Texas Parks and Wildlife Commission
Regulations Committee

April 6, 2005

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

BE IT REMEMBERED, that heretofore on the 6th day of April, 2005, there came on to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission, in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

• Joseph B.C. Fitzsimons, San Antonio, Texas, Chairman
• J. Robert Brown, El Paso, Texas
• Ned S. Holmes, Houston, Texas
• Alvin L. Henry, Houston, Texas
• Peter M. Holt, San Antonio, Texas
• Philip Montgomery, Dallas Texas
• John D. Parker, Lufkin, Texas
• Donato D. Ramos, Laredo, Texas
• Mark E. Watson, Jr., San Antonio, Texas

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

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

PROCEEDINGS

COMMISSIONER FITZSIMONS: Good morning. Before proceeding with any business, Mr. Cook, you have a statement to make.

MR. COOK: 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, 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.

COMMISSIONER FITZSIMONS: Thank you, Mr. Cook.

Before we begin the regulations, I just heard a cell phone. So it wasn't mine; everybody turn off their cell phones.

First on Regulations, the first order of business is approval of the previous committee meeting minutes which have already been distributed. Is there a motion for approval?

COMMISSIONER HOLT: So moved.

COMMISSIONER RAMOS: Second.

COMMISSIONER FITZSIMONS: Moved by Commissioner Holt, second by Commissioner Ramos.

All in favor, please say aye.

(A chorus of ayes.)

MR. FITZSIMONS: Any opposed?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none, motion carries.

Item 1, Chairman's Charges, Mr. Cook.

MR. COOK: Thank you, sir.

Just a couple of items right quickly on our Regulations Committee.

I want to tell you a little bit about the status of our East Texas Fish Hatchery. Phil Durocher, Inland Fisheries Group and our Infrastructure Group are working together, keeping that thing moving.

The property boundaries have been determined and the survey is underway to prepare for the land conveyance to TPWD.

Jasper County is working with the current landowners to assist in completing that transfer. Agreement with the Lower Neches Valley Authority for Project Water which is 10,000 acre feet annually for 50 years is underway.

The request for proposals for selecting the architectural and engineering firm to design the new hatchery is out and due back in on April 28, 2005.

We anticipate design to start by August of this year.

In our Regulations Review process, during this past year we have conducted our legislatively required Regulations Review. With the exception of Chapter 58, Shrimp and Crabs which will be submitted for review in May, we have completed all reviews.

Thank you, sir.

COMMISSIONER FITZSIMONS: Item 2, 2005-06 Migratory Game Bird Proclamation. Vernon Bevill.

MR. BEVILL: Mr. Chairman, members of the Commission, my name is Vernon Bevill. I am the program director for Game Birds and Habitat Assessment.

I'm here today to brief you on the start of the regulation-setting process for the 2005-2006 Migratory Game Bird season, and I'll highlight the major aspects that we're dealing with at this time.

There are going to be a number of proposed changes, of course, in Migratory Bird season as there always is, starting with the Fish and Wildlife Service conducting breeding ground and habitat surveys for waterfowl to determine whether or not habitat and populations are sufficient to sustain either a liberal, moderate or restrictive package for ducks. And we have enjoyed the liberal package now for a number of years.

From a Texas perspective, we're looking at changes in our South Zone duck season from last year. We're looking at the prospect of a 14-day reduction in the White Front season, and I'll explain later.

And we also have a proposal in front of the Fish and Wildlife Service that was passed by the Central Flyway Council to amend the white-wing zone area that we currently have.

For dove, it basically will be no change in the dove dates or seasons or bag limits, with the exception of the opening day in the South Zone that shifts with the calender and opens the Friday after September 20, unless September 20 happens to fall on a Saturday, as it periodically does.

Now, with regard to the white-wing area, we've been looking at ways to improve the opportunity for hunting white-wing for a number of years, and we know that there's a significant influx of white-wing in and along the Highway 90 corridor west of San Antonio and both sides of the highway.

Currently September 1 sees the opening of the Central Zone which is in the white area north of Highway 90 and then south of that area it's closed until the regular dove season opens except for the first two full weekends in September in the red area where we have our special white-wing hunt.

We are proposing to expand that special zone north and east to I-37 and Highway 90. As I said, that has been approved by the Central Flyway Council.

On one aspect of that recommendation we asked to amend the bag limit from the 10-bird white-wing bag that that special zone has had to the regular 12-bird bag.

In this proposal we currently have the option in the special zone to have an aggregate bag that includes 5 mourning doves. Fish and Wildlife Service continues to be concerned about the long-term decline in the Call Count Index for mourning doves.

And so we have proposed this zone change and a reduction in the mourning dove bag from 5 to 3 in hopes that that will placate their concerns about excess harvest of mourning doves while we're still trying to develop the kinds of databases that are more applicable to making real regulatory decisions than this one database we are using which is the Call Count Index.

For Teal, if it's a 9-day season, we are proposing September 17 through 25. If it's a 16-day season, September 10 through 25.

Commission policy established a number of years ago that we would use the last three full weekends in September for 16 days and the last two full weekends for 9 days.

With regards to Rail, Gallinules, Snipe and that suite of species, we try to establish those seasons as concurrent with the waterfowl seasons as we can so that if hunters encounter these birds while they're hunting other species, they have that option to take those species as well.

For the High Plains Mallard Management Unit, we're looking at a seasons similar to last year. This is, again, assuming a liberal package.

For the South Zone, however, you will recall that we extended the Teal season functionally by taking a week of our regular duck season and tacking it on to the end of the Teal season, and we were looking last year at the potential for harvesting Whistling duck.

We had been talking about for a number of years of going to the Service with a proposal to add Whistling duck to our September suite of options for Teal, in that we felt like by the regular opening of duck season, Whistling ducks have largely moved into Mexico.

So we wanted to see if there was any potential for that and we've gathered some information on that and now we're prepared to evaluate that and decide what to do about making that proposal. But we will shift our South Zone duck season back to the normal framework this coming year.

Bag limits and special restrictions in the bag are shwon in this slide. This is anticipating a 6-bird bag limit, again with a liberal season. If it goes to a moderate package, we'll have 60 days and 5 ducks, and a restrictive package would be 39 days and 3 ducks, and of course, we have to wait on the Fish and Wildlife Service surveys to determine what those packages will ultimately be later this summer.

Central Flyway has been working on what we call a Hunter Choice Bag. As you know, we've had several years now where we've had seasons within seasons for Canvasback and Pintail. We've had 39 days and 1-bird bag that we've had to set those seasons within the context of the overall season.

That continues to be a concern. We're looking for ways to have a season-long option for all the species, and one way to do that is to create an aggregate bag for those species of special concern and establish a 1-bird harvest within that aggregate bag.

This is something we've been working with Fish and Wildlife Service on. Don't anticipate any approval of that until perhaps next year, but I wanted to alert you that this is what we are looking at doing. We've been working with our duck hunters across the Central Flyway to evaluate this potential, and we think the aggregate bag will both protect those species that are high concern as well as give our hunters a full season option so they don't have to worry about when to start shooting what in the course of the season.

With regard to geese and the Western Goose Zone, the changes basically will be calendar shift changes. And with regard to geese in the Eastern Zone, the white-front is the bird that we are concerned about.

We manage the white-front population using a three-year running average of the fall flight, and we are concerned that that number has dropped below the recommended level to sustain that population at, and that creates triggering mechanisms.

Whereas, we've been able to harvest white-fronts at 2-bird bag for 86 days. The modification of the white-front plan that's currently in the works will probably establish an 86-and-1 option or a 72-and-2 option.

Our hunters along the Coast, where most of our white-fronts are taken, tend to want that 2-bird bag. The kicker in this is the Canada goose because we have more days to hunt Canada geese, however the Canada goose population generally is not nearly as plentiful as the white-front population, but overall the Canada goose population is not of concern.

So we have run the Canada goose season as concurrent with the white-front season as we could so that we wouldn't put hunters at risk of shooting white-fronts after that season closed.

That's an issue we're going to have to grapple with this summer to decide what's best for the resource and for our hunters.

The Light Goose Conservation Order is still in play. We have been moving to that Light Goose Conservation set of regulations immediately after the other waterfowl seasons close. We anticipate doing that again this year.

What Light goose populations continue to be extremely high and habitat degradation continues. So we are still trying to figure out a way to wrestle that population into some control that's in some equilibrium with its habitat in the Arctic area where it breeds.

Mr. Chairman, that concludes my comments. We'll be taking these proposals to the Texas Register to start the public review process, and with the early season regulations being approved later in June or early July and the waterfowl regulations in early August.

I'll be glad to answer any questions.

COMMISSIONER FITZSIMONS: Vernon, on the call count for mourning dove, if we're successful with consolidating the Migratory Bird stamp, will that give us some of the funds necessary to update that so that we can to go the Fed?

MR. BEVILL: We've been part of a 20-something state project to ban mourning doves and begin to develop the kind of regulatory databases we need.

That call count survey, as I've mentioned, I think, to this group before is not a good methodology for deciding what to do regulatorily. We need better harvest information, we need better harvest rate information, and to do that is going to take some work and that ability to use those funds in that regard will help us be able to do a better job, as well as do some research that's needed. COMMISSIONER FITZSIMONS: Well, assuming we get the consolidation, what sort of time frame does it take to get through to do the updated or improved census, get to the Flyway Council and get the Feds to make a decision?

MR. BEVILL: Three to five years.

The alternative to this is if the Fish and Wildlife Service continues to see this decline, and there is a protocol in place right now that establishes when they trigger regulatory restrictions, but that restriction would go to an 8-bird bag.

And back in the late '90s when this first discussion started taking place, we did some surveys of our hunters and we found that when we drop below a double-digit bag, we will lose a lot of dove hunters.

And we feel like it's extremely important that if you're going to make a resource decision of this magnitude, you have to have the right information, and we all know, all the dove folks in the country know that the Call Count Survey is not the right information on which to base this type of decision.

So we're all working in concert across the various states to try to put together the kind of information that will give us a more enlightened look at the resource issues and what we need to be doing.

COMMISSIONER FITZSIMONS: so if we don't get that improved data, then we're going to be stuck in this trade of if we want more days, we're going to accept smaller and smaller bags.

MR. BEVILL: And we may lose both days and bags, so it's an issue that we're trying to get our arms around.

The mourning dove has been a species out of site and out of mind for 20-something years, and all of a sudden it's looming large, and about 360,000 Texas hunters hunt mourning dove.

COMMISSIONER FITZSIMONS: That's a good reason to consolidate that stamp.

COMMISSIONER HOLT: How are other states doing it? Has anybody else figured out a way to gather that data?

MR. BEVILL: Well, we're all working together. There is a protocol that's been established so that we are able to work together. We've done some banding and we've done some reward banding so that we're looking at harvest rates through that band return process.

The good news there and the preliminary results of that is that it appears that harvest rates weren't quite as high as the predicted level, so if that holds true for the next couple of years, that will be good news.

So we're looking forward to getting down the road and gathering this information and see what we've got.

We want to protect what we have. We don't want to make restrictions because we don't have the data to make wise choices with.

Any other questions?

COMMISSIONER FITZSIMONS: Phil?

COMMISSIONER MONTGOMERY: So I can study up on it, could you send me whatever the best population tracking data we have is.

MR. BEVILL: I'd be glad to do that.

COMMISSIONER MONTGOMERY: Just to educate us so we could be prepared on this one.

MR. BEVILL: Okay, be glad to.

COMMISSIONER MONTGOMERY: I'd like to understand what the state of the art is right now.

(General talking and laughter.)

MR. BEVILL: Thank you, Mr. Chairman.

COMMISSIONER FITZSIMONS: Thank you, Vernon.

Any other discussion by the Commission on the Migratory Game Bird Proclamation?

(No response.)

COMMISSIONER FITZSIMONS: Without objection, I'll authorize staff to publish this item in the Texas Register for the required public comment period.

The next item, Phil Durocher is going to give us an update on Giant Salvinia.

MR. DUROCHER: Mr. Chairman, Commissioners. For the record, I'm Phil Durocher, I'm with Inland Fisheries Division.

At the January meeting the staff briefed the Commission on the status of Giant Salvinia and the Commission asked us to return at this meeting and kind of give a summary of what we intend to do with Giant Salvinia this spring.

We're going to focus our efforts this year particularly on Toledo Bend and Sheldon — that's what I'm going to be talking about. Although we have found Giant Salvinia in several other reservoirs, Lake Conroe and Lake Texana, the populations there are small and we think we have a handle on them at this time. So we're going to focus on Toledo Bend and Sheldon.

Now, we came to you in January and we said the population of Giant Salvinia had increased to 3,000 acres in Toledo Bend. We did a survey this spring and we only found 1,500 acres of Giant Salvinia.

I don't think this represents a reduction, I think what happened is the Giant Salvinia blew over to the Louisiana side because they've had a corresponding increase in Giant Salvinia on their side of the lake.

It's a floating plant. You get the right wind and it blows it over to their side of the lake. So I think we're pretty well where we were when we presented this data to you in January.

Our strategies for Toledo Bend, we're going to look at the measures that we plan to take and give you some estimate of what it's going to cost.

Of course, the first thing we have been able to work with the Sabine River Authority to lower the water level in the lake in January, and that's a big issue with them.

It gives you some idea of the level of concern, not only that we have but the river authorities have, to get somebody like Sabine River Authority to agree to lower a lake in the summer to help reduce this population, it's pretty significant.

