Texas Parks and Wildlife Commission
Regulations Committee Meeting

March 31, 2010

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

BE IT REMEMBERED, that heretofore on the 31st day of March 2010, there came 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 HOLT: Good morning, everyone. This meeting's called to order March 31st, 2010, at 9:15 a.m. Before proceeding with any business, I believe Mr. Smith has a statement to make but before he does that, I would like to welcome Dr. Doug Slack.

Doug, are you here? Will you stand, and his class from Texas A&M. It's a Fisheries and Wildlife Policy class, an undergraduate class. Thank you for bringing them over. And will the class stand up and so we can acknowledge you, please.

(Applause.)

COMMISSIONER HOLT: Good, now maybe you can teach us something. I don't know how well we do with policy. But we do kind of struggle along, don't we? Mr. Smith.

MR. SMITH: Okay, Mr. Chairman, thank you. A public notice of this meeting containing all items on the proposed agenda has been filed in the office of the Secretary of State, as required by Chapter 551 Government Code, referred to as the Open Meetings Act. I would like for this fact to be noted in the official records of the meeting. Thanks, Mr. Chairman.

COMMISSIONER HOLT: Okay. Thank you, Mr. Smith. We'll begin with a Regulations Committee this morning. Chairman Friedkin, please.

COMMISSIONER FRIEDKIN: Thank you. The first order of business is approval of the previous committee meeting minutes, which have already been distributed. Do we have a motion for approval?

COMMISSIONER BIVINS: So move.

COMMISSIONER FRIEDKIN: Moved by Commissioner Bivins.

COMMISSIONER HUGHES: Second.

COMMISSIONER FRIEDKIN: Second by Commissioner Hughes. All in favor.

(A chorus of ayes.)

COMMISSIONER FRIEDKIN: Any opposed? Hearing none, motion carries. Committee Item Number 1 — Update on Parks and Wildlife Progress in Implementing the Park's Wildlife Land and Water Resources Conservation and Recreation Plan.

MR. SMITH: Thank you, Mr. Chairman. I think all of you will recall that once you all authorize the agency to go forward with the preparation and publication of the land and water plan, that an expectation was set for us to come back and report on specific action items in the plan, milestones for progress, specific measurable things that we had committed to as part of the implementation of the major goals for the plan.

As a reminder, there were 25 specific action items that were highlighted in the plan. Scott and his team have kind of put together a graph schedule that we're still refining on how we will regularly report on those items in our progress, in a timely fashion so you have a sense of the progress that is being made on those deliverables and so, we're going to kind of change the format a little bit of the reporting on these bullets, where historically we've kind of reported on items of interest to the committee.

We're going to hybridize that now with each committee, if there are specific action items to be reported that are germane to that committee and then, in a timely perspective, we'll start there and then we'll cover other issues that I think are relevant in the interest of the committee that you might want to talk about.

So, I just, with that, as a point of departure, Mr. Chairman, there's one action item and three items of interest that we want to report on, with respect to the plan today. I think, hopefully, all of you will recall that, as a function of the Sunset Commission legislation, we have a very specific deliverable in the land and water plan in which by the end of this calendar year, the commission will approve the "white list" for exotic, aquatic plants, which is basically a list of exotic, aquatic plants that can be possessed or sold without a permit from the agency. Again, plants that have gone through a formal risk assessment to make sure that we are not concerned that they will cause environmental damage, widespread distribution or any harm to public health or human health and so, quick progress update on that, because we will be coming back to you all in August with a more formal briefing on that thought and then have a formal list for submission to you all in November, for approval.

Inland fisheries team is really kind of taking the lead on this with help from legal and EO and law enforcement and other divisions but they have been working with all of the various stakeholders to get a sense or, you know, what are those aquatic plants that are out there on the market that are common, widespread and not known to cause any damage to the environment or human health and safety.

And so, we got together kind of a draft list, have been working with the stakeholders on this front, are getting active feedback on that and ‑‑ you know, through groups like the Texas Nursery and Landscapers Association, which have a very strong stake in this.

And then, we'll come back to you all again in August for a formal briefing on this and ‑‑ just thinking maybe May because it may require some discussion so it may be May that we come back and just make sure we get approval by the end of the year. So, just want to let you all know that was going forward.

A couple of items of interest that, hopefully, you all will be pleased to learn about. Several of you, over various times, I think Commissioner Bivins, in particular, had asked about whether or not we had plans to establish a dive team within our Law Enforcement Division. As you know, that team ‑‑ the law enforcement team are responsible for all boater safety and water safety in the state, the principal agency in charge of it.

We have not had a dive team that could assist or that was an internal dive team when we're out on search and rescue and body recovery and so we've had to rely on other law enforcement agencies for that assistance. Really, thanks to the leadership of Trey Shewmake, who's a lieutenant over in East Texas, has put together a group of three three-man teams that will be specifically trained in underwater search and rescue and law enforcement-related scuba diving.

We're partnering with the Houston Police Department to help provide all the training on that. We'll have these three three-man teams that we're starting out with. They're going to help us in that front. And, hopefully, we'll be able to expand that to other regions of the state. But, very excited about that development and wanted to report on that to all of you.

Also, I think, as is customary, kind of, at this time of year, share a quick little update on the abandoned crab trap program. You know, in mid- to late February, crab season is closed and our fisheries' biologists and game wardens will work with a suite of volunteers to go pick up abandoned crab traps, which really are fish and wildlife killers out in the bay.

We've been doing this since 2002. We've had a ton of volunteer support on that. We just completed the last round of abandoned crab trap pick-up. I think we got ‑‑ oh, another 1,600 abandoned traps that were picked up. About a third of them from San Antonio Bay and, again, showed strong volunteer support for that. It's what helps make that possible. So, great program and pleased to report on that.

Last but not least, just want to quickly report on where we are with the hiring of the new Division Director in Inland Fisheries. The interviews for that transpired yesterday. We will continue to have some follow-up interviews, along with making sure that some of the key stakeholders have an opportunity to give us a little feedback and we expect to make a decision on that in April and we'll be reporting back to you all on that front. But we're excited about filling that very, very key leadership position for us. So, with that, Mr. Chairman, that concludes my report.

COMMISSIONER FRIEDKIN: I appreciate it. Are the three three-man teams ‑‑ are they currently in law enforcement?

MR. SMITH: They are. They're in law enforcement. They're all game wardens, all in East Texas. Actually, Trey put out a call for volunteers that wanted to participate because this is a very demanding, taxing, responsibility that requires a lot of training and there's been a lot of interest in that and kudos to Trey for his leadership on this. Really excited about that coming from the ground level up on this.

COMMISSIONER FRIEDKIN: Thanks, Carter.

COMMISSIONER BIVINS: What's the flexibility to move to another part of the state?

MR. SMITH: Well, there absolutely is flexibility for them to move, when needed and when called upon. You know, the majority of our water bodies, of course, big water bodies are in East Texas and so, they'll have their hands full, certainly over in that area. I think our hope is that ultimately we can get regional dive teams that are set up at appropriate locales and can kind of service that region but, no, we absolutely have flexibility to move them where they're needed most. So, yes, it's a great development.

COMMISSIONER BIVINS: Great.

COMMISSIONER FRIEDKIN: Thanks, Carter. Okay. Commission Item Number 2 — Proposed Seagrass Rules for the Redfish Bay State Scientific Area. Robin Riechers.

MR. RIECHERS: Chairman, Commissioners, Good morning. My name is Robin Riechers with Coastal Fisheries Division and giving the presentation today is Mr. Ed Hegen, our lower coast regional director, who is going to give us the presentation and proposal.

MR. HEGEN: For the record, again, my name is Ed Hegen. I'm the regional director in Rockport in Coastal Fisheries Division. I've had the great pleasure of being involved with the seagrass management program for the last six-seven-eight years and what I want to do today is to bring the commissioners up to date on what this agency has done in seagrass management, in particularly, the last five years, talking about a regulation that we implemented that was somewhat controversial and I want to give you a hint ‑‑ a little bit about seagrass. The seagrass is a submerged aquatic vegetation and then, all the efforts, the four venues in which we focused to test the efficacy of that particular regulation in the last years.

There's a brief history in front of you. Let me point me out that we were interested in submerged aquatic vegetation in the early '90s. As you can see by the publication of a little seagrass booklet ‑‑ I think that they've been placed at your desk there ‑‑ and in 1999, with the cooperation of the General Land Office and the Texas Commission on Environmental Quality, we published the Seagrass Conservation Plan for Texas, which is kind of a guiding force and addressed a lot of the issues that are impacting seagrass on the coast, one of those being the scars made by increasing boating pressure on the coast, propeller scars, uprooting the seagrasses.

