Presenter: Kris Bishop

Commission Agenda Item No. 11
Action
Civil Restitution Values
August 2004

I. Executive Summary: This item seeks adoption of a proposed amendment to increase the recovery values of wildlife taken in violation of the Parks and Wildlife Code or department regulations.

II. Discussion: Under Chapter 12 of the Parks and Wildlife Code, the Commission is required to adopt rules to establish guidelines for determining the value of fish, shellfish, reptiles, amphibians, birds, and animals injured or destroyed in violation of the Code or regulations adopted by the Commission. By statute, the recovery value of injured or destroyed wildlife is determined on a per animal basis. For each animal, a value is assigned for each of eight scoring criteria. Those scores are summed to create a total criteria score, which is then multiplied by a weighting factor to adjust for variance in public demand and/or perception of value. The adjusted criteria score has a corresponding recovery value, which the violator is then assessed. The value of trophy wildlife species is determined by a formula based on the animal's Boone and Crockett score. The department created recovery values for trophy animals in 1996.

The current values for reptiles, amphibians, birds, and animals were established in 1985 and have not been adjusted since that time. Staff proposes to increase the values to be consistent with changes in economic factors since 1985. Research indicates that the Consumer Price Index has increased 1.677 points between 1986 and 2003. The proposed amendment would increase the criteria score values to reflect the change in the CPI, which is necessary to maintain recovery values that are consistent with the effect of the original values. In the case of trophy animals, the proposal reflects the approximate current market value of trophy-quality hunting opportunity for white-tailed deer, mule deer, pronghorn antelope, and desert sheep.

At the May 2004 meeting of the Regulations Committee, staff was authorized to publish the proposed regulations (located at Exhibits B and C) for public comment. The proposed regulations appeared in the July 23, 2004, issue of the Texas Register (29 TexReg 7037). Staff will provide a summary of public comment at the time of the hearing.

III. Recommendation: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts proposed amendments to 31 TAC §69.22 and §65.30, concerning Wildlife Values, with changes to the proposed text as published in the July 23, 2004, issue of the Texas Register (29 TexReg 7037)."

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 11
Exhibit A

Civil Restitution Regulations
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §69.22 and §69.30, concerning the department's rules for recovering monetary damages from persons who take wildlife or fisheries resources in violation of the law. In 1985, the Texas Legislature amended the Parks and Wildlife Code to provide that a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the code or a proclamation or regulation adopted under the code is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured. Since that time, the department has actively sought full restitution for fish and wildlife loss occurring as a result of unlawful activities. The current values by which restitution amounts for wildlife species are calculated have not been changed since 1985, with the exception of the rules governing the value of trophy wildlife species, which were adopted in 1996. During the intervening time, economic factors such as inflation and real dollar equivalence (relative to the values established in 1985 and 1996) have eroded the deterrent power of the current restitution values for wildlife species. In addition, the cost to the department of administering and enforcing the rules has increased for the same economic reasons. Therefore, the department intends to adjust the basic recovery values (upon which the calculations of civil recovery are based) for wildlife species. By statute, the recovery value of injured or destroyed wildlife is determined on a per animal basis. For each animal, a value is assigned for each of eight scoring criteria. Those scores are summed to create a total criteria score, which is then multiplied by a weighting factor to adjust for variance in public demand and/or perception of value. The adjusted criteria score has a corresponding recovery value, which the violator is then assessed. The value of trophy wildlife species is determined by a formula based on the animal's Boone and Crockett score.

Research indicates that the Consumer Price Index (CPI) has increased 1.677 points between 1986 and 2003. The proposed amendment would increase the criteria score values to reflect the change in the CPI, which is necessary to maintain recovery values that are similar to the original values relative to current economic factors. In the case of trophy animals, the proposal reflects the approximate current market value of trophy-quality hunting opportunity for white-tailed deer, mule deer, pronghorn antelope, and desert sheep.