They've asked us to support them because they know public relations wise they're going to take a pretty good hit on it. And we do support them, we think it's one of the best ways that we have of reducing that population.

To treat the amount of vegetation on the lake now would require anywhere from $81,000 to about $170,000 worth of herbicides. It depends on what we can get to. A lot of the Giant Salvinia is inaccessible, we can't get to it. But that's just a rough estimate of what it would cost if we would try to go in and treat every piece of it that's there.

Of course, we're also going to release the Giant Salvinia weevil. We've released over 300,000 of those bugs in the last couple of years and we intend to continue to do that. The cost is relatively moderate in terms of the other treatments, and this is one that we handle ourselves.

So we estimate the total cost for treating Toledo Bend alone could be anywhere from $80,000 to $170,000.

And let me just say there's no money available for that. The Sabine River Authority, they're responsible, I think they budget $20- to $25,000 for this treatment.

We got word several weeks ago that Congressman Kevin Brady — I think he's from the Woodlands — he is working in Congress to try to get $800,000 designated for treatment of aquatic vegetation or noxious plants in Southeast Texas, and we're hoping that he's successful with those efforts.

We have been getting money form the Corps of Engineers for a lot of these treatments for many years, and that's kind of off and on. Some years they'll put some money in as a pass-through and the last couple of years we haven't received any from them.

There are also some other strategies or some other measures that we're going to take to try to stop this plant from spreading.

We're working with Law Enforcement. It's currently against the law to possess or transport these plants, and I'm afraid a lot of people are not aware of that. We want to make a significant effort to go to the lake, and particularly people that are loading trailers, make sure that people check their boats and their trailers before they pull them to another lake.

And we're hoping to put some effort into that to make people aware. We're putting up signs at all the access points and we're putting out as much information as we can about the potential threat. You've been reading a lot of news releases here lately on Giant Salvinia

So we're doing what we think we need to do and all that we can to get the word out about this potential threat.

Now let's look at Sheldon, it's a little bit different situation. We expect to treat 75 acres of both Salvinia and Hydrilla in Sheldon this year.

Sheldon is a little bit different than Toledo Bend. We own Sheldon so we're responsible for taking care of Sheldon. So all the costs related with treatment in Sheldon, we have to bear those costs, us and the parks.

So we estimate that treatment is going to cost about $37,000, and because of the way Sheldon is laid out, it's got a considerable amount of vegetation in it. We estimate 150 acres of Salvinia and several hundred acres of Hydrilla.

What we're trying to do primarily is to keep the access open in the lake. We're treating around the boat ramps and things so that the chances of people picking this stuff up and moving it to other places is going to be decreased.

So at Sheldon we expect to treat this spring. We've put some money in here for additional treatment, we know we're going to have to come and follow up and probably do some cleanup after the first treatment.

Again we're going to release the weevils and we're going to put the same efforts in with our outreach and education. We've looked at water level manipulation on Sheldon but from history I don't think that's something that's going to work real well because of the lay of the land, it may make things worse, but we are looking at it to see if that's a possibility.

Of course, the signs encourage public involvement.

I'll be glad to answer any questions.

COMMISSIONER MONTGOMERY: Phil, if the goal is to contain the spread, take Toledo Bend or take Sheldon, is that budget adequate to do it, or what would the budget be to accomplish that goal?

MR. DUROCHER: You know, Toledo Bend is an extremely large reservoir with a lot of access points. We're looking at, and we've talked to the Sabine River Authority about putting some containment booms around the access points to keep the stuff from getting to the boat ramps so that people have less chance of picking it up, but those things are relatively expensive. And we're looking at all the measures.

Now, a lot of these costs for the education outreach, those are things that we're going to bear and that we're going to have to take care of.

COMMISSIONER MONTGOMERY: I'm not talking about the source of funding because I realize it's very limited, but my question is I think what we were saying at the last meeting was unless we're going to concede that we can't solve the problem, what is our strategy for resolving the problem and really containing it.

It seems like the weevils are a long-term solution, so cranking up the production of weevils.

MR. DUROCHER: The problem with the weevil is the weevils are real effective when you have a real bad infestation. If you've got a real bad infestation, they can be real effective. We're hoping it doesn't get that bad that the weevils will be most effective.

To be honest with you, Commissioner Montgomery, I'm not sure there's anything we can do except delay this. I mean, the risks are there. I think the water level manipulation is a good course for us.

Apparently the Sabine River Authority had been doing some sort of water level manipulation the last four years and it was effective. Last year they couldn't do it and that's where we saw the big increase in Salvinia. So hopefully that's going to help.

And I think if we make people aware of the potential threat that they will help us with this. And if we have to start writing tickets for people not paying attention, then maybe that's what we need to do.

COMMISSIONER MONTGOMERY: I guess my reaction is the economic consequences along, much less the biological habitat ones, are huge of this thing going at the rate of change you showed us last time, projected over a fairly short period of time are really dramatic.

I don't know how the rest of the Commission feels, but at least from my two cents worth, I think we as an agency ought to say we're learning as we go but based on what we know today, subject to revision as we go along, here's a strategy to deal with this, here's what it costs, here's what we can find.

We need somebody to plug this gap, whether that's Congress or whoever else. We need to lay out a plan that shows how we get there, and if we can't get the money, then we've done the best we can, but until we lay out that plan, nobody knows what to fund. We ought to be the agency that manages it. My guess is we need a Texas-Louisiana strategy on Toledo Bend.

MR. DUROCHER: And we have that, we're working together on it.

COMMISSIONER MONTGOMERY: I think we really ought to lay out the game plan independent of the source of funding. And that's where we on the Commission and others may need to go to Washington and lobby to get the money, or whatever we need to do.

I think we need a game plan out there that really deals with the problem, unless we are convinced we cannot deal with it and therefore we are conceding that this is going to take over our lakes. Because the numbers you showed us the last time, it's taking over the lakes at the rate of change it's going.

MR. DUROCHER: Well, I don't think we'll ever concede that, but the idea that if we had enough money we could go in and eradicate Salvinia, it's just not going to happen.

COMMISSIONER MONTGOMERY: I suspect that.

MR. DUROCHER: We would love to be able to do that to several of the other plants we have too, but that's just not going to happen. Our efforts are at containment now, and that's basically what we laid out. These are things we think we need to do to contain this plant.

COMMISSIONER MONTGOMERY: I don't know how to define the goal. That's for somebody with more scientific background than I have, but I think we ought to have a clear stated goal and a game plan that gets us there independent of funding.

I don't understand exactly what the goal is here.

MR. DUROCHER: We'll prepare that for you.

MR. COOK: Commissioner, in other words, the strategy in order to help get us there is not one of eradication, we don't think that's practical. The strategy would be one of containment because I recall the guys telling me there's some of those areas, even if you had everything available, you can't even get into some of those areas in some of the big lakes where it blows back and forth from maybe another state or something like that.

So I think your point is a good one and I think we can do that, and just what is our strategy.

COMMISSIONER MONTGOMERY: What's the strategy, what are the goals, how much can we collectively, all entities affected, spend to achieve whatever level we're willing to live with if we can't eradicate — which I understand.

But I think until we've done that and make it clear and enunciate it to all affected parties, we haven't really laid the marker out clearly and asked for the help to deal with this problem.

And if we haven't dealt with it adequately — I guess the reason I'm pushing so hard is at the last Commission meeting what we saw were really dramatic growth rates, just phenomenally fast growth rates, exponential growth. And there may be a natural limit to that that tapers off, so it may not just be a straight line projection on it forever, but to the extent of a straight line projection, we don't have any time to waste.

We need to be in front of Congress and in front of these other affected agencies, the river authorities, showing them where it's going and showing what it takes to get it contained. Because the cheapest solution is the quickest one.

COMMISSIONER HOLT: There were basically 2,000 acres that blew across the lake? Is that what I saw?

MR. DUROCHER: About 1,500 acres. We went from an estimated 3,000 acres to 1,500, and Louisiana's went up almost the same, so we're speculating that's what happened.

COMMISSIONER HOLT: What is Louisiana doing and to what extent are we coordinated? Do they have money dedicated to the program?

MR. DUROCHER: Louisiana has a vegetation problem a lot worse than ours. I mean, they've got a lot of shallow water there. Toledo Bend is just one of their headaches.

They spend probably $7- to $8 million a year on vegetation control.

COMMISSIONER HOLT: Throughout the state?

MR. DUROCHER: Throughout the state. And they put whatever proportion of that they can into Toledo Bend.

What we've done here in this state, when the Corps of Engineers money, the federal money dried up — and that was pass-through money, we pass it through the river authorities, matching money to help them defray the cost of doing this treatment — we basically told the river authorities that it was their responsibility.

You know, we would work them, help them develop plans, but the actual treatment is the responsibility of the river authorities. And we work with them all the time, Mr. Montgomery.

COMMISSIONER MONTGOMERY: Oh, I know you do.

MR. DUROCHER: And they understand the problem. I mean, we've outlined it for them and we were a little disappointed in what they were willing to put in.

MR. COOK: I think one of the advantages in Louisiana is that they just include it in a recipe for gumbo.

(General talking and laughter.)

COMMISSIONER FITZSIMONS: Al?

COMMISSIONER HENRY: Phil, back in October you gave us a plan for the development of Sheldon Lake.

MR. DUROCHER: Yes, sir.

COMMISSIONER HENRY: Or redevelopment, as the case may be. I'm trying to recall is this problem that you currently identify with plants a part of that plan?

MR. DUROCHER: Absolutely.

COMMISSIONER HENRY: And to what extent — well, let me ask you to do this, would you keep us informed? I'd appreciate being kept informed on the progress that's being made with that plan and the prognosis.

When we take people out there, particularly potential funding sources, the first thing they want to see is the lake, and it helps if we can tell them what's happening to get it cleaned up and all.

MR. DUROCHER: Well, I think most of the plans that you saw here — in fact, I'm positive the plans you saw here were a part of that plan that we submitted to you, and this is actually implementing those parts of that plan, again, to keep the access open on Sheldon where people have access to some fishable water.

COMMISSIONER HENRY: Would you keep us updated on that, please?

MR. DUROCHER: Yes, sir, sure will.

COMMISSIONER FITZSIMONS: Phil, what's the role of the Army Corps of Engineers in helping with this?

MR. DUROCHER: The Army Corps of Engineers has an aquatic plan management program that was funded at a fairly substantial funding.

I think the most we ever got here in Texas was about $600,000. We used to get that as a match. And you know, when everybody cut budgets, that's the part the Corps cut.

Now, we were able to convince them — I know two years ago we ended up getting several hundred thousand here in Texas pass-through when the Giant Salvinia first appeared in Texas.

It was here and it sat around for four or five years and nothing was happening, and we thought maybe it's not that big of a threat till last year, and all of a sudden it went crazy.

COMMISSIONER FITZSIMONS: And the way to improve that is Commissioner Montgomery's point of getting our Texas delegation to understand that.

COMMISSIONER MONTGOMERY: I really don't know any more about the problem than Phil said, and it may be that we just don't have enough jurisdiction, but it seems to me if we're going to protect our resources, we need to at least define the problem and a solution knowing that we probably don't even come close to having the money to deal with it.

And maybe we'll work through that whole process and you can't do anything.

MR. DUROCHER: Let me just tell you if we tell the river authorities we want to assume the responsibility, they will gladly give it to us.

COMMISSIONER MONTGOMERY: I'm not suggesting that.

But Phil, let me ask you this, if we don't define a problem and a solution in our management plan, will anyone else?

MR. DUROCHER: Probably not. It's done on individual lakes. And we have those.

COMMISSIONER MONTGOMERY: I guess a policy decision is do we want to assume that leadership position.

COMMISSIONER FITZSIMONS: What exactly is the jurisdiction of the Army Corps of Engineers? I know they own a lot of those dams and they own the land around some of them.

MR. DUROCHER: It depends on the water. They don't own the water, Sabine River Authority owns the water at Toledo Bend. I think they primarily maintain the dam and they're responsible for the people to have access.

COMMISSIONER FITZSIMONS: So the cost of dealing with the Giant Salvinia falls on the river authorities and Parks and Wildlife and the local communities.

MR. DUROCHER: Generally.

COMMISSIONER FITZSIMONS: Commissioner Parker?

COMMISSIONER PARKER: Would it be conceivable that we might need to have the Chairman form a task force to deal with this problem?

Because if this problem persists and increases, it's going to have a huge economic impact on the eastern portion of Texas. It will have an impact on fishing, the hotel/motel people, the grocery people, the boat people, everybody.

And you know, we had considerable discussion the last time that we were here talking about this. Because if that thing gets on Rayburn and then on to Livingston, and did you say that it's in Conroe?

MR. DUROCHER: Yes, sir, there's been some found in Conroe, small patches, and it was treated immediately.

COMMISSIONER PARKER: That's the reason Kevin is interested.

And I think it might be wise, Mr. Chairman, if you would consider forming a task force that would include all of the agencies that have a stake in this, including chambers of commerce and on up to the federal level.

COMMISSIONER FITZSIMONS: Clearly the Texas Water Development Board has got a role in it.

COMMISSIONER PARKER: Everybody.

COMMISSIONER FITZSIMONS: As a procedural matter — I think I've discussed this with some of you — we're revamping all the advisory boards and task forces because they're all sunsetted. So anything we start right now dies the first of September.

So this is a good time this spring and summer to reorganize some of those advisory boards and task forces because by law they expire this September, so it's a good time to revamp them, and that's a good task for that group.