In 2000, we used Chapter 81 out of the Texas Parks and Wildlife Code to implement the Redfish Bay State Scientific Area, in which we are able to promulgate some rules. At that time, in Redfish Bay ‑‑ and I'll tell you exactly where ‑‑ which Redfish Bay we're talking about ‑‑ there are several of them down the coast, talking about the one that's central coast, we were able to promulgate rules but we kept it a voluntary no-prop zones. But in 2005, with a lot of input from the commission and the biologists and from the seagrass monitoring workgroup, which is a scientific, NGO employee kind of exchange information, that meets on a quarterly basis, on the coast, talking about seagrass monitoring coastwide.

We came back to the Commission and recommended that we have a ‑‑ not a voluntary no-prop zone, but actually a rule that prohibited the uprooting of seagrasses via propellers. We talked about some run lanes and those types of things.

In 2006, the regulation was adopted for a five-year period or actually, the five-year period was for Redfish Bay State Scientific Area. There is a term that expires this year for Redfish Bay State Scientific Area. And so, that's where we are today is coming up to the term of the expiration of the state scientific area.

There are five species of seagrasses on the Texas Coast. All five of them occur in the mid-coast, in the upper range, in Redfish Bay State Scientific Area. Some of them go as far as Christmas Bay in the Galveston Bay system. From Corpus Christi Bay south, there are extensive seagrass beds and those are pictures taken by our staff while we're studying the seagrasses.

Listed before you are the benefits of seagrasses. I won't read them to you but in combination, all those ecological services performed by seagrasses, basically equate to good fishing in that particular area.

If you're familiar with the Texas Coast, about on the mid-coast is Port Aransas and let me just basically zero in and describe where that particular Redfish Bay State Scientific Area is. The lower right hand corner is the Gulf of Mexico, Port Aransas, going from right to left, follows the Corpus Christi Ship Channel, Port Ingleside, if you go from the lower left to the upper right is the inter-coastal waterway, all the way almost to Rockport and that area is called Redfish Bay and the yellow is a boundary of the state scientific area and the white dots indicate the nine boat ramps that have access. Of course, that is one of the most popular fishing spots on the Texas Coast and it is very good fishing, by the way. There's a picture of seagrass propeller scars. You can see some of them that have some vegetation growing in the middle; the one right down the middle is kind of recovering. The one that ‑‑ the broader one with a lot of sand; that may be one that we are particularly concerned about because sometimes they do not recover. They get gouged out by currents and those types of things so this is a little closeup of some propeller scars. This is the rule as it exists. In summary, basically it says, It is against the law to uproot seagrasses with your boat propeller or knowingly allow anybody else to do that. That's the essence of the rule. It is a Class C misdemeanor.

At this point, I want to review kind of four action areas that we undertook to assess this particular regulation. Because the first five years of the Redfish Bay State Scientific Area, from 2000 to 2005 was a voluntary no-uprooting, it was very difficult to assess whether or not the boaters were knowledgeable of our regulation, were changing their behavior or whether there was any measurable impact on the vegetation itself and you'll see from these four venues that I talk about, we did an extensive effort to assess the actual impact of this particular regulation.

One of the major things we wanted to do was to increase our education outreach. That was probably one of the deficits of the first five years that made it a little more difficult to understand what boaters knew about the regulation or whether or not they abided by it but we figured we would do a tremendous education outreach effort and starting with signs around the perimeter of the Redfish Bay State Scientific Area, which is in the upper right-hand corner. In the upper left-hand corner, at every boat ramp entering Redfish Bay we had big signs, one with the map here, four-by-four signs. One with the map and one with a lot of information on the seagrasses in that particular area. And every six months, we went out and monitored those signs for destruction and wear and seagull sitting ‑‑ well, anyway. Seagulls sit upon those signs and we replace broken signs and that type of thing and it was a worthy effort. There were 77 signs and we've probably only replaced about 25 in the five-year period.

But we wanted to make sure people were aware of the perimeter and internal signs.

COMMISSIONER HOLT: Do you think the awareness level, over all, is rising?

MR. HEGEN: Oh, absolutely. Yes, and I'll have some information to address that in a moment. Absolutely. Also, a major component, in the field, in addition to our biologist being out there, is law enforcement effort and law enforcement has been ‑‑ the game wardens have been an integral part of the education and outreach and presence in Redfish Bay to help people understand the regulation. Of course, the first year, they did not give any citations. They were basically on-the-water educators and talk about warnings and that type of thing, so a very integral part, we work very closely with law enforcement to bring them up to the knowledge of the importance of seagrasses, as well as to be able to collect, if they did encounter a fisherman to be able to collect evidence of freshly uprooted seagrass. And that has been very helpful.

To this point to date, there are 16 citations that have been written and have all pled guilty. Three are still pending and I think there have been 18 warning tickets so they have been an integral part and they've made a very conscious effort in Redfish Bay to help educate the boaters.

Through our routine marking program on the coast at boat ramps, gathering recreational harvest data, we were able to get TX numbers, convert that to addresses and then determine where ‑‑ the origin of most of the constituents are that are fishing in Redfish Bay. As you can see from all the dots, about 30 percent come from San Antonio, Bexar County and the Hill Country counties. The three counties adjacent to Redfish Bay contribute about another 30 percent of the users of Redfish Bay.

We used this data also to do our human dimension survey, in which we asked them questions about their knowledge and things and so you can see where a lot of pressure comes from. It's a statewide issue. And because it was a statewide issue, we went all over the board and tried every venue we could get to get information out there as quickly as we could regarding the regulation and the importance of seagrasses.

And through all those different types of venues for education outreach, we ended up with about 10 million impressions and an impression, in media terms, is the number of times an individual might have an opportunity to get that information from us.

Some of them were direct contact, some of them were boat launch, pre-launch interviews, news media magazines, our own media, have all been receptive to ‑‑ and outdoor writers have all been receptive to receiving the information and spreading the word on the importance of seagrass and to abide by the regulation.

I had a great staff doing all this work so to answer your question on what we taught them, whether they learned anything and whether they changed their behavior, we've done a human dimension survey in 2005, prior to the regulation going in, we did a human dimension survey to assess the use of [indiscernible] knowledge and these are preliminary results from this five-year period of mail-out from the three previous year users of Redfish Bay, again using their addresses, we found out that 88 percent were aware of the particular regulation, which was not to uproot seagrasses with their propeller.

Eighty-seven percent of those users had changed their boating behavior ‑‑ indicated through different types of questions in human dimension surveys ‑‑ that they have actually changed their behavior, some of them by avoidance, by some of them getting trolling motors, some of them by drifting and poling and that type of thing. So they indicated they had changed their behavior in this particular Redfish Bay State Scientific Area.

And 90 percent of the respondents said that the conservation efforts were effective and we have had over a 40 percent return rate on the mail-out survey, which is very high, which indicates there is an extreme amount of interest in the users.

COMMISSIONER HOLT: Who is your target in the survey? I mean ‑‑

MR. HEGEN: These are the users of Redfish Bay. So, we got the TX numbers and the addresses from interviews, using the nine boat ramps that enter Redfish Bay. So they are target users; basically, that's correct.

MR. SMITH: Ed, do we just collect those on our creel surveys, when we're doing that?

MR. HEGEN: Yes, yes.

MR. SMITH: Okay.

MR. HEGEN: So, the second venue ‑‑ the third venue that we're using is some very high resolution aerial photography. We've done a lot of our fieldwork through the state wildlife grants. We've gotten very generous funding through the grants to do some photography. Very briefly I'll describe ‑‑ this is high resolution photography. This is one-tenth-meter resolution. In comparison, if you use Google earth, you're looking at two meters' resolution so you can very clearly see the scars. In the left ‑‑ the lower left, the arrow, there's a scar that has remained there from 2007 to 2009. The upper left, you can see a new scar that wasn't there in 2007, the blue arrow. And, on the right, the green arrow shows you a scar that has recovered in that two-year period.

We actually define scars, the width of the scars and the length of the scars and have actually done a ‑‑ using the square meter and a 32,000 acres of area that is scarred, that encompasses Redfish Bay and about the 12,000 acres of seagrasses. We actually determined actually what percent of the entire Redfish Bay actually is covered with scars and you can see about 1 percent, in 2007, 1.2 percent and in 2009 it's significantly lower. This is the total area scarred by square meter.

Also, using that same technique in determining the number of scars, the width of scars and converting, using random samples to convert scars in grids and laying the grids over all of the area of the map of seagrasses, you can see that there has been a decrease in the square meters of areas scarred, over time.

The dark red in the lower left in 2007, right in the middle of Redfish Bay, has certainly diminished in intensity and number of scars. Very high resolution photography and complicated software in our GIS lab.