The amendment to §69.22, concerning Wildlife-Recovery Values, changes the various monetary values across the continuum of the scoring range used to determine the value of wildlife species. The proposed values were produced by multiplying the current values by 1.677, which is the amount that the Consumer Price Index has increased since 1985, the last year in which wildlife values were adjusted.

The amendment to §69.30, concerning Trophy Wildlife Species, changes the dollar-value coefficient used to calculate the final restitution value for trophy white-tailed or mule deer, pronghorn antelope, and desert bighorn sheep, and places white-tailed deer and mule deer in separate categories. The proposed dollar-value coefficient for each species was obtained by deriving a function for the curve from the lowest Boone and Crockett score for which trophy restitution can be assessed through the highest Boone and Crockett score, intersecting the mean market values for each, which were obtained by consulting department personnel, landowners, and published advertising for trophy hunting opportunity. The amendment also removes references to elk, because the Texas Legislature in 1997 designated elk as an exotic species and the department no longer possesses any regulatory authority with respect to that species. In addition, the department wishes to note that when the original adoption was published, the software of the time was unable to reproduce the superscript notation to indicate the squaring function was to be applied. The proposed changes rectify that situation.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rules are in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. The department anticipates that it will realize an additional $70,393 per year as a result of the increased restitution values for wildlife species, and $15,835 for trophy species. The estimates were derived by taking the average dollar value of the wildlife restitution recovered by the department per year over the last five years ($103,683) and multiplying that number by 1.677 (the factor by which the current values are being raised). The same technique was employed to arrive at an estimate for trophy species, multiplying the five-year average yearly recovery for each trophy species ($8,324 for white-tailed deer; $1,801 for mule deer; $150 for pronghorn antelope; and $0 for desert bighorn sheep) by the dollar-value coefficient (1.65 for white-tailed deer; 1.00 for mule deer; 2.00 for pronghorn antelope; and 11.7 for desert bighorn sheep). There will be no fiscal implications to other units of state or local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect:

(A) The public benefit expected as a result of the proposed rules will be twofold: first, the increased recovery of costs related to loss of wildlife as a result of illegal take of those species, and second, the continued protection of those resources as a result of the department's ability to deter violators.

(B) There will be economic costs for persons required to comply with the rules as proposed; however, those costs are dependent on the type and number of wildlife that a person has been convicted of illegally taking, so the department is unable to provide a specific quantification.

(C) The department has determined that the rules will not affect local economies; accordingly, no local employment impact statement has been prepared.

(D) The department has determined that Government Code, § 2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.

(E) The department has determined that the rules will not have an adverse economic effect on small or micro-businesses.

(F) The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Kris Bishop, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4630; e-mail: kris.bishop@tpwd.state.tx.us.

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §12.302, which requires the commission to adopt rules to establish guidelines for determining the value of injured or destroyed fish, shellfish, reptiles, amphibians, birds, and animals.

The proposed new rule affects Parks and Wildlife Code, Chapter 12.

§69.22 Wildlife—Recovery Values.

(a) Each species of bird, reptile, amphibian, or animal shall be assigned a score of 0-3 for each of eight scoring criteria. The sum of the scores for the eight criteria (subsection (b) of this section) shall be multiplied by a weighting factor (subsection (c) of this section), and the resulting adjusted criteria score is compared to the monetary scale (subsection (d) of this section) to obtain a monetary value.

(b) For scoring criteria listed in paragraphs (1)-(8) of this subsection, a species which is not sought at all shall be scored as 0, while a highly sought species shall be scored 3.

(1) Recreation. The extent to which a species is actively sought by users with wildlife interests. Scoring considers both harvest and nonharvest use of a species.

(2) Aesthetic. The social value of wildlife species. These values represent wildlife species' beauty or unique natural history. Aesthetic values for these species exist whether or not a person ever would encounter one in its natural habitat.

(3) Educational. The educational value of a species arising from, for example, published materials and other audio-visual media about the species, displays in zoos, or the relative frequency with which the species is used to exemplify important curricula principles.

(4) Scarcity. The relative population of a species within the range of its habitat, from abundant to scarce.