I think you're right, you've got to pull together the people who have the most at stake, and what I focus on are the people who are going to have to pay the bill because they're usually the ones most interested in fixing the problem.

Phil, anything else?

COMMISSIONER HOLMES: I've got a question.

COMMISSIONER FITZSIMONS: Ned, go ahead.

COMMISSIONER HOLMES: Phil, a severe infestation of Giant Salvinia, will it impact the quality and quantity of the water that the water authorities depend on?

MR. DUROCHER: Absolutely.

COMMISSIONER HOLMES: Which means that they have a direct economic stake in it of some significance.

MR. DUROCHER: Yes, sir.

COMMISSIONER HOLMES: But they're still unwilling to fund what we would consider an appropriate share of the cost of remediation?

MR. DUROCHER: Right. I mean, they think they are — they're doing what —

COMMISSIONER HOLMES: They think they are funding the appropriate amount but we think they're not. Well, it's kind of to Commissioner Montgomery's point of if we can lay out what we believe is the most effective solution, whether it's containment or however you define it, and then assign the economics to that.

Have we actually done that and displayed that to the water authorities?

MR. DUROCHER: Yes, sir. We meet with them regularly. There was a meeting —

COMMISSIONER HOLMES: We've given them a plan of how you deal with each one of the lakes or reservoirs where it's a problem?

MR. DUROCHER: We had a meeting with the Sabine River Authority two weeks ago when they agreed to go ahead and make the effort to lower the water level. I mean, they understand what the problem is, they're out there with us.

MR. COOK: You know, I'm reminded, Phil — and some of you folks that were here starting I don't know how many years ago, 10-15 years ago — Lake Austin here with the Hydrilla, and there was a lot of controversy between the various users and constituents about yes we do, no we don't, this much, that much, and who's going to pay for it.

And then it finally took a flood, not a brand new level of a flood, that showed that that plant slowed the flow of water down to the point during I'll say a normal flood — if there's such a thing — that it backed up water into homes that had never had water in them before, and it did I forget now many hundreds of thousands of dollars worth of damage to their gates.

And pretty quick thereafter people got — we need to do something.

COMMISSIONER HOLT: Sometimes it takes a crisis to get the attention.

COMMISSIONER BROWN: Back to Mr. Holmes's point that if it affects water quality then it's serious. And these water authorities typically have fairly decent funding, don't they?

COMMISSIONER HOLT: If they want to prioritize and spend the money.

COMMISSIONER FITZSIMONS: What is the quality issue, though, with Giant Salvinia?

MR. DUROCHER: Well, it will completely cover the water and there's no oxygen, no sunlight getting into the water, and it will impede flow considerably.

Toledo Bend has a power generating unit on it. I'm sure they don't want a bunch of Salvinia running through that unit.

COMMISSIONER HOLMES: Whose unit is that? Like TXU or somebody?

MR. DUROCHER: No. I belongs to some co-op, I think.

COMMISSIONER FITZSIMONS: Has LCRA been active in keeping it out of their reservoirs?

MR. DUROCHER: Yes, sir. We work closely with LCRA on Lake Austin.

COMMISSIONER HOLT: It's more Hydrilla.

MR. DUROCHER: It's more of a Hydrilla problem.

COMMISSIONER FITZSIMONS: Now, Hydrilla, as we learned, has a constituency. Please don't tell me Salvinia has a constituency.

MR. DUROCHER: Not yet.

COMMISSIONER FITZSIMONS: Hurry up and kill it then.

COMMISSIONER HOLT: Somebody will figure out that this is something they like.

(General laughter.)

COMMISSIONER HENRY: You mentioned the last time you here here about releasing these beetles, are they?

MR. DUROCHER: Weevils.

COMMISSIONER HENRY: Are you still doing that, is that an ongoing process?

MR. DUROCHER: That's ongoing. We're trying to build those populations up to the point where they may be effective at controlling this.

COMMISSIONER HENRY: But that's a long-term process, I take it.

MR. DUROCHER: Yes, it is. And like I said, the weevils are more effective when you have a real bad infestation where they can just jump from one plant to another. So it's kind of a catch-22. But they are effective. We've seen in other countries where they've almost eliminated the Giant Salvinia.

COMMISSIONER BROWN: Is there any negatives connected to the weevil?

MR. DUROCHER: It's been studied for many years. That's one of the things that the Corps does, they study these. Any time you bring in an exotic, they have to really study it to make sure it's not going to eat something you don't want it to eat.

COMMISSIONER HOLMES: What eats the weevils?

MR. DUROCHER: Nothing we know of.

COMMISSIONER FITZSIMONS: We'll be getting an update on that.

MR. DUROCHER: They eat Giant Salvinia almost exclusively, so once the Giant Salvinia is gone, they're gone.

COMMISSIONER HOLMES: How convenient.

(General laughter.)

COMMISSIONER FITZSIMONS: Thank you, Phil.

Any other questions for Phil on the Giant Salvinia?

And Commissioner Parker, I'll take that advice to charge one of our new committees, when we reform those, to pull together the players.

That was a briefing item, we don't need any action.

On to the recommendations of the White-tailed Deer Advisory Committee, item 4. Clayton Wolf, and we have our chairman emeritus and chairman of the White-tailed Deer Advisory Committee with us. Lee, thanks for being with us.

MR. BASS: Good morning.

COMMISSIONER FITZSIMONS: It's time to talk about deer.

MR. WOLF: Mr. Chairman, Commissioners, Chairman Emeritus, Mr. Cook. For the record, my name is Clayton Wolf and I am the director of the Big Game Program in the Wildlife Division.

This morning I have numerous proposals that I'd like to present to you. These are proposals that we intend to publish in the Texas Register, and we're seeking your input on these proposals.

Some of these we've been working on for over a year. The first one deals with what we have come to call Inconsequential Triple T Releases.

You're probably aware that when we move deer or we authorize people to move deer in Texas under a Triple T, these movements have to abide by our Department's stocking policy, and that is the receiving side has to have suitable habitat capable of maintaining these animals.

However, we do have a provision that allows for a stocking rate of no more than one deer per 200 acres one time only. In all other cases we do site inspections or we have an intensive wildlife management plan so we know about the habitat condition on the release site, but in this case we do not.

And of course, the theory behind that is that regardless of the current stocking level on that receiving property, one deer will be of no consequence to the habitat.

Over a year ago we had a proposal dealing with inconsequential releases that we brought to this Commission. We received some public comments and public testimony questioning whether it abided by our Department's stocking policy, and at the direction of this Commission, we took this issue back to our White-tailed Deer Advisory Committee to study, and that we did on numerous occasions at several meetings.

Basically what we discovered was that although the theory is good, deer are obviously not moved one deer at a time, and when they are released, we are not able to keep them dispersed at one animal per 200 acres.

So in many cases, especially where we have limited habitat, those animals that are released seek out the best habitat that's there, often it is already highly stocked, and so these releases may be of consequence to the habitat. The White-tailed Deer Advisory Committee studied on this issue.

Staff proposes to repeal the Inconsequential Triple T Release provisions. This has the unanimous endorsement of the White-tailed Deer Advisory Committee.

Over the last several months, our staff and the Texas Animal Health Commission have been working diligently with a group that Texas Wildlife Association put together. This group consisted primarily of veterinarians or officers from Texas Deer Association and Texas Wildlife Association.

In essence, what we were doing was looking at a plan for the future for CWD monitoring in Texas after we got through our third year.

In the later months we'll present some of the other programs, but we do have a proposal this morning that deals specifically with CWD testing or an alternative for Triple T deer.

The current rules, most of you are probably aware, require that if someone wants to move deer from a trap site that they must test a number equivalent to 10 percent of the animals proposed to be moved, no fewer than 10, no more than 40.

And a recent change this Commission adopted was that these test results may be good for up to two seasons.

We do not propose to change any of these rules, we propose to keep these in place for those users that could utilize these provisions.

What I'll call our DVM task force, our vet task force worked on was an incentive-based alternative, an additional alternative to reward folks that had done adequate and suitable testing at the test site.

We've come to call these sites Preferred Triple T trap sites. And we would propose that in order to achieve this preferred status that the trap site would have to submit results from 60 animals that tested not detected at the test site.

Additionally, consistent with other monitoring programs, this preferred status would be lost or we'd propose it would be lost if deer are transported onto the site from a non-preferred site. And this is consistent with other monitoring programs where you establish a certain level of competence and that may be changed if you bring in animals from other populations of unknown origin.

Now, what do we propose that folks would get for this preferred status?

Number one, we'd propose that annual sampling results do not have to be presented prior to trapping. This can be a logistical problem for our folks that are currently Triple T'ing deer because they typically use harvested animals from that season. They have to get those samples collected, get them to the lab. Currently there's about a four-week turnaround time.

And of course, you can imagine this has caused scheduling problems when they're trying to schedule helicopters and trappers and whatnot.

So we are proposing that there is a maintenance level of testing but that only has to occur to maintain that level for the next season and they could submit those samples at any point during the Triple T season.

Now, the number that we propose to be tested would be 3 percent of the animals that they moved in that year with no less than one animal. So we're proposing a significant reduction for those people that have submitted 60 samples.

Now, the White-tailed Deer Advisory Committee endorsed the proposal. However, our White-tailed Deer Advisory Committee had some alternative recommendations that staff deliberated on and chose not to include in our staff proposal. But because these ladies and gentlemen spent a significant amount of time at their own expense helping us deliberate many of these issues, we felt that it was only fair to present that to this Commission and let you make the decision on that.

An alternative, an add-on to the preferred status, the idea was that once Texas has collected 10,000 samples not detected — and we expect that to be next year, by the way — CWD samples, once those samples have been collected that all Tripe T sites would basically operate by the same standards as our preferred sites. In other words, 3 percent with a minimum of one.

Additionally, another idea that was pitched at our White-tailed Deer Advisory Committee meeting was that we possibly eliminate all CWD testing at Triple T trap sites when 10,000 samples have been tested.

Now, of course, staff took these alternatives seriously, we studied them. We speculated that they did not meet the model that we had been operating by, that we developed with the help of our Veterinarian Task Force that I previously mentioned, and we reconvened that task force and talked about it, and as a result of that, chose not to include it in our proposal.

And basically, the explanation, in simple terms, goes like this: once we get 10,000 samples that is good information for Texas, however, once animals are moved from the site, that changes the formula and it increases the risk for the management of risk of any animal disease.

When we get 10,000 samples, there are going to be places in Texas where we don't have samples. There's going to be portions of counties, possibly counties that are not adequately tested because this is a voluntary program.

So conceivably, Triple T trap sites out there, we could have no information once we've reached 10,000, and we feel like it's a prudent step to get information specifically from that site before we move animals.

We had another proposal that was presented to our DVM Task Force and that as to exempt CWD testing on Triple T properties if these properties are adjacent and owned by the same landowner. Basically we're talking about pasture to pasture transfers.

Our task force considered this, our advisory committee considered this. We find it well within reason because these are same populations, it's the same landowner that's impacted, and so we would include this as part of our staff proposal.

We're proposing a review process for Triple T permit denials. In a few minutes, Dr. Berger is going to present to you what he has already presented, and that is what we have previously called an appeals process for antlerless deer control permits and MLDs.

He also indicated at the last meeting that we were looking to do a similar process or an identical process for all deer permits, and this basically is an exact replicate except that we've chosen to replace the term "appeal" with the term "review" because we felt that the term "appeal" might imply some kind of a judicial process, and in fact, this is a review by senior level Wildlife Division managers if someone has a permit denied.

A couple of definition changes. We propose a definition for the Wildlife Stocking Plan for trap site to consist of the biological information about the trap site required by the Department.

Now, this may not make sense to have a stocking plan for a trap site, but basically our statutes indicate that we must have a separate stocking plan for both the trap site and for the receiving site. Our regulations currently indicate that wildlife management plans can serve as a stocking plan for the receiving site.

Functionally we have been using our application materials which are quite detailed as the "stocking plan" for the trap site, and we would just like to clarify that in our regulations to meet the directives of the statute.

And we want to define "permit year" in our Triple T proclamation to mean September 1 through August 31.

We have one proposal dealing with notification for TTTs and TTPs, the second being Trap Transport and Process.

Currently, if someone wants to trap animals, they have to call the Department no less than 24 hours prior to activities and no greater than 48 hours prior to these activities. And this is basically a law enforcement tool to notify our game wardens so if they hear of a trailer load of deer going down the road, they might be able to identify that it is legitimate, or if they want to go inspect the trapping operation.

We have trapping operations that are ramping up in our urban areas using TTPs, and oftentimes weather or possibly the processing facility, conditions can change, and on a shorter notice they may be able to trap, but the 24-hour notice does not allow them to and so they lose a valuable trap day.

We would propose that the minimum notification be 12 hours and this has been run past our Law Enforcement Division and they are comfortable with this proposal.

We have a deadline for transporting TTP deer to the processing facility, basically that transport shall begin within 18 hours of trapping.

This is basically to allow trappers to achieve two trapping sessions, a morning and evening, or possibly an evening and morning, and if the weather conditions are suitable, hold animals in the trailer from the first trapping session and include others to have an efficient operation, but not hold them too long.

We visited with some of our trappers in our urban areas, and this 18-hour deadline can cut it close sometimes to include an evening and a morning session, and so we would propose to change that to 20 hours, and this should be suitable so they could achieve a full evening trapping session and a subsequent morning trapping session if the conditions allow.