COMMISSIONER HOLT: Can we go back to the previous one with the ‑‑

MR. HEGEN: Yes, sir.

COMMISSIONER HOLT: — three bars. Okay, just so I understand what I'm reading. "Percent of area scarred." So this is Redfish Bay or is it just the grass?

MR. HEGEN: This is only those ‑‑ only the areas that has grass in it.

COMMISSIONER HOLT: Okay.

MR. HEGEN: And these are the ‑‑ this is a subset, you can take a sub-sample ‑‑

COMMISSIONER HOLT: Right.

MR. HEGEN: — of the scars, 300. Take a sub-sample of the width and the length of scars and come up with a square meter ‑‑

COMMISSIONER HOLT: Okay.

MR. HEGEN: — of total scarred area and compare that to the total vegetated area.

COMMISSIONER HOLT: Okay. I think I understand it.

MR. HEGEN: One percent of all the vegetated area ‑‑

COMMISSIONER HOLT: Is scarred.

MR. HEGEN: — is scarred. And, historically, researchers would, if you look at seagrass literature, they would take grids and they would say, "lightly scarred," "moderately scarred" or "heavily scarred" and they'd take a metered grid and, if there was one scar to it, they'd say "lightly" and they would basically rank. We actually did a total coverage of scars.

COMMISSIONER HOLT: And then figured out the percentage. Now let me ask you relative ‑‑ because you think, 1 percent, you could argue, to somebody like myself who's not knowledgeable, that's not that much. I mean, is that a lot; is that a little, I mean, of course, yes, you'd love it where there was no scars but, I mean, do we benchmark at all what's going on in other states with their areas. I mean, help me on this a little bit.

MR. HEGEN: Well, this is probably the first time this type of analysis has been done where there's actually a total square meter of scarring. Other areas still use the comparative grid ‑‑

COMMISSIONER HOLT: Okay.

MR. HEGEN: — and light density. There are other issues that, you know, one of the seagrass conservation plan directed us to look at seagrass management as a whole and there are other issues, dredging and filling and bulk-heading and habitat changes. There are other issues that are out of our control ‑‑ hurricanes. Seagrass meadows change over time, salinity and storms and water currents and so this is probably for us, this time, this is an excellent benchmark.

The Seagrass Management Conservation plan also directs us to do seagrass research over time. We are developing a monitoring plan. That's what the work group is doing and we actually have a draft plan up on our home page and we're tweaking that. Seagrass research is out of University of Texas, are modifying and trying to develop a seagrass monitoring plan. So, this will be a great benchmark.

Other states have seagrass scarring issues, as well. Some of them have no-prop up zones, motor exclusion zones, have some sort of tide gauge where it's low tide, of course, you're more likely to hit the bottom with your prop and they have these red/green pole markers.

Your guidance to us was to not exclude anybody from the Redfish Bay State Science Area, to allow use as best we could and emphasize education and understanding to see if that was a way we could not exclude anybody from Redfish Bay and yet protect the resource. This is a start in very serious analysis.

COMMISSIONER HOLT: And educate our constituency so that, into the future also. It looks like it's been working, I mean, to at least the trend is correct.

MR. HEGEN: Absolutely. This will also be a good benchmark should seagrass meadows change as a whole, we'll have this particular percentage of all the meadows and we can get that information readily ‑‑ extract readily if we do, for instance, aerial photography every five or 10 years. It would be very, very effective.

COMMISSIONER HUGHES: Ed, I've been fishing the Redfish Bay area for 30 years. I agree it's an excellent place to fish. What I've seen over the last 30 years is a drastic increase in boat traffic, particularly manufactured boats that run shallower and shallower; air boats that, you know, running up in the flats and I'm hearing reports of guides of air boats herding up redfish and it's, first of all, I think what we're doing here is great. I'd like to see us even expand this thing because this is just one small area of seagrass. We have it all up and down the Texas Coast.

And the second thing is, what can we do to enforce it a little more, such as for the herding of redfish and what we see going on on a fairly regular basis.

MR. RIECHERS: Well, as far as expansion of this, certainly we're going to be looking at other candidate sites as we move forward and, as we get to the end of the presentation, you know, we may be able to address that a little bit more. As far as enforcement goes, I'd have to turn to Pete. Do you want to kind of address that?

COMMISSIONER HOLT: Pete, have you gotten in that scuba outfit yet? When you do, I will.

MR. FLORES: I don't think you want to see me in one of those. For the record, I'm Colonel Peter Flores, director of law enforcement. Commissioner, but to answer your question, currently it is against the law to use any boat to harass fish, to herd fish. That's been against the law since I've been a game warden. It's also, for example, to attach tracking advices and electronic devices, back in my day, put balloons on them and track where they were going ‑‑ that's against the law.

Certainly, I will ask our command, Captain Bob Balderamas in the area to increase vigilance in that area, to go after these folks. I would also encourage them to give out the number of 1-800-792-GAME for Operation Game Thief so when we see these folks engaged in it, our game wardens can quickly address it. But we will ask them to get out and put a little more presence, especially in areas of concern. I'll get with you afterwards and we'll see what time frames so we can try to catch these guys.

COMMISSIONER HUGHES: I have an article ‑‑ I'll give you a copy of it ‑‑ I read in a magazine a couple of days ago about, on the upper Texas Coast, it's north of where we're talking about now, a guy who specializes in herding redfish and they talk all about it. So I'll give you.

(Simultaneous discussion.)

COMMISSIONER HUGHES: What we really need to ‑‑ they're harassing the fish and once you herd those redfish then you take that group of fish off the fishing market for the rest of the day for everybody else because they get spooked, they go into deep water so if you have one guy that's really monopolizing the resource then nobody gets to use the rest of the bay.

MR. FLORES: Yes, sir, we're with you and it is against the law and, working with our community and working with our stakeholders so we can get this information and work together to solve this problem, is what the community-based policing is all about. And, thank you for bringing that to our attention and I'll get with you afterwards.

COMMISSIONER BIVINS: I just had a question. The people that are doing this, are they doing it because they just have the wrong equipment ‑‑ are they doing this intentionally or it seems like they're ‑‑ and being from the arid north ‑‑

COMMISSIONER HOLT: This isn't a big issue you have up there with the Canadian River?

COMMISSIONER BIVINS: Well, we've got a lot of boat traffic on the Canadian River; they are navigable waters.

COMMISSIONER HOLT: All right.

COMMISSIONER BIVINS: I guess I just don't understand ‑‑ these people are out there destroying the habitat area for the fish that they're trying to catch. It just seems like they're hurting themselves more than anyone but it may be just an issue of not having the proper equipment. I don't know.

MR. HEGEN: I think it's more of not having the proper understanding and ‑‑

COMMISSIONER HOLT: Education.

MR. HEGEN: — I think we have really addressed that and, interestingly enough, some of the things that we've done have really impressed people. One of the ‑‑ we've had a lot of cooperators and one of those being the Coastal Bend Bays and Estuary Program, which is a national estuary program in Corpus Christi, did public service announcements for us and that is lift/drift/troll and pole. And that little catchphrase is known by a lot of boaters.

And, there's, obviously, the joke was locals never cut up seagrasses and then it was the guy from San Antonio who only went out once a year who cut up seagrasses. You know, he can drive down, launch his boat and only do that and, you know, we thought, Well, if we could just find that guy from San Antonio we'd solve the problem. Well, as I just told you, it's heavy users from San Antonio.

The frequency of using a bay system and knowledge of the bay and under different tide conditions, different wind conditions, you know, and I don't think we reasonably expect everybody to ever quit uprooting. I mean, if you run a boat, you're going to get run aground or may even uproot seagrasses. I think we've turned people around to know what seagrasses ‑‑ the importance of them and to take either preventive action or corrective action if they're in shallow water. That's been our emphasis for the last five years.

COMMISSIONER FRIEDKIN: Pete, you mentioned the, you know, what we've done so far, in terms of law enforcement and it's been more geared toward understanding and outreach and getting the message out and education is obviously the key to this but what are we currently doing, if you can just take us through a little bit of the history, from the law enforcement side because I know when we established this, there was concern about the enforceability of it.

MR. FLORES: Yes, Commissioner. We've worked very closely, following the direction of the Commission to, as part of the education component, which one of the pillars of law enforcement, and not only just the apprehension part but the education part, is a pillar for us.

And, we've concentrated on that, working hand and hand with coastal fisheries and with the community, to be able to educate as much as possible. A lot of the cases that were filed were those cases where you were very egregious ‑‑ the folks you're talking about where they're going in there and actually chewing it up. They got to go see the judge, you know, and educated that way. You know, that's another way to educate but certainly the manner ‑‑ the education component, it will work with the majority of the population but you always have a segment that's going to do what they want to do and that's where, you know, we ‑‑ the hard copy citation will come in.

