Texas Parks and Wildlife Commission
Conservation Committee

November 7, 2001

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

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             7             BE IT REMEMBERED that heretofore on the 

             8    7th day of November 2001, there came to be heard 

             9    matters under the regulatory authority of the 

            10    Parks and Wildlife  Commission of Texas, in the 

            11    commission hearing room of the Texas Parks and 

            12    Wildlife Headquarters complex, Austin, Travis 

            13    County, Texas, beginning at 3:11 p.m., to wit:

            14    

            15    
                  APPEARANCES:
            16    THE PARKS AND WILDLIFE COMMISSION:
                  CONSERVATION COMMITTEE:
            17    Chair:   Katharine Armstrong Idsal, San Antonio, 
                                 Texas   
            18             Ernest Angelo, Jr., Vice Chair, Midland, 
                                 Texas   
            19             John Avila, Jr., Fort Worth, Texas
                           Carol E. Dinkins, Committee Chair, 
            20                   Houston, Texas  (absent)
                           Joseph Fitzsimons, San Antonio, Texas
            21             Alvin L. Henry, Houston, Texas
                           Philip Montgomery, III, Dallas, Texas
            22             Donato D. Ramos, Laredo, Texas
                           Mark E. Watson, Jr., San Antonio, Texas 
            23                   (absent)
                  
            24    THE PARKS AND WILDLIFE DEPARTMENT:
                           Andrew H. Sansom, Executive Director, and 
            25    other personnel of the Parks and Wildlife 
                  Department.




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             1                     NOVEMBER 7, 2001

             2                         *-*-*-*-*

             3              CONSERVATION COMMITTEE MEETING

             4                         *-*-*-*-*

             5                  ***AFTERNOON SESSION***

             6                  CHAIRMAN IDSAL:  We are still in the 

             7    Conservation Committee.  And Larry McKinney will 

             8    brief us on riverbeds, and then we'll go back to 

             9    Finance. 

            10          AGENDA ITEM NO. 2:  BRIEFING - UPDATE 

            11          RIVERBED USE.

            12                  DR. McKINNEY:  Madam Chairman, for 

            13    the record, I'm Larry McKinney, senior director 

            14    for aquatic resources.  And joining me today is 

            15    Robert Sweeney, legal counsel for aquatic 

            16    resources, as well. 

            17                  What we'd like to do, very briefly, 

            18    for you this afternoon, knowing the time 

            19    allotment, is to report back to you on some 

            20    charges that you gave us at our -- after our 

            21    briefing in August.  You asked the staff to look 

            22    at several issues.  And I'll ask Mr. Sweeney to 

            23    brief you on one of those issues, and that is 

            24    looking at other states and actions that they have 

            25    taken, statutes, and so forth. 





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             1                  MR. SWEENEY:  Let me quickly talk, 

             2    if I can -- Bob Sweeney, for the record -- about 

             3    three states that we looked at of this big group.  

             4    I'm going to talk about Montana, New Mexico, and 

             5    Louisiana; and how they can deal with the problem 

             6    of motorized vehicles in riverbeds.

             7                  Montana has, I would say, the most 

             8    comprehensive approach; and theirs is really a 

             9    recreational approach.  They're really balancing 

            10    recreational uses in their riverbeds.  They have a 

            11    statute that expressly recognizes the public 

            12    recreational right in the riverbeds and tries to 

            13    define it and balance it with all the public 

            14    rights of recreational use; be it hunting, 

            15    camping, or portaging. 

            16                  It explicitly recognizes the private 

            17    property rights of the people who live alongside 

            18    the riverbed.  It talks about liability issues.  

            19    It's really a river recreation law.  And as part 

            20    of that river recreation law, what they do 

            21    explicitly is say that motorized vehicle use is 

            22    not one of the recognized public rights.  It's 

            23    just outside the basket of recognized public 

            24    rights of river use. 

            25                  So you've got a comprehensive 





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             1    statute that says what you can and can't do on 

             2    rivers in this state, and motorized vehicle use is 

             3    not in that basket.  That's the Montana approach, 

             4    probably the most comprehensive approach.  

             5    Montana's a big state -- a big western state.  A 

             6    lot of, I would say, tourism, fly fishing, that 

             7    sort of thing going on in the rivers.  It's kind 

             8    of a destination thing. 