At our meetings with the White-tailed Deer Advisory Committee we discussed several rules relative to scientific breeder deer and our Scientific Breeder Proclamation.

Texas Deer Association, at our last meeting in February, presented a position statement from their directors, and basically this position statement endorsed the closure of the borders to the importation of CDW susceptible species, and those are mule deer, white-tail deer, black-tails, and elk.

Our White-tailed Deer Advisory Committee unanimously supported this border closure statement. And you may be aware that there's been legislation filed to actually enact this by statute, however, that is pending.

Our White-Tailed Deer Advisory Committee advised us or recommended to us that we do whatever by rule to stop the importation of white-tailed deer and mule deer into Texas, those two species that we have authority to regulate.

Right now the current rules allow for two sources for scientific breeders or anybody getting purchase permits to purchase captive deer. They can get them from an in-state source, another scientific breeder, or they can buy from a lawful out-of-state source if they meet Animal Health Commission entry requirements.

We would propose that the only lawful source for scientific breeder deer would be Texas breeders and this effectively would achieve a border closure for white-tailed deer and mule deer by rule.

At our September 2004 White-tailed Deer Advisory Committee meeting we briefed the committee on deer management permits. We do this often to bring them up to date on permits.

And briefly for your information, a deer management permit allows someone with a high-fenced ranch to trap wild deer, detain those deer in a breeding closure, no more than one buck and 20 doe, and then they have to release those animals back onto the ranch.

One of our current provisions indicates that no deer may be released from a DMP enclosure until April 1. Now, I'm told that this provision is in there basically to disallow someone from capturing animals, having the does bred, releasing them into Triple T season, and then moving them off the ranch.

Our proposal basically would achieve the same in that we propose that no permit shall be issued for trapping on a property if DMP deer have been released in the same permit year. But if someone chooses to release bred animals earlier, they could do so and provide some habitat relief in their breeding enclosures.

Release of DMP deer. Right now the current rules indicate that all DMP deer shall be released no later than ten months following capture, however, we also have the authority to approve longer detention at our discretion.

In the last year or so we've gotten more requests for people to hold deer at a longer period, and to be honest with you, we went to the White-tailed Deer Advisory Committee to seek some guidance and make sure that we were operating by the intent of the statute for temporary detention of these animals.

In essence, our guidance from the Advisory Committee was more to abide by the intent of the statute in a more stricter sense, and therefore, we propose that all DMP deer shall be released from captivity no later than August 31 of every year.

Additionally it was recommended that all supplemental food and water be removed from the breeding enclosure basically to encourage those animals to leave these breeding enclosures.

The current rule indicates that DMP deer shall be marked with a stripe of yellow acrylic water-base paints. We learned early on that this doesn't work, and so in our deer management plans, everyone marks their deer with ear tags.

We simply would propose that each deer shall be marked with a durable ear tag clearly visible from a distance of 50 feet. We'd remove this other requirement so that folks who read our rules are not confused as to what the marking requirements are.

Currently Triple T deer may be imported on to DMP property but they may not be directly imported into a

DMP enclosure, and this is a restriction by rule.

So theoretically, someone can trap deer on another property, release them on a DMP property, and then they can go trap those same animals if they want them in their breeding enclosure and bring them in.

Our White-tailed Deer Advisory Committee recommended the idea that Triple T deer may be imported directly into a DMP pen in order to circumvent the second handling of those animals. Our staff was primarily concerned with the habitat requirements in our stocking policy, and so we proposed along with this that the ranch meets the stocking policy requirements at the time of release on August 31 since all those animals do have to be released on an annual basis.

We would also propose an identical review process for DMP denials just like we do with our deer permits.

I'm getting close, I appreciate your patience.

Two provisions for DMP violations. This first one was recommended by our White-tailed Deer Advisory Committee and agreed upon, in that a person who is finally convicted or has received deferred adjudication for a violation relating to the release of these DMP animals, would be prohibited from obtaining a DMP for a period of three years following that conviction.

And additionally, from our Law Enforcement staff we propose another provision that is similar to provisions all throughout our other permit programs, and that we reserve the right to refuse permit issuance to anyone who is finally convicted or received deferred adjudication for a violation of Parks and Wildlife Code within the three years immediately preceding an application for a DMP.

And that concludes my presentation and I'll take any questions.

COMMISSIONER HENRY: With regard to the last issue concerning denial of permit, I wonder what the difference would be between saying a person as opposed to a landowner. Because if I did it, for example, and I was detected and caught, couldn't my wife come right back and do the same thing? That wouldn't affect her in Texas as co-owners of property?

MR. WOLF: Yes, sir, that's my understanding, and of course if I"m wrong, I'm going to ask David Sinclair to possibly back me up here, but it is my understanding that it is specifically related to that individual and spouses could then apply, and we have talked about that.

COMMISSIONER HENRY: Would that defeat the purpose of our regulation in that case?

MR. WOLF: Well, I would say that would be the discretion of this commission to determine that.

COMMISSIONER HENRY: Was that issue discussed with the Commission?

MR. WOLF: No, sir, it was not.

MR. BASS: I don't think we caught that or thought of that aspect. I think almost all of our permits are issued actually to individuals rather than to properties or corporate entities or some entity that may actually hold the deed of a property.

MR. WOLF: That is correct. In fact, I believe we do have a couple of instances where the landowners, someone may be leasing some land and have a DMP pen and they are the permit recipient, the landowner is not.

COMMISSIONER FITZSIMONS: The permitee is not tied to a piece of land.

MR. BASS: The permit is tied to an individual.

COMMISSIONER FITZSIMONS: Ned? You're giving me that look.

COMMISSIONER HOLMES: I'm just wondering should it be tied to the land or not.

MR. WOLF: I'd have to defer to somebody with a little bit more legal experience; I don't believe I can handle that question.

MR. BASS: I guess one of the questions then gets to be — kind of free-thinking here — if I'm the landowner and somebody is acting as my agent, I'm absentee and uninvolved and they're acting as my agent, it's tied to the land then I end up being liable for that agent's misdeeds.

I fire them, they go on down the road and they have a clean record but they've tarred me, and maybe I should have been more responsible as an employer, but in a way the bad actor, so to speak, if you tie it to the land could move next door to a new piece of land and not have the record.

COMMISSIONER HOLMES: You could do both, though.

MR. BASS: You could perhaps do both.

COMMISSIONER HOLMES: If the purpose, though, is to target a population of animals on a given piece of property —

(General talking.)

MR. BASS: The purpose of the committee in trying to put this in is to say is there should be some repercussions for being irresponsible. If you don't do what you're supposed to do, you have to go in timeout for a while.

There might be a way to tie it in to something where the Department would have the discretion to withhold a permit for use of the same facility.

COMMISSIONER FITZSIMONS: The facility or the location of the deer is identified on the permit?

MR. BASS: Yes, something like that.

COMMISSIONER FITZSIMONS: That way you don't have the problem you mentioned, Lee, which I agree with is you don't want a landowner, and in some case it's going to be a land board or lessor, become defacto a permitee because the guy runs off and leaves him with a bunch of deer that have to be processed and dealt with.

But do you presently identify? Help me, Clayton?

MR. BASS: The permit would identify the property, yes.

MR. WOLF: And specifically in regard to DMPs, the permitee has to provide us with a diagram of all the facilities where the animals go, and of course the statutes require that the whole property is high-fenced. So there actually are some pretty definitive boundaries for DMPs.

COMMISSIONER FITZSIMONS: But the location is discernible?

MR. WOLF: Yes, sir.

COMMISSIONER HENRY: Are the permits all now currently issued to individuals?

MR. WOLF: Yes, sir, they are issued to individuals.

MR. BASS: So that there is, therefore, somebody to prosecute.

COMMISSIONER RAMOS: But is there a prohibition against having, for example, a corporation or a limited partnership? Because if that's there, it seems to me that the only way — someone could hide behind the corporate separateness, and it seems to me that if the idea is to punish, it should go to not only the entity but also the officers, directors or anyone in concurrence.

Because then you could have a series of corporations, and I don't know if there's a restriction on that.

MR. WOLF: It's my understanding that all our permits are issued to individuals.

COMMISSIONER BROWN: Then that's not an issue then.

COMMISSIONER BROWN: So by law, a corporation is excluded.

MR. BASS: If a corporation is the landowner, then an individual has to be the permitee. It could be an officer, an employee, an agent.

COMMISSIONER RAMOS: So then you would go after that individual.

MR. BASS: There has to be a responsible individual as opposed to a —

COMMISSIONER HOLT: Has there been much issue, has there been many problems?

MR. BASS: There are very few of these out there.

COMMISSIONER FITZSIMONS: We were doing fine until Al read it too closely.

(General laughter.)

MR. WOLF: There's between 40 and 45 DMPs.

COMMISSIONER HOLT: I didn't realize there were that many. Have you run into any particular problems? Are there any violations on an ongoing basis?

MR. WOLF: No, not on this one particularly for the release. The previous rule that speaks specifically to releases was more of, I guess, a preventative measure, I don't think we had any indications.

Now, on the second one, this is language that is pretty consistent with all of our other permits where we reserve this right, and in other permit programs I believe that we have situations where we at least talked about if we refused X person the right to issue a permit and say their spouse could turn around and apply for the same facility, for instance a scientific breeder facility, take on the same deer and in essence keep operating as usual.

So that exists, although I don't necessarily know that we have experienced that, and I'm sure David Sinclair will come up here if we have.

COMMISSIONER HENRY: Mr. Chairman, I didn't mean to open a can of worms.

COMMISSIONER FITZSIMONS: No. This is important.

COMMISSIONER HENRY: Can we just ask you to check with Ann on this?

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: John, you had your hand up.

COMMISSIONER PARKER: That's what I was just going to say, I'd like to hear from Ann Bright on this.

COMMISSIONER FITZSIMONS: I don't know if Ann wants to comment or not.

MS. BRIGHT: Some of this is going to be a policy call. If I recall, the statute says "person" and there's the Code Construction Act which will define a person to include a corporation. But just as a matter of practice, we have not issued these permits to corporations, we have just issued them to individuals.

And I think we can probably work on something that may be able to address this, maybe something about — and I'm truly just thinking out loud here — something that would address a permit that's clearly an attempt to get around a prohibition. There may be something that we can do there; we can definitely look at that.

COMMISSIONER FITZSIMONS: Phil?

COMMISSIONER MONTGOMERY: I'm going to switch to a different aspect, if that's all right.

The question on CWD, over a year I haven't seen any data, what is the national context. Is it continuing to spread, is it declining, has it stabilized? What is the environment we're operating in now?

MR. WOLF: Over the last 12 months, with one exception, it's pretty much occurred in the same areas. There have been a couple of states in the Rockies where there's been a little expansion. Last week it was detected in New York for the first time. So a pretty big jump to the East and previous to that it was constant.

And those cases were two captive breeding facilities, but there's an association with some rehabilitated deer also — it's kind of a mess.

COMMISSIONER FITZSIMONS: And the New York was captive?

MR. WOLF: Yes, that's correct.

COMMISSIONER HOLT: Came from another state, or do they know?

MR. WOLF: The pen —I talked to the vet with their Department of Ag in Animal Markets or something like that. The person that was holding these animals was permitted kind of like our breeders are, there's dual jurisdiction, the Department of Environmental Conservation and the Ag Department both have roles.

The deer that these people purchase, like our breeder deer, they're not allowed to release into the wild. However, the same individual is also permitted to take on rehabilitated deer and those can be released to the wild. They were supposed to keep them separate but they did not, this person did not, and they did not identify their animals.

So these animals were mixed together. The doe that was caught at the processing facility, to be honest with you, they're not really sure of the origin of that animal, and they basically say it's kind of a mess, they don't know if they're going to be able to determine.

They depopulated the two captive facilities yesterday, I believe, and then the Department of Environmental Conservation within the week is going to start sampling the wild deer population around those facilities.

MR. BASS: Were there two positives in New York, one in each facility?

MR. WOLF: Yes. And the second one was directly tied to the first facility.

COMMISSIONER MONTGOMERY: In the states around Texas, though, it's stable as far as you know?

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: Oklahoma and New Mexico?

MR. WOLF: Oklahoma was a captive elk and has not had a positive in several years. And of course, New Mexico has it in their wild population in the White Sands area.

COMMISSIONER MONTGOMERY: So it's continuing to show up incidences of it but not evidence of spreading.

MR. WOLF: Yes, sir, with a couple of exceptions. I don't think New Mexico has seen an expansion, but it was either Colorado or Wyoming saw a little expansion in their "endemic" area and some new areas where they had not previously detected it.

COMMISSIONER FITZSIMONS: Mr. Ramos?

COMMISSIONER RAMOS: Yes. First of all, I commend you on that preferred status. I've been a fanatic for that, that we should recognize those people that take the initiative.

But there are landowners in this state who have, from day one, cooperated and been testing for CWD, and my question is will they somehow be grandfathered or get a preferential treatment, or will they just step in with everyone else in qualifying for this preferred status?

MR. WOLF: No, the time frame for sampling is not limited, so we actually have several permitees that have 30-40-50 samples that they've submitted for prior requirements, and those would count. So in some cases 10 or 15 more samples and those individuals get preferred status, as we propose.

COMMISSIONER RAMOS: So they would basically be compensated and they would be ahead of the curve because of their historical efforts.

MR. WOLF: That's correct.