But, to answer your question, we've been working heavily towards using that pillar of education along with ‑‑

(Simultaneous discussion.)

MR. FLORES: — yes, handling the egregious people who really just don't care what you tell them.

COMMISSIONER FRIEDKIN: Right.

MR. FLORES: You know, so, as we discussed it, when it first came out, there's a black and white way to do it and then there's that other way to do it. This way seems to be working and we, you know, what I'm understanding from field command, it's coming along and, of course, we'll follow whatever direction the Commission decides is best for the meadows and for the resources and we'll make it work.

COMMISSIONER MORIAN: I've just got one quick question. Would you go back to the slide, the aerial. I see where the cuts are healing but you look at 2009, it's a lot more grass coverage. Is that from other causes? Well, the grass in the right, in general, is better than it is in the left. Other than ‑‑

MR. HEGEN: Some of that be a residual of the photography that ‑‑ there's always a little bit of difference in turbidity but 2009 was a good year for grass and 2007 and 2008, we had a lot of rain and very low salinity and grass was under stress a little bit. You'll see in a minute, some of the recovery rates weren't as significant as we thought they were going to be but then, when the bay got back to the correct salinity ‑‑ and it's at a transition zone where Gulf water comes in and goes up, north and south, so it may have been just a change in the seagrass meadows and they are ephemeral, they do change so that is a very significant observation. Yes, sir.

COMMISSIONER HUGHES: Ed, were these pictures taken at about the same time of the year? That makes a lot of difference.

MR. HEGEN: Yes. In February and early March is when we take those, yes. And for reasons ‑‑ normally there's low tides, those are the extremely calm periods right following a front. You know, after two or three days after a norther blows in, everything's calm, turbidity settles out and so we get some very good shots.

COMMISSIONER FRIEDKIN: And your percent of area scarred came from the GIS coding, not from the aerial imagery, right? I mean, so it's ‑‑

(Simultaneous discussion.)

COMMISSIONER FRIEDKIN? — assigned classes to the GIS model and then came up with a percentage?

MR. HEGEN: It uses aerial photography but it takes 300 samples and measures the actual area of the scars in those 300 sub-samples and then takes the total area of vegetation and multiplies the sub-sample of scars, using a ‑‑ I can't remember what is actually said in terms of some sort of formula that says, these areas are scarred ‑‑ total scars and actually calculates from the aerial photography the total area, square meters, of scarring, compared to the total square meters of vegetation throughout the area.

COMMISSIONER FRIEDKIN: So there's a control for environmental differences and aerial imagery from one year to next, do you know, just turbidity or other considerations, contrasts and ‑‑

MR. HEGEN: Probably there's not a correction like that. I'm not aware of one.

COMMISSIONER FRIEDKIN: So it's, you know ‑‑

MR. HEGEN: There probably is a human error in part. He goes actually and hand calculates ‑‑ hand draws each scar.

COMMISSIONER FRIEDKIN: Uh-huh.

MR. HEGEN: And tracks each scar so we know exactly the total number of scars as well. There is probably an error factor involved.

MR. SMITH: But Ed, in addition to the use of the aerial imagery to do this, I mean, there's ground proofing that's going on by our biologists. I want to make sure folks understand that and ‑‑

(Simultaneous discussion.)

MR. HEGEN: Yes. Yes.

COMMISSIONER FRIEDKIN: That's great.

MR. HEGEN: Let me add one more thing. Go ahead, I'm sorry. One more thing about law enforcement, one of the things ‑‑ there were two issues of great concern is that this particular regulation, which prohibits the uprooting was going to have an economic impact on local areas, in terms of the economy and people not wanting to fish and those types of things.

We went to the Chambers of Commerce and we went to county commissioners' court in the cities and one other thing we did, we visited the three justices of the peace in the three counties and took them a booklet of information of our efforts to conserve and that type of thing and before the regulation went into effect and basically educated them to the need for conservation and the fact that the rule was going to go into effect.

And, as a matter of fact, one of them complimented us and said, This is the first time the agency has come and told us a rule that was up and coming, and they were eager to know about it and have some information on which to make judgments.

COMMISSIONER FRIEDKIN: I know we've got a little more to get through. Pete, thank you very much. We appreciate all your efforts on the coast. Robin.

MR. HEGEN: I'll run through it very quickly then. We did that one. The last venue by which we do some scientific collection is actually swimming transects and the map in the middle, there are 35 sites, noted by red dots, in the upper and lower part of Redfish Bay. The western part of Redfish Bay is that is highly vegetated. We took those 35 transects and over the last ‑‑ since 2005, swam those transects and looked at the number of scars crossing that hundred-meter line and you can see by this particular graph is that there are about, in 2005 and 2006 which we consider pre-regulation ‑‑ there were about 2.5 ‑‑ on the average, 2.5 scars crossing each of those 100 meter-transects. It dropped in 2007, which was actually the first full year of the regulation, went back up in 2008 and 2009, a little bit. There are probably some issues in 2007. It was a first year, which may have prevented people from actually traversing the Redfish Bay State Scientific Area because they didn't quite understand what was going on and a little bit of avoidance. There were also some high tides and some other issues.

But, in essence what that turns out to be, if you take our 35 transects is a 45 percent decrease in the number of prop scars per transect, which complements the same thing as the aerial photography is showing in gray.

We also, as we're out there swimming, are tracking scars that we find from one year to the next to do scar recovery and, contrary to what some of the literature says, we're finding some more rapid recovery in scars that we are finding that in one year perhaps having early vegetation and the next year swimming over that and not even recognize the scarring, although we have a GPS position in knowing scars there so you can see that actually scar recovery is doing quite well, in the neighborhood of anywhere from 60 to 80 percent from year to year, tracking identified scars.

So, all that combined brings us to these conclusions, I think very effectively, that scarring has been reduced, that scars are recovering rapidly and that certain areas are more susceptible to scarring ‑‑ obviously shallow areas where boaters enter and exit and those types of things, but we've actually seen some reductions in those areas, the center of Redfish Bay, those three maps I've shown you. And our education outreach efforts are successful.

What we're here today to ask permission to do is to go to publication to remove the term expiration of the Redfish Bay State Scientific Area and that would allow the regulation ‑‑ the proclamation to be in existence as our other fish and game bag and possession limit rules are and they get reviewed on an annual basis during the cycle. And to update a couple of names, both common and scientific names that we found errors in. Those are just technical. There's an extra "I" on the end of Inglemani, "I", those types of things, so we want to make those technical changes so we request permission to go publish ‑‑ we have two dates set for public hearings to gather input on this particular regulation, permission is granted.

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: Is there any reason that this should not be expanded beyond Redfish Bay to the south. I mean, we have seagrass growing all the way down to the Lowe Laguna Madre, don't they? Why would they limit this? I know that the effort's big and I commend everybody on the success of it. I'm just suggesting that we ‑‑ why wouldn't we want to expand the regulation to include prop scarring all the way down.

COMMISSIONER FRIEDKIN: Go ahead.

MR. RIECHERS: One of the things here is some question about authority for habitat type of issues and how to deal with that. Certainly, we've already identified some other additional sites, like South Bay, where there's a coastal preserve that may be a natural nexus for us to carry this forward there.

What we need to do is basically, just like we did here, work with those local communities, work with law enforcement, to be able to identify the area that we're talking about, where we actually have those seagrass meadows and be able to delineate that. Working through that notion of we want to allow public access and we want them not to worry or be concerned in areas where they shouldn't have to be concerned but then, in those areas where there are seagrass meadows, to really create that protection area. So, you know, it is our intent and part of the whole effort here was to demonstrate that we actually could have this kind of impact and so we now kind of demonstrated we have this impact and, as we move forward, we'll be looking for other candidate sites and locations and possibly on ways of how we would want to expand this.

COMMISSIONER DUGGINS: The other comment ‑‑ it's actually a question. You mentioned that other states have similar issues. I'm curious to know how they ‑‑ what other states are doing in these sensitive areas. Your conclusion slide said certain areas are more susceptible to scarring. Are we analyzing whether or not we ought to consider a motor exclusion zone for areas that are particularly susceptible to scarring and how are other states ‑‑

MR. HEGEN: Yes. Some other states and in particular recently in Everglades, for instance, there are motor exclusion zones and you can't go in there with a motor. You have to take your motor off your boat and it's obviously easy to enforce. If there's a zone, a big area and there's a motor on the back of your boat, you're in violation. Other states have areas designating, with depth. You have a sign maintenance, of course. If you put a pole out there that, when the tide goes down it's red and it's been under water for weeks at a time and then it's algae and barnacle-encrusted, you can't see the red. Other states have a number of different things. We've researched those and, for simplicity's sake, it was our emphasis to not exclude anybody and to limit the number of signage and internal markings within the bay.