             9                  They have a strong interest, as you 

            10    can see in their laws, in sort of protecting and 

            11    making everybody understand "This is what you can 

            12    expect when you go on a river in Montana."  And 

            13    that's -- it's going being to be pretty much the 

            14    same anywhere you go in Montana. 

            15                  They have classified rivers in 

            16    Class 1 and Class 2.  Rights are a little bit 

            17    different here and there, but it's sort of a 

            18    comprehensive recreational balancing that they've 

            19    done there. 

            20                  New Mexico comes at it more from a 

            21    resource perspective.  They have a specific 

            22    authority, specific statutory authority in their 

            23    Game and Fish Commission, which has a more narrow 

            24    jurisdiction than this commission -- it's not a 

            25    parks commission, it's just game and fish, to 





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             1    regulate motorized vehicle use in state-owned 

             2    riverbeds. 

             3                  So they have explicit authority -- 

             4    it's just written out that they can do it, right 

             5    there under the law.  And what they've done is 

             6    taken a pretty expansive view of that authority.  

             7    And basically, in their regulations, they've said 

             8    it's illegal to even ride in a motorized vehicle 

             9    that's going off-road if you are engaged -- if you 

            10    hold a license for a species that is in season at 

            11    that time.  So you can't be there.  You can't be 

            12    in that vehicle.  You can't be driving the 

            13    vehicle. 

            14                  So they have taken that game and 

            15    fish authority and interpreted it very broadly 

            16    over their -- what you would consider their 

            17    constituency, the hunters and fishermen. 

            18                  Now, in addition to that, New 

            19    Mexico -- this is kind of a complementary thing -- 

            20    has what they call a "habitat protection law."  

            21    It's the same thing they have in Arizona, more or 

            22    less. The language is very much alike.  The Game 

            23    and Fish Commission can recommend to the land 

            24    commissioner that lands be closed to motorized 

            25    vehicle access, can be posted with no motorized 





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             1    vehicle access allowed.  And there are public 

             2    hearings and a lot of public participation 

             3    involved.  But at the end of the day, you can come 

             4    up with a law enforceable by any peace officer in 

             5    the state as a misdemeanor that closes areas of 

             6    state lands to anything but road -- to traffic 

             7    anywhere but on the roads.  And that's sort of the 

             8    complementary aspect.  When you're not dealing 

             9    with it in strictly the game and fish context, but 

            10    more of the habitat context. 

            11                  Now, Louisiana has a third approach, 

            12    and that is -- Louisiana has a natural and scenic 

            13    rivers law.  It never mentions motorized vehicles 

            14    specifically.  And Louisiana, of course, is a 

            15    pretty wet state.  So you might say they probably 

            16    don't have the same kind of issues of folks 

            17    driving up and down dry riverbeds that we might 

            18    have in more arid states. 

            19                  But within the scope of their 

            20    natural and scenic rivers law, the Legislature -- 

            21    after an administrative study, the Legislature can 

            22    designate a segment of a river as a natural and 

            23    scenic river, and then has the authority -- grants 

            24    to an administrative agency the authority to adopt 

            25    a management plan for that river segment. 





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             1                  There are about 50 designated river 

             2    segments in Louisiana that are designated natural 

             3    and scenic rivers.  So the management plan and the 

             4    rules and regulations that implement that 

             5    management plan can be adopted by the 

             6    administrative agency and they can control uses of 

             7    that river, including -- according to the 

             8    Louisiana law enforcement administrator that I 

             9    spoke to, if necessary, including control over 

            10    motorized vehicles. 

            11                  It's not specifically mentioned, but 

            12    it's clearly within the broad scope of the 

            13    authority of that administrative agency to adopt 

            14    appropriate rules and regulations to control the 

            15    uses so that you protect the recreational values, 

            16    you protect the environmental values, you protect 

            17    the aesthetic values, whatever it is that you're 

            18    trying to protect by making that designation as a 

            19    natural and scenic river. 

            20                  Obviously, all these states are 

            21    different.  They do things different ways.  And I 

            22    could -- I'd be happy to talk more about them when 

            23    you see fit.  I'm available for questions. 