MR. BASS: But currently nobody would qualify for the preferred status as of yet. Nobody's reached the level that —

COMMISSIONER RAMOS: As of yet.

And my next question and this is merely a suggestion, we have a lot of scientific breeders in this state, and to me the term "scientific" indicates that they're contributing to the betterment of the deer population of this state.

I would like to see us incorporate as part of a scientific breeder permit a provision that they furnish us scientific data and results of their efforts. I think that's a natural source and it would help us within our own staff so that we can disseminate that information or at least have it for our own use.

Because they're going through a lot of trouble and effort and it seems to me that we should require that those scientific efforts and the results of those be shared with us.

MR. WOLF: In fact, Commissioner, there have been several bills filed dealing with breeder statutes. One of those actually changes the name of our scientific breeder permit simply to deer breeder permit because the vast majority of activities are simply propagation and release. There are not studies, it's propagation and release.

COMMISSIONER RAMOS: I would think that even if it's a change in the name, it seems to me that if someone is going to that effort, that we would maybe highly suggest or recommend to them that they share that data with us because it's data that's critical and it could be part of our own database. And I don't see why anyone would have any opposition to that.

Just a suggestion on my part.

COMMISSIONER FITZSIMONS: Any other questions?

MR. COOK: Mr. Chairman, I would like to go back to Commissioner Montgomery's question about the status on CWD and these folks including our Advisory Committee and everybody involved of course is watching it very closely across the state.

Clayton, over the last three years we've tested 9,000?

MR. WOLF: Probably in excess of 9,000. About 1,000 of those are still at the lab being run; we have results on 8,200.

MR. COOK: And we have no positives at this point, and so that's very good. People have really participated in the program. There's areas where we don't have as much coverage as the gurus would like us to have.

But I think kind of from my perspective which is a little bit different, the paranoia that was out there three or four years ago has diminished greatly. People are up front about it, and it looks like — and Clayton help me out here — typically some of the infection rates — at one time people were talking 10 to 12 to 15 percent — it looks like most of the "infection rates" where they really go in and saturate an area, 2-3 percent, Clayton?

MR. WOLF: 2-3 percent is usually the prevalence in a statewide perspective. Of course it varies. In some of those endemic areas that have had it for 30 years, the rates are higher. Generally speaking, they're higher where it's been there longer.

MR. COOK: So we're still very much in the learning curve on CWD and no telling where all it will be detected over time. White-tailed deer is a pretty hardy critter.

COMMISSIONER BROWN: What do we do as far as Mexico? Are we doing anything with trying to work with Mexico?

MR. COOK: I don't believe so.

Clayton?

MR. WOLF: We have entry requirements right now, and it requires — I believe it's state but I've asked the question about other countries. There would have to be a monitoring program if someone wanted to bring a CWD-susceptible species into Texas, they basically have to prove that they've either been in a program for three or five years, depending on if that state or country has CWD. Mexico doesn't have it.

And we have had in the last year a couple of shipments of white-tailed deer and some shipments of elk that have come into Texas that met those requirements.

Of course, as I indicated, there's currently a bill that's been filed that would close the border to any importation of those species.

COMMISSIONER FITZSIMONS: Well, I think Bob makes a good point and it's important that we don't let the tail wag the dog here. CWD is an important issue but where it occurs, it's not been the end of the world, it's not the end of the hunting industry, it's not dessimated herds.

So I think we're pursuing this in a forthright and diligent manner.

Back to the point on testing, having said that, it seems to me that there should be a purpose, an objective to the testing, that we don't just test and test and test and them someday say well, why do you test for the sake of testing. Because we always have.

So what I get from your previous presentation is that somewhere at that 10,000 mark you're able to then set some criteria to where people will know what they can do after you hit that mark. Is that right?

MR. WOLF: Not necessarily. When we convened our group of vets and we were talking about where to go, in essence we made no assumptions. We possibly assumed that we would throttle back and do no testing or limited testing.

The recommendations that were presented to our advisory committee and the urging of our advisory committee was to go at it one more year. We are developing a priority assessment by county to classify each county based on if we have not sampled there or if they have received imports of elk or deer, with the assumption that this may be our last big stab.

The big issue we run into is when we ask the experts, Ken Waldrop. When we hit 10,000 or 12,000 or 15,000 can we say it's over with?

You don't get a clear answer because, to be honest with you, there's so little known about CWD, folks are a little bit hesitant to commit to the end.

COMMISSIONER FITZSIMONS: And I can see that when you had the spotty representation that you described, but it's 10- or 15,000 and parts of the state with no testing. It would seem to me that at some point you would redirect your limited resources to areas with probable cause — I think as Donato Ramos would say — you've got a reason to look there, instead of this sort of blanket testing of wild deer, it seems to me.

MR. WOLF: Exactly.

COMMISSIONER RAMOS: Let me just share, I have a certified free brucellosis herd, and in order to maintain that status, you've got to test every year because there's always that potential, and I guess I've been testing for 15 years.

I'm not suggesting that we go to that, but it seems to me that testing needs to continue at some level because one, you have a five-year incubation period for CWD, and I don't know if we've had a five-year lapse since the last time it came into Texas. I would say no.

So my recommendation would be that we look at that incubation period big time because it could be a little silent monster that's out there.

MR. WOLF: Yes, sir. That point has been brought up and it's one of the reasons that 10,000 is good. But if, for instance, we had an infected animal that came in prior to closure, there's plenty of scientific data that says those animals can be out there for a while. And in some cases —

COMMISSIONER FITZSIMONS: But that would be a probable cause, that would be an animal that came in.

MR. WOLF: Right.

COMMISSIONER FITZSIMONS: And there is a reason to test that one.

My point is if you've got limited resources, test where you have a reason to believe you might have a problem.

MR. WOLF: And I believe that's our strategy for this upcoming year, and then of course we'll regroup and look again. Other protocols would suggest that if we don't find it after we've done a real good job that we ought to not be expending the same amount of resources year after year after year and look a little bit smarter in the future.

And for instance clinical animals or road kills seem to have a higher incidence so that's going to be one of our strategies in this upcoming year.

MR. BASS: A couple of points. One, the advisory committee I think very much echoed your sentiment. You know, instead of casting a wide net, let's try to look smarter and learn from where it has occurred in other states, where it does seem to be most likely to find it.

Kind of the analogy that kept popping up is you don't go look for a 7-foot basketball player in a nursery, you go look where there are guys that are at least 18 years old.

So look smarter was one of the recommendations from the committee, and staff, everybody was really pretty much in sync on that.

As far as the incubation issue, that was one of the reasons that everybody came out saying we do need to do this one more year because it's not just the number — to get a confidence level, it's not just a total number but it's also a timeline.

And dealing with what the vets were telling us about the known incubation period for the disease in deer, going one more year if that would get us through. If when we started testing also happened to be the very first instance of it coming in, when would it be clinically detectable, testing one more year should catch that.

Part of looking in a smarter way was recognizing that it was probably more likely that if it's in Texas, knowing what we know now and having not found any evidence of it generally, if it is here, there's a high likelihood it's here by import.

Therefore, scientific breeder type facilities are probably a more likely place to find it than some remote wild herd.

We talked quite a bit about the possibility of it getting into wild herds through liberated deer from scientific breeder facilities, and made a number of recommendations to tighten up the requirements from scientific breeders in order for them to get liberation permits of what their facilities needed to be doing in terms of CWD monitoring — which I guess hasn't gotten through the pipeline enough to show up here at this level.

MR. WOLF: Basically we're waiting for the bills to see what their status is, and we expect to come at the next meeting or the following one.

MR. BASS: Actually on that end of the spectrum, the committee said, You know, maybe we need to put our foot on the spring a little harder because that may be a place that we need to bear down and be sure we don't have it.

The general sentiment was, you know, several years, almost 10,000 animals, put people through a lot of expense in many instances, certainly the mental anguish factor we've all gone through, there ought to be some upside to the fact that we've looked really hard and we haven't found any evidence of it. That's a good thing.

That's where we got to the point that Clayton said that staff and the advisory committee are not exactly in sync and on the same page, which is that if we go through — I'll call it a consensus; it was not unanimous but there was a strong sentiment and a consensus of the advisory committee that if we go through one more year of no positives, we'll be well in excess of 10,000 animals, that all of the Triple T participants instead of having to test 10 percent or whatever, drop them all to what would now be preferred status for this coming year of a 3 percent testing rate.

As Clayton indicated, there were those who said, Wait a minute, if I'm in a county that's been tested with lots of statistics, why make me test at all?

But the consensus seemed to gravitate more towards keep testing but on one end of the spectrum you're putting your foot on the spring a little harder with the scientific breeders because you think that's a risky spot, go ahead and take your foot off the spring a little bit at the other end where you've got wild deer herds, don't make people test them at a 10 percent sample level, 3 percent.

The feeling that 10 percent was kind of arbitrary in the first place, there ought to be some light at the end of the tunnel.

That's the sentiment behind the advisory committee's recommendation which staff is, for rational reasons, has chosen to say we'd rather stick with the status quo. So I guess we're kind of putting that one to you to figure out which side of that to come down on.

MR. COOK: Clayton, has there been any progress? At one point in time about a year ago there was some guys working on a live test. Has there been any progress?

MR. WOLF: No, sir, not to my knowledge. The recent articles that I see basically deal with better tests that are lethal type tests.

In fact, when you talk to some individuals, they really speculate whether we should hang our hat on that and wait for that, and it may not be possible. And to be honest with you, that's outside of my realm of expertise.

MR. COOK: I just hadn't heard anything on it in a while, and I rarely check my CWD mail.

MR. WOLF: It would be nice. If there was a live animal test developed, the whole thing would change, it would be a lot easier to deal with.

MR. COOK: That's fine. I just remembered hearing some talk about it a year or so ago.

MR. BASS: And actually one thing I neglected to mention, currently under Scientific Breeder statute there is no provision for anybody to kill an animal in a pen for any reason, whether it's humane reason because it's crippled and injured, whether it's to take a sample for CWD or any other testing purpose, and there is some language in at least one bill I know of that Representative Hilderbran has that would amend that and allow for that which everybody feels is a good thing.

There are legitimate reasons to harvest deer out of a scientific breeder pen that we need to have that tool.

COMMISSIONER FITZSIMONS: Right. If someone goes broke, you don't want them just opening the pen.

MR. BASS: Right.

COMMISSIONER FITZSIMONS: Don't know what's coming out.

MR. BASS: Correct.

COMMISSIONER FITZSIMONS: I want to thank you, Chairman Bass, and your committee for wrestling with all of this.

MR. BASS: We're going to meet again in a couple of weeks. If any of you want to come, I'd buy you lunch.

COMMISSIONER FITZSIMONS: And Carl, thank you from the TDA, and I know that Texas Wildlife Association — probably out there somewhere — has done a lot of hard work on that and keeping that committee moving along. Thank you very much.

Any other questions on this item 4?

(No response.)

COMMISSIONER FITZSIMONS: I authorize staff to publish this item in the Texas Register for the required public comment period.

Next up Public Lands Proclamation Amendments, item 5. Mike Berger.

MR. BERGER: Good morning, Mr. Chairman and Commissioners. I'm Mike Berger, the director of the Wildlife Division.

I want to talk to you today about the recommended amendments to the Public Lands Proclamation and the candidate state parks proposed for hunting.

This item was presented to you in January, was published in the Texas Register, taken to public meetings, and posted on the Department website for public comment.

The first amendment is in the section on Application, the term "non-consumptive use" would be replaced with the term "recreational use".

The second reference is to Caddo Lake State Park and the Bryan Beach Unit of Peach Point WMA are being removed. There were no comments on that proposal.

The next proposal concerning definitions was to change the definitions of ATV, disabled person and limited public use permit, and add definitions for camping, motor vehicle, off-road vehicle, recreational use, and again to remove the definition for non-consumptive use.

There were 30 total comments on this section, 86 percent in favor.

Concerning the access permit required and the fees, this amendment would allow persons entering WMAs and public hunting lands to fish under a limited public use permit. They are now, under an executive order, allowed to fish without a license in state parks, and this change would enable the fishing without a license to occur in wildlife management areas as well.

Again, we'd remove references to Caddo Lake State Park and the Bryan Beach Unit of Peach Point WMA.

Again, 30 comments on the first proposal, 71 percent in favor; there were no comments on the second proposal.

Under General Rules of Conduct, we would prohibit camping on any unit of public lands for more than 14 consecutive days or more than 21 days in any 30-day period, and also prohibit any activity not specifically authorized by order of the executive director or regulation of the Commission.

On the first there were 30 comments again, 89 percent in favor; the second 58 percent in favor of the order.

Other General Rules of Conduct, we would restrict parking or leaving a motor vehicle unattended other than in designated parking areas in lands where we have designated parking areas.

And we would also change the requirement for disabled individuals to have a disabled person's identification placard or a license plate displayed on the vehicle or ATV in order for them to drive off designated roads or trails onto the hunting area.

On that the public comment was 75 percent in favor of the first and 81 percent in favor of the second.

Now we move on to establish an open hunting season on TWPD public lands for the period of September 1, '05 through August 31, '06. This must be an open season established by the Commission, Chapters 62 and 81 of the Code give the Commission the authority to establish an open season for hunting on state parks, wildlife management areas and public hunting lands.

The list of parks to be hunted are in Appendix D of your Commission book. This year we would recommend again 44 parks be included as public hunting lands. This is a change two parks down. This year two parks are being removed: as previously mentioned, the Bryan Beach Unit at Peach Point which has been transferred to the City of Freeport, and Caddo Lake State Park which was previously listed as a state park and WMA together, although the state park was never hunted.

