Texas Parks and Wildlife Commission
Regulations Committee

Aug. 24, 2005

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

BE IT REMEMBERED, that heretofore on the 24th day of August, 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 Complex, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

P R O C E E D I N G S

COMMISSIONER FITZSIMONS: The first order of the Regulations Committee, at 10:15 is approval of this Committee meeting minutes. And I apologize. I am not ready. I did have a quick change here. We have a misprint in the Conservation —

COMMISSIONER PARKER: Are we on Conservation?

COMMISSIONER HOLMES: No, Regulations.

COMMISSIONER FITZSIMONS: I mean, Regulations. I am sorry. Yes, I think page 11. Line 11 and 12 state agencies periodically review all of their rules minimally. I think what we meant to say there was, periodically review all of their rules at a minimum of four years. I don't think we do a minimal review. Okay. Just a grammatical point. With that one change, any other —

COMMISSIONER HOLMES: So moved.

COMMISSIONER RAMOS: Second.

COMMISSIONER FITZSIMONS: All in favor?

(A chorus of ayes.)

COMMISSIONER FITZSIMONS: Any opposed?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none, the motion carries, and the minutes are approved. Here you go.

COMMISSIONER MONTGOMERY: I will yield the Dinkins Award meeting this month.

COMMISSIONER FITZSIMONS: The Dinkins Cup has been retired. Anybody who attempts to reclaim it will be labeled the grandstander they are. Okay. Nobody can ever do it like Carol Dinkins did.

Mr. Cook, Chairman's charges? Committee item number 1.

MR. COOK: I believe we have completed all the Chairman's charges from this year, and as I mentioned earlier, we are in the process of developing charges for the coming year.

COMMISSIONER FITZSIMONS: Very good. Thank you.

Committee item number 2, Redfish Bay Scientific Area, no prop zone rule changes. Permission to publish. Larry McKinney.

MR. MCKINNEY: Mr. Chairman, members. For the record, I am Larry McKinney, Director of Coastal Fisheries. The item before you today is a proposal to request permission to publish a rule proposal regarding no prop zone rules for Redfish Bay.

If you recall at your last session, the Commission re-adopted for a five-year period the scientific area in Redfish Bay as you see on the diagram there. These rules would have effect within those yellow identified borders. Very briefly recap on several briefings that we presented to the Commission over the last several years our concern that we have been trying a voluntary pop-up zone within that area.

They have not been effective over that period of time. The prop scarring we see there and in some of the high use areas continues, and it is cumulative. So, we continue to be concerned about that. Our research has demonstrated that restoration is not a feasible alternative.

So, we have been working with our seagrass task force and others as to what other actions we could try. And what we are proposing now is to go to a habitat-based approach within the entire scientific area that would basically make it illegal to destroy seagrass.

The rule proposal is really in three parts, and the key part of it being the definition that you see before you there. That no person shall cause or allow any rooted seagrass plant to be uprooted or dug out of the bay bottom within the Redfish Bay State Scientific Area except as permitted by rules, et cetera. That would be the rule we put into place.

The second part of the rule is a technical one, making sure that we identify what we are talking about; seagrass. Identify them in scientific terms. And then made known to destroy seagrass within an area is a Class C misdemeanor.

If we were to move forward with this rule, the rule would not be on its own. We are working with an outreach effort, where we would be looking at trying what we have learned over the last several years and try to improve that. And we have several partners that are lined up to work with us there. Coastal Bend Bays estuary program, the Fish and Wildlife Service, the Nature Conservancy have all committed funds and resources to help us on that outreach and education program to make sure people understand what we are trying to do.

We are also in the process right now, perhaps even today, of laying out a study proposal, an approach that will allow us to objectively evaluate the effect of these rules over that period of time, so we can see if they are working or not.

With that, members, I would be glad to answer any questions. And today of course, I am seeking permission to propose this as a rule for public comment over this period of time. Yes, sir?

COMMISSIONER BROWN: Can you — are you able to run in those areas with jet drive boats?

MR. MCKINNEY: You can run in those areas with anything, as long as you don't, basically cut a rut and plow up the seagrass. That is right. You can run in it with a prop, if you have a boat that will allow you to run across the surface, that is fine.

If that prop drops down and starts throwing up mud and cutting a trench and uprooting the plants, according to that definition, that would be a violation. But jet boats will not do that.

COMMISSIONER FITZSIMONS: Mr. Friedkin?

COMMISSIONER FRIEDKIN: Practically speaking, how do we enforce that? Or how do we —

MR. MCKINNEY: Well, that is going to be part of the challenge. And that is why we are doing this in our stated time to hear it. It is a project to see if we can. And that is something we will have to work with law enforcement to see if it is a practical application. We wanted to try that.

I mean, our only alternative to doing something like this is to actually, if we are going to remain concerned about protecting seagrass in these areas, and we all are. It is basically to go to closure areas. There will be no props in these areas. Not voluntary, but no props. And we'll have to pick out areas and close them off for that regard.

And really, none of us want to do that. Now, that is easily enforceable. Because obviously, if the boat is running with a motor in those areas, then they are in violation.

But we would prefer to try this approach first, to see if we can allow those people who know how to operate in these shallow areas with a boat. And if they have the technical equipment to do it, they know how to do it, we would like to do that as a minimum interference to their pursuing their activities that they are doing.

COMMISSIONER FITZSIMONS: There is no lack of use in this area. I have kayaked this country pretty extensively. And I will tell you, the voluntary is not working. And I think it is incremental in a way.

You are recognizing that there are people that can do this without harming the resource. And you are giving them an opportunity for them to still boat in this area. This picture doesn't even do it justice, the damage.

COMMISSIONER BROWN: Do you have defined run zones within this area now, or are you just saying, if you can enter this area and not actually cut a rut, then you can do whatever you want to?

MR. MCKINNEY: That's —

COMMISSIONER BROWN: Well, no. But I mean before, didn't we at one point, we actually had defined run zones in this area?

