Texas Parks and Wildlife Commission
Regulations Committee

Jan. 28, 2004

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

BE IT REMEMBERED, that heretofore on the 28th day of January, 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:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

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

P R O C E E D I N G S

MR. FITZSIMONS: This meeting is called to order. Before proceeding with any business, I believe Mr. Cook has a statement to make.

MR. COOK: Thank you, sir. A public notice of this meeting containing all items on the proposed agenda has been filed in the Office of 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. Thank you, sir.

MR. FITZSIMONS: Thank you, Bob. Before we get started, I want to introduce two new Commissioners some of you have had an opportunity to meet. My friend, Robert Brown from El Paso, and John Parker from Lufkin. So we've got both ends of the state covered. We're in good shape. Thank you, gentlemen, for being here and taking time to serve. And we're going to start out with everybody's favorite committee, the Regulations Committee.

First order of business is the Approval of the Committee Minutes, which have already been distributed. Is there a motion for approval?

MR. HOLMES: So moved.

MR. HENRY: Second.

MR. FITZSIMONS: All in favor, aye.

(A chorus of ayes)

MR. FITZSIMONS: All opposed, same sign. Motion carries. Let's see, that was a motion by Commissioner Holmes, and seconded by Henry. All right.

Item Number 1, Chairman's Charges. Bob?

MR. COOK: Mr. Chairman, Commissioners. Just to give each of you a little background on this particular area that we have implemented several years ago, and that helps us from a Commission and staff standpoint to maintain a focus on what we believe are the key issues in front of us.

We have developed a history of having some Commission charges to the staff early in the year, and we're at that point in time where staff has worked on these, and we've coordinated very closely with the Chairman. Each of the Committee Chairs, as we go through the day, you will talk a little bit about each of the different charges.

Each of the Committee Chairs have seen these charges, have commented on them. In general, we're all on board. And where we are at this point in time, we have passed out to you this draft, which it is at this point, still draft. But we would like to — believe it would be appropriate to get it finalized soon, get your comments, get your input, and any suggestions that you may have, where that we finalize this set of charges for staff and for the Commission to proceed on into the year.

In the Regulations Committee — and I'm not going to go through these one by one at this time, because as I said, they are draft. But let me just say to you that the first charge that you're going to see in each of these committees is primarily to implement the authority and direction given by the 78th Legislature.

Secondly, I think that what you will see consistently throughout this set of charges, is to implement, to put into action, to make the progress that we can in implementing the Land and Water Conservation Plan that was approved by the Commission over a year ago.

So in addition to that, there are some particular areas of interest that we have heard from you, or that we have heard from the Chairman, that has been considered, that you will see.

Just a quick example — for example, in the Regulations Committee, several of the House Bills, the Senate Bills, even to the point of some of the resolutions, may be addressed. You know, the Land and Water Plan talks about future hunting in Texas, and some of the objectives there — the youth hunting and hunting opportunities, public hunting opportunities and fishing opportunities; how to simplify our license system, make it more useable, more friendly.

So as you go through these, and as you look at these, any questions that you have, any comments that you have, just direct to me, or to the Chairman, or to Mr. McCarty. We will get all of that detail ironed out with you, and can proceed along. Mr. Chairman?

MR. FITZSIMONS: Thank you, Bob. I'd direct your attention — especially the new Commissioners — that although those are rather large charges, you can focus on the mission statement before each one. And I think it's consistent with the philosophy we've followed, which, on my Committee — Regulations — is to make our regulations as streamlined and easy to understand as possible. So for John and Robert, that's the test in the Regulations Committee that we apply to what the hunters and fisherman are faced with.

And the second item is the Proposed Oyster Fishery Proclamation. Robin?

MR. RIECHERS: Chairman Fitzsimons and Commissioners, my name is Robin Riechers. I'm management director of the Coastal Fisheries Division.

This item proposes changes to Chapter 58, Subchapter A, of the Oyster Fishery Proclamation. They predominantly deal with clarifications in the Oyster Lease Section of that Proclamation. In addition, Gene McCarty, chief of staff, is later going to present to you that this is one of the chapters that are up for rule review, and he'll explain the rule review process some. But these changes are being made in conjunction with that rule review; are actually being asked of you to publish in the Register for that rule review.

For a brief recap of the Oyster Fishery, it has both a private lease component and a public oyster reef component. Over 90 percent of all oysters are landed out of the Galveston Bay complex. In addition to that, the Oyster Lease Program in confined to the Galveston Bay complex, and has over 43 separate leases in that complex.

The Oyster Lease Program is specifically designed to allow for oysters to be moved out of polluted or closed areas, into non-polluted areas so that they have time to cleanse themselves or depurate, and then they're available for harvest at that point in time.

The Oyster Lease Program has been ongoing since 1891. It has over 2,327 acres in that program. Those lease sizes range from eleven to 100 acres. There's 43 separate lease holders. They land over 1.5 million pounds each year of oysters, which equates to a $3 million dockside value, which is about one-third of the total Oyster Lease Fishery. So the whole fishery is worth about $10 million to the state of Texas.

Prior to suggesting these changes to you, we have reviewed them for consistency with the Oyster Fishery Management Plan, which was passed by the Commission in 1988. We've also taken these changes to our Oyster Advisory Committee and reviewed those changes with them, and they are in agreement with these changes.

The changes that we're proposing today really can be classified into two separate categories. One is what we'll call a Business Practice category, and the other is a Clarification of Penalty category. As I indicated before, all but one of these changes really deal with the Oyster Lease aspect of the Oyster Fishery.

In the Business Practice section of this, the first change we're going to propose is to reduce the time to process the transplant permits. And what we're suggesting is that we have required five days in the past from the time the application gets to us, to the time that we can actually issue it, and we're going to change that to two days. One of the reasons we can do that is we're also taking out the requirement that law enforcement will have to check buoy markers each time one of those transplant permits come in. That's been a law enforcement concern as far as manpower issues, and in reality, it's already a component of their lease agreement. They have to have those corners buoyed, and with GPS is currently, they can get very close, and as well as we can help them check those, and it doesn't have to be a long enforcement requirement every time.

In addition to that, we're adding vessels specifically to the permit application, or to the permit that we issue to them. In the past, they could use various vessels, and we're going actually add to that the number of vessels that can be added, and the exact vessel that will be used on that particular lease. This is actually an advent of the industry coming to us and wanting to do this. It's really the practice we're using now. We're going to go ahead and clarify it in our proclamation so that it gives us the authority to do that without any question.

Then lastly, we're going to ease our reporting requirements. We have certain reporting requirements after they transplant and after they harvest each time. And what we're really doing is lengthening the time that they're allowed to get those into us. And that's just so that we can keep track of the number of oysters that are moved onto a lease, and then those that are basically harvested off those leases.

The second set of changes that we're proposing are basically in the Clarification of Penalties section. And what we're doing here is we're stating specifically that the permit is required to be on board the vessel when the vessel is acting under the permit. There's been some confusion about that. A case was made, and there was some difficulty in making that case, and we're going to go ahead and make that very explicit.

The other thing about that is when we add that clause, we're also adding that, if they violate that particular clause — and in this section, when they violate clauses, they get certain suspensions, and it's going to go into the five-day suspension category, so that we basically are both requiring it and putting it as part of the suspension, if they violate that.

And then the last one that we're doing, or last clarification, is we're allowing non-mechanical means. And this basically means that they can hand tong oysters. In your packet, this was only included in the Recreational section. That's inadvertent. It was also supposed to be added to the Commercial section.

This is just a clarification. It's always been allowed, but by law, it really wasn't there, allowing them — hands was not a legal means at this point in time. So we're going ahead and putting that back into the proclamation, or suggesting that it go back in.

I'd be happy to answer any questions at this time.

MR. FITZSIMONS: Robin, in the briefing materials, you describe the process that's currently unlawful with the transplanting of oysters from restricted waters to private lease. I'm not as familiar with that as I probably should be. Would you go ahead and tell me what this change has to do with that?

MR. RIECHERS: It doesn't change how we're doing that at all. What it really does is just basically put into practice — currently there are closed areas by the Department of Health. And this lease program is really designed to move those areas out of those closed areas and put them in those lease agreement areas, and they depurate for a period of time, and then can be harvested. The reason we want to harvest those oysters, both because they're a good product, and secondly, because of their nature of the closed areas, it actually is beneficial for us to move some of those oysters out of there, because it can be a health risk if people go in those areas otherwise and try to collect those oysters. So this basically helps us maintain a lower population so that there's not that health risk that's ongoing out there.

But all of these changes basically are just clarifications of that, like I said — reducing the time that our permits are done, and making that easier for those folks. MR. WATSON: Robin, is this fishery subject to limited entry?