Now, what I referred to primarily, was within Redfish Bay, there are areas that are deeper and shallower than others and so you will get some sort of higher scarring, perhaps. But this now is a baseline data. If we continue to do a monitoring plan and look at those areas of higher scarring, if our education outreach effort maintains itself and boaters continue to behave ‑‑ I say that loosely, then we will be able to measure the scarring in those areas.

COMMISSIONER DUGGINS: Maybe we ought to look into that, particularly in light of Dan's observations about boats becoming lighter and more areas becoming accessible that previously were not.

MR. RIECHERS: And certainly that notion of boats getting to places they used to not get to, has both affected habitat as well as fish populations so, you know, certainly we have to factor that in and understand that as we move forward. There were places that used to be refuges that are not refuges anymore, basically.

COMMISSIONER HUGHES: We think that the shallow water boats running in the shallow water is changing the patterns of fish? Do we have any data?

MR. RIECHERS: I would suggest our data certainly, I mean, we can look at some of our gill net sampling to see if we really can tease out any shifts in behavior. I would suggest though, just based on what we've seen, it really hasn't changed behavior. Now, it doesn't mean that there can't be a localized impact associated with some of that herding that might go on. The report I think you're referring to, we've had that forwarded to us from several folks along the way, most recently.

So, you know, there certainly can be those local impacts or daily impacts that can go on but, as a whole, we don't really see any shifts in really how these fish are behaving, based on what we know at this point.

COMMISSIONER FRIEDKIN: I would underscore Commissioner Hughes and Duggins' kind of request to take a broader look at the coastal areas and maybe if we could just kind of educate the Commission in a briefing, in the near future, so we have a better understanding of what's going on, up and down the coast and I think it'll be helpful when we consider, you know, future decisions about it. So, if we could do that, that would be great.

MR. RIECHERS: We can certainly prepare that and come forward with that.

MR. SMITH: Well, and the timing is pretty good too, Robin and Ed, in terms of going into the summer on our regulation cycle and working with our fisheries' biologists on ideas that they're going to bring forward and so we can certainly put this on the plate to consider and be prepared for that discussion. So ‑‑

MR. HEGEN: One more point, we did a significant benchmark. We did put seagrass, submerged aquatic vegetation, in the boater ed handbook and every course that was taught in the last four years by our boater ed instructors that are sanctioned by the agency got handouts and then we finally ‑‑ in the new booklet there, there is information on seagrass protection.

COMMISSIONER DUGGINS: Where were these 47,000 brochures and seminars at? Where and how?

MR. HEGEN: Everywhere. We went to CCA, Board of Directors meetings, we went to fishing ‑‑ regular meetings CCA, we distributed through our harvest surveys at boat ramps, we ‑‑ through boating education classes, anybody that would listen to us, people who lived along the area.

COMMISSIONER DUGGINS: How about dealers and people that sell boats and motors?

MR. HEGEN: We did not. We've tried that before and were not very successful. They weren't very receptive and ‑‑ if they're selling a shallow water boat, they weren't very receptive in trying to educate their boater on the hazards of that shallow water boat.

COMMISSIONER DUGGINS: Can we get it to the ‑‑ when somebody titles their boat ‑‑

MR. HEGEN: That has been ‑‑ or boat registration. We've talked about that, that we could send information as boat registrations come up; send information on seagrass.

MR. RIECHERS: Now that we have that map and can kind of target those real key county areas, we believe we can maybe create some targeted mailing of that information when we have those boater registration renewals and maybe the first times, as well. But we think we can use that venue to help us get that information out.

COMMISSIONER DUGGINS: Seems like that's a good way to get it out.

MR. RIECHERS: Yes, sir.

COMMISSIONER HIXON: Is there a viable guide's association on the Texas Coast?

MR. RIECHERS: There's a ‑‑ yes, there are several guides associations. There's not one that I know of that covers the entire coast but there are some pockets of them, there's one ‑‑

COMMISSIONER HIXON: Get them on board.

MR. RIECHERS: There's one in the Valley, there's Port Aransas Boatmen's Association. There's several of them out them that we can certainly use them as being used as well.

MR. HEGEN: We are actually doing that. We recently had ‑‑ Coastal Bend Bays Foundation had a public issue and the guide's association was represented and they are in favor or very pleased of the outcome of our regulation.

COMMISSIONER FRIEDKIN: Commissioner Morian.

COMMISSIONER MORIAN: Ed, have you thought about passing this on to the GPS people and let them put it on their database? Did you go permanent with it? It'd be interesting to see. They're all competing to have as much information as they can on it. You might ask Mike; call up the Bay State, I mean, the scientific area boundary and, like everything else on those boating maps.

MR. RIECHERS: Well, and certainly the boundary is there in our Code. Any of those mapmakers could take that and include that and, you know, we might be able to even reach out to them and see if we couldn't encourage them to do so.

COMMISSIONER MORIAN: If they get a letter from you they might.

MR. HEGEN: On our home page, there's extractable map. If you go to seagrasses on our home page, you can actually pull up the brochures and the maps; they're printable maps. Yes, and that's a good point.

COMMISSIONER MORIAN: Try to get it preloaded in there. It might work. Thank you.

COMMISSIONER FRIEDKIN: I recognize that we're going to get more educated about this in the near future and any other questions now about this? We're talking about removing the expiration date and species name update. Okay. Thank you both very much. No further questions or discussion, I'll authorize staff to publish the proposed changes in the Texas Register for the required public comment period.

MR. HEGEN: Thank you.

COMMISSIONER FRIEDKIN: Thank you. Item 3 — Briefing on Federal and State Cooperative Management of the Red Snapper Fishery. Robin.

MR. RIECHERS: Chairman and Commissioners, for the record my name is Robin Riechers of the Coastal Fisheries Division and I'm here to present this briefing on the Red Snapper Fishery, based on a request at the January Commission meeting to come back and kind of discuss this issue and talk about what has happened since our January meeting because we did receive a stock assessment since then.

For some of you that are a little bit new to the cooperative management federal and state partnership, I want to explain a little bit about how this works and we sit on one of eight ‑‑ the Gulf of Mexico Fishery Management Council is one of eight fishery management councils around the country.

The council has 17 members. Eleven of those members are nominated by the different five gulf states' governors and then appointed by the Secretary of Commerce. The other five members come from each state agency marine resource division, basically, and then one is the regional director of National Marine Fisheries Service.

Of course, that body is an advisory body to the National Marine Fisheries Service, which is within the National Oceanic and Atmospheric Administration; that's why the Secretary of Commerce ultimately makes those appointments and ultimately approves all the fishery management plans.

Those bodies were created by the Magnuson Act in 1976. That Magnuson Act has been reauthorized as the Magnuson-Stevens Act in 1996 and 2006. What the Act basically does it, for those fisheries that you are going to manage or manage species, you have to identify an over-fishing rate, which is the level of fishing pressure or fishing harvest that would occur, in any given year, that would force you, at some point, into an over-fished state.

So, first you identify that rate and then, next, you identify what you consider that over-fished level is and, of course, that over-fished level is more of a length of time issue. You would have to have that over-fishing rate for several years or throughout a life cycle to then go into an over-fished state.

What you then also have to establish is the annual catch limits, which, hopefully, do not drive you into an over-fished rate or state and then, more recently, in the 2006 reauthorization, you have to develop accountability measures which means for each sector, commercial, rent, private boat, charter boat, et cetera, if you can tease out what those catches are in each of those sectors, if you are over-fishing for a particular sector, you have to go ahead and basically create the remedy within your management plan of how are we going to fix this if we do go over that rate.

For red snapper, currently the allocation is 51 percent, commercial, 49 percent recreational. That split or allocation has been in place since 1984 when the first reef fish fishery management plan was put into place.

When we looked at the history of regulatory changes for that reef fish fishery management plan, it was put into place in 1984. The first action was done in 1990. Since that time we've had 27 amendments to that plan. I'm just listing you some key milestones here, as you can really see the tack moved up through time in the early 1990s to 9.12 million pounds. Then basically remained at that 9.12 million pounds until the 2008 season.

Of note in January, 2007, the commercial fishery moved out of seasonal closures and poundage limits and so forth, into a commercial individual fisheries quota system, which basically means that each vessel or each owner is given a certain amount of pounds they can land and they now have more flexibility about when and how they land those fish.

In the 2008 season, Amendment 2714 passed, which was a joint amendment between reef fish and the shrimp fisheries. It decreased the TAC to five million pounds. That's when the two-fish bag limit in federal waters went into place. In 2008 ‑‑ that first year in 2007, the season was June 1st to October 31st. In 2008, that season was reduced from June 1st to September 30th. In 2009, it reduced from June 1st to August 14th.