MR. MCKINNEY: We had defined no prop zones where they couldn't do it.

COMMISSIONER BROWN: Or no prop zones in effect.

MR. MCKINNEY: Part of what we are going to do with this though, and we are in the process. This is what we are working with our partners here. We are going to identify areas where you can run into these areas and deeper water areas and put signs and things up to help people navigate through there. To help them do it to avoid that great problem. So, we are going to do a lot of that if we can.

COMMISSIONER BROWN: And then maybe allow you to drift through the area to another area where you can run out.

MR. MCKINNEY: Yes. We are trying to work on all those types of things. Yes, sir. As I was saying, and Chairman as you said, this is an incremental approach. I mean, before I come before you, and I hope I don't have to do that in my tenure here.

But before I come before you all and say, we need to close down certain areas, I mean, close them down, I want to have tried every other option that I can to make sure that we can accomplish that conservation goal. And we are in that second phase right now. Yes, sir.

COMMISSIONER FITZSIMONS: John.

COMMISSIONER PARKER: You said that you were going to put up these signs if we can?

MR. MCKINNEY: Oh, no. We are going to do that. We are going to put up, with our partners, signs that mark out shallow areas. Signs that will mark out, here are deep areas in which you can run, so that people know how to come into these areas, and places that they can turn around and drift to, those types of things. And that is all part of this experimental work.

How can we best to do that? What is the best and easiest way to get this information out to the public. I mean, a lot of people and Chairman, as you know, in this particular area, the boat ramps in this area are the heaviest used in the State of Texas. I mean, the numbers of boats down there on a summer weekend are phenomenal.

And many of you know that. And the groups working, there are people who know how to operate boats there, and there is lots of people who don't. So, if we can just help a lot of those people that don't know how to do this, and keep them out of trouble.

Believe me, no one really wants to get in there and turn up that grass with their props or motors. No one wants to do that. When they are doing it, it is because they messed up. And we all mess up. And I have, too. So, if we can help on that side of it, that is what we want to do.

But there is a point you have to say, if you are tearing up that grass, the best way to get their attention is to make it illegal. That is a strong educational tool.

COMMISSIONER FITZSIMONS: Are you looking at — I am sorry. Jack?

COMMISSIONER BROWN: Are you looking at other areas, too? Because you know, like at right outside of Corpus Christi there, going into the new channel, going out to the Gulf, a lot of those flat areas in there, I am not sure that people need to be running through there and tearing all that up.

But to me, it seems like too, we need to be in areas, as far as enforcing it. Like Commissioner Friedkin said, it has got to be in areas where we can enforce it. Some of them are so remote, there is no way that we can really do it.

MR. MCKINNEY: Right.

COMMISSIONER BROWN: But, you know that would be another area that I would think we might want to look at.

MR. MCKINNEY: There are several areas and high use areas of people coming in and out of areas, that we would like to look at. We are doing this in experimental way here, to see if we can do it. If we can learn, what do we learn from this process? We would like to apply statewide. We wanted to start small and make sure that we can figure out all the problems.

We are not sure if this will work. We don't know. And more than likely, we will have to make some modifications from several aspects, to see if it will work. So, we are in an experimental stage right here, to see.

Nobody else is doing this. And we thought Florida had tried this approach, but in fact, they have just gone to closed areas. And they are watching us over here, saying, well, maybe you all give it a try. Because we don't like to close off areas, either. So, we are kind of in the cutting edge on this thing to see if we can make it work.

COMMISSIONER FITZSIMONS: Ned.

COMMISSIONER HOLMES: Let me make sure I understand the incremental approach, which I think you really are on the right path, trying to help people get there without actually closing it. But the distinction between the no prop zone rule that applied up until now, versus making it a misdemeanor to destroy the seagrass — is the only distinction that it is in the name and the fact that it is now a misdemeanor? It was not a misdemeanor before?

MR. MCKINNEY: No. Before, it was voluntary. We identified within that area, there was some small areas, three small areas, relatively small areas that were voluntary no prop. And that basically, we just asked people not to do that. There has never been a mandatory. The only mandatory no prop was in Nine Mile Hole, down in South Texas.

We have never had any mandatory action here. It was all a voluntary-type thing. So, the incremental things. We have started with a voluntary in areas. And now we are going to go to across the entire area, not to destroy seagrass.

COMMISSIONER HOLMES: And what was your thinking on eliminating the mandatory no prop piece of it?

MR. MCKINNEY: That was in Nine Mile Hole. There was never one here in this Redfish Bay.

COMMISSIONER HOLMES: I understand that. But why wouldn't you include a mandatory no prop?

MR. MCKINNEY: Oh, rather than just the entire area?

COMMISSIONER HOLMES: In the entire area. Rather than just the destruction of the seagrass?

MR. MCKINNEY: I am sorry, Commissioner.

COMMISSIONER HOLMES: Okay, right now, you can — I think I understood you to say, you can run a prop in this entire area. Right?

MR. MCKINNEY: Yes, sir. Anywhere in this area.

COMMISSIONER HOLMES: It is just if you destroy seagrass, then there is a penalty.

MR. MCKINNEY: There is a penalty. That is correct.

COMMISSIONER HOLMES: Why wouldn't you make it a penalty to run a prop in the area?

MR. MCKINNEY: In the entire area?

COMMISSIONER HOLMES: Well, unless you have some designated —

MR. MCKINNEY: Well, the next thing would be to go into some areas here that were highly scarred, highly used by some criteria, say, the 70 or 80 percent. Lots of prop scars. And de-mark those, and say, and be very specific for those areas. That would be one way to do it.

COMMISSIONER HOLMES: But that would be the next incremental step?

MR. MCKINNEY: That would be the next incremental step, is to —

COMMISSIONER HOLMES: Because we are kind of headed there, don't you think?

MR. MCKINNEY: I am afraid so.