So those two are being removed and we would add Curtis Creek, offering youth waterfowl hunts, and Tyler State Park offering antlerless deer hunts. And that would bring the number of parks back to 44.

Just an update on the youth hunting opportunities in the Public Hunt Program, the drawn youth categories are up 103 permits for the coming year and four additional hunt periods up from last year. So we're expanding the opportunities for youth in that regard.

On our Annual Public Hunting Program, we had 75 units that offered 123 youth hunting opportunities for deer, small game and feral hogs. And we are still in the process of acquiring and solidifying those units this year, but we believe that we will have similar opportunities and similar numbers of units this year.

And that concludes my presentation and I'd answer any questions that you have.

COMMISSIONER FITZSIMONS: Any questions for Mike on the Public Lands Proclamation?

(No response.)

COMMISSIONER FITZSIMONS: On the fishing in the wildlife management areas, you don't need a license but you have to have the LPU.

MR. BERGER: Where we require a permit, you would still be required to have the permit. But right now, the limited public use permit does not allow hunting or fishing, so this is a change.

COMMISSIONER FITZSIMONS: Is that the $3?

MR. BERGER: I think it is $10 or $12. But this change would allow the fishing to occur on those areas.

COMMISSIONER FITZSIMONS: Okay.

I want to thank Walt Dabney and his staff for working with the Public Lands and Public Hunting folks in the Wildlife Division to keep hunting in state parks. That's an important issue, and I know it takes a lot of coordination between the divisions, Walt, and I appreciate it.

MR. COOK: They do a good job of that too, and I want you to know that when those gentlemen bring their proposals to me, they start at the park level or at the WMA level and here's their recommendations, here's the basis for it, and approve right on up through the chains of command, so that by the time it gets to you here, it truly has been coordinated through the various divisions here and at the first step level.

I think that's why we have as good a program as we have and have had very few problems.

COMMISSIONER RAMOS: And I'd like to commend you again for being sensitive to the youth hunts. It's a big struggle, it's a big challenge for us.

MR. BERGER: Thank you. It's our future and we understand the importance of it.

COMMISSIONER RAMOS: To me it's a very high priority and I know you are very sensitive. Thank you.

COMMISSIONER FITZSIMONS: Thank you, Mike.

Any other questions for Mike?

(No response.)

COMMISSIONER FITZSIMONS: I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Next up item 6, Statewide Hunting and Fishing Proclamation. We have Ken Kurzawski, Robin Riechers and Mike Berger. Ken, you're first up.

MR. KURZAWSKI: Good morning, Commissioners. My name is Ken Kurzawski, Inland Fisheries Division, and I'm going to briefly go over our proposed regulation changes for the coming year. These are the same ones that we presented to you in January, and I'll also summarize the public comments we received on those.

The first one concerns Lake Nasworthy in Tom Green County. Currently we have red drum limits there are 20-inch minimum length and a daily bag of 3 fish. Our proposal there is to remove those length and bag limits. Our goal there is to allow the increased harvest of red drum.

If you recall from my previous presentations, one of the requirement for red drum surviving in our inland waters is to have some sort of thermal warm water inputs. The power plant there on Lake Nasworthy has shut down, will not be operating, and we have ceased stocking red drum there and we're just trying to allow the anglers there to harvest as many of those fish as possible before they succumb to natural mortality or to some cold weather induced mortality.

And the comments received on that are summarized here, mostly all for that proposal. And for this proposal and the next two proposals, all the comments we received were through web comments.

We also have another proposal there in the San Angelo area. This concerns the North and South Concho Rivers. The current regulations are that we have no minimum length limit for channel and blue catfish, 5 fish daily bag, and we also restrict angling to pole and line only.

These are the same regulations that we have on our community fishing lakes which are small lakes within mostly urban areas.

Our proposal there is to redefine the boundaries of both of these river sections, as there's been some confusion about the regulations and the boundaries of those in the past.

Our staff in the area, both Fisheries and Enforcement, have worked on these and what we're proposing to do is to more strictly define those areas on the South Concho above the Lone Wolf Dam, we're going to change that back to the statewide regulations for catfish, 12 inches and 25 fish bag and no gear restrictions.

And then on the North Concho which is from the O.C. Fisher Dam to Bell Street Dam and the South Concho from Lone Wolf Dam to Bell Street Dam, we're going to maintain those community fishing lake regulations which is no limits for catfish and the gear restrictions.

That section on the North Concho is the area that we've been doing the events, a lot of the youth events where we've been stocking catfish, and we want to maintain the regulations in those areas.

On the South Concho above Lone Wolf Dam it's mostly private access and we don't do any events there, so we can allow the anglers in those areas to operate under statewide regulations.

And our goal there is to more easily understand the regulations in the area and allow some increased harvest and gear use.

The comments we received were primarily for this regulation change.

And the final one is on Toledo Bend Reservoir. Currently spotted bass there are on a 12-inch minimum length limit. We're going to change that to the Texas statewide limit which is no minimum length limit.

And our goal there is to standardize regulations with Louisiana and statewide. Louisiana is also going to undertake this change and so we'll have the same limits on both sides of the reservoir.

And most of the comments we received on that were in favor.

And those are all the comments we received on that, and based on that, staff would recommend that we not make any changes to our regulations as originally proposed.

I'd be happy to answer any questions if you have any.

COMMISSIONER FITZSIMONS: Ken, thank you.

Any questions for Ken?

(No response.)

COMMISSIONER FITZSIMONS: Good work. Thanks. Hope you have another good year, plenty of water in those reservoirs.

Robin, next up.

MR. RIECHERS: Mr. Chairman and Commissioners, my name is Robin Riechers, I'm the science policy director for Coastal Fisheries Division.

I'm here to present to you our single issue that we've had before you regarding the Statewide Hunting and Fishing Proclamation.

Again, that issue is dealing with the harvest of live mollusks and intertidal species, and the species that you're familiar with might be the lightning whelk which is in your lower left-hand corner, the state shell of Texas, marsh periwinkles which is on the next slide actually is a depiction of those kinds of species.

Again, we basically are proposing two actions for adoption to deal with this issue and the first one is a seasonal closure. That closure would occur from November 1 through April 30 which coincides with the very low tide periods that we have in this area where these shells are especially susceptible to live harvest at that time.

In addition, due to the life history characteristics of these animals, they're especially susceptible at this time as some of them are in their mating patterns and so forth. So that's the reason that time frame has been chosen.

Again, in this area we're actually calling for the closure to deal with live shell-bearing mollusks, their shells, starfish, and sea urchins, and of course the area that we're talking about is in that South Padre Island area, and this map depicts the actual area.

It will run from the end of the North Jetty at the Brazos Santiago Pass, going to the inshore or inside bay area, and then basically maintain itself out 1,000 yards going up north towards Marisol Drive.

The second proposal that we have before you is a statewide bag limit dealing with these univalve snails and we would set a bag limit of 15 univalve snails in the aggregate. Within that bag limit we would propose that no more than two could occur in the bag of lightning whelk, horse conch, Florida fighting conch, pear whelks, banded tulips, and the Florida rock snail.

In summarizing the public comment that we've received on these proposals, for the closed area we've received 128 individuals who supported the closure, only ten individuals who opposed the closure. For the bag limit, similar support, 119 individuals and four people who opposed that. Roughly 92 and 96 percent, respectively, are in favor of the proposal.

With that, staff still recommends the proposals that we had before you in January, as published, and I'd be happy to answer any questions at this time.

COMMISSIONER FITZSIMONS: Any questions for Robin and Coastal Fisheries?

(No response.)

COMMISSIONER FITZSIMONS: Robin, thank you.

Next up, Mike Berger

MR. BERGER: Good morning, Mr. Chairman, Commissioners. Mike Berger, director of the Wildlife Division, to talk about the hunting parts of the Statewide for '05-06, including changes affecting white-tailed deer, mule deer, turkey, lesser prairie chickens, quail, and some other miscellaneous hunting provisions.

These were posted in the Texas Register and elsewhere for public comment.

The first has to do with our doe day regulations. There are currently seven different regulation possibilities around the state. We are proposing to reduce those in number, simplify and expand the opportunity for does, and these will range from the white counties where closure would still be in effect without a permit, to the green counties which are a full season.

So you can see that most of the state would have a full season for does without permits. In most counties this represents an expansion of opportunity.

The public hearings and public comments were overwhelmingly in favor of these. If you're interested, I can go through the numbers for each one, but they are on the order of 150 to less than ten in favor.

Also, there are 171 counties in the state currently that have a one buck bag limit, divided into East and West zones, this is the blue counties and the red counties.

Currently hunters are restricted to harvesting one buck from each zone, so you could take one buck in the West and one buck in the East.

Our proposal would eliminate the zones and the aggregate bag limit, meaning that you could take all three of your deer buck tags on your license as long as you didn't take any more than one buck in any of the one-buck counties.

Also, there are 47 two-buck counties, the green ones there, the same kind of difficulty applies now. If you take one buck in a one-buck county or you take two bucks in one green county, you couldn't take your third buck in a green county. So our proposal is to eliminate those and the aggregate bag limit as long as you don't exceed the county bag.

COMMISSIONER FITZSIMONS: I didn't follow all that, I'm glad you illuminated it.

MR. BERGER: It's going to make it easier for everybody.

So this is what the map would look like, one- and two-buck counties following this change.

If we adopt the proposed increase in the buck bag limit in the counties that had the antler restriction regulation, the light green counties here, those would move into the two-buck county rule.

Again, the comments were overwhelmingly in favor of these proposals.

You heard Bob Carroll at the last meeting give you an update on the antler restriction results, and how positive that was and what good became of the deer herd there. The proposal is to extend a similar regulation into 15 additional counties, all shown there.

The green counties, the regulations were in effect for the last three years and the 15 others are being proposed for the upcoming season.

In those 21 counties, the proposal would be that a legal deer would be defined as having a hardened antler protruding through the skin and at least one unbranched antler or an inside spread measurement between the main beams of 13 inches or greater.

So this would become a two-buck limit, at least one of which must have an unbranched antler. So a person could take two deer with an unbranched antler, but only one deer with 13 inches or greater inside spread.

Again, the public comment on this was overwhelmingly in favor, running higher than 90 percent in favor of this resolution.

COMMISSIONER FITZSIMONS: Now, the original counties that we did that in, are they going to two bucks?

MR. BERGER: Yes, all 21, 15 new and 6 previous will all have this new regulation.

Mule Deer, MLD. At its January meeting, the Commission discussed various options and facets of a managed land deer program for mule deer, and directed the staff to publish a modified proposal for public comment. And as you know, this proposal generated lots of discussion and comment.

As proposed, the program is completely voluntary and to participate a landowner would need a wildlife management plan that would include population survey data for the current year and two preceding years, harvest data for two preceding years, and be conducting three habitat management practices on his land.

And in return, under that proposal, the season would be extended and would begin on the first Saturday in November and extend through the first Sunday in January.

And as I mentioned, there was lots of public comment, and I could break it down by how it came in, but the comment totals were 2,493 in favor of the proposal and 1,469 opposed to the proposal.

MR. BASS: Mike, that would have a restricted take component.

MR. BERGER: There would be a harvest quota on those properties receiving that permit.

Concerning spring turkey seasons, we have currently four different regulation possibilities here. Again, in an effort to simplify and increase opportunity, we would expand that area to the red would have basically an additional week of hunting every year. The bag would be four birds, gobblers only. These are all Rio Grandes.

The majority of the counties in brown in the East are where Eastern turkey have been stocked. The western-most counties, the Coastal Prairie counties, are home to some Rios as well, particularly the northern part of those Coastal counties. But all these counties would have the same season and bag limit for Rios as they have for Eastern.

The Eastern birds would still have a mandatory check station requirement and the means limited to shotgun only.

Again these were overwhelmingly in favor of these proposals.

For fall turkey season we have different kinds of restrictions and there are more of them. Again, particularly in the counties west of San Antonio there's some confusion.

We would propose the fall turkey season, simplify the seasons again over large areas, and make them consistent with the general deer season in those areas. So that the red counties would run from the North Zone deer season: first Saturday in November to the first Sunday in January and have four birds either sex.

The South Texas counties run the South Texas season from the first Saturday in November to the third Sunday in January, four birds, gobblers or bearded hens.

And there's a special hunt area in the Southeast.

The public comment again for all of these was overwhelmingly in favor of these changes.

We'd also like to recommend a youth-only spring turkey season that would be the weekend immediately before and the weekend immediately after the regular Rio Grande turkey season in the spring.

The comment again was overwhelmingly in favor of this proposal.

COMMISSIONER MONTGOMERY: Mike, in reading this does the youth season apply everywhere? It seems like it was restricted to certain counties and I wasn't sure about that.

MR. BERGER: This would not apply to Eastern birds. This would only apply to Rio Grande counties.

Managed Land Programs for lesser prairie chickens. We know that they've been losing habitat for decades along with other prairie grouse species, and a number of these species have recovery plans in the works.

And staff feels it's appropriate to take action now to protect the remaining scattered populations of prairie chickens while we formulate plans and habitat management plans to help them recover and develop partnerships with landowners.

And while we're developing these and we have an active program right now to work with other states, federal agencies, Department of Agriculture to develop partnerships to help develop a plan to recover these species.