And the reason for those reductions in those recreational season, is basically, those fish were being captured at a higher rate so as each year went by, the poundage of those fish was going up in size per fish and so we met the total allowable catch quicker each year and so basically it means that we're closing down the number of days that we're allowing to fish and you'll see, as we move on, this year it's going to be a further reduction in number of days.

COMMISSIONER HOLT: Is this both commercial and recreational?

MR. RIECHERS: No, this is just dealing with the recreational season. When the commercials went to the IFQ system, they basically have a 365-day season but each individual is limited to their allotment of pounds that they receive, based on a historical percentage of the overall catch.

COMMISSIONER HOLT: It's still supposed to be 51-49 in the split between commercial and recreation?

MR. RIECHERS: That's correct. And then, of that 51, all the commercial participants get a percentage of that share and, you know, if you historically caught ‑‑ let's just say there were 2.5 million pounds going to the commercials and you historically caught 10 percent of that, then you would get your 250,000 pounds and you'd catch it whenever you would like to.

Now there are many restrictions as to how they have to land those fish. They have to call in, say they're fixing to land, they basically have to hail to port and then, you know, there's different controls now in place that actually allows us to monitor and enforce that.

COMMISSIONER HOLT: And why the large drop from 2007 to 2008 ‑‑ or '96, I guess, it shows it went up to 9 million ‑‑

MR. RIECHERS: We stayed at 9.12 million pounds. Basically, it's because the assessment in 2005 showed that we were in that over-fishing rate and we had not met some of the previous goals. One of the big portions of that was an assumption about the reduction in overall shrimp bycatch associated with the shrimp fishery. And so, when the amendment ‑‑ when the new assessment came in in 2006, that's why we created the joint amendment with reef fish and shrimp and we made sure that, as we talked about the remedies moving forward, that we would have to reach those reductions in shrimp trawl bycatch if we were going to recover this fishery.

The good news/bad news scenario is the ‑‑ because of the shrimp fisheries' difficult issues regarding fuel and prices, we have met and exceeded the reduction that we needed to see on the shrimp side of this and so, you know, that part of the plan is working, not necessarily because of management actions but because of the market, in some respects.

COMMISSIONER HOLT: Now, is this gulfwide, is this Texas only?

MR. RIECHERS: What I'm referring to here is all the gulfwide issues and we're going to talk a little bit about some of the Texas-specific data that we have at the end of the presentation.

As we kind of talked about already, we got our new assessment in February, right after our January commission meeting. What it indicated that our current yearly rate of fishing is not at an over-fishing rate anymore. We remain over-fished, meaning we still have not achieved the overall level of spawning the potential ratio or spawning the biomass that we want to achieve through time.

And so, we're still on a rebuilding plan until the year 2032, as it stands now. And now, what that means is that our biological catch went from 5.0 million pounds to 6.945 million pounds in the current year, in the upcoming year. So that basically gives us a little ‑‑ instead of having to take more Draconian actions, we actually may be able to stay ‑‑ stand pat, to some degree. So, that is good news although it may not seem it on the surface.

The next two slides are actual slides that I took out of the National Marine Fisheries Service presentation to the council. What we have here is an east/west split, split by the Mississippi. The red dots there are what we call our Age Zero recruits or our young of the year recruits and the more important line here is your spawning stock biomass and it's the blue line.

What you can see there, there is a considerable difference in scales between the east and the west and I bring this up because basically the west is at a higher, overall abundance and it's at a higher recruitment level and with lower fishing mortality so, as we go forward, the west is carrying the lion's share of this rebuilding process right now. It's disproportionately carrying the burden of this rebuilding.

But, what you do see there is that blue line really kicking up here in the last few years. It's almost asymptotically moving up and that means that the recovery is well on its way, if we can keep it on track. Now, notice in the blue ‑‑ the red dots there, and I'm going to refer to those that recruitment a little bit later and show you some of our own recruitment data, you notice the recruitment in that western slide there, you'll actually see it going down.

This recruitment data's taken off the cement data, which is done Gulfwide. We believe we actually have a better measure of recruitment here in Texas. This is done in the month of November. We believe that the peak recruitment or we know the peak recruitment actually occurs in September and maybe through a range of those months. We've been trying to get that into the assessment. We've been unsuccessful in that but I'll show you some of the Texas-specific data on that, in a couple of minutes here.

This basically speaks to that 2032 recovery. The green line is our spawning potential ratio, which we have to have above 26 percent or at 26 percent by the year 2032. We're certainly currently projected to reach that mark. As you can see there, the yield is in blue. If we go forward in yield, we're going to be ramping up over the next few year in yields and then we're going to level off somewhere in about twelve and a half million pounds, is what we would expect, given the current analysis we have on this fishery.

COMMISSIONER HOLT: Now this is total Gulf again.

MR. RIECHERS: This is total Gulf again. Yes, sir.

COMMISSIONER HOLT: You're saying east is the bigger issue than the west.

MR. RIECHERS: That's correct. That's correct. Right now it's allocated just recreational and commercial. There's no east/west allocation ‑‑

COMMISSIONER HOLT: Right, or anything like that.

MR. RIECHERS: The next slides now are going to focus in on kind of what the Texas fishery is doing and how it's been doing through the years. This is our Texas Recreational Private Boat landings. As you can see there, we've got it split into the Texas Territorial Sea landings with the green line. The red line are those landings in the EZ, outside of the nine nautical miles. This does not include our head-boat landings or our party boats, the big vessels that carry multiple passengers but you can see from, you know, we basically have been fairly static in our landings since about '99, 2000. We're now seeing some trade-off between TTS and EZ. That could either be attributed to people have figured out that if they say they're fishing in Texas Territorial Sea they have a year-round season. So we may be seeing some trade-off there.

It could also be attributed to the fact that we're having greater distribution of those fish inside the nine nautical miles as well. It could be either one of those things going on with that graph there. But we do have to recognize that overall, we've been fairly static.

When we talk about health of the fishery and one of the things we're trying to do in this fishery is move those fish into those larger-size classes, get some of those fish throughout that whole age range and you can see here that we have almost doubled our size since the early 1980s. Our average catch rate ‑‑ size at this point in time is around 22 inches.

This is just another way to depict that broken down with the Decato pattern. You can see in the 1980s, that size range was split around that 13 inch, which was a status of the minimum size limit in 1984 and you can see as we moved that size limit up, we've both increased those overall average sizes and we're starting to even see those sizes move out to those, you know, that 21, 23, 25 inches you've seen more fish out in those ranges as well.

Another measure of health could be the success rate of our anglers. You can see here that about a third of our anglers, when they go fishing for red snapper, actually catch all of their bag limit. That's the highest success rate that we have of any of our fisheries, as far as catching their bag limits. So that's of note.

This is what I referring to. This again, is young of the year red snapper, caught in our Gulf trawls. This is the complete monthly cycle that we show. All those high peaks that you see there are really that September- October kind of time frame. As you can see there, our highest recruitment occurred in the very last year that we had; 2009. Three of our highest, over our entire period, have occurred in the last six years, so recruitment to this fishery is doing really well.

Just to show you, obviously, some of the belief of why we believe our recruitment is doing as well as it was, you know, we did, all through the 1980s and the early '90s, factored into that model was a significant assumption about reduction in shrimp-trawling effort or shrimp trawl bycatch of those young of the year red snapper as fish trawl effort went down, for whatever reason. What we have here plotted is the shrimp trawl effort with the bars in yellow and then the annual average of that recruitment in red. And you can see that the shrimp-trawl effort has declined. Our red snapper trawl catch per unit effort has increased, or the overall abundance of those young of the year red snapper has increased.

Where that leads us today, of course, is that, from the recreational fisheries side, in 2010, Federal waters, from nine to 200 miles is going to maintain the two-fish bag limit and the 16-inch minimum size limit. Today or yesterday, the notice came out. It's a proposal to have the season run from June 1st to July 24th. Note that I've made that July 24th as extremely tentative. All of the data is not in, in regards to head boats and other things so they've put 24th as their best estimate right now but as that data gets completed over the cycle of the next month or so, July 24th could move out a few days, could come in a few days but that's, you know, the best estimate that we have at this point in time.

Of course, in our waters, we're still at a four-fish bag limit with a 15-inch minimum size limit and we have a year-round fishery still.

COMMISSIONER HOLT: So that's going to ‑‑ I assume that's part of what we're starting to see. It drives people more and more into staying within the nine miles.

MR. RIECHERS: Either they're staying within the nine nautical miles or they're saying they fished within the nine nautical miles. We certainly don't know which case that may be.