COMMISSIONER FITZSIMONS: Yes. I think the point is, is that we are in this interim step. We are getting those who are capable of running without destroying the resource. An opportunity to show us they can do that. And not — I guess, if I can speak for it, we are looking the result, rather than the tool that is being used. We may be headed that way. But voluntary was not a good experience.

COMMISSIONER BROWN: And there are certain areas that there is absolutely no way they can run through there without scarring it. And it is going to depend on water depth and certain things like that.

MR. MCKINNEY: There is. That is absolutely true. Time of year.

COMMISSIONER BROWN: The time of year, and the depth of water. But in certain areas, it is just — unless you are in a jet drive boat.

MR. MCKINNEY: Correct.

COMMISSIONER BROWN: Otherwise —

MR. MCKINNEY: Or airboat.

COMMISSIONER BROWN: Or an airboat. That is the only two choices.

COMMISSIONER FITZSIMONS: We are giving the discretion to the skilled angler and boater. I mean, obviously, there are fewer of those than there are of the other.

COMMISSIONER RAMOS: What is the estimated recovery period for a damaged area? Let's say, in other words, if you go in there and you damage it, can the resource bounce back in six months or a year, or —

MR. MCKINNEY: It depends on the type of seagrass. If it is the turtle grass, which is extensive in this area, it can be as long as nine years, or not at all. For other grass, it is three to four years. Something like that. So, it depends on the grass.

COMMISSIONER RAMOS: So, the scarring really has a long term impact on it.

MR. MCKINNEY: We are finding that to be the case.

COMMISSIONER FITZSIMONS: John.

COMMISSIONER PARKER: Two items. Do you have plans in the making to seek our friends in the media to assist in this program?

MR. MCKINNEY: Absolutely. And we have good support from the folks down there, of getting information out. It is excellent.

COMMISSIONER PARKER: Okay. Very good. Then, is there anything from law enforcement that is going to create problems from them?

MR. MCKINNEY: Well, it is going to be a challenge. And I think that is what I was referring to here. That will be our next increment. When we go to our law enforcement guys, which we greatly appreciate, when we lay out a rule, they say, yes, we can enforce it. And they always try.

But there is practical issues here that they have got to deal with, and that is what we are going to try to learn. And if we can't practically do it, if we can't come up with a way to practically do this, then we have to go to that next increment. The law enforcement ability to do the job that we are going to ask them to do will dictate, frankly, where we have to go.

COMMISSIONER FITZSIMONS: And in a lot of ways, as a practical matter — and Robert, you have got more experience down there than anybody, but — it is going to fall on the professional guide community to set a culture of getting the word out.

MR. MCKINNEY: The word out.

COMMISSIONER FITZSIMONS: And you find this on rivers with professional river guides. They are the ones that really get the general public.

MR. MCKINNEY: They are the role models that people look to and talk to.

COMMISSIONER FITZSIMONS: And we are giving them an opportunity to lead in an area that they have the greatest investment in. So, we will see if they can. John.

COMMISSIONER PARKER: Do you reckon we might be able to hear from —

COMMISSIONER FITZSIMONS: Pete? Pete says, no problem.

MR. FLORES: For the record, I am Peter Flores, Director of Law Enforcement, Parks and Wildlife. On this issue, obviously, enforceability. We want to work with the communities as much as possible. Yes, in my experience on the coast, and as 12 years on the coast, yes, sir. There are some great mariners out there, and then there are some that are not.

And we do our best in the law enforcement to enforce the law as reasonable as we can. And that is what we hear, we need something that is reasonable. Our objective is to protect a natural resource that is very important to this ecosystem, this seagrass. And we want to be able to — when enforcement is something that is reasonable to the courts, reasonable to the users, and protects the resource.

Obviously, with the prop issue, from a law enforcement standpoint and my experience, if it is no prop, it is easy to enforce, and it encompasses the mission. That you can say, these areas, you may not enter with a prop. And if my wardens go out there and see someone operating a prop, it is pretty cut and dried to any reasonable person in any court of law. And that is what we have to prove, is beyond a reasonable doubt.

I understand and support Dr. McKinney in trying to work with the community as much as possible to achieve our goals incrementally, but speaking from a practical law enforcement perspective, it is an either/or proposition. No prop means no prop. You got it going, it is pretty much cut and dried.

COMMISSIONER HOLMES: Well, that is really where my question was coming from. Because I thought the enforceability standard would be a lot easier, if it was a prohibition against prop, rather than just a prohibition against destroying seagrass.

MR. FLORES: Yes, sir. And a lot of guides, in my experience, in working in these areas, they pole their way in. Or they have fan drives on the back of their boats. Not the big ones, but the small ones.

There is a number of innovative ways to get in here and reap the benefits of our fisheries on the coast. So, to prove destruction of the seagrass, outside of a prop, would be quite frankly very difficult for our game wardens.

COMMISSIONER FITZSIMONS: Do you think that — have we heard from the angling and guide community?

MR. MCKINNEY: Well, of course, we have our seagrass task force that we worked with. And we have gotten good support, for example from CCA, and some of the guides. But there is some questions there about it. There is no doubt about it.

What I have seen the community come around to, is that they all know that their livelihood depends on these protections. They see the pressure that is coming there. So, they want to do something.

Some would say, why don't we use the small area? Let's go to small areas, rather than broad area. But back and forth. So, it is a cross — it is one of those type of things that they would rather see something else, but we can't come up with anything else. So, there has been some general support to give this a try.

COMMISSIONER FITZSIMONS: Well, you could go straight to no prop. If that is where you're headed anyway.

COMMISSIONER PARKER: Do I note a little bit of heartburn beginning to build up with law enforcement over the way this is being done?

MR. FLORES: Well, we are not trying to — I don't want to say heartburn, but obviously from — our wardens want to be able to enforce regulations where we can look at a judge or jury and explain it, and make sense. As opposed to trying to explain how that prop destroyed that seagrass.