MR. RIECHERS: This fishery — the public portion of this fishery is not subject to limited entry at this time. It has been discussed by the advisory panel. We're in discussions with that advisory panel now about whether we should be going forward with that into the next session.

The lease program is kind of separate from that, and it has kind of been an ad hoc limited entry, because no new leases have been issued by the General Land Office for some time. So it's kind of a pseudo-limited entry program just by its nature.

MR. FITZSIMONS: Right. The private lease, then, from the GLO, is what you're describing.

MR. RIECHERS: Yes.

MR. FITZSIMONS: Do they expect the advisory panel to give us a recommendation on Commissioner Watson's point?

MR. RIECHERS: Well, what we anticipate that we're going to be doing is holding workshops with the entire industry. We anticipate a recommendation from the advisory committee to do that, in fact.

MR. WATSON: In sunset we kind of got a little criticism on our pricing.

MR. FITZSIMONS: Right.

MR. WATSON: Have we gotten that in line with where maybe some other people think it should be?

MR. RIECHERS: Well, in fact, Mr. Watson, in March of 2002, the price went from $3 to $6 as set by statute at that time. What you're referring to in the audit report is that there was basically some break-even values that were certainly higher than $6, but in statute, they followed that up with a $6 pricing per acre charge.

MR. FITZSIMONS: So there's no bid. There's no real market incentive there. It's set.

MR. RIECHERS: Yes, that's correct.

MR. MONTGOMERY: I was headed the same place. Do we not have the ability to create a bid or an auction process?

MR. RIECHERS: Currently, no. Currently that is a 15-year lease that started in March of 2002. And basically it set that term, and at a $6 price.

MR. COOK: Basically, Robin — correct me if I'm wrong, which I frequently tread on that ground — but the State Auditor looked at this and said, This is worth a lot more. But the legislature capped it at this level.

MR. RIECHER: That's correct.

MR. COOK: And we have been in communication with all of those folks involved, and certainly there is some opportunity there.

MR. FITZSIMONS: Commissioner Parker?

MR. PARKER: Maybe because I'm new — are the lease boundaries marked with GPS, or any sort of system like that?

MR. RIECHERS: Yes, sir. It's basically, they're required to have them GPS coordinated with a buoy marker, with a regular marker that's described.

MR. PARKER: And we have them on our GPS?

MR. RIECHERS: Yes, sir.

MR. PARKER: And have you done any work with marking the current stock with any sort of heat, or related items for GPS type tracking of that?

MR. RIECHERS: I'm sorry, I missed just part of that.

MR. PARKER: So, as you know, when a particular segment of a bed is ready to be transferred, and then know when they are ready to be harvested.

MR. RIECHERS: In the public reef season, which basically starts November and runs through April, that's just the commercial season associated with when oysters are available under normal conditions. Under those lease conditions, they basically transfer in May and June and September and October. The May and June oysters are then harvested throughout the summer, and then the September-October are harvested, typically, when the normal public reef season is harvested.

As far as us checking those leases, that really is up to the leaseholder, as far as when he chooses to market those. Those leaseholders typically like to have oysters coming off year-round. That's what they're hitting, is the market when the public market isn't there, basically.

MR. MONTGOMERY: Do we receive the revenue from the leases? It stays in the department?

MR. RIECHERS: Yes, it's Fund 9.

MR. MONTGOMERY: I would suggest for our consideration that for the next legislative session, we might raise this issue again as a revenue-raising thing, that we have a market auction process, if we [inaudible] value on the —

MR. FITZSIMONS: Well, Commissioner Montgomery brings up an interesting point. Are these permits — are they freely transferrable? In other words, if you have an operator that's a more efficient operator than another operator, and he can afford to pay a little bit more, can he buy that other fellow out?

MR. RIECHERS: In current statute, it allows an agent to hold up to 300 acres. So they are transferrable with a maximum of up to 300 acres being held under one individual agent. There's 43 of them now, so you can collect up to —

MR. HOLMES: And then there's subleases from the agent?

MR. RIECHERS: Well, there's 43 leases, and what we estimate, there's about ten to 12 people who are controlling most of the leases in some way. And so basically they're leased under one person's name, but controlled under another.

MR. HOLMES: Is there a mark-up between the agent and the operator?

MR. RIECHER: We don't know about that business arrangement. We really don't.

MR. WATSON: My impression is that there's one particular individual who, if you would look at this thing — his family tree really controls a big majority of this. And I just wondered if we're getting the best bang for our bucks.

MR. FITZSIMONS: What are those revenue numbers? Do you have any idea?

MR. RIECHERS: Well, it's $6 an acre times 2,300 acres.

MR. WATSON: How does that compare to, say, what Louisiana gets for theirs?

MR. RIECHERS: We're actually a little higher than Louisiana right now. They were roughly equivalent to us when the program was reviewed in 2002.

MR. WATSON: That's probably a bad example.

(Laughter)

MR. FITZSIMONS: I'm going to leave that one alone. Robin, would it be appropriate if we'd ask the advisory committee to look at the issue of transferability? I'm paraphrasing your comments, Commissioner Holmes, of market system for the leases.

MR. RIECHERS: It would certainly be appropriate. We'll have that before them at their next meeting.

MR. FITZSIMONS: THank you, Robin. Any other discussion questions for Robin? No further questions or discussion. Without objection, I'll authorize staff to publish this item in the Texas Register for the required public comment period.

And Robin, you didn't need an amendment to that, did you? You said there was —

MR. RIECHERS: Not for publication. No, sir.

MR. FITZSIMONS: All right. Committee Item Number 3, Statewide Hunting and Fishing Proclamation 10. Kurzawski, please?

MR. KURZAWSKI: Good morning, Commissioners. My name is Ken Kurzanski. I'm with the Inland Fisheries Division, and today I'll be giving you a presentation on our proposal for changes to the Freshwater Fishing Regulations for the coming year. And this is one of three presentations that will be given by Coastal and Wildlife that changes to the fishing and hunting regulations that we wish to take to public hearings. They're typically held in March of the year.

Our changes that we are proposing today fall into four categories. These are typical of the usual categories we do with our changes to regulations. We modify special regulations, special regulations being those regulations that differ from statewide. We have a couple changes there. One is our community fishing lakes, and to one small reservoir, St. Augustine.

We are proposing to take some special regulations we have and revert them back to statewide regulations. We have that on a couple of reservoirs — Pat Mayse and Lake O' the Pines. We also have a proposal to modify a special regulation to enhance the enforcement of it. That's on Lake Murvaul. And we are also enacting special regulations that differ from statewide regulations, and that's on a new reservoir, Lake Pflugerville.

Starting with the community fishing lakes, these are located statewide. The current regulations that we're looking at to change here are for channel and blue catfish. We currently have a 12-inch minimum length limit, and a five- fish daily bag. That differs from statewide in that statewide is a 25-fish daily bag. We are proposing to change that by removing the minimum length limit, and retain the five-fish bag.

The community fishing lakes are public waters and state park lakes that are 75 acres or less in size. We have approximately 585 of those statewide. Most of them are located within metro areas, and a majority of them are probably five acres and less. We are under a project to evaluate put-and-take catfish stocking in those reservoirs, trying to provide some fishing to people on a put-and-take basis, where we stock — we're trying to stock 12-inch catfish in there and let people have something to catch on a year-round basis.

Our goals there are to allow some utilization of those fish, and spread the harvest among as many anglers as possible. We don't feel that having the minimum length limit on those catfish, since it's just a put-and-take program, we're not looking to protect the population. And by the five-fish bag, we spread the harvest out as many anglers as possible, and it also gives them an opportunity to catch some fish. So we think by removing that minimum length limit, it will achieve our goals there.

Next proposal is on St. Augustine's city lake. We currently have an 18-inch minimum length limit on that reservoir, and we want to change that to a 14 to 18-inch slot limit, and retaining the five-fish bag. Under that 18-inch minimum, we have an abundance of small bass. A lot of those bass are less than 18 inches, and currently anglers can't harvest those fish, and it's having some impact on the growth of the fish in the rest of the population. We think by removing some of those fish, we'll improve the growth of the remaining fish and produce some more quality fish in there. And our goal there would be to increase opportunity for some angler harvest, and hopefully have some positive impact on the growth rates of the other bass that are remaining in the reservoir.

Next set, on Lake O' the Pines and Pat Mayes Reservoir, we currently have some special regulations for white bass and hybrid striped bass that we initiated in 1988. And what we did there, we sort of combined the regulations for white bass and hybrids. We had to put a ten-inch minimum on there, and a 25-fish daily bag, but we only allowed anglers to take five of those fish that were 18 inches or greater. After evaluating that, going into it our goals were to sort of mitigate some of the i.d. problems that anglers have telling white bass and hybrids apart, and we wanted to make some of the larger hybrids by reducing the bag of those larger fish.