We would propose that we allow hunting only on properties with an active wildlife management plan with a lesser prairie chicken component in that plan. Those properties would have a harvest quota and hunters on those properties would be subject to the same season which is two days now and the same bag limit which is two birds a day.

Again, this proposal received overwhelming support.

Managed Land Program for quail, this was a proposal that generated quite a bit of lively discussion by the public, by the Quail Technical Committee and the Quail Council.

The Quail Council met last week and indicated its support of the managed lands concept of using incentives and flexibility to encourage habitat management.

The council believes that an MLQP focused on habitat development and improvement and that incorporates a scientific basis for flexible harvest management, using seasonal quotas instead of a daily bag, would further enhance Texas' reputation as a leading state when it comes to quail conservation.

Therefore, at this time the staff would recommend that this proposal be postponed until the next regulation cycle in order to give the Quail Council, private landowners, hunters and other interested parties time to develop a less contentious recommendation for habitat and resource conservation.

Hunting by remote control. Technology has reached a state of development that allows firearms to be controlled by computer from a number of remote locations. Such an apparatus theoretically could be used to hunt birds and animals, and under such a scenario the Department would have no way of establishing compliance with our licensing laws.

The Commission possesses the authority to regulate the means and methods used to take game animals and game birds. And so our proposal is to require that a person hunting game animals or game birds must be physically present and personally operate the means of take.

Again, this generated quite a bit of public comment. There were 304 in favor of the proposal and 14 opposed. It's interesting that 12 of the 14 opposed were opposed to the concept but misunderstood the question. So in fact, there were only two people who were opposed to this.

COMMISSIONER HOLT: And it was in the paper this morning I guess there is a guy who is going to try to do that hunt. Did you see that?

MR. BERGER: I missed that this morning.

COMMISSIONER HOLT: It's in San Antonio's paper. There's a paraplegic in Indiana or something and he's going to have him shoot a black buck on his property in Bulverde, I think, or something in that area.

This wouldn't go into effect until when?

MR. BERGER: September, the new license year.

COMMISSIONER FITZSIMONS: Does it have any effect on exotics, as he said?

MR. BERGER: We can only regulate game animals and game birds and not exotics.

COMMISSIONER HOLT: So you'd have to have a bill passed through the legislature.

COMMISSIONER FITZSIMONS: There is a bill.

MR. BASS: You have to have a hunting license to hunt an exotic, so there's no avenue for regulation?

MR. BERGER: Well, there's no way to check if a person is out of state, that's one of the problems.

COMMISSIONER HOLT: This fellow I think is in Indiana that's actually going to be, quote-unquote, pulling the trigger.

COMMISSIONER FITZSIMONS: Chairman Bass is right. He still has to have a license to kill the animal in Texas.

COMMISSIONER HOLT: To shoot that black buck. That's a good point, I hadn't thought about that.

MR. BERGER: That's correct.

(General talking.)

MR. BASS: Doesn't that open some form of avenue for regulating the conduct of the hunt?

COMMISSIONER MONTGOMERY: Can we authorize an out-of-state travel fee?

COMMISSIONER FITZSIMONS: Well, the license can't be used to hunt remotely.

COMMISSIONER HOLT: We need to think about that. There's got to be a way we could probably do something through regulations.

COMMISSIONER FITZSIMONS: And then we're not reaching over into the non-game exotic issue, where you don't want to be.

MR. BASS: The licensee must be physically present on the hunt.

MR. COOK: That's where we're headed. We're coming at this from about three or four different directions, and one way or the other it's going to get regulated, whether it wants it or not.

COMMISSIONER FITZSIMONS: License isn't valid unless you're present.

COMMISSIONER RAMOS: The license is valid but it's an illegal hunt.

COMMISSIONER FITZSIMONS: If you're not present.

MR. BERGER: For game animals and game birds.

MR. BASS: But I'm saying if you have to have the license to hunt non-game, exotics, then there ought to be an avenue there.

COMMISSIONER RAMOS: But we could regulate that if you hunt an exotic, you have to be present. Our license is not to be used for hunting outside of the state, you'd have to be physically present during the hunt.

COMMISSIONER HOLT: Make sure you're physically present at the site of the hunt.

COMMISSIONER FITZSIMONS: Whoever thought we'd have this.

COMMISSIONER HOLT: I know. Luckily everybody seems to come out against it, so I assume, as you said, Bob, it's going to get figured out.

MR. BERGER: There are a number of states that have proposed statutes, and I think one has already adopted a statute.

COMMISSIONER FITZSIMONS: Virginia, I saw in the paper.

MR. COOK: I'm pretty sure that we'll solve it this time and they'll invent some new idea.

MR. BERGER: We'll work on that other, look for a way to require that as well.

COMMISSIONER FITZSIMONS: Out of curiosity, because you and I worked on the lesser prairie chicken project and that's something I've taken particular interest in, what are the management practices for the managed lands and the lesser prairie chicken?

MR. BERGER: They're the usual suspects that you would think of. There's brush control or brush management to be sure that you have the right combination there. There's burning, removing exotic species on CRP lands for example, conversion of those properties to native grass mixtures that would provide that habitat.

COMMISSIONER FITZSIMONS: Did you get pretty good interest from the landowners with the remaining habitat?

MR. BERGER: The landowners who have chickens or still have some native country — as you know, we conducted six public hearings with landowners and the representatives of the Fish and Wildlife Service and the Department of Agriculture, the NRCS and FSA in the Northeast Panhandle and the Southwest Panhandle a few weeks ago — and the interest of landowners with larger properties, some that still had chickens, they were very interested in having more chickens, and those that used to have chickens are interested in having chickens back.

So yes, there's some interest up there. Whether we can convert large acreages of what's now cotton back to native.

COMMISSIONER FITZSIMONS: You bring up the point of CRP and the federal programs, that was the number one charge I gave the Game Bird Advisory Council was to work on specific recommendations to the Farm Service Administration to make our farm programs, particularly the CRP, more wildlife friendly.

Because it's crazy, you have this conversion of literally hundreds of thousands of acres in the Panhandle and there's no incentive for native — to go back to native. You've lost this great opportunity and when it's Old World Bluestem, it might as well be paved as far as the chickens and the quail are concerned.

MR. BERGER: There are now provisions in CRP for mid-contract management. Natives is still a little bit of a concern because the cost of the seed is much greater. So we're looking for ways to improve the incentives for landowners to have that, we're looking at private sources or other ways.

And when the new CRP contracts come up — and this is as many as 2 million acres that are going to be up for renewal of those contracts in the next two years because those contracts are expired, so there's tremendous opportunity to change the way those contracts are administered and what the requirements are for those landowners to become eligible in that program.

So I think there's hope for making some changes there that will benefit the chickens.

COMMISSIONER FITZSIMONS: And that will have to be done in the next, I guess the next reauthorization of the Farm Bill is '07.

MR. BERGER: '07 is the next farm bill. But I think it's all allowed in the current Farm Bill, it's how the regulations and how the various states implement that, and we're working with the other states to understand how some of them have been a little more successful than Texas has been in that regard are doing it, and we can do that in Texas too. I think we can get some positive feedback on that.

COMMISSIONER MONTGOMERY: Are the new provisions in the CRP communicated well and understood by a significant number of landowners? When I was there two years ago, there was a lot of confusion about how you actually access funding in the bill, and that was before the new bill.

MR. BERGER: It's a continuing challenge. Some of the meetings we attended, there were some people there that basically said no, you can't do that, and our guy, Chuck Kowaleski, our Farm Bill coordinator, he would speak up and say no, that is possible but you have to come in and ask for it.

And I think there's not the outreach there necessarily that says this is available, come to us and we'll make it happen.

So our challenge is to communicate to the landowners that these changes are available and know that they can go into an FSA office and demand that these things be done.

COMMISSIONER MONTGOMERY: Are we doing all that we need to do to communicate that? It seems like that's really the key.

MR. BERGER: We have a meeting coming up at the end of this month in this building with, we hope, the five lesser prairie chicken states with their wildlife agency directors, their FSA directors and their NRCS directors to all work on and exchange ideas and understand where the problems are, and arrive at a means of solution.

So that is coming up. We're working on that to get that done.

MR. COOK: That meeting also includes U.S. Fish and Wildlife Service.

MR. BERGER: Yes.

COMMISSIONER FITZSIMONS: And Kansas has had some success. Right?

MR. BERGER: Right.

COMMISSIONER FITZSIMONS: We had a presentation several meetings ago, and as I understood it, one of the reasons for Kansas' success on lesser prairie chicken habitat was that they did have, through their state technical committee — is that right?

MR. BERGER: Yes.

COMMISSIONER FITZSIMONS: A scoring system that provides the incentive for native over exotic.

MR. BERGER: And that's one that we'll be working on at that meeting.

We're in the process of developing our own plan for recovery in Texas. I designated one of our diversity folks in West Texas that this is her job and offered her services to the other states for interstate development of a plan that will recover lesser prairie chicken across its range.

We've also been working closely with the Fish and Wildlife Service on a CCAA. This is a Candidate Conservation Agreement with Assurances which would allow people who are enrolled in this Managed Lands Program to have assurances if they increase prairie chickens on their property and the prairie chicken ultimately gets listed, they're protected under Section 10 of the Endangered Species Act. So that's an incentive to be enrolled.

COMMISSIONER FITZSIMONS: That's the reason for my particular interest in this is to avoid that last point because if we don't do it in partnership with the landowners — and the landowners are the one that are going to do it, that's where the habitat is, they're the ones that make the difference — then we'll have a federal judge doing it for us.

MR. BERGER: Yes. But I think there's a lot to be optimistic about at this point in working with landowners.

COMMISSIONER FITZSIMONS: That's good news.

Any other questions for Mike?

MR. BERGER: The other proposal, as Clayton mentioned earlier about trying to get a review process, the White-tailed Deer Advisory Committee has recommended a review process for all permits.

And at this time under our proposal this would relate to MLD and antlerless and spike buck control permits.

The document, as Clayton said, again just to reiterate, your briefing book refers to this as an "appeals process" and we would change that to a "review process" to be sure you understand it is not a judicial matter.

COMMISSIONER HOLT: It's a review process if you get turned down.

MR. BERGER: Yes, sir.

MR. BASS: If you get turned down and you request the review.

COMMISSIONER HOLT: And you request the review.

MR. BERGER: The comment again was overwhelmingly in favor of that item.

And the last item is trailing wounded deer with dogs. This is a cleanup matter. When the Department began to relax restrictions on the use of dogs to trail wounded deer, Hunt and Washington Counties were left out at that time, and Wildlife and Law Enforcement have determined that there's no longer a need for this restriction in those counties.

The blue counties are the ones that retain the restriction on trailing deer with dogs.

Again this was overwhelmingly in favor of the proposal.

That concludes our presentation. I'll be happy to answer any questions you might have.

COMMISSIONER FITZSIMONS: Mike, thank you. I know at some point we have to get on to Ned's finance committee so that we'll have some money to do all these projects.

John?

COMMISSIONER PARKER: Going back to the MLDP for mule deer, I'd like to have you to give us a little bit broader explanation of that proposal.

MR. BERGER: Well, the proposal says that to be eligible under this you would have to have a wildlife management plan with Parks and Wildlife, and a part of that plan would be the requirement for population data — meaning the current year's population and two previous years' population data, the previous two years of harvest data, age, weight, antler information, and be conducting three habitat management practices that would be described in the wildlife management plan.

A landowner doing those things rolling in that program would receive an extended hunting season for mule deer.

As the Chairman Emeritus pointed out, there would be a harvest guideline, a harvest recommendation to that landowner describing the numbers.

COMMISSIONER PARKER: So that's a hard cap.

MR. BERGER: A hard cap, that's correct, sir, the number of deer that may be harvested on that property under that permit.

And in return for doing those things, that landowner would be able to hunt that property over a longer period of time, starting early in November through the first Sunday in January.

COMMISSIONER PARKER: And you mentioned 2,400 people being in favor of it and 1,469 being opposed.

MR. BERGER: Yes, sir.

COMMISSIONER PARKER: The 2,300 were on petitions, the 2,300 out of the 2,400 that were for it, they were on a petition?

MR. BERGER: That's correct, sir, 2,326 came in in the form of petitions and form letters.

COMMISSIONER PARKER: What was the date of those people signing that petition?

MR. BERGER: I couldn't tell you offhand.

Robert MacDonald, do you have the date of that petition?

MR. MacDONALD: Mr. Chairman, members of the Commission.

I do not have the exact date on that petition, however, it was presented at the Alpine public hearing by a concerned landowner who had collected it. So that would have been late March sometime.

COMMISSIONER PARKER: It wasn't the petition that was named or obtained at some sort of a convention or something like that?

MR. MacDONALD: I have no idea how they collected the signatories.

COMMISSIONER PARKER: The date on the petition, you don't know what the date was?

MR. MacDONALD: I don't know. I assume it to be early March sometime. I'll be happy to research that to get that information to you.

COMMISSIONER PARKER: Okay. My big concern, and I have been concerned — I don't have a dog in this fight, I don't hunt deer, I don't hunt mule deer, but the concern that I have in this was what happened at the last meeting when we heard from Clay Brewer when he made that presentation.

And you know, Chairman Fitzsimons asked me in an e-mail if I'd read pages something through something in the discussion of last time. Yes, I've read it and I've marked it up, I've read it probably 15 or 16 or 17 times, going back and asking myself questions about it.