Obviously, with a prop churning, it is a lot easier to say, you just had a prop in the water in a no prop zone. Akin to you may not shrimp after 2:00 p.m., you can't shrimp after 2:00 p.m. You have got to trawl in the water. It is pretty cut and dried, for a reasonable person.

COMMISSIONER FITZSIMONS: It removes the fact issue of having to prove damage. But during the public hearing process, these different options can come out, right?

MR. MCKINNEY: We have kept it —

COMMISSIONER FITZSIMONS: So, the final recommendation may be, we may hear from the guide community. They are saying, look, guys, we are poling in there anyway.

And we are using other — jet boats, or however you do this. Or offloading tri-ax or whatever. So, we are not married to the idea of the incremental, if the community of anglers and guides tell us go ahead and get it done. Right?

COMMISSIONER PARKER: It's their resource.

COMMISSIONER FITZSIMONS: Right?

MR. MCKINNEY: Yes, sir. Absolutely.

COMMISSIONER FITZSIMONS: So, we are just out for public — understand, this isn't for action. This is to publish for public comment.

MR. MCKINNEY: Yes.

COMMISSIONER FITZSIMONS: This is not something we are doing. Right?

MR. MCKINNEY: Absolutely.

COMMISSIONER FITZSIMONS: I thought I read my agenda.

MR. MCKINNEY: And we kept the definition broad, for that perspective, so we could have that view. And believe me, I have had these discussions with our guys in law enforcement. I understand their position. So, it is kind of this balancing thing.

I would tell you, the one thing that gives me some encouragement in some regard is how our law enforcement guys handled the riverbed issue, which is a very complex one. It has a lot of subjective interpretation in it. That almost the same or very similar situation.

And they went through a process there of education, and giving out cards and doing that. And I would tell you right now, I am not hearing lots of problems in riverbeds. And so, I know these guys can do it. But believe me, giving them easier tools to make the job more straightforward with your support —

COMMISSIONER FITZSIMONS: Well to stick with your analogy, for those of you who weren't here on the riverbeds issue. It makes it real clear to say four wheel drive vehicle, or vehicle or not. So, the same situation here.

And nobody is reading between the lines here. I mean, it is obvious, it is easier for enforcement to have a no prop zone. That is clear. But I want to hear what the people who make their living down there have to say about it.

Donato?

COMMISSIONER RAMOS: I have two comments. One, to me, if the resource will take nine years to recover, and it is already damaged, it would seem to me, two things. One, I think we should take immediate steps to let is start recovering.

I think the fact that is already scarred makes his job harder. And that is the unsophisticated person that is out there fishing would see an area that is damaged and say, oh, well, here is a natural way to go. So, you are kind of encouraging to go through those areas. And at the same time, you are not letting the resource recover.

And then from a law enforcement standpoint, when he gives them the ticket, the guy is going to say, well, I didn't think there was any seagrass there. So, it makes his job in the courtroom that much harder. The resource is not recuperating. So, I am kind of leaning towards a more aggressive measure to protect the resource, since the recovery period is so long.

COMMISSIONER FITZSIMONS: That is a good point. Litter begets litter. When people see litter, they litter.

COMMISSIONER HOLMES: If it is no prop, then they can't run in the trench that was done five years ago.

COMMISSIONER RAMOS: Yes. In other words, and I am not that familiar with the area, but it would seem to me that the areas that are scarred are visible. And that is a natural channel or avenue for someone to pursue, which is defeating the whole purpose, and re-scarring it to where it never really recovers.

COMMISSIONER FITZSIMONS: I will tell you. I am pretty familiar with it. And from the level of a kayak, and it has really got a long way to go.

MR. MCKINNEY: And we can identify those areas. And we are going through a process to identify those high impact areas. And that is another approach. You are singing to the choir on both of us here, and we do appreciate that support.

COMMISSIONER FITZSIMONS: All right. Now, explain to me. We publish and you can come back. What would be the time? Walk the Commissioners through the time —

MR. MCKINNEY: Well, with this permission to publish, we would come back to you in November for possible action on that rule. What we would like to do, is whatever we do, whatever step we take, we would like to do that by January, so that we could have something in place by the boating season next spring. That is why we are acting now.

So, you would have time to take a look at this, perhaps, and if we wanted to do something that for example, Ann Bright felt that was more restrictive, or beyond what we could do within what we published, well, we could come back in January. So, we have got two shots.

COMMISSIONER FITZSIMONS: Well, you don't lose any time. It is a simple question.

COMMISSIONER HOLMES: Yes. What I would like to see accomplished is the ability to put the no prop piece in.

COMMISSIONER HENRY: Before it goes to publish.

COMMISSIONER HOLMES: Yes. Rather than just destruction of seagrass.

COMMISSIONER FITZSIMONS: The incremental. In other words, to make it plain, two choices. It is either incremental or no prop.

MR. MCKINNEY: I believe we have the time to have that before November. Ann is saying that we can make those kind of changes so that you could look at that in November.

COMMISSIONER FRIEDKIN: It would be helpful to get that map or a map. Maybe that is the map. But delineating the no prop zone, based on tidal movements, habitat assessment, et cetera, of what we might consider.

MR. MCKINNEY: I think we can do that.

COMMISSIONER FRIEDKIN: Right. And also, just a brief assessment of the impact on the end user, and possibly creative alternatives for suggestion.

MR. MCKINNEY: And we certainly have a very — the little seagrass group that we have been working with, they are across [inaudible]. They cover the whole broad range.

And they have been a great resource. And we can work with them and others to bring some of those options back. Ann says we have the time to do that.

COMMISSIONER FITZSIMONS: Can you put up the item? There we go. Now just to get down to brass tacks here, what we are talking about, Dan, is adding as an option to that no prop zone, so that when people go to public hearing, they are going to say of the two, I am against both of them, or I am for one or the other. Correct? Is that where we are?

MR. MCKINNEY: We can do that.

COMMISSIONER FITZSIMONS: All right. That is good.

COMMISSIONER PARKER: Just make it easier for law enforcement.