What we found was that angling pressure for the hybrids was very low, and the regulation changed because of that. It wasn't having any impact, positive or negative, in the population. Turned out to be we just really couldn't evaluate properly the regulation in these two settings, so we're proposing to change that regulation back to the statewide limits. And also there, we did have that special regulation on the tail race areas down below these two reservoirs.

Go back to the regulations for white bass, would be a ten-inch minimum and 25-fish daily bag, and for the hybrids, it would be an 18-inch minimum and a five daily bag. That combination regulation is still something we think has some merit, and we're going to look around the state, maybe see some other populations where something like that may be able to put into use and to be properly evaluated.

The next small reservoir, Lake Murvaul in Pinola County. We are going to create a reservoir definition for that and have it encompass the downstream tail race area. This is to allow enforcement in that area of a special regulation that we have on the reservoir for large-mouth bass. We have a 14 to 21-inch slot limit, and what we're finding there is, anglers from the reservoir are landing their boats in the reservoir and walking down and fishing that area below, coming back into the reservoir, and it creates sort of a little loophole in the regulations. So we think by tightening that reservoir definition up, we'll eliminate that problem. And as I said, our goal there is to eliminate that enforcement concern and make it simpler for everybody involved.

Lake Pflugerville in Travis County — this is a hundred eighty-acre reservoir that's scheduled to open in 2005, and we're proposing to put an 18-inch minimum length limit on large-mouth bass in there when it opens, which is typical of what we do in new reservoirs. And we also want to restrict angling in there to pole and line angling only. We hope to develop a catfish population in there.

And our goals there are both of those changes are to protect those initial year classes when their reservoirs first open. Typically, the fish are easy to catch and we want to try and maintain those populations, maintain the quality of fishing, and build it up for future use. And these two regulation changes will help us do that.

And those are all the changes we have to the Freshwater Fishing Regulations. If you have any questions, I'd be happy to answer them for you.

MR. FITZSIMONS: Any questions?

(No response)

MR. FITZSIMONS: Thank you, Ken. Next up, Paul or Mike?

MR. MONTGOMERY: I apologize. I did have one question.

MR. FITZSIMONS: Oh, Ken, excuse me.

MR. MONTGOMERY: We all got the boat fishing letter. We're trying to create more opportunities for recreation. I talked briefly with Phil and Jim about this. Why would we not — unless we're convinced the bow hunters are hurting the resource, why would we not ease up on the bow hunters and let them take game fish? I realize you should game fish under a slot limit, but you got to catch and release problem. You're probably going to have to accept them getting one under the slot limit. And I understand from Jim it's a question of, do they have a hunting license or a fishing license? But shouldn't we look for some simple way to make it easy for these folks to bow fish? I can't imagine there's that many of them, or they're going to harm the resource. And we're trying to encourage people to get outdoors and do these things.

MR. KURZAWSKI: Well, there is — our big concern there is with any minimum length limits for — catfish is the one in question. And there's no catch or lease from bow angling, and catfish are very popular fish. It's our second most popular fish. And we think the biggest benefit to that is for people to catch them pole and line. It's a good fish that you can catch from the bank, you can catch from the boat. It's good for young anglers to start out with them, and especially in situations like those small lakes where we're introducing those fish. We'd rather see those fish go to the recreational pole and line anglers.

And there's a variety of other non-game fishes that bow anglers typically pursue — the gar and catfish, carp, bowfin, buffalo — that are typically taken by them.

MR. MONTGOMERY: In your judgment, do you think that bow fisherman have any appreciable impact on the numbers of catfish available to other fishermen?

MR. KURZAWSKI: No, they probably wouldn't have a major impact, no. It's just more of a philosophy of our management, philosophy for catfish. We're more concerned with those —

MR. COOK: Commissioner, I think — and Phil may want to speak to this, too — because this is an issue that I guess comes up every year. And certainly there is opportunity there. I think one of the issues — and Ken or Phil, again, help me out here — but that I have heard in the past several times, is that the bow fishermen, being in the possibilities that they have, would tend to be much more selective towards that big, bigger, bigger, bigger catfish, and could impact reproductive ability of that particular species. And some of the recreational fishermen who drop the line out there with the worm on the end of the hook, and whatever comes along, that's what we go for. But — Phillip, any —

MR. DUROCHER: Well, that's one issue. I don't know what the number of bow hunters we have, whether or not that would have an impact on a population. But it's all related back. All of our game fish are primarily managed with length limits. And for length limits to work, fish that's caught and released needs to live, or they don't work. And bow hunting is a lethal method.

But you're right. At least initially, I don't think that would have an impact on the population, but where do you stop? You know, today it's catfish, what do we want next year? You know, we want hybrids, stripers. I don't know how vulnerable catfish are to bow hunting. I don't have any experience with that. But so far it's been primarily carp and buffalo, and things that come to the surface at a certain time of year, that they can find.

MR. FITZSIMONS: Didn't we have this request once before from the spear fishermen?

MR. DUROCHER: Spear fishermen — Lake Amistad and Toledo Bend. They wanted to be able to spearfish these catfish.

MR. FITZSIMONS: They say it's pretty sporty when you meet one of those big ones down there.

MR. DUROCHER: But you know, all the fish are — big bass, for instance, are real susceptible to spear fishing. And we would have some concerns turning them loose on our game fish. Those fish are extremely —

MR. FITZSIMONS: The point is, you can't use our management strategy very well with a lethal means —

MR. DUROCHER: Absolutely. That's the big issue with us.

MR. BROWN: Are there any lakes that it would be allowed currently?

MR. FITZSIMONS: Pardon?

MR. BROWN: Are there any lakes where it's currently allowed?

MR. DUROCHER: No. It's allowed — bow hunting is allowed on all lakes, but strictly for non-game fish — the fish that are not regulated.

MR. FITZSIMONS: We've got to wind up here.

MR. HOLMES: Pole and line, catch and release works. You're not sure what you're going to get when you reel it in, but the obligation would be on the part of the bow hunter or the spear fisherman to only shoot something that's within the limit, within the slot.

MR. DUROCHER: Within the slot or outside the minimum size limit. But you know, technically you put them in a position where, if they make a mistake, they've broke the law. They can't release the fish.

MR. HOLMES: That's right, but that's what they've asked for. That's my point. They're the ones that have the problem, because then they have violated it. And it is the belief that the enforcement process simply isn't going to catch enough of that violation to be able to control it, and therefore, it puts the resource in some jeopardy.

MR. DUROCHER: That's a possibility. You know, I don't know what the bow hunting would grow to if we went to this. I think it would have very little impact on how many people bow hunt — bow fish. So I really don't think it's a resource issue. It's more a social issue. I'm concerned about what the other anglers would think if all of a sudden you turn them loose on catfish. The catfish fishermen, which is a fairly substantial group of people.

MR. FITZSIMONS: Commissioner Parker?

MR. PARKER: You know, this has always been a sport that utilizes the down part of the species. You know, what we'd call in east Texas the trash fish. I know a lot of people eat them, but a lot of people don't. Probably more don't than do. And to me, everything we do here, we have to draw a line somewhere. And I think the wisdom of somebody way back when drew the line there between sport fish and non-sport fish.

MR. FITZSIMONS: Well, it's an instinct [indiscernible]. I think Commissioner Holmes has hit the nail on the head, that these people have asked — if I'm getting this correct — they would ask to put themselves in that position of having to make the decision either with a spear or with a bow, or whatever, that they're not going to take an illegal fish. And they're not asking us to change our enforcement, like give them a couple of freebies or anything, right? But I think it's something we should consider.

As Commissioner Montgomery points out, it's not a resource that — and this is how some people choose to enjoy the outdoors. This Commission has never drawn the line between —

MR. DUROCHER: If that's the wishes of the Commission, we certainly could handle that. All we'd do is put that exception in, and the bow hunting can be used to take non-game fish and catfishes within the legal limits, as defined —

MR. FITZSIMONS: Well, seeing how this came off the — poor Ken was on his way to a —

(Laughter and cross-talk)

MR. MONTGOMERY: I wasn't driving for a conclusion. I wanted to raise the issue. We've said over and over and over, we're trying to make it simpler, clearer, and encourage people to get outdoors. We got a constituents group asking for it. I had assumed we'd give them a one-fish exception to the slot limit, given the catch and release problem. But, you know, the other angle, which they say, you got to meet the rules. And maybe they want to put themselves in that position. But if it's not a resource issue, and it's not some bizarre, unethical behavior out there, then let them do it.