COMMISSIONER HOLT: How much pressure are we getting from the Feds to change and you might walk us through what other states have done, if they've gone to the Fed. Go ahead.

MR. RIECHERS: Typically, in the last few years, Alabama, Mississippi and Louisiana have gone along with the federal consistency issue in regards to the recreational fishery. Florida came close to matching last year. They basically were ‑‑ their season lasted a little longer. They went with the season length from the year before.

What I know about Florida at this moment in time is that they are considering matching. Their meeting is in April. They're kind of put in a bind similar to the bind we were in in January of ‑‑ they don't know what the real dates are that they're going to be voting on in April and, from talking with their staff, they're a little concerned about that. Their commission is wondering what is that true date before they have that vote. So, they're caught in a little bit of the same situation we are. Louisiana, apparently, is also in that same situation that they're going to be taking an action that they would just have to call an action for consistency, not knowing what those federal guidelines are yet.

So, I don't know where those two states are going to go. I just know that's kind of where they are at this moment in time. I can't really speak for Alabama or Mississippi. You know, they have been going along, is all I can tell you, in the past.

COMMISSIONER HOLT: You may explain the issue, a little bit, with the charter guides, relative to the differences up here. My understanding is that's probably what drove some of the changeover in Florida; that the charter guides probably threw up their hands and said, you know, we can't be in two different waters and, go ahead, sorry.

MR. RIECHERS: No, I think.

COMMISSIONER HOLT: That might help everybody here understand that there some issues.

MR. RIECHERS: That's exactly correct.

COMMISSIONER HOLT: Commercial and not just legal or biological but also kind of commercial issues here.

MR. RIECHERS: In the last amendment on reef fish that was passed, it was actually a red grouper guide amendment, but included in it was a notion regarding all reef fish species or all over-fished reef fish species, which included red snapper, that if you hold a federal permit, no matter where you are, in state waters or in federal waters, you must abide by the federal rule, or abide by whichever rule is more strict.

So, if we had a more strict rule in ‑‑ let's just say we had a one-fish bag limit in state waters, then, in out-of-state waters you would abide by one-fish but if our limit is at four and there is at two, they must abide by two-fish in state waters. So you definitely have some issues regarding what difference people can do on different vessels.

You can have a private recreational boat right next to a charter boat in state waters. The private recreational boat having four fish per person, the charter boat only allowing two fish per person. Now, I might add to that, you know, in Texas waters we went to the charter or the no captain and crew rule long before the Feds did so, so we already recognized, some time back, it was actually in 2002, that on these guided boat ‑‑ guided vessel trips, that the guide, you know, should not be allowed to keep a bag limit and so, we were in that boat even before the Feds were, in that respect. But they've now followed suite as well.

Let me go to just the last slide and just briefly discuss ‑‑ in that same notion of other things going on out there, you know, you've probably have heard a lot of talk about the notion of catch shares. The administration has put a big emphasis on catch shares in the current budget. I believe it's $50 million that they've set aside to try to create a streamlined approach to getting catch share programs in place. When they're referring to catch share programs, they're referring to something like that individual fisheries quota transfer type of program.

There's been a lot of discussion about how that might apply to a charter boat fishery or, you know, that for-hire sector. There's been discussion about how you might apply something like that to a recreational fishery.

In the Gulf, currently, we don't have it applying in any of those fisheries but certainly, there have been those discussions in that regard and, course, as you remember, I think, at the last meeting, I indicated to you that Governor Perry, along with four other governors ‑‑ three other governors in the Gulf states, sent a letter to the Administration in regards to this and asking them, basically ‑‑ discussing with them about how well this works in these multi-use fisheries where there's both recreational, commercial and charter boats and also just suggesting that, if you could, you know, make sure ‑‑ we're not saying don't do away with this as a tool but certainly we need to have time to determine how it's going to impact these fisheries, if you are going to use this as a tool and kind of slow down, if you will.

COMMISSIONER HOLT: Why don't you explain catch shares, so there is kind of a general understanding.

MR. RIECHERS: The catch share notion is basically the individual or the vessel or the owner is given, like in the commercial side, given their ‑‑ some sort of historical allocation or some level of allocation. If the recreational fishery was getting 2.5 million pounds and you had, historically, caught 10 percent of that, if they had catch records, then you might get 10 percent of that allocated to you and then you could use it ‑‑ same kind of notion in the commercial sense, you could then use it how you saw fit; when you wanted to fish those days and so forth.

Obviously, it makes perfect sense from a business model. The question is is, in the recreational side is, we don't have those catch share histories. We don't know who has been fishing out there in our red snapper. We have some of that and some sampling of that in the charter boat sector. We don't have any of that in the private recreational sector. So, you know, there's been a lot of discussion about that. There's been discussion of why would we want to ‑‑ if we go to a catch share system, it's going to be a marketable commodity and why would we want to have to pay for a share that we've ‑‑ supposedly is already ours.

There's been a lot of discussion at the federal level on this issue, still being pushed by the Administration and certainly we will have continued discussion at the Gulf Council level, in regards to this.

COMMISSIONER HOLT: For the Commission, you may want to get aware of this because it's also ‑‑ we've got a lot of the recreational fishing associations and groups and individuals very paranoid about this and so I tend to hear about it all the time and so I finally had to get it up to speed and understand it and I think one of the issues is, there is just a real fear that the Fed's going to use this to get around what I call some of the really paranoid recreation; the Feds are going this to push it all over to commercial and there'll be no recreational fishing at all. Okay, for red snapper ‑‑ let's use red snapper. Or, it's going to be a way for the Feds to take control of everything, which I know is a fear and maybe, since we all are big lovers of the federal government, that may be a real issue. So, this is a ongoing battle and my guess is, it's not going to disappear so we on the Commission, I think you'll hear about it, particularly through the summers, as it really kind of heats up again as the fishing period kicks in and then it kind of fades during the winter and then it comes back and so ‑‑

MR. RIECHERS: Yes.

COMMISSIONER HOLT: — Robin's done a good job. He's been on the Council for years and we've been deeply involved and also there's been the issue, you might tell them, a little bit, you know, we're not sure we agree with the Feds and then you've got the west versus the east and, you know, all these others with what I'd call biological/science issues about these counts and those kinds of things too.

MR. RIECHERS: Well, and as we have briefed you in the past, you know, obviously a model that goes out to 2032, you know biological model, there are a lot of questions and uncertainties associated with that and so we recognize that and that's one of the reasons you all have chosen to keep our season where it has been in the past. As we talked with the federal system, one of our other goals here is to talk about more regionalized and localized management. Certainly, some of the east/west differences that are now coming out in these assessments now start to speak to that issue as well because it could be that, you know, maybe if you start managing these things on a regional basis, a couple of things can happen.

One is, those people who are fishing at greater mortality rates are ‑‑ greater fishing mortality rates might need to take more action than, say, we need to do here in the west. So, you know, there can be some trade-offs there.

The other notion to that is obviously, with more localized management, we believe we can better get the profits we should get out of these fisheries. For instance, you know, we just to have a robust winter Texan fishery for snapper. And we don't have that anymore. And so we believe there may be opportunities if you create that more localized management, you can gain some of those benefits that you would expect to get out of these fisheries.

I'd already kind of mentioned some of the issues with stock assessments regarding the uncertainty. Obviously, some of the other big issues that we know about is just better data collection, real time data collection on charter and private sector, if we can get it, how to include habitat and habitat differences in these fisheries and that's a big one here in red snapper because this fishery used to be an east Gulf fishery and, as we moved through the 1900s and with oil rigs and other hard structure coming on this side of the Gulf, you can see now it's a western Gulf fishery.

And so, you know, there has been changes through time and habitat and the habitat issues in regards to this fishery. This fishery has expanded. It's now expanding in the east side. They're seeing red snapper in places in Florida that they haven't seen them for years and right now the models do not include any sort of habitat component like that and so, hopefully through time, the models will get better and be able to include some of those issues as well.

Any other questions regarding red snapper? I'm sure we will be visiting with you ‑‑ as you well know, we were prepared to have this discussion in kind of a scoping format in November. We really fell short of that because we didn't have this assessment. You know, we believe that obviously if we move next year, we'll discuss it again in our biological meetings with our own folks but certainly it'll be a discussion item, basically ongoing from year to year, I assume, as we move forward as to whether we should match ‑‑ whether we should become more consistent or, you know, where we may go in-between that. So.

COMMISSIONER FRIEDKIN: Other questions? Robin, thank you very much. Appreciate it.

Item 4, Migratory Game Bird Proclamation. Corey Mason.

MR. MASON: Good morning. For the record, I'm Corey Mason, Migratory Shore and Upper Game Bird program leader. This morning I will be discussing proposals for early and late season migratory birds and these proposals presented today are simply calendar adjustments from last year.