And what haunts me about this whole situation is that in this presentation and in this discussion the word "compromise" is used ten times. I'm not speaking biology-schmiology, this is not a biological situation here.

Going back to 2003, in May 2003 the Commission, Mrs. Armstrong's chair, I understand sent Mr. Brewer back to West Texas to work out a compromise, and he did that. He worked for over a year on that compromise, but when he came back and presented the compromise, everyone was happy with — as I understand there's two sides, the fors and the aginners, like the Hatfields and the McCoys out there.

But the fact remains that our biologist, who was sent to do a specific job, did that job and he took the Hatfields and the McCoys and made one happy family out of them. But at the last Commission meeting, because of action taken by the Commission, they became the Hatfields and the McCoys again.

And I simply cannot understand how one — commission — but several of the people are here that were on that commission — one commission assigns a job for a person to do and he goes and does that job, and he comes back and makes a presentation to a later commission meeting, and that commission said no, that isn't what we're going to do.

To me that creates strife and ill will, not only to the Hatfields but to the McCoys too, no matter which way you look at it.

What we had was a happy family, what we wound up with is two groups who are now enemies not only to themselves in their community out there, but they are enemies when they look at government and how we do business.

And to me, when I send a person out to do a job and he does it, I commend him for it, I commend him for doing the job that he was sent to do.

I just think it's bad policy to do something to a junior staffer that would cause him to look bad when he in fact did the job that he was sent to do.

And you know, it's just not in the treatment of a junior staffer and what that treatment created out there, it is a matter, to me personally as I sit on this Commission, a matter of honor.

With that, I also want to say that I do not — in fact, it's so important what I want to say, I want to read it because I don't want to leave something out.

Having made that statement, I want everybody in this room to know that Chairman Fitzsimons has tremendous leadership skills, I know that those skills have been demonstrated without measure in his vast knowledge of private property rights, with his tremendous contributions of ideas and the origination of those ideas creating the Texas Wildlife Association from its inception.

And I add those remarks about our Chairman to be absolutely sure that no one leaves this room thinking that I have anything but the utmost respect for Joseph and his ability to lead.

Those are my thoughts.

COMMISSIONER FITZSIMONS: Thank you for those kinds words, John.

MR. BERGER: Appreciate those comments.

COMMISSIONER FITZSIMONS: Any other questions or discussion? Ned?

COMMISSIONER HOLMES: I'd like to ask just one question. Is the primary difference between what was discussed in the last meeting and this proposal the extension of the season?

MR. BERGER: Yes, sir.

COMMISSIONER HOLMES: Is there another distinction that I missed?

MR. BERGER: No, sir.

COMMISSIONER FITZSIMONS: And to be consistent, as I understand it, with the white-tail.

MR. BERGER: Those are the same starting and ending dates as the white-tail season over the majority of the state.

COMMISSIONER HOLMES: And is the rationale for being co-terminus with the white-tail season that it's easier to regulate, or is there some other rationale?

MR. BERGER: I think it's just a matter of consistency and lack of possible confusion with dates that started in.

COMMISSIONER HOLMES: I'm sorry, lack of possible confusion of what?

MR. BERGER: Possible confusion. I mean, people understand that the white-tail season opens on the first Saturday in November and closes the first Sunday in January, and I think hunters generally acknowledge that.

And if the season were to open on the first Wednesday in November, for example, and close Christmas, that would create some misunderstanding, but there's no biological reason for it to open on that particular Saturday and close that particular Sunday.

COMMISSIONER HOLMES: Before you start, let me just complete the thought. Currently and in past the seasons have had different dates?

MR. BERGER: Yes, sir. They do now have different. All mule deer under the current rules have 16-day seasons, and depending on what part of the state they're in, they're different. One part has a 9-day season.

COMMISSIONER HOLMES: And do you think that the adjustment from a 9-day season or a 16-day season to one that was longer but not all the way till the end of white-tail would be hard to understand, given that they've been living with a shorter season already?

COMMISSIONER FITZSIMONS: It's not a season we're talking about, it's the MLD part.

COMMISSIONER HOLMES: So the current season would exist on properties that do not have.

COMMISSIONER FITZSIMONS: Absolutely.

MR. BERGER: That's correct, and we're not changing that.

COMMISSIONER FITZSIMONS: And that's the whole point, the people who are against it, they're not affected.

COMMISSIONER HOLMES: And so the follow-on point is that — I'm having a little difficulty understanding the rationale about the white-tail season. If the properties without the permit stay the same so you'll end up with a bifurcated season which we have in the white-tail.

MR. BERGER: The current season — I'm trying to remember off the top of my head, but I think it is — in five Southwest Panhandle counties it's a 9-day season that starts, I believe, the Saturday before Thanksgiving through the Thanksgiving weekend; in the Panhandle I think it starts after Thanksgiving and goes for 16 days; and in the Trans-Pecos I think it starts the Friday or the Saturday following Thanksgiving and goes for 16 days.

COMMISSIONER HOLMES: And what was the proposal at the last meeting?

MR. BERGER: The proposal was to have all the harvest data and habitat management provisions that the current proposal has, and it was to start the hunting season for people with the managed land permit for mule deer to start the first Saturday in November and run through what is now the regular season.

COMMISSIONER FITZSIMONS: The regular mule deer.

MR. BERGER: The regular mule deer season.

COMMISSIONER PARKER: A lengthened season on the front-end. We have always had different seasons for mule deer and white-tail. Mule deer and white-tail cannot be — you don't manage mule deer and white-tail using the same biological arithmetic and methodology and so forth and so on.

MR. BERGER: I think the general principles are the same. The matter of selecting the season dates I think is a sociological decision.

COMMISSIONER PARKER: I'm not talking about general principles, I'm talking about if you did, then mule deer would have always had the same season as white-tail.

You know, we don't have as many mule deer, they don't act the same. Does a mule deer buck act the same as a white-tail buck during the rut?

MR. BERGER: I don't hunt mule deer so I couldn't tell you from personal experience, but I'm told that they both get silly during the rut.

I think that they act differently but only to a degree.

COMMISSIONER PARKER: But they do act differently.

MR. BERGER: They do act differently during the rut.

COMMISSIONER PARKER: And the major point here that should be taken into consideration is the fact that we have always had different seasons for mule deer, so you know, why are we now saying that we have to have the same seasons for mule deer just because it's MLDP?

COMMISSIONER FITZSIMONS: John, the rationale was more opportunity. When you read the transcript I cited to you, Clay Brewer says, "This year the rut actually started in the regular season." We don't know when the rut is going to be sometimes, it comes and goes.

The point is, as he testified, there's no biological reason to take the rut out — let me finish — and then I made the point — and this goes to your earlier comment — that there's no reason to go through this controversial program year after year after year when the fact is you're going to be here the next year arguing about what's the point into getting into MLD if it's not long enough and doesn't cover the seasons when people are there, whether the hunters maybe available if they're getting into MLD maybe to improve the hunting for their lessees, when you're not covering the vacations when those hunters are available.

You're not giving the flexibility to the landowner which has been the foundation of this Commission's philosophy is that you give people the tools.

And Clay Brewer did exactly what we asked him to do which was identify the issue, and when he identified the issue, it became clear that it had nothing to do with biology at all, and I think his term was it was all sociology, not biology, and it wouldn't change the recommendation on any Managed Land Program.

So if you go by the philosophy — which I do — that if somebody takes their private property and commits it to the improvement of a public resource, then a regulatory agency ought to get off his back and give him more flexibility and more days equal more flexibility.

Listen, I've got a lot of dear friends out there on both sides of the issue. As I sat at the public hearing, I had Jim White, who I've worked with for 15 years and a dear friend, against it, Clayton Williams, who I worked for when he ran for governor, on the other side who was adamantly in favor of it.

So you can't question anybody's motives in this debate. But at the end of the day I have to go with free choice, I have to ask myself what do you say to the person who wants to be in the program. That he shouldn't have the choice?

That's not consistent with the sort of incentive-based, voluntary conservation that we've perceived.

And I didn't want to come back, quite frankly, and do it all over again the next year when those MLD participants said we want the longer period.

COMMISSIONER PARKER: At the end of the day for Clay Brewer, at the end of that day — partly towards the end of the day, he had all the people, he had Mr. Williams and the other fellow that you mentioned, he had them in agreement for the compromise.

COMMISSIONER FITZSIMONS: But a compromise wasn't consistent with the flexibility that I think is commensurate with the philosophy that you get off the guy's back.

But we're set for public comment and the action.

Mark, do you have something?

MR. WATSON: Well, you know, this kind of reminds me of my very first commission hearing where the guys from Doss, Texas came in here and they wanted us to regulate the season so nobody would kill their breeder bucks. And you know, it's just a matter of choice, you don't have to shoot them. It's a matter of choice, you don't have to participate in the program.

And I think that for those of us that participate in MLD programs, we realize how beneficial it is, and if you don't believe that, then just don't participate but don't try to prevent other people who want to do what's best for the resource from participating.

COMMISSIONER RAMOS: And I would endorse Mark's comments. I think that our oath as commissioners is to protect the resource. You look back at the white-tail managed land deer program and there's no question that it's had a tremendous positive impact on the resource which indirectly relates to an impact on the state.

I agree with you, Mr. Parker, that it's sad that there's a split but this is a democratic process.

My commitment to this — and I was committed to this back years ago — is that I have experienced the benefits, we all have, of a managed land deer white-tail program.

It's a tool to protect and improve a resource. It's not a permanent program. If it's a failure, it's a voluntary program that could be terminated in two years. But I agree we should not keep those landowners that are progressive, that want to take the extra step, to try it. And that's why I'm in favor of it.

But more importantly, it's to protect the resource and I'm not indifferent to the ones that are opposed to it, but I have to be very much supportive of any program that is to protect and improve a natural resource because that is our mission and the oath that we took as commissioners.

COMMISSIONER FITZSIMONS: Ned?

COMMISSIONER HOLMES: Let me make one last comment and maybe we'll get on to the Finance Committee.

COMMISSIONER FITZSIMONS: See if we have any money to do any of this.

(General laughter.)

COMMISSIONER HOLMES: A few years when this came up, I was prepared to vote in favor of it because I thought it was the right type of program tool to put into the hands of the landowners in West Texas.

Now we participate in the white-tail program where we hunt in South Texas and we've seen the benefits from that over the seasons that's occurred.

I believe very strongly that we need to relook at the managed land quail program. I have a little trouble with 30-bird piece of it.

COMMISSIONER FITZSIMONS: That's off the table.

COMMISSIONER HOLMES: But I think that that's a good concept too. Any of the habitat management related programs that have a benefit of improving habitat and improving wildlife, et cetera, I think are really what we're all about as a Commission.

My main difficulty is what our credibility is when we send our staff guys out there and they make a deal and they come back. We're not going to cede our authority as commissioners to anybody, we're going to have to vote at that table, and so I think it needs to be clear that when someone goes out, they're not going out with the authority of the Commission.

Having said that, I am mindful and respectful of the position that we helped create, and I think that is a very unfortunate occurrence in this situation.

COMMISSIONER FITZSIMONS: I talk to Clayton pretty regularly and he told me that this was going to be the issue. And I told him from the beginning the problem is it's not biology.

COMMISSIONER HOLMES: Well, I haven't talked to him, he hasn't told me this, but in past experience in dealing with staff that are working on various kinds of issues and other times in my life, I have some feel for the position that you put them in, and you pull that back, I think it's difficult.

What it means to me is that we did not give him appropriate and proper guidance in the process of his discussions with the various landowners. We put him in a bad position.

COMMISSIONER FITZSIMONS: I think you're right.

COMMISSIONER HOLMES: We put ourselves and the Agency in a bad position.

COMMISSIONER FITZSIMONS: I think you're right.

COMMISSIONER PARKER: You know, I would ask Mr. Berger when you send people out to do a job like this, do you call them in for periodic reports. I mean, did you know that he had worked out this compromise?

Because I thought when he brought the compromise, I said, Thank you, we've got the whole Trans-Pecos together on a deal.

And you know, to me when I send a guy out, one of my three sons who are all in the homebuilding business with me, when they go out and make a deal, a deal is a deal. And if they come back and say I got these folks together, that would be no time to double-cross.

COMMISSIONER FITZSIMONS: John, he wasn't told to make a deal and that would be the action of the Commission. He was told to come back with a recommendation. Those are two completely different issues.

And staff make recommendations all the time, and we take them seriously, but some are amended.

COMMISSIONER BROWN: You know, this compromise, I still thought there was a tremendous amount of controversy. I didn't view that as being everybody was all in agreement anyway. I mean, there was still a tremendous amount of controversy, and there is going to continue to be.

And I know about the rut part of it, I know that was an issue, but they had problems with a whole hell of a lot of other issues in this whole Managed Land Program. I never viewed it that there was some West Texas compromise to begin with.

COMMISSIONER FITZSIMONS: They did make it rain, though.

(General laughter.)

COMMISSIONER FITZSIMONS: We'll hear a lot about it tomorrow.

Any more, Ned? Thank you.

We'll put this on the agenda for tomorrow's public comment and action.

Anything else to come before Regulations?

(Whereupon, at 11:45 a.m., the meeting was concluded.)

CERTIFICATE

MEETING OF: Texas Parks and Wildlife Commission Regulations Committee

LOCATION: Austin, Texas

DATE: April 6, 2005

I do hereby certify that the foregoing pages, numbers 1 through 119, 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.

4/20/05

(Transcriber) (Date)

On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731