            24                  DR. McKINNEY:  And if the Commission 

            25    has any questions on that review, I'm certainly 





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             1    ready to answer them.  I think a written report 

             2    has been prepared for your review as well, with 

             3    complete listing of the statutes. 

             4                  COMMISSIONER FITZSIMONS:  That 

             5    includes all the various statutes of the states? 

             6                  MR. SWEENEY:  Yes.  We -- our 

             7    written report has about eight of the states that 

             8    are discussed in some detail.  Some of the states 

             9    we contacted said, "We just don't have that 

            10    problem.  We don't -- what are you talking about?" 

            11                  So what we counted, we put stars on 

            12    those because that just reflects that we contacted 

            13    them.  And I've got about eight states with the 

            14    rules and regs collected, and I can provide that.  

            15    And there are others, certainly, that we can 

            16    contact, too.  So I'm happy to make that available 

            17    to anyone who would like that. 

            18                  DR. McKINNEY:  The second charge 

            19    that the Commission gave us in the August meeting 

            20    was to go out and meet with the stakeholders of 

            21    these various interests with the idea of possibly 

            22    putting together some type of task force later to 

            23    begin to look at these issues.  And in this 

            24    interim period, I've done that. 

            25                  This is the list of groups that we 





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             1    met with.  Of course, landowners, you heard from 

             2    them quite extensively in August, and we talked 

             3    with them, of course.  We met with the groups of 

             4    the 4x4 and off-road vehicle organizations.  They 

             5    consider themselves separate, by the way.  

             6    Four-wheel drive vehicles and off-road, they 

             7    don't -- they kind of work together, but they 

             8    don't.  And I learned that in this business. 

             9                  We've visited with local residents.  

            10    Of course, we took this matter before our river 

            11    advisory committee and briefed them.  We met with 

            12    state agencies, river authorities, and the 

            13    Legislature, as well.  And the meetings were all 

            14    very cordial and informative. 

            15                  I think all the groups that we 

            16    talked to, you know, wanted to try to work 

            17    together to address this issue.  But, frankly, 

            18    each of the groups had very clear, you know, goals 

            19    in mind and not necessarily compatible.

            20                  The landowners, of course, are 

            21    concerned about the issues that they brought 

            22    before you, of the impacts on the rivers and the 

            23    trespass issues.  The 4x4 groups, of course 

            24    they're very interested in wanting to have access 

            25    to carry out their activities, but they want to do 





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             1    it in a way that promotes conservation.

             2                  Local residents in the Nueces River 

             3    area, which is the ones we talked about, their 

             4    greatest concern is, you know, access at those 

             5    river crossings and their traditional use of those 

             6    rivers there as public beaches and those issues, 

             7    as well. 

             8                  And, of course, we met with the 

             9    agencies and authorities.  All of them want to 

            10    work together with us.  But it's an -- it was an 

            11    interesting mix with a broad range of opinions. 

            12                  There are two venues in which we 

            13    will have the opportunity to further address this 

            14    issue with the Legislature.  We talked about this 

            15    one in the August meeting, and that is the interim 

            16    committee, this joint House/Senate Natural 

            17    Resources Committee that -- of which this issue is 

            18    a specific charge.  The committee has begun to 

            19    meet.  They have not set any schedule for hearings 

            20    on this matter yet.  Don't know when that will be, 

            21    likely in the spring, I think at some point there. 

            22                  But we met with the clerk and staff 

            23    of the committee, gave them the briefing we gave 

            24    you in August.  They were appreciative of that and 

            25    had asked us to keep them informed and want to 





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             1    work with us through that process as they begin to 

             2    look at what the Legislature may do. 

             3                  There is a slide that I've added 

             4    that's not in your printed material because we 

             5    just got this -- this information on Monday.  And 

             6    this is the house committee on the State natural 

             7    resources, the committee to which we report.  They 

             8    have listed out their interim charges and as you 

             9    can see, one of the charges that they are going to 

            10    look at does include this issue, as well. 

            11                  The committee clerk, Paige -- Paige 

            12    is here?  Paige is here today, as a matter of 

            13    fact, and listening.  So we'll be obviously 

            14    working with that committee through the process, 

            15    to provide them with whatever support and 

            16    information that they may require of us, as well.