These proposals have been vetted through our two migratory committees and are recommended from our Texas Parks and Wildlife Migratory Game Bird Committee and are supported by our Migratory Game Bird Advisory Committee. I'd like to begin this morning with a brief overview of the regulatory process, looking at it both from the federal and state scope. Migratory game birds are managed on an annual process and you can see the calendar here from January through late summer.

There are numerous stakeholders involved in the management of this species because it is a shared resource. At the top part of this slide here represents the federal process and the bottom depicting the state process. If you pay particular attention there on the top part, the Technical Committees and the Flyway Council, this represents the cooperative migratory bird management approach here, with these technical committees and flyway councils are comprised of representatives from the state, NGOs, U.S. Fish and Wildlife Service and even Canadian provinces, in the management of these species.

Of particular interest for the service regulation committee meetings there on the far right hand side of the slide, following these two meetings, the states then are given options as far as what to expect related to the upcoming seasons, dates, packages, number of birds, those kinds of things.

If you look there at the bottom, see Commission meetings March ‑‑ obviously where we are today, May and July and, I'm sorry, in August, the service regulations committee there in late June doesn't necessarily coincide with Commission meetings at that time of year so the authority is given to the Executive Director, acting in concert with the Chairman of the Commission, to approve a regulation at that point in time.

And about that same time of year, our publications are printed, related to early season, they're in July, they're in the Outdoor Annual and the late that you see there in September related to our Waterfowl Digest that is printed.

The first proposal relates to waterfowl. The U.S. Fish and Wildlife Service will give us one of three options. These three options consist of a 16-day season, a nine-day season or a closed season. At this point in time, we do not anticipate a closed season, however, we do not know. The 16-day season ‑‑ it's been Commission policy, during the 16-day season, to run the last three full weekends of September and a nine-day season being the last two full weekends.

This is what the 16-day season looks like on a calendar. Once again, the last two full weeks and three full weekends of September. The nine-day option being the last week and two full weekends of September.

The next proposal relates to gallinules, rail, snipe and woodcock. You will note that we have attempted to run rail and gallinule season concurrent with the September teal season but, once again, at this time, we do not know exact dates. The second segment of rail and gallinule season opening at the proposed time of the opening of waterfowl season, running through December the 22nd. Snipe season once again open at the beginning of the proposed waterfowl season.

Woodcock season, we're allowed 45 days from the Fish and Wildlife Service for woodcock season. The last day that's allowed is January the 31st so we run ‑‑ it's a tradition to run that backwards in the calendar 45 days, resulting in a December 18th opening and January 31st closure.

Dove season, based on findings of a recent dove hunter survey and input from our migratory committees; these are the proposed dates and zones and number of days daily bagged. You'll note in the north zone and central zones, the seasons are concurrent. September 1st opening date, running through October the 24th. December the 25th opener for the second segment, running through January the 9th in both the north and central zones.

In the south zone, September the 17th, which is earliest, as allowed by federal frameworks, running through October the 31st. The south zone second segment opening December the 25th through January the 18th.

Related to the special white-winged dove area, September 4th and 5th and 11th and 12th are the early half-day season hunts allowed in this special area. These are ‑‑ 15 birds in the aggregate are allowed, up to which four can be mourning dove. The statewide restriction of two white-tips applies during this special season, as well, with the general season opening in the special area September the 17th, at the same time as the south zone, running through October the 31st and then opening December the 25th and running through January the 14th.

Now, these are what these dates look like on the calendar. The north and central zones, once again, beginning September the 1st, running three full weeks in October, ending the 24th. You'll notice that the December 25th, this year Christmas falls on a Saturday. The rationale in opening then is that the December opener's been fairly important. Our dove hunter opinion survey ‑‑ they've shown that people like that; they've traveled around the state, they have family in town and some of the thought-process going into that is that people are traveling, potentially they received a gun for Christmas, those kind of opportunities are allowed and they're available. If we were to wait until the next weekend, you'd push it back, obviously, and if you wait until the 26th, you don't have full advantage of the entire weekend then.

Related to the south zone and special white-wing dove area, the early ‑‑ the four days there you see highlighted in red are, once again, special to the special white-wing dove area. These are the half-day hunts allowed in that area only. The September the 17th opener for both of the zones running through the end of October. Once again the December 25th opener runs through January the 14th in the special white-winged dove area and the four days there in gray were the south zone would end, because the four days in red count towards the 70-day total in the special white-winged dove area so those are the four days on the back end. The south zone gets the special white-winged dove the area does not have available to it.

Now we'll move towards waterfowl-related proposals, late-season species, these being ducks, geese, coots, cranes and geese. These dates may be significantly altered based on habitat conditions and population surveys that will be forthcoming later this summer. What's being presented is based on a liberal package ‑‑ the liberal package being the most opportunistic of the three that are available to us and based on a conventional bag limit.

We will have an 18 percent reduction for mottled ducks, which means, in all of the zones, there will be five days removed on the front end of the season. This is a Fish and Wildlife Service-directed action.

Now, related to the High Plains Mallard Management Unit, the area you see depicted there is highlighted on the graphic, the youth season being October the 16th and 17th, the general season being the weekend of the 23rd and 24th and reopening on the 29th and running through January the 23rd. Once again, that five-day front end closure of mottled ducks, which results in the mottled duck and the dusky duck category, which are mottled ducks, black ducks, Mexican ducks and integrades, since you really can't differentiate that ‑‑ just that whole group of birds that are closed the first five days of the season.

This is what it looks like on the calendar. The 16th and 17th being the youth season, the general season opening on the 23rd and running through January, running through the end of January 23rd.

Relate to north and south zones, once again, if you'll notice on the graphic there, they are highlighted. Youth season being October the 23rd through October the 24th, general season opening October the 30th, the second segment opening December the 11th through January the 23rd.

Once again, what it looks like on the calendar, the youth season is depicted in gray there, with the second segment opening December the 11th and running through January the 23rd.

As I said earlier, we anticipate the conventional bag limit; Hunter's Choice is not an option offered to us this year. A conventional bag limit consists of six ducks in the aggregate daily bag, these being of the following species and sex restrictions apply here, up to which five can be mallards. Only two of those can be hens. Three wood-ducks, which this is the second year ‑‑ this is a new option for us ‑‑ two scaup, two redhead, one pintail, one canvasback and one dusky duck.

All others being six ‑‑ gadwall, wigeon, teal, shoveler, those being in the sixth category. Mergansers, up to five a day, which two of those can be hooded mergansers, and 15 coots per day allowed.

Related to geese now. In the west zone, light and dark geese, November 6th through February the 6th, daily bag limit of light geese being 20, in the aggregate with no possession limit. Dark geese, five in the aggregate of which four of those can be Canada goose and one white-front.

And the Light Goose Conservation Order to begin February the 7th and run through March the 27th.

COMMISSIONER DUGGIONS: What again is that?

MR. MASON: I'm sorry?

COMMISSIONER DUGGINS: The Light Goose Conservation Order?

MR. MASON: That is aimed particularly at taking advantage of white geese and snow geese, Ross's geese and blue geese, to population reduction hunt.

COMMISSIONER BIVINS: Electronic calls?

MR. MASON: Unplugged shotguns, electronic calls are all available then.

MR. SMITH: Commissioner, that was born out of the concerns about what was happening on the breeding grounds. Okay.

COMMISSIONER HOLT: I assume it is.

MR. MASON: Any other questions?

COMMISSIONER DUGGINS: Are people taking advantage of that?

MR. MASON: You know, I couldn't speak to the number of hunters ‑‑ people are taking advantage of it. Dave Morrison is here, one of our program leaders, if we wanted to ask about the special number of hunters that are taking advantage of that season.

COMMISSIONER HOLT: I'll ask him.

MR. MORRISON: Yes, sir. For the record, my name is Dave Morrison, I'm the waterfowl program leader. The conservation order has been in effect since about 1999 and was brought forth because of concerns on the breeding grounds. Essentially, they were eating themselves out of house and home. And so, we were looking at a way to try to reduce the overall continental population. When started ‑‑ lots of support, lot of people involved. But since its beginning in 1999, you've seen it just tailing off to where we have very few people participating. We used to kill about 100,000 during that conservation order. It's dropped down to about 20,000.

You see people ‑‑ numbers of hunters, I don't know exact numbers. I could get them for you, but you have seen a significant decline in total people participating in this and there are a lot of reasons. There is one thing that we are doing. We have up right now an internet survey asking some questions about white goose numbers in Texas and what people think about where we need to head.

We do plan, probably at the May Commission meeting, hopefully we'll have some information back from that internet survey to present to you some