MR. FITZSIMONS: That's what Commissioner Parker says. We do draw the line at dynamite.

(Laughter)

MR. HOLMES: Just as a philosophical point, and make sure that I can understand it, when we regulate means and methods of take, it's primarily to conserve the resource. Is that correct?

MR. DUROCHER: Absolutely. And to maximize recreation, in terms of pole and line recreation.

MR. HOLMES: And if this means and method does not endanger the resource, then it's really a social issue, right? I mean, is that what it boils down to?

MR. DUROCHER: I'll tell you what we'll do. We have an advisory board meeting, Freshwater Fish Advisory Board meeting, and they're represented by lots of different groups, including the Catfish Association of Texas. And we'll bring that up in front of the group just to get some input from all the different fishing groups, to see what they would think about it. And we'll certainly take a look at it.

MR. FITZSIMONS: That's the way to do it. I'm sure there's more to it than —

MR. HENRY: May want to get [inaudible] with law enforcement and see what concerns Jim and his guys would have here. Or if we've overburdened them with what is a minor problem; are we making it a major problem for them? That will be a concern as well.

MR. FITZSIMONS: Jim?

MR. MONTGOMERY: We should clarify what kind of license you need.

MR. FITZSIMONS: Jim, is there anything you might want to add at this point before we move on?

MR. STINEBAUGH: Well, sir, I was thinking about it while we were talking. And the changes of our wardens being there when a guy shoots at fish that doesn't fit are pretty slim. So I would say it would be up to you all to decide whether or not this is going to be an impact, but it would be difficult to enforce. That's the first thing that comes to my mind.

MR. FITZSIMONS: The vote comes as the same place you get the rest of them. The vote will come to the boat launch at some point. Commissioner Holmes.

MR. HOLMES: Isn't that the same thing, though, Jim, with pole and line?

MR. STINEBAUGH: Sure it is. If they catch on a hook the wrong size bass and throw it in the brush, you're not going to know about it anyway. So basically you're right there with hook fishermen. I just don't know if — you know, people have a hard time judging deer. Are you going to be able to judge the size of a catfish or something in the water? That's another thing.

MR. FITZSIMONS: If they're as bad at this as they are at judging deer —

(Laughter)

MR. STINEBAUGH: The thought occurs to me.

MR. BROWN: There's also no opportunity to throw it back, because it's —

MR. STINEBAUGH: No stint.

MR. BROWN: Versus pole and line. At least you can release, and if you violate it, you're probably going to get rid of it.

MR. STINEBAUGH: There you are.

MR. FITZSIMONS: Commissioner Brown is exactly right. They're putting the burden on themselves for that. So I think that's what has to be made clear if we do anything.

MR. STINEBAUGH: I'll say they'll have the riverbank to themselves, becauee if a guy comes up next to me with a bow and arrow, I'm probably going to move down the river.

(Laughter)

MR. FITZSIMONS: Another good point. Well, poor Ken. I'll tell you, he was escaped. I think your escape now will be good. And thank you, Colonel Stinebaugh.

MR. STINEBAUGH: Yes, sir.

MR. FITZSIMONS: And Paul? Paul finally sat down. He got tired of waiting.

MR. HAMMERSCHMIDT: Good morning, Mr. Chairman, Commissioners. My name is Paul Hammerschmidt, program director, Coastal Fisheries Division, here today to discuss some proposals from the coastal side of things. Primarily we're looking at some housekeeping items. We've reviewed the coastal part of statewide. These include investigating the need to require degradable panels in perch traps, legalizing the use of minnow traps in saltwater, to define a folding panel trap — and we'll get to that in a minute — as a legal device for crabbing, and to do a few language changes, just to help simplify and clarify things.

When we talk about perch traps, perch traps are used exclusively in saltwater. They can be used — they can be a size that will equal that of a crab trap, which is 18 cubic feet. They are also used in waters away from docks quite a bit, to catch bait fish.

What we are recommending is that we look into requiring degradable panels, because these can be lost just like crab traps can. And what that will do is, it will cause the traps to be unfishable after a while, once they're lost.

We're looking at using comparable langauge that we use for crab traps. One is to either use certain kinds of twine or 20-gauge wire to tie down the lid. There's also the degradable panel itself, which can be either laced with the line, sewn with the line, or it can be hinged in a way that it will fall through when the material degrades in the saltwater.

Something that — I've tried to dig out the history on this, but minnow traps, for as long as I can remember, have not been legal in saltwater, and only legal in freshwater, although they are being used. We see no resource issue with allowing them to be used in saltwater. Most people just throw them off the side of the dock or against the jetty, or the rocks. And they're catching small fungulous killi fish and that for bait.

One of the things on the minnow trap itself, it has size restrictions already on it. We're not going to change. It has to be no more than 24 inches long. The funnel has to meet those dimension requirements. And we don't see why this can't continue to be used and be a legal device in saltwater.

The other one — as I demonstrated back in November — is what I'm calling the folding panel trap, and I'm open for other names. This particular one is sold under the moniker Star Trap. And it works basically like the old hoop nets — or not the hoop nets, but the umbrella nets that the crabbers used. They tie the bait in the middle of the device. The lines are held up above the surface, and when someone feels like it's important, they lift it, and then these panels fold up and they entrap the crab, or whatever critter happens to be in there at the time. And I have some examples of those over there if you all are interested at some point, either today or tomorrow.

The final one is we're planning on — we would like to offer up some changes in some language, just to help clarify things and to simplify the language. And I'd be happy to answer any questions.

MR. FITZSIMONS: Any questions for Paul?

(No response)

MR. HAMMERSCHMIDT: Thank you very much.

MR. FITZSIMONS: Mike?

MR. BERGER: Good morning, Mr. Chairman, Commissioners. I'm Mike Berger, director of the Wildlife Division, here this morning to talk to you about wildlife portion of the statewide Hunting and Fishing Proclamation.

First item has to do with pheasants. Last April you adopted a proclamation that would have expanded pheasant season in the Panhandle to begin in the first Saturday in December, run for 30 consecutive days. Because of an error in the Hunting Annual in November — or in August — you agreed to modify the dates for hunting to match the annual as a means of convenience and non-confusion with the hunting public. And you did that, so now we need to move this back to what was originally proposed and approved. That would be to open the first Saturday in December and run for 30 consecutive days. There would be a two-cock bag limit — daily bag limit — and a four-cock possession limit.

Next has to do with a definition change, or really the adding of a definition to the Pronghorn Antelope Permit. Pronghorn permits now are issued to landowners based on herd units, and historically, they've been issued for a specific tract of land. So under this system, landowners that may have several parcels or tracts of land within a single herd unit had permits that were only useful on the individual tracts themselves. With the change or the addition of a tract of land, a landowner with multiple parcels within a single herd unit would be issued permits based on his total land holdings in that herd unit, and the permits could be used on any of those parcels.

Next has to do with our spring eastern turkey season, and this recommendation is in accordance with the Commission's charge to maximize hunting opportunity whenever we can. Currently the northern half of Montgomery and Tyler Counties are open for spring turkey hunting, but not the southern half. This proposal would open the southern half of those counties, and also Hardin and Liberty Counties, where the Eastern Turkey populations have expanded and can sustain the harvest. I should point out that this would not become effective until the spring of 2005.

Along with this, again as a reflection to increase our opportunity, and as a reflection of the success of the Eastern Turkey Restoration Program that you will hear more about tomorrow, we would propose to lengthen the season for eastern turkeys from the current 14 days, to 30 days, so that there would be a full month of eastern turkey hunting opportunity.

With regard to fall Rio Grande turkey season, there are a few places where pockets of turkey habitats exist, and extended across state lines to where — into closed counties. This proposal would offer fall hunting opportunity for two of those such counties where there is habitat and harvestable numbers available. And this would be in Denton and Johnson Counties, where there would be a fall season to conform with that of the surrounding counties — the first Saturday in November to the first Sunday in January, a four gobbler bearded hen bag limit.

With white-tail deer, we would — again, to offer more hunting opportunity, the counties in red are three-deer counties: one buck and two does, does by permit only. And we have determined that these counties can sustain limited amount of either sex harvest, and therefore, we are proposing those eight counties for four doe-days that would begin Thanksgiving day and run through that weekend. And again, this is in line with the Commission's charge to expand hunting opportunity wherever possible.

In November we came to you and discussed the number of different late youth season non-opportunities, or conflicts, or confusing items. So this is a proposal to greatly simplify and expand those opportunities. The blue counties that you see would be either sex hunting. These would make the early youth season and the late youth season identical, so there would be no confusion, early or late. The blue counties would be either sex harvest, and that encompasses most of the state. The only reason you would have to have a permit is if you were on an MLD property, or there were LAMPS permits that had been issued for that property.

