect the harvest, or the populations of those fur-bearers.

COMMISSIONER FITZSIMONS: All right. So it is the staff's position that there is not a resource issue here. So should we just go forward with the original proposal?

MR. BERGER: Our feeling is that there is not a resource issue in this.

COMMISSIONER FITZSIMONS: So, we should go forward? Your recommendation would be to go forward with the original proposal?


COMMISSIONER HOLT: We can get all those nutria.

COMMISSIONER FITZSIMONS: Well, that's a different committee. We'll have to put that on the agenda, I guess.

MR. BERGER: If they have, we can continue to, and will continue to speak with and talk with the fur trappers and the sportsmen conservationists.

COMMISSIONER FITZSIMONS: Right. So after a cycle or two, if we see a problem, we can come back to it. As I remember, we have been working on this for some time now.

MR. BERGER: Yes. I think this is these — last year we adopted some simplifying changes, and this year, we are back with more.

COMMISSIONER FITZSIMONS: Right. Time to probably go ahead and get something done and if it needs some changes later, we can do it.

MR. BERGER: Yes, sir.

COMMISSIONER FITZSIMONS: Is that the recommendation? All right. Any other questions about the fur-bearing animal proclamation? Anyone?

(No response.)

COMMISSIONER FITZSIMONS: I will place this item on the Thursday Commission meeting agenda for public comment and action. Any other business to be brought before the regulations committee? Mr. Cook?

MR. COOK: No, sir.

COMMISSIONER FITZSIMONS: All right. Hearing none, this committee has completed its business. Move on to the next committee. It is five minutes to 11:00 and Finance.

(Whereupon, at 10:55 a.m., the meeting was concluded.)



MEETING OF: Texas Parks and Wildlife Commission

Regulations Committee

LOCATION: Austin, Texas

DATE: May 26, 2004

I do hereby certify that the foregoing pages, numbers 1 through 102, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.

(Transcriber) (Date)
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