COMMISSIONER FITZSIMONS: Give the options during the public hearing. And then it comes back to us in November. And we either go with the incremental or the no prop or nothing.

MR. MCKINNEY: And what we would do is, put that additional option in there, and go ahead and publish with Mr. Cook's permission. Because you won't be able to see. We'll not get that done. We will share that with you. But in order to make the timing, would Mr. Cook's approval be okay with you all?

COMMISSIONER PARKER: I think I have got the gist of what you want.

COMMISSIONER FITZSIMONS: Okay. Now, who is going to the public hearings, Robert?

COMMISSIONER BROWN: You know I am out in West Texas.

COMMISSIONER HOLMES: We will hook up flight service.

COMMISSIONER FITZSIMONS: You're going to all those public hearings on this.

(Crosstalk.)

COMMISSIONER BROWN: Dan says he'll go with me.

COMMISSIONER FITZSIMONS: Okay.

COMMISSIONER FITZSIMONS: With that revision —

MR. MCKINNEY: We have got our instructions. Yes, sir.

COMMISSIONER FITZSIMONS: With that change or revision, I authorize staff to publish this item in the Texas Register for the required public comment period. Thank you, gentlemen.

MR. MCKINNEY: Thank you.

COMMISSIONER FITZSIMONS: As usual, Regulations is off to a quick start here. Everybody's favorite committee. Item 3, Chapter 58, Oyster and Shrimp, proposed changes, permission to publish. Jerry Cooke. Boys, I am going to separate you.

COMMISSIONER HOLMES: We're stirring each other up.

COMMISSIONER RAMOS: We're stirring each other up. We're more convinced than ever.

COMMISSIONER HOLMES: Can we vote now?

COMMISSIONER FITZSIMONS: Jerry?

MR. COOKE: Mr. Chairman and members, my name is Jerry Cooke. I am with the Coastal Fisheries Division. I will be presenting you the review proposals for the Chapter 58 review. As we stated earlier, the Chapter 58 review is part of the Government Code requirement to review rules at least every four years, as opposed to minimally.

We have actually done our notification for review. Staff has reviewed the rules. And what I am going to propose to you here are changes that you may adopt at the November meeting, after public comment. For the shrimp proclamation, we are proposing to remove all of the BRD and TED language, which mirrors federal regulation.

We will not be changing any BRD or TED requirements, either inshore or offshore. But we will be adopting those rules by referencing the federal rule on a specific date. What is published in your book is an August 1 date. We chose that arbitrarily, just as a date. We think that perhaps May 15 would be more appropriate, since that is actually the closing of the Gulf season, which would allow the fishery time to comply, if we are ever going to do a change in the future. So, we wanted to be sure and point that part out before we went to the register with it.

We are also making it clear that this is not a change in the rule, but we are making it clear that if a shrimper sells his shrimp to an aquatic dealer, the aquatic dealer makes that report to the Department. If he sells it to a member of the general public, it is the shrimper's responsibility to report that sale to us. And also, some housekeeping changes, which is really just rewording some minor points that were not as clear as they might have been.

For the crab fishery proclamation, we are proposing to remove all the language from the proclamation which initialized the limited entry program in the crab fishery. It is no longer necessary. We are also clarifying the use of the term "display license," as opposed to a plate, which hearkens back to the day when we had metal plates that had to be displayed on the vessels. And that no longer is part of our rule.

Also, we wish to clarify, because this again is not a change, but the wording is very confusing. That if a business or a partnership is the owner of a license, or owner of a vessel, the license has to be issued in the name of a human, which complies with our rules and regulations.

And we also have some minor housekeeping changes. Again, rewording a couple of phrases, so it is not quite as confusing. And for the fin fish proclamation, the only thing that we needed to touch there again, is that display license as opposed to the term "plate."

And so, what we are asking is the opportunity to publish these proposals in the Texas Register for public comment. If you have any questions, I would be more than happy to field them as I might.

COMMISSIONER FITZSIMONS: Any questions for Jerry?

MR. COOKE: I promised to be brief.

COMMISSIONER FITZSIMONS: No questions for Jerry? All right. No discussion by the Commission. If there are no further questions or discussion, I authorize staff to publish this item in the Texas Register for the required public comment period.

And next up, Robin.

Thank you, Jerry. You got away easy today. Do you guys draw for these? Which one? We'll see what Robin drew here. Robin, [inaudible].

MR. REICHERS: Thank you, Mr. Chairman. For the record, Mr. Chairman and Commissioners, my name is Robin Reichers, and I am director — Coastal Fisheries' Science and Policy Director. I bring before you today, it is an adoption proposal to be considered for placing on your agenda for tomorrow. It is dealing with the oyster fishery proclamation, Chapter 58, Subchapter A.

To recap; the oyster fishery, just kind of in brief synopsis, lands about 4.7 million pounds a year, pounds of meat weight product a year, which is valued at about $11 million ex-vessel value off the dock, basically. With about 325 participants, participating in that fishery, and over 53 dealers spread along the coast. Our rule change today is fairly simple.

As we brought to you before, it is basically to define a sack of oysters in our proclamation and also then reduce equivalently, the sack limit. It is now expressed in barrels. We are going to get more conformity with how it is expressed in the Department of Health code.

And we believe that will make it both simpler for the fisherman out there as well as our ability for our folks to enforce those rules also. Our proposed rule change basically will define the sack of oysters as 110 pounds. And that includes the sack weight as well.

And then, just as I mentioned, it will reduce the number of sacks currently allowed. The equivalence is 150 sacks currently allowed. And it will reduce that to 90 sacks per boat, per day. And then we also will convert the unculled tolerance which is allowed on board each, at any given time, from two barrels to six sacks, to do all our measurements in sacks.

We have 99 public people speak to this, or 99 individual comments at this point in time. No one has spoken against the sack definition at this point in time. In regards to the sack limit, 96 percent of those folks agree and of the 4 percent that disagree, two of those actually want a more restrictive sack limit.