The red counties antlerless are by permit only throughout the season, so they would continue to be by permit, early or late season. The yellow counties are ones that are divided by a highway and really fall half into blue and half into red. So however those are divided would fall with the others. And the whites are ones with no white-tail deer season.

Anyway, this will make — just clarify the season and provide opportunities, more youth hunting opportunities, in the state. And that's our proposal, and I'd be happy to answer any questions you might have.

MR. FITZSIMONS: Mike, the mixed counties on the late youth?

MR. BERGER: Yes?

MR. FITZSIMONS: That last slide you had there? We want to make it as easy as possible for the youth. That's the purpose of the youth hunting.

MR. BERGER: That's correct.

MR. FITZSIMONS: Is the split — as I understand it, a mixed county — some sort of division by a highway or something, where —

MR. BERGER: Right. The ones on the left are I35, and the other ones, I think, is 59.

MR. FITZSIMONS: Does that create confusion or a problem for opportunity where people — I'm just trying to understand the —

MR. BERGER: Well, you've got some areas where there's permits. The highways are — if I understand the law enforcement concern, that's an easier way to divide areas. People are able to understand what regulations are applicable on which side of the highway, easier than you can a county line.

MR. FITZSIMONS: And it's a resource issue there?

MR. BERGER: It's a resource issue. You can see that the line is along the Edwards Escarpment there along I35, so west of that you have better deer populations than you do east of that in the blackland prairies, and it's the same along the coastal prairies.

MR. FITZSIMONS: Mr. Montgomery?

MR. MONTGOMERY: Are you satisfied that all the variation of the four and five-deer and to make up the bucks and does are based on resource, and there's no way to simplify that without going against resource management issues? When I read through this, there were just a lot of change. Probably not a lot of hunters move among those different regions, so it may not be a big complication, but back to simplification: have we thought that variation through from a simplification standpoint?

MR. BERGER: If you knew what we had before — I mean, we really had —

MR. MONTGOMERY: I understand. I appreciate that. I'm just raising the question.

MR. BERGER: Most all of the state — as you can see there, most all of the state would allow the youth to harvest a buck or a doe up to the limits in the county, and the total bag limits in those counties are set for resource reasons. So some are one-buck, two-buck, three-buck counties.

MR. MONTGOMERY: Right.

MR. BERGER: And those limits would still be adhered in the late youth season.

MR. MONTGOMERY: Well, I wasn't talking about youth only. It was really in a broad sense. Just in one read-through, looking at it all at once, you realize how much variation we've got still.

MR. BERGER: Right. And we look at that as often as we can, but it is a resource-related issue.

MR. MONTGOMERY: As long as you're satisfied that's the issue, then that's the issue.

MR. BERGER: Yes.

MR. MONTGOMERY: Okay.

MR. FITZSIMONS: Commissioner Parker?

MR. PARKER: Since November 14, I have received more phone calls about one-buck counties than any other issue. I need a good answer.

(Laughter)

MR. FITZSIMONS: That's a good question.

MR. BERGER: We evaluate the resources —

MR. PARKER: May I interrupt you just a moment?

MR. BERGER: Yes.

MR. PARKER: The main issue is mostly from small landowners who have a problem with — and I'll just tell you what they tell me — you all preach deer management and manage for horns, but how do I tell my wife, or how do I tell my 16-year-old son, or my 12-year-old son that he should shoot that scraggle-horn buck, and then his season is over, when he knows that he has the good possibility of waiting on a nice eight or ten or 12-point? And if we shoot all of those nice deer, then our breeders are left to that scraggle-horn who shows up every year.

MR. BERGER: Interesting questions.

MR. PARKER: I want the answer. I know the question.

(Laughter)

MR. BERGER: Well, we have a general —

Would you like to say a word?

MR. FITZSIMONS: Help is on the way.

MR. BERGER: This is Clayton Wolf, our big game program director, and formerly from east Texas.

MR. WOLF: Yes, sir, and formerly the white-tail deer program leader.

Just to apprize you of some plans we have, we have an antler restriction in place right now that we're running an experiment on. And we have been contemplating the idea when we come back, if we continue that, that we look at an additional, say, a spike-buck tag. And because our experiment is going to end next season during our next regulation cycle, which our committee starts in June, we actually have the subject of a spike-buck tag is going to be on our agenda. So we basically waited til that cycle, because it would coincide with our antler restriction package, and we wanted to see what we were going to do there. And so we held off this cycle, because we need to see what's going to happen with antler restrictions first. But we do have it on our agenda for the cycle, that we would brief this Commission on in August of this year.

MR. PARKER: I hope for the possibility of 2005.

MR. WOLF: Yes, sir. The '05-'06 season. That cycle.

MR. COOK: Mr. Chairman, Commissioners, I would like to interject a little bit here. Clayton stepped up and put that bull's eye on his chest, and I appreciate him doing that. Clearly, as I look into the audience here, and I see you and I see some of the folks in the audience, this has been an issue for 50 years. This is an issue that we have worked —

MR. PARKER: Now is the time to tackle it.

MR. COOK: — to deal with it. And let me give you a little bit of why. Why one buck?

Typically, what we see in much of that area — and Clayton, you can again help me here, but frequently, 60 percent or more of the harvest is yearling buck deer. You know, and when you have a situation like that because of hunting pressure, high hunting pressure. Small properties, lots of hunters, lots of activity, lots of interest. It's convenient to lots of people. Great resource.

When you get into a situation like that, the fear within the resource managers, and people who are looking at sustaining that resource, is that you miss a fawn crop or two, which can happen with a good drought. Suddenly, you're in a situation where you're buck-doe ratio may go to one to six, one to seven, one to eight, one to nine. And we've seen it happen in Texas and in other states.

As far as sustaining that high of a harvest in the yearling buck — say 80 percent or higher — that can be done, as long as you consistently have that fawn crop. States like Pennsylvania, Michigan, some of those states, sustain that kind of thing constantly.

When I was in that role back in the early '70s — the white-tail deer program — we took some of the first steps in trying to deal with this aggressively. Obviously a very controversial subject. One of the great benefits that is available now, that I want to be sure and point out to you, is that land managers in that area who are in wildlife management plans — in these TPW-approved wildlife management plans, and it is becoming more and more extensive — is that their season and bag limit is the long season and the five-deer limit. So they have tremendous flexibility, those who are in good programs. That was a really good step.

But it still doesn't address — in that process, we're not able to address many of those small landowners who, like you say, there they're sitting, and there's a buck that, from the cull standpoint, obviously needs to come out of the population, or that would be generally recommended. Use that tag on that permit, whether it's a kid or whoever it is — well, his hunting season for buck is over. So this antler restriction rate — which, again, in cooperation with many of the wildlife management co-ops in that area, landowner co-ops, is something that we think, again, gives us an opportunity to address that.

One of the issues also is people who hunt in more than one county. And that frequently comes up. So again, we have been dealing with this. It's something that stirs lots of emotion and interest in a lot of different directions, but the staff in previous commissions, I think, have made good progress, and we're ready to make more. Certainly entertain a whole new thinking on it if we can find that avenue.

MR. FITZSIMONS: Clayton and Mike, this is an opportunity for us to advance the MLDs and the co-ops, and of course wildlife management plans, as Bob points out. Is that really the short answer?

MR. WOLF: Well, yes, sir. As people come to us with requests, usually our first option is if we can get them on a management plan, that obviously is the best way to handle things. But Mr. Cook is right. Even with the one-buck bag limit, that's on our agenda also for this summer. We're going to have quite a lengthy meeting and a look at, I think, Commissioner Montgomery, also, your question about all the different bag limits. We're looking at really a total review of deer regs this summer, so we might have a fairly significant package when we come to this Commission in August.

MR. FITZSIMONS: Good, Mike. Does that do it for the Statewide Hunting and Fishing Proclamation? Any other discussion on that issue?

MR. BERGER: Don't run off, because you're next.

MR. FITZSIMONS: Any other questions for Mike?

(No response)

MR. BERGER: Is that good for you?

MR. FITZSIMONS: Well, that's all we talk about is white-tail deer.

MR. FITZSIMONS: We'll get to talk about white-tail deer some more, I promise. No further questions or discussion, without objection, I authorize staff to publish this item in the Texas Register for the required public comment period.

Next up, Committee Item number 4, White-Tail Deer Advisory Committee. Clayton, you're back.

MR. COOK: Clayton, I want to be sure and point out to the Commission — this morning, as you will recall, we handed out the charges, the Commission charges. This particular agenda item, as you will see, directly addresses one of those charges that we are already in motion on: HC on the first page of your Regulations Committee, HCR 256, WHite-Tail Deer Advisory Committee. So I wanted to tie those two together, that although those charges lay before you in draft format, we are already working on a number of these items. Clayton?