            17                  Another issue that Doctor Cooke 

            18    brought to you this morning, and we would roll 

            19    into this kind of review process, that -- 

            20    something you-all have to look at as -- and I 

            21    think he covered it well this morning.  But we 

            22    will look at the issue of the riverbed being 

            23    closed to particular hunting of big game.  You'll 

            24    have to make an assessment on that.  And we'll 

            25    look at that during this process, as well.  And 





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             1    Jerry covered that with you this morning.

             2                  As far as looking at the options for 

             3    further consideration, after visiting with the 

             4    groups and looking at what other states have said, 

             5    I -- we certainly would seek your guidance in 

             6    where we should take this. 

             7                  We are prepared, and I'm prepared to 

             8    provide Madam Chairman and others, with a list of 

             9    folks from the stakeholder groups that we looked 

            10    at that could be a part of a task force.  And we 

            11    could bring this task force together to look at 

            12    various options, and a number of questions has 

            13    been raised in this issue.  And we could use that 

            14    group as a sounding board to look at this further 

            15    down the line. 

            16                  Of course, as we move toward 

            17    Legislature and the potential legislation, I think 

            18    this task force and the groups we have contacted 

            19    from the state agencies and others would be a -- 

            20    an invaluable resource.  And we can work with the 

            21    Legislature as they desire should they want to 

            22    draft legislation to make sure that we provide 

            23    them all the support that we can in this effort. 

            24                  So that's really the two-part goal 

            25    that I would recommend that we pursue from the 





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             1    staff perspective, certainly until -- through 

             2    January, until we have something more to report to 

             3    you from what we might look at.  And as we form 

             4    this task force and we have charges for them, 

             5    issues that you'd like to bring before them, we 

             6    can do that and have them look at it, and we can 

             7    reflect back to you their views on the different 

             8    perspectives. 

             9                  So with that, our briefing is -- I 

            10    would conclude our briefing now and would 

            11    certainly answer any questions or take any 

            12    guidance that you-all might have. 

            13                  CHAIRMAN IDSAL:  Any questions?  Any 

            14    further discussions? 

            15                  VICE-CHAIR ANGELO:  Sounds good and 

            16    thorough.

            17                  CHAIRMAN IDSAL:  Thank you, Larry.

            18                  DR. McKINNEY:  I guess, my -- do you 

            19    want us to move forward on this? 

            20                  CHAIRMAN IDSAL:  Please.  Yes.

            21                  DR. McKINNEY:  I want to make sure 

            22    we get that direction. 

            23                  CHAIRMAN IDSAL:  Please.

            24                  DR. McKINNEY:  We will do that.

            25                  CHAIRMAN IDSAL:  I believe that 





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             1    finishes up the Conservation Committee.  And now 

             2    we will go back to the Finance Committee.  We're 

             3    hopping around a lot today.

             4                         *-*-*-*-*

             5                   (MEETING ADJOURNED.)

             6                         *-*-*-*-*

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             1                 REPORTER'S CERTIFICATE

             2    STATE OF TEXAS   )

             3    COUNTY OF TRAVIS )

             4             I, MELODY RENEE DeYOUNG, a Certified 

             5    Court Reporter in and for the State of Texas, do 

             6    hereby certify that the above and foregoing 14 

             7    pages constitute a full, true and correct 

             8    transcript of the minutes of the Texas Parks & 

             9    Wildlife Commission on NOVEMBER 7, 2001, in the 

            10    commission hearing room of the Texas Parks & 

            11    Wildlife Headquarters Complex, Austin, Travis 

            12    County, Texas.

            13             I FURTHER CERTIFY that a stenographic 

            14    record was made by me at the time of the public 

            15    meeting and said stenographic notes were 

            16    thereafter reduced to computerized transcription 

            17    under my supervision and control.

            18             WITNESS MY HAND this the 9th day of 

            19    January, 2002. 

            20    
                  
            21                                                     
                           MELODY RENEE DeYOUNG, RPR, CSR NO. 3226
            22             Expiration Date:  12-31-02
                           3101 Bee Caves Road
            23             Centre II, Suite 220
                           Austin, Texas  78746
            24             (512) 328-5557
                  
            25    


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