(5) Environmental Tolerance. The ability of a species to tolerate normal changes in climate, topography, water regimes or other ecological factors which may limit range and population.

(6) Economics. The direct or indirect economic benefit attributable to the species as a result of recreational or legal transactions.

(7) Recruitment. Reproductive and survival potential of a species as it relates to the capability for replacement of its population following decrease or loss.

(8) Ecological role. A species' relationships with other life forms—and the species contribution to a healthful and stable balance of nature. Widely-consumed forage species score high, as do predators which control prey species populations. Forage species that are not widely consumed score low, as do predators which contribute little to regulation of prey populations

(c) The individual scores for the criteria are summed to derive a total criteria score. The total criteria score is multiplied by a weighting factor which adjusts the summed criteria score for variance in public demand and/or perception of value for a species. The weighting factor relates the overall demand for a species to its existing supply and to future opportunity for public use. The weighting factors are:

(1) 1.0—Abundant. No additional public demand or perception of value exists beyond that reflected by the eight criteria in subsection (b) of this section;

(2) 1.1—Frequent. Minor disparity exists between resource availability and public interest and the public demand fluctuates periodically around an equilibrium point;

(3) 1.3—Rare. Substantial disparity exists between available supply and identified public interest in species that are subject to ongoing management programs;

(4) 1.5—Scarce. The species populations are never expected to meet identified demands or needs, or management programs for a limited species are not fully developed with respect to planned recreational opportunity and economic contribution.

(d) The total criteria score multiplied by the weighting factor in subsections (a)-(c) of this section, provides an adjusted criteria score and corresponding recovery value for each species.

Adjusted Criteria
Score Range Monetary Value
1 - 5.9 $5.00[$3.00]
6 - 8.9 $13.50[$8.00]
9 - 10.9 $26.00[$15.50]
11 - 12.9 $59.50[$35.50]
13 - 14.9 $105.50[$63.00]
15 - 16.9 $273.50[$163.00]
17 - 18.9 $881.50[$525.50]
19 - 20.9 $1,929.50[$1,150.50]
21 - 23.9 $4,780.50[$2,850.50]
24 - 36.9 $11,907.50[$7,100.50]

§69.30 Trophy Wildlife Species.

(a) The recovery value for [each] individual white-tailed or mule deer, [elk,] pronghorn antelope, and bighorn sheep shall be derived from the gross Boone and Crockett score of the horns or antlers plus the value derived for wildlife species in §69.22 of this title (relating to Wildlife—Recovery Values), using the following formulae:

(1) White-tailed [and mule] deer—The formula for white-tailed [and mule] deer shall be applied to all individuals whose gross score exceeds 100 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 100)2 [((gross score - 100)2] x $1.65[$1.00]) plus the value derived in §69.22 of this title.

(2) Mule deer-The formula for mule deer shall be applied to all individuals whose gross score exceeds 110 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 110)2 x $1.00) plus the value derived in §69.22 of this title.

[(2) Elk—The formula for elk shall be applied to all individuals whose gross score exceeds 200 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 200)2 x $.50) plus the value derived in §69.22 of this title.]

(3) Pronghorn antelope—The formula for pronghorn antelope shall be applied to all individuals whose gross score exceeds 40 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 40)2 [((gross score - 40)2] x $2.00[$5.00]) plus the value derived in §69.22 of this title.

(4) Bighorn sheep—The formula for bighorn sheep shall be applied to all individuals whose gross score exceeds 100 Boone and Crockett inches. The formula shall be: Recovery Value = ((gross score - 100)2 [((gross score - 100)2] x $11.70[$10]) plus the value derived in §69.22 of this title.

(b) The measurement procedure for obtaining the Boone and Crockett gross score shall follow: Nesbitt, W.H. and P.L. Wright. 1985. Measuring and Scoring North American Big Game Trophies. Boone and Crockett Club. 176 pp.

This agency hereby certifies that the rule has been reviewed by legal counsel and found to be within the agency's authority to adopt.

Issued in Austin, Texas, on


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