MR. FITZSIMONS: This is one of the few advisory committees that's mandated by the legislature.

MR. WOLF: Mr. Chairman, Commissioners, once again for the record, my name is Clayton Wolf. I'm the Big Game program director for the Wildlife Division. This morning I'm going to give a briefing and update on the activities of the White-Tail Deer Advisory Committee.

First and foremost, the White-Tail Deer Advisory Committee has adopted a position statement relative to trap, transport and process permit rules. Some of you may recall that in August of 2003, this Commission adopted regulations for the trap, transport and process permit. You may also recall at that time that we had comments from the public, in that some felt that the rules that were proposed and adopted were not consistent with the provisions of Senate Bill 1582. So our staff took the adopted rules and presented those to the White-Tail Deer Advisory Committee to receive a recommendation on the appropriateness of the rules.

Before you, you've been handed a copy of the full position statement with a little history in the statement in bold. But in summary, the White-Tail Deer Advisory Committee resolved that the Commission regulations are appropriate and consistent with Senate Bill 1582. So no action is recommended from the committee on trap, transport and process permit rules.

Qther activities: the advisory committee so far has conducted three meetings. We have another one scheduled next week for February 5. We have discussed and studied many of the issues relative to the directives in House Concurrent Resolution 256. The committee has approved several of the resolutions dealing with the items that you see on the screen here before you. I'm not going to go into detail today, because I suspect that at our meeting on February 5, the committee will adopt a couple of other recommendations or resolutions. When we complete that meeting, then the third White-Tail Deer Advisory Committee Report will summarize the findings of these two meetings, and each of you will be provided with a copy of that report. But we are making excellent progress, especially as of the last meeting that we had January 13.

There are some recommendations. When we met on the 13th, the advisory committee was informed that if there were recommendations that they wanted to have in place for this next season, we had to get started on that quickly. And so we jumped on some of those items. Specifically, we looked in three areas: wildlife management plans, TTT permits, and a practice we've come to call double-tagging.

First, as far as wildlife management plans go, the committee does endorse many of the ways that Parks and Wildlife currently does business, and we did get some affirmation on many concepts, including the fact that anyone can prepare a wildlife management plan, but that TPWD retains the approval authority for these wildlife management plans. And any TPWD biologist or technician that is approved or authorized to prepare a plan can approve a plan.

However, the committee does recommend that we formalize a review and appeal process for wildlife management plans. We initiated an informal process last June. We're not sure if this recommendation will come in the form of a regulation proposal or merely an operational procedures policy, but the bottom line is, we will formalize, or we plan to formalize, with your permission, a process so that if a person is intending to deny a plan because they feel it's inappropriate, that it not be a one-person decision, there would be a review panel and an appeal process involved in that.

Relative to TTT permits, the committee also endorses the way we do business in many aspects, in that a wildlife management plan is required at the release site for TTT deer. A suitable natural habitat is required at the release site, and that these activities cannot impact the neighbors, both at the trap site and at the release site.

The committee does have some recommendations relative to modifying release provisions. First, dealing with inconsequential leases. The committee is recommending to add a provision for additional releases. Currently, anybody in Texas who owns land can receive a one-time inconsequential release of white-tail deer at a stocking rate no greater then one deer per 200 acres. The committee reviewed this limitation and is suggesting that an interval of no earlier than every seven years a landowner could receive another inconsequential release if they chose.

Additionally, the committee is recommending right now that that also could occur at change in ownership, so that if someone purchased a tract of land, then the time clock would start over, in essence.

On MLDP properties, there are three specific recommendations: one that would include Level IIs, in addition to Level IIIs, with no site inspection release site provisions, allow the release of bucks, and eliminate limitations on the removal of deer.

Now, I'll need to explain this to you. This is somewhat complex. But a person that has received MLDP Level III permits, and has the data, can receive TTT deer without a site inspection. The concept is that the biologist has pretty intimate knowledge of that tract and can make that decision from their desk because of the data they have and the knowledge of the property.

The proposal is to add Level IIs to that as long as they also have the same data that's consistent with those Level III properties, so that the biologist can make an accurate determination.

Also, that release right now without a site inspection is restricted to does only, but if a person wanted bucks, then the biologist would kind of have to come out there. The recommendation is to allow the release of bucks or does. The bottom line is that after the release, the total population size does not exceed that prescribed in the Wildlife Management Plan, which is habitat-based.

And finally, an individual, a person, a property owner, can harvest more deer than is prescribed in the plan in order to make room for moving additional deer onto the property. However, there is a limitation on how far they can push that population size down. The recommendation from the committee is to remove that limitation to allow a property owner to push that population size down to allow for the TTT importation of more deer.

If you deer hunt in Texas on LAMPS properties or MLD properties, you know that when you fill out your license tag, if you have a permit, you also have to fill out a permit, and fill out much the same information on that permit, and then you have to write on the back of your hunting license, and fill out your license log. There's a lot of duplication. Our staff actually recommended, or proposed, and idea to the advisory committee to eliminate license tag requirements for deer taken under authority of MLDs, LAMPS, or any other TPWD special permit, such as our big-time Texas hunts, state park hunts, et cetera.

In essence, what we're talking about is one piece of paper on the deer instead of two, or actually filling out three pieces of paper.

Now this would, if adopted, weigh the personal bag limits on these managed properties, but there is a control mechanism, and that is the permit, so that if someone hunts on — or takes a deer under authority of this permit, the permit would go on there. If a person takes a deer that's not under authority of one of these permits, then they would use a license tag and fill out their license log as usual.

MR. FITZSIMONS: Clayton, can I just talk about one thing?

MR. WOLF: Yes.

MR. FITZSIMONS: I know that for the new Commissioners, and still for me, it's a lot of alphabet soup here. But the recommendation on the MLDP, eliminating the license tag requirement — isn't that essentially making it consistent with [inaudible] their control permit now that you just have that little piece of paper?

MR. WOLF: Yes, sir, it would. We speculate that — maybe if I add one more bullet this will help a little bit. Another recommendation is to extend the season to the last day in February, which is consistent with our ADCP permit season. So that, in combination, would almost make the ADCP program obsolete. There may be a few instances like September harvest, but we feel that if these proposals are adopted, many of our ADCP cooperators would not longer need ADCPs, and in fact, we might even kind of satisfy this desire for a combo permit, in that those activities could be conducted under MLDPs instead of two different permits, and having to have a bunch of permits on the dash of your truck when you're trying to do control deer numbers.

MR. FITZSIMONS: It'll eliminate paperwork for the land and resource managers.

MR. WOLF: No doubt.

MR. COOK: I think another worthy noted benefit here is that people who hunt on these properties — at the end of the hunting season, their hunting license is going to still have all its tags. So the opportunity, again, for more hunting, additional hunting, hunting in some of these more restricted areas, more restricted properties, is enhanced. And again, my thought here, one of the reasons I like this, other than having to fill out all them tags and try to make sure I was absolutely cutting out the right one of those little bitty things — is again, as an incentive for people to get into our managed lands programs. I think it is one of those little steps that, again, we build a foundation for that and provide as many incentives and opportunities and benefits to those folks, who are doing a tremendous job of habitat management, providing hunting opportunity — the very things that we're all about. I think that's a good one.

MR. FITZSIMONS: And Bob, bring it back to the plan that's stated in the plan —

MR. COOK: Absolutely.

MR. FITZSIMONS: — the Commission worked on for the last several years to increase the number of acres under wildlife management plan. And the best way to do that is give people a reason to sign up.

MR. BROWN: That's same question. What is the difference between two and three — law two and three?

MR. FITZSIMONS: Clayton, you can give the right answer.

MR. WOLF: The biggest difference is the early buck season. On Level III permits, which have higher requirements — data requirements and habitat management requirements. If a person meets those requirements, they can hunt fork antler bucks in October with a rifle, and that is a big incentive.

On Level II properties we typically see our Level II people that just stay in Level II. They are in one-buck counties, because under both Level II and Level III, you can have an enhanced bag limit. So those people that are on Level II, for the most part, are people that are in one-buck counties that want to enhance bag limit, but they don't necessarily want to hunt bucks early.

MR. COOK: We didn't start out with the Level II, but we had some interest inquiry and request for an advanced program in those one-buck counties, but maybe not going all the way to the extensive data requirements that we have, which are considerable.

MR. FITZSIMONS: The point here for the new commissioners is that the different levels are driving better and better neighbor habitat management, and you'll probably say this later, but this White-Tail Deer Advisory Committee is committed all the members that it's all about habitat. The better job you do with habitat, the more flexibility you get in your regulations. That in a nutshell is our philosophy.