And one of those basically agrees with our rationale, that we are basically doing this for economic reasons and stability reasons and he doesn't think we should be doing it for those reasons, basically. That is the end of my presentation. And I would be happy to answer any questions.

COMMISSIONER FITZSIMONS: You okay with this, Pete?

MR. FLORES: It is great.

COMMISSIONER FITZSIMONS: We can enforce it?

MR. FLORES: Yes, sir.

COMMISSIONER FITZSIMONS: Any other questions?

COMMISSIONER HENRY: Yes. I am just curious. Were your comments primarily from users?

MR. REICHERS: Oh, all of the comments, basically, that we can tell. I mean obviously with internet comments and so forth, it is a little difficult to tell. But most of the comments are from users that came in, kind of on a paper type form that they basically ran off and signed their names to. And it is user types of folks, yes.

COMMISSIONER FITZSIMONS: Any other questions on Item 4, Robin's presentation? Thank you, Robin. If there are no further questions or discussion, I will place this item on the Thursday Commission meeting agenda for public comment and action.

Next up, Item 5. Hunting deer with dogs provision, HB 1959. David?

MR. SINCLAIR: Mr. Chairman and members, I am David Sinclair, Chief of Wildlife Enforcement. I will be presenting proposed regulation for hunting deer with dogs. Even though hunting deer with dogs was totally outlawed in 1990, hunting deer with dogs continues to plague East Texas.

Hunters drop off their dogs to pursue deer with total disregard to property rights and to the resource. Typically, what is done, dogs are dropped off. They will pursue deer across different types of property. It may be national forest. It may be privately owned tracts, hunting leases.

They will put standers on the opposite other side of the property, and those standers are generally 40 to 50 yards apart. They are carrying shotguns with buckshot. And any deer that crosses the road is going to be shot.

Currently, hunting deer with dogs is illegal, but it only carries a fine of $200 to $500. It is a Class C Parks and Wildlife misdemeanor. The regulation is part of the statewide hunting and fishing proclamation that you adopt each year. There is basically no deterrent with this type of a penalty.

House Bill 1959, which was authored by Representative Jim Reynolds from the Lufkin area and sponsored in the Senate by Senator Armbrister increases that penalty to a Class A Parks and Wildlife misdemeanor. That is $500 to $4,000, and/or one year in jail. In addition to that, revocation of license and seizure of personal property. And that would be property used in the commission of the offense, with the exception of a vehicle or the dogs.

Before I talk about the specifics of HB 1959, I would read the intent — couple of short sentences. Something that I had not seen too much of was a legislator putting the intent in a bill. But he wanted to make sure that when you adopt these rules, that you knew what the Legislature had in mind.

It is the intent of the legislature by passage of this Act to provide an enforcement tool to deter the unlawful hunting of deer with dogs in certain East Texas counties where the activity has historically occurred. The Act is not intended to prevent a person from engaging in lawful hunting activities, including hunting waterfowl, feral hogs, white—tailed deer, and red or gray squirrels, or trailing a wounded deer in counties where that is lawful.

Now, the bill does a couple of things. A person may not recklessly use a dog to hunt or pursue a deer in this state. And the term "recklessly" is just a mental culpable state that is defined in the Penal Code. It is actually the less of a burden to prove for an officer, with regard to reckless.

Also, the bill gives the Commission the authority to adopt rules relating to the type of firearm that a person may possess during an open deer season, who is in actual or constructive possession of a dog while in the field, or on another persons land or property. There are 22 East Texas counties that are affected by this. Those are the counties in red.

And those are also the counties that currently have a prohibition against using a dog to trail a wounded deer. Provisions of the proposed rule would be to define actual possession and constructive possession and also to prohibit the possession of a shotgun and buckshot or slug when afield during open deer season on another person's property while in actual or constructive possession of a dog or dogs.

Public comment, we had 28, actually 31 comments. Twenty-eight agreed; three disagreed. One, no comment. One said the penalty was not high enough. And one was okay with the rule provided it did not negatively impact hunting birds, which it does not.

I would be glad to answer any questions. Also, as resource witnesses, I have Major Carlson and Captain Puckett here from East Texas, that have a lot these counties under their jurisdiction.

COMMISSIONER FITZSIMONS: Donato?

COMMISSIONER RAMOS: The only question I have is, it seems to me that if you read that statute, that theoretically you could hunt them with a 270 or any other firearm. We are only excluding that type of hunting with shotgun and buckshot. And would that again, just leave the door open for other methods of shooting?

MR. SINCLAIR: Well, historically, most of those hunters have used a shotgun with buckshot. This may cause some of them to try to use it. But with the legislative intent, we don't want to impact hog hunters, for instance, who may use a rifle or a pistol. And so, we have restricted it.

Now, we may be coming back to you, if this doesn't take care of business. But I think with this Class A misdemeanor, the fact that they could spend time in jail and are going to lose their equipment, I think they are not going to take the risk.

COMMISSIONER RAMOS: I guess what I am saying is, if they go to a non-shotgun, non-buckshot, high-powered rifle, and I would assume the reason they are using that, is because these are pretty close shots. Aren't we now perhaps creating some safety hazards, and encouraging longer range rifles for this type of activity? Which would pose a risk that would not be posed by the use of a shotgun and buckshot. I am looking at a safety issue.

COMMISSIONER PARKER: Donato, you don't understand. In East Texas, it is not like Laredo. In East Texas, rifles are for nighttime. Shotguns are for daytime.

COMMISSIONER FITZSIMONS: You said it.

COMMISSIONER PARKER: And I want to bring up —

COMMISSIONER FITZSIMONS: Do you need some help, Puckett?

COMMISSIONER PARKER: I want to bring up Captain Puckett and Major Carlson.

COMMISSIONER RAMOS: I am a former prosecutor, and I know how the typical criminal thinks, I think. And I can just see them taking the position, well, we are using a 270.

COMMISSIONER FITZSIMONS: Puckett, you are on your own.

COMMISSIONER RAMOS: So anyway, that is my only comment.

MR. PUCKETT: That is a good question, Commissioner. Number one, it is really difficult for those illegal hunting sales to use rifles. Because a deer moving ahead of a dog, and buckshot is the only way that they can kill a deer running through the brush. It is extremely difficult.

The second thing is, it is already a Class A to run deer with dogs anyway. And that particular firearm, we were afraid would impact other people particularly as Chief Sinclair said, the hog hunters during the open seasons.

And last but not least, if they are on a public road, well then it is also a Class A misdemeanor to discharge a firearm of any kind across a public road. What this tool will do for us, is number one, when we encounter those sales with a shotgun and a dog, we know exactly what they are doing, number one. So, we don't have to worry about inadvertently getting with the hog hunter.

Because they are not going to use a shotgun and buckshot to hunt hogs. You know, they don't want to hit their dogs with buckshot, or even a .22 for that matter. So, we have got the right crew.

And second, it would really hinder the outlaw to even consider a rifle, because, to be honest, it just doesn't work in East Texas to shoot deer running wide open, you know, with a rifle. Because they are difficult to hit.

COMMISSIONER RAMOS: They are not good shots.

MR. PUCKETT: Yes, sir.

COMMISSIONER RAMOS: That is my only comment.

COMMISSIONER FITZSIMONS: Any other questions for Captain Puckett, Major Carlson?

(No response.)

COMMISSIONER FITZSIMONS: Good luck.

MR. PUCKETT: Thanks, Mr. Chairman. Appreciate it.

MR. CARLSON: Thank you, Commissioners.

COMMISSIONER FITZSIMONS: If there are no further questions or discussion, I will place this item on the Thursday Commission meeting agenda for public comment and action.

Next up, Item 6. Migratory game bird proclamation, late season provisions. Vernon?

COMMISSIONER MONTGOMERY: I think Commissioner Parker writes for Jeff Foxworthy.

COMMISSIONER PARKER: What?

COMMISSIONER MONTGOMERY: Are you a ghost joke writer for Jeff Foxworthy?

MR. BEVILL: Thank you, Mr. Chairman, and members of the Commission. This August meeting is a culmination of the migratory process for setting seasons for 2005-2006. We started in April with the recommendations as we knew them at that time.

A combination of the Flyway Council's work and the Fish and Wildlife Service regulation process. It has been ongoing during this time, and there are some changes that I want to highlight for you today. Briefly, those changes include season setting for the North and South Zone, with a similar structure. We had the Fish and Wildlife Service reduce the scaup bag from three to two.

We are proposing to implement a dusky duck limit to get us out of the problems we have been having in recent years with overbagging mottled ducks, confusing mottled ducks and Mexican ducks and black ducks and in some cases, hen mallards. There is a reduction in the white front goose season proposed this year. And we are proposing to delay the crane season in Zone C for a week to give whoopers a little more opportunity to get to Aransas and get established on Aransas Refuge.

With that, the High Plains Mallard Management Unit season is proposed to have a youth hunt in mid-October, followed by a brief opener of the regular season for that following weekend. And then the bulk of the season would run from the 28th of October to the end of January.

For the North and South Zone, we are proposing the exact same seasons. We have been receiving a lot of comment over the years in the South Zone to go to the end of the framework. We don't really think it is going to give them the best season, but since the hunters believe that is going to be their best season, we are going to put it out there, and let's see what we get with it. But, the season structure, as you can see in the presentation, would run the main season from December 10 to the 29th of January.

We also have again at the flyway level, the restriction of the pintail and canvasback to a 39-day season within a season's structure, with a one-bird bag. And we have traditionally run that within a season's structure, the last 39 days of the season. So, that would be the 22nd of December to the 29th of January. The bag composition for the upcoming year is, again, a six-bird bag, as you can see from this previous slide.

We are still in that liberal package. Not to exceed five mallards with two hens. The two scaup restriction down from three. Two wood ducks. Two red heads. One dusky duck that may be a mottled duck, black duck, or Mexican light duck. And again, one pintail, and one canvasback in the last 39 days. Mergansers and coot bag limits are unchanged.

COMMISSIONER FITZSIMONS: The dusky would be black-bellied whistling ducks or something?

MR. BEVILL: No. It would be those three ducks. It would be mottled duck, black duck and the Mexican light duck. And those would be — and what we have had in recent years are people who are in the coastal area of Texas killing three, four and five mottled ducks and trying to say, no, they are Mexican ducks in there.

And we have run into it in our parks collection that we gathered through the Fish and Wildlife Service process. We are seeing hunters taking multiple mottled ducks for whatever reason.

COMMISSIONER FITZSIMONS: Right.

MR. BEVILL: And so, we are just trying to give law enforcement a little cleaner tool to work with and also to protect mottled ducks that are in some trouble. And we are working on some research right now to look at mottled ducks much more closely, because of the range of wide concerns and the concern Fish and Wildlife Service has for mottled ducks, range-wide.

In 2006 and '07, the Central Flyway will be a test flyway for what we call the hunter's choice bag. And the purpose of the hunter's choice bag is to get us away from the season-within-season scenarios like we have been operating with for pintail and canvasback, and it could be other stocks of ducks that get down low like scaup, to where we would end up with a restricted season.

And so, we are in the process of developing the formal criteria for this hunter's choice bag. And the concept would be that you would take species like pintail, mottled duck perhaps, canvasback, those species that are way below the long term averages in the North American Waterfowl Management Plan goal and buffer them with the hen mallard in that composition.

And season-long, hunters in the blind could take one of those, of that aggregate group of birds that is within that cluster of ducks. And right now, we have run into situations where a hunter may inadvertently shoot a hen pintail for a gadwall.

And so, they are in that no-man's land of well, they realized what they did after they retrieved it, hopefully. And do they stomp it in the mud and leave it, or do they try to sneak it out. So, what we are trying to do here is give more flexibility to our hunters, season-long.