MR. WOLF: Yes, sir. I don't have the slides, but the first statement adopted by the White-Tail Deer Advisory Committee was, habitat is the cornerstone, and everything is measured against good habitat management.

Mike Berger reminded me, the fourth bullet there, Eliminate Bonus Tags. If this concept were adopted, it would eliminate the need for bonus tags, also.

So what we're looking at in the chronology of events and seeking permission to proceed with — we've had our January 13 meeting. Today we are requesting permission to proceed with the drafting proposals to implement these concepts. If we're given permission, field staff will review this. Next week we will take refined recommendations to our White-Tail Deer Advisory Committee meeting here in this room to get closer to the end. Then on February 12 and 13, our department committee meets, and we would do the final wordsmithing of the regulations so that we could publish these by February 23, if directed, have our meetings in March, and then bring back to this Commission in April for potential adoption.

One other thing that Mr. Boruff asked me to bring up — we did meet yesterday with representatives from Senator Armbrister's office and Representative Hildebran's office to give them an update on how things have been progressing. And our advisory committee, the White-Tail Deer Advisory Committee appointed by the Chair, has addressed many of the directives and developed responses for that, and you will see that in the advisory committee report. But we're making very good progress, and we got real good feedback from the gentlemen we visited with.

MR. HENRY: May I ask a question, Mr. Chairman?

MR. WOLF: Yes, sir.

MR. HENRY: Did you discuss with them the difference of opinion relating to Senate Bill 1582, and whether or not they thought we were on track?

MR. WOLF: We did provide — I provided to them the position statement that you have before you, but there was very little discussion on that, from what I recall.

MR. BORUFF: Actually, Mr. Henry, just real briefly — I'm Scott Boruff, for the record, Deputy Executive Director of Operations. There was discussion about the fact that TDCJ had opted not to participate in the way that we thought they were going to participate, in 1582, I'm talking about. However, the staff has been very diligtent in approaching other avenues, because actually, the TDCJ option was not specifically articulated in the legislation. It gave us pretty broad authority to look at other non-profit end points for deer that might be harvested by communities out there.

So we continue to look at those. We've had several communities already apply — I think three or four at this point — for that permit, and they're going to go forward with Hunters for the Hungry. There's actually an organization out of Mexico who's coming up and taking some of those harvested deer and taking them and distributing them along the border. So there was some discussion, and I think they understand where we are. They were a little disapointed that TDCJ had backed out.

MR. FITZSIMONS: On that point, if I can bring it up, it's rare that in our regular course of business, we get a federal judge to tell us we're doing the right thing. And we very briefly tell them that they read about it in the paper, the Hollywood Park. I didn't mean to [indiscernible] interrupt Clayton.

MR. WOLF: I'm done.

MS. BRIGHT: Good morning. I'm Ann Bright, general counsel. Yes, there was a lawsuit filed by the Hollywood Park Humane Society against the City of Hollywood Park, basically complaining about various efforts — not just the TTP, but various efforts that the City Council had approved, or various — I guess it was a resolution — to deal with their urban deer. And we were not a party to this lawsuit, but one of our employees, Bryan Richards, testified. And from all accounts, I should just — it's always nice to brag on our employees — he did an excellent job. In fact, the judge even let him testify on matters of law, apparently, which you don't get a lot.

MR. FITZSIMONS: Looks like the judge let him write the order.

MS. BRIGHT: And the judge issued an order on Friday, and an amended order on Monday, that basically just said that — well, the Humane Society had requested a preliminary injunction to prohibit the city from proceeding with TTP and some of their other programs, and the judge denied that temporary — request for preliminary injunction. And basically was fine with pretty much — I mean, the Humane Society had made a number of arguments, and every single one of them were struck down by the judge. So the City of Hollywood Park can proceed with that. The judge seemed to be fine with what we had done in terms of implementation, and I think we're very pleased.

MR. FITZSIMONS: Good job.

MR. COOK: Correct me if I'm wrong, Ann. One of the contentions or claims in that one had to do with, they belong to us?

MS. BRIGHT: Yes. There was some very interesting testimonny that actually is — some of it is set out in the order, where a number of the citizens of Hollywood Park testified that they had actually named the deer, and they fed them on a regular basis, even though there was a city ordinance prohibiting feeding deer. And because of that, they belong to these individuals. And I think most of you know that that's not the law. And Judge Rodriguez agreed that that was not the law, and pretty much reaffirmed the fact that deer belong to the people of the state of Texas until they're reduced to possession, and he recognized that there's some specifics in our code that address that as well.

MR. FITZSIMONS: Good day for the rule of law.

MS. BRIGHT: And if you want a copy of the order, just let me know and I'll be happy to provide it to you.

MR. FITZSIMONS: Clayton?

MR. WOLF: Any other questions for me? I'm done with my presentation.

MR. FITZSIMONS: Well, if the Commissioners are wondering about this flurry of activity with the White-Tail Deer Advisory Committee, and their good work and focus, it has something to do with they got a new chairman.

MR. WOLF: Yes.

MR. FITZSIMONS: And I asked our Chairman [inaudible] Lee Bass to chair that committee. And as you can see, in his customary manner, it's moving right along.

MR. WOLF: We're pleased.

MR. COOK: I would — Clayton, the meeting on the fifth is here in this room. And certainly I would encourage you, if you have an interest in this — this meeting is going to be a good one, an important one. And if you have the opportunity to come up and spend — sit in the audience and listen in, why, you would be welcome to do so.

MR. FITZSIMONS: It's been a long time coming. Good work, Clayton.

MR. FITZSIMONS: Any other questions for Clayton?

(No response)

MR. FITZSIMONS: Item 5. Gene, you're up and ready.

MR. McCARTY: Mr. Chairman —

MR. FITZSIMONS: One second. I'm sorry. I might have — procedural —

MR. McCARTY: You did fine.

MR. FITZSIMONS: Well, didn't he ask for permission to proceed?

MR. McCARTY: No, sir.

MR. MCARTY: Mr. Commissioners, Chairman. My name is Gene McCarty. I'm Chief of Staff for the agency. The item before you today is a proposed rule review for four chapters of the Texas Administrative Code. As required by Government Code, Section 2001.039, all regulations promulgated by state agencies must be reviewed no less than once every four years. The rule review must include an assessment of whether the reasons for initially adopting the rule continue to exist. The rule review must be published in the Texas Register for public comment, and regulations must be re-adopted, adopted with changes, or repealed, based on the review.

In keeping with TPWD's rule review plan, we would propose to publish a Notice of Rule Review for the following chapters: Chapter 55, Law Enforcement; Chapter 58, Shrimp and Oysters, Subchapter A — oysters, as you heard from Mr. Riechers this morning; Chapter 52, Wildlife and Fisheries; and Chapter 65, Wildlife.

I can answer any questions on rule review, rule review process, if you'd like at this time.

MR. MONTGOMERY: Are there additional rules other than the ones we're seeing, and will they be brought before us for any comments that we might have?

MR. MCCARTY: They could. We're not proposing any additional changes to these chapters, other than what you've already seen, although we must publish them in the Texas Register and take public comment. If we hear public comment, we will present that public comment to you. If you want to pursue it, we can. We can pursue it and make changes, if you deem necessary, or not. But I must come back in front of you at a later date and adopt the rule review and/or any proposed changes.

Now, you already have proposed changes that the agency is proposing for Chapter 58, Subchapter A, Oysters, as presented by Robin Riechers, and Chapter 65, Wildlife, as presented in the previous statewide. We're not proposing changes to the other two chapters, unless something comes up through public comment.

MR. HENRY: Excuse me, Mr. Chairman. I don't mean to strike a bad nerve, but what's the time limit on the provisional relating to shrimp?

MR. MCCARTY: Well, let me just go to this next one for you. Our rule review plan — we have ten chapters. Chapter 58, Oysters and Shrimp, has three subchapters. We're proposing to do one subchapter right now, Oysters, since we already had the oyster review done. We're proposing shrimp is required to be reviewed by November 2005. So you will see us back with a Request to Rule Review prior to November 2005 for Subchapter B and C for Shrimp.

The reason I have this slide prepared here and this schedule prepared here is, I would also propose that, rather than bring the rest of these rule reviews in front of you in this manner, I would ask that maybe you delegate to the Executive Director the authority to publish these rule reviews when they're up, and then we will bring the adoption back to you, rather than bring the Administrative Permission to Publish to you.

MR. FITZSIMONS: That's a good idea.

MR. MCCARTY: It kind of streamlines things and doesn't bring an administrative process to you here in terms of giving us permission to publish when we don't have proposed changes.

MR. FITZSIMONS: Would that be part of when you publish this item?