Because we are seeing these ebbs and flows in stocks of ducks. And we want to reduce the complexity of regulations to the greatest extent we can, and having hunters trying to remember, can I start shooting pintails on December 10, or is it December 22? Trying to get them away from that sort of thing, and re-educating them to an aggregate group of birds.

And we will significantly protect species like mottled ducks and pintails. If the model on pintails, and there is some prospect that the model on pintails, if habitat conditions stay as good as they are at this moment. Habitat conditions and breeding country up north started getting a lot better this spring again, if the pintail model says we can shoot two pintails season-long, pintails would not be part of such an aggregate bag.

It would only be when they were down to that season-within-a-season restriction that they would be part of this aggregate bag season-long. And so, Central Flyway is the test flyway for that. The other flyways are looking to us for guidance on it.

And we paired, just so you Commissioners know, during this test period, five of the ten states will have seasons within a season continue and five states will have the hunter's choice bag. We flipped a coin. We were paired with Oklahoma. And we flipped the coin, and we got the hunter's choice. So, we think we won.

COMMISSIONER FITZSIMONS: We provided the coin? So, how are we going to monitor that? Through the HPMMU, and through —

MR. BEVILL: Yes. Through our parks collection and through surveys and some things like that, that are already being put in place to do that. We will have good monitoring capability to see what we have accomplished with it.

Going to the East, the Eastern Goose Zone, the light goose and Canada goose season are proposed to open on November 5 and run through January 29. We are looking at some concerns about white front geese. And we had a choice this year of an 86-day one-bird bag, or a 72-day and two-bird bag.

Our hunters along the coast want that two birds even if they have to give up days. So, we are proposing the 72-day, two-bird bag running from November 5 to January 15. And we have in previous years as some of you will remember, had to cut the white front season off short of the other goose seasons, anyway.

And as you see, also the bag for Canadas is three. And the bag for light geese is 20 during the regular goose seasons. And the Western Goose Zone, we have a longer season options. Light and dark geese run from November 5, to the end of the first week — to the Tuesday, February 7.

And then bag limits are similar except for white fronts, where the Western Goose Zone has a one white front bag limit. And then, we get into the light goose conservation order the day after we close the regular goose seasons. And they run to the 26th day of March.

Primarily, our conservation order season really is the next couple of weeks. Because once you get past the middle of February very far, geese are moving out pretty rapidly, and getting harder to hunt in Texas.

COMMISSIONER FITZSIMONS: How many years have we been doing that now in the snow goose?

MR. BEVILL: I am thinking it has been about five or six years.

COMMISSIONER FITZSIMONS: Are we seeing a beneficial impact? Because they are destroying their nesting habitat. Is it working?

MR. BEVILL: I am not sure.

COMMISSIONER FITZSIMONS: Okay. Good enough. An honest answer.

MR. BEVILL: In coastal Texas, we have seen a reduction in light goose numbers coming to coastal Texas. The problem is, light geese are expanding their breeding territories in the Arctic into new ground. And they are also expanding from high quality breeding areas to secondary and tertiary breeding areas at a lower densities.

So, we still have a breeding ground issue. And they also are establishing wintering flocks in new areas. We still have a growing flock in the Panhandle.

COMMISSIONER FITZSIMONS: So, the harvest is — the new opportunity of the last five years has not resulted in a harvest.

MR. BEVILL: It has not resulted in the significant reduction we had hoped. You are correct.

COMMISSIONER HOLMES: Has it resulted in a significant increase in the harvest?

MR. BEVILL: It has. We are up.

COMMISSIONER HOLMES: But the absolute numbers are still —

MR. BEVILL: Yes. We are still struggling with controlling the numbers. And we are still in a conservation order mode. The EIS on light goose population reduction has long been written by the Service, but I understand it is hung up in the Solicitor's Office at Fish and Wildlife Service, along with several other EISs. And I think that is as much a problem of the Fish and Wildlife Service can only fight one or two battles at a time.

COMMISSIONER FITZSIMONS: And what would be the significance if that were to move on, as the environmental impact?

MR. BEVILL: Well, hopefully, there would be some new tools that were recommended when that environmental impact statement was being circulated. A number of us recommended some new opportunities to get at the problem more directly. Now, whether or not those recommendations made it into the final EIS or not, we don't know, because we don't know what is in the final EIS.

COMMISSIONER FITZSIMONS: I didn't mean to get you off on that.

MR. BEVILL: Yes.

COMMISSIONER HOLMES: Could you give us an example of one or two of the tools that were recommended?

MR. BEVILL: Currently, you cannot hunt under the conservation rules if there is another migratory bird season open. We recommended that that be changed to give us more flexibility, as long as hunters or groups of hunters were clearly within the constraints of that conservation set of rules, that it could be any time during the season.

COMMISSIONER FITZSIMONS: Most snow geese are awful hard to hunt in February and March.

COMMISSIONER HOLMES: They are just hard to hunt.

MR. BEVILL: They're a little easier in North Dakota.

COMMISSIONER FITZSIMONS: Right. Okay.

MR. BEVILL: We have had very light public comment this year, compared to previous years, so we think we may have got it about right. And I ran these proposals in front of the Game Bird Advisory Board, Monday when we met here. And they also endorsed, or supported the recommendations that I have presented to you. I will be glad to answer any questions.

COMMISSIONER FITZSIMONS: Any questions for Vernon? If not, I will place the item on the Thursday Commission meeting agenda for public comment and action. Any other business to be brought before the Regulations Committee, Mr. Cook?

MR. COOK: No, sir.

COMMISSIONER FITZSIMONS: All right. Hearing none, the Committee has concluded its business, and we will move on to the Conservation Committee.

(Whereupon, at 11:15 a.m., the meeting was adjourned.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission
Regulations Committee
LOCATION: Austin, Texas
DATE: August 24, 2005

I do hereby certify that the foregoing pages, numbers 1 through 51, 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.

9/06/2005

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


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