MR. MCCARTY: No, sir, it wouldn't have to, because the Executive Director already has authority to publish. We prefer to get your general permission before we do it, but he can publish those on his —

MR. FITZSIMONS: No reason for an added step, is there, since we're going to review it before adoption anyway?

MR. MCCARTY: That's the point, absolutely.

MR. MONTGOMERY: My only question, would the ones we haven't seen will be sent to us so that we can read them?

MR. MCCARTY: Yes, sir.

MR. FITZSIMONS: Any other questions for Gene?

MR. MCCARTY: I think that's it.

MR. FITZSIMONS: If no further questions or discussion, I'll direct and authorize staff to publish this item in the Texas Register for the required public comment period. And thanks, Gene.

MR. MCCARTY: Thank you.

MR. FITZSIMONS: Next is Committee Item Number 6, our one action item. And Walt, State Park Operations? Where did Walter get off to? He didn't think Regulations would get through deer that quick.

(Pause.)

MR. FITZSIMONS: Hello, Walt.

MR. DABNEY: Good morning, Chairman. Good morning, Commission. My name is Walt Dabney, State Park Director. Good to see you this morning, and thanks to the Chairman and Commissioner Parker for coming in and joining us at the annual meeting. It was great to see you over there. We really appreciate you're being there.

I'd like to first introduce the new Deputy State Park Director, Dan Sholly, who is actually coming back to Texas. He lived his first ten years in Texas where his dad was the first chief ranger of Big Bend National Park, started in 1945. So he had the full run of that place on his own wild burrow that ran around with a halter rope on.

And so he's back after a long 35-year career with the National Park Service, and will be the Deputy of State Parks, taking care of park support, operations for us, a lot of the day-to-day administrative and professional support things. So I'm glad to have Dan here, and this is his first Commission meeting.

MR. SHOLLY: Good to be here.

MR. DABNEY: I'd like to talk to you about feeding of wildlife in state parks. We currently do not have a regulation prohibiting the feeding of wildlife in the park system. Background for that is the practice of feeding wildlife is currently not prohibited. We've determined that feeding of wildlife by visitors potentially is a safety and health issue. It's also something that both on the national level and other state park situations is not something that you would do. It doesn't make any sense for a lot of different reasons.

Currently we prohibit harassing animals and that kind of thing, but not prohibit feeding them. In fact, in some cases, we have actually encouraged that, and sold feed in parks to do this, which we have stopped doing.

The proposed rule would reduce threats to humans' health and safety. Certainly work with us to not perpetuate unnatural populations and habitat degradation. As you feed animals in a particular location unnatural foodstuff, you're going to increase the population of those animals in levels that are not normally there, and cause you additional problems with disease and certainly in the degradation of the habitat.

Wild animals living in unnatural environments to the extent possible is not something we want to encourage in a state park setting. Wild animals associating humans with food do not become unwild or tame, they just lose their fear of humans. And so as they think of humans as something that are going to feed them or provide food source, they're still just as dangerous, and the bigger they are, the more dangerous they are in some ways. And the possibility of biting and charging and goring and kicking visitors, resulting in certainly injury or death, is a very real possibility.

The potential to transmit disease — and this is something I saw in many cases in my career in the park business, when a dad would come in with his child who had been bitten by a squirrel or possibly a racoon, that sort of thing, and say, Do I have a problem here? And we just say, Sir, we have no idea. I mean, I don't know what that animal had. He could have distemper, rabies, whatever. You need to go talk to a doctor and figure out what you're going to do. Obviously, the animal is not there for us to evaluate, so it's a significant problem.

To the extent, again, those animals associate people and food, and you're feeding them, they don't know where the food ends and your hand begins, and so that's an obvious problem

This is not intended to prohibit reasonable kinds of things like bird feeders, where other animals cannot get into the feed. And in addition, we're going to provide that park managers can, on a case-by-case basis, if it makes sense, outside of the camping areas and that kind of thing. If you had a wildlife viewing blind, where you're doing photography or something like that, and it made sense for us to put a feeder out there where, again, the food is not directly associated with having been provided by a human, then that's a very different situation.

The other piece of the rule that we've come forward with is that we're trying to clarify the equestrian rules and regulations and simplify those. We're taking the word saddlehorse out, because any kind of horse used — and we're going to include all equine — horses, mules and burrows, and not just horses. We would remove the word saddle where the term saddlehorse appears, and again, apply any rules related to the use of those animals to all equines in the park system.

We've received six comments related to the wildlife feeding proposal. Four said that we should continue to feed wildlife in parks — people should be allowed to do that — and two said that you shouldn't, and why we would have assumed that you wouldn't have allowed that in the first place.

And with that, I'd be glad to take any questions.

MR. BROWN: What's the penalty for doing that?

MR. DABNEY: Class C misdemeanor. What our approach would be, and one of the Commission members asked us this last time, we've already got some signs and I may bring those in tomorrow to show you some examples of that kind of thing. We would use this as an educational opportunity. Our interest is not in citing people or fining them, and only in the most outrageous case would you be doing that.

What we're going to take this opportunity to do is talk about wildlife habituating wildlife, unnatural populations of wildlife, and view wildlife in a natural setting, and not bringing them especially into your camping area, where they're in your tents at night and tearing up your food, potentially causing other problems.

MR. COOK: I think it's interesting that there is some connection in relationship to this very issue and feeding that takes place in some of the neighborhoods. People don't understand sometimes the impact that that has on the animal itself, and on their neighbors.

MR. FITZSIMONS: Any other questions?

MR. HENRY: Yes. I'm a little concerned about the implications for enforcing the regulations that you're asking that we adopt. And let's use Bob's example for a moment. For those communities, for example, where they think they should and can't feed deer. If this is a Class C misdemeanor, we're going to police this in the normal route, I would take it.

MR. DABNEY: This only applies —

MR. HENRY: Are we asking for some really big problems from communities here that we don't really want to get into?

MR. DABNEY: Sir, this only applies to the state parks. This is only for feeding of wildlife in state parks. I'm sorry I didn't clarify that. It has nothing to do with anything outside of state parks. You can —

MR. HENRY: That's because of the concentration in an area. I can appreciate that.

MR. DABNEY: Yes, sir.

MR. HENRY: Who's going to enforce this?

MR. DABNEY: Our own park officers, or a game warden.

MR. FITZSIMONS: Is there a lot of enforcement in national parks on this, Dan?

MR. SHOLLY: Very strictly.

MR. FITZSIMONS: So people get the message pretty quick?

MR. SHOLLY: Through signs, education and enforcement on usually the second chance.

MR. FITZSIMONS: But there's no — there's not a lot of instances where you have to actually enforce a confirmed violation.

MR. SHOLLY: Actually, there are, because you have such a turnover of visitors coming to the parks that have never been there before, and they think it's a good thing to do — that maybe they're in a petting zoo situation. And so we have signs and we educate, and then if they continue to do it, that person is usually cited.

MR. FITZSIMONS: So it is going to be more work for the park's law enforcement.

MR. DABNEY: And maybe more opportunities. We have had at least two since I've been here, incidents that could have been absolutely terrible. One was a javelina down at Choke Canyon attacking people and charging people in the campground. That is not how a javelina behaves normally. But they had lost their fear of humans. Well, a javelina, especially with a young kid, us knowing this kind of thing and allowing it to continue, is absolutely a liability and tragedy waiting to happen.

The second was a feral hog, which all of you know is a nocturnal animal normally, that we could not run out of the campground at Fairfield — a big hog, Fairfield State Park — was shot in broad daylight by the park manager because there was no other opportunity to do anything. And a feral hog getting somebody down in that campground because we were allowing people to feed him corn and everything else they threw out there, is absolutely — we would be one of the only, again, places that you could do that sort of thing, and it would be, from a liability standpoint, totally unacceptable.

MR. FITZSIMONS: Robert?

MR. BROWN: That was just — my point was going to be, I think we would have tremendous liability issues if we really don't enforce this. I think we're setting ourselves up for all kinds of problems.

MR. FITZSIMONS: Good deal. Any other questions or comments regarding state park operations?

(No response)

MR. FITZSIMONS: No further questions or discussion. Without objection, I'll place the item on the Thursday Commission meeting agenda for public comment and action.

Thank you Walt, Dan.

MR. SHOLLY: Thank you.

MR. FITZSIMONS: Dan, good to have you here.

Any other business to be brought before the Regulations Committee?

(No response)

MR. FITZSIMONS: Meeting has concluded its business.

(Whereupon, the meeting was adjourned.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission

Regulations Committee

LOCATION: Austin, Texas

DATE: January 28, 2004

I do hereby certify that the foregoing pages, numbers 1 through 74, 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.

2/16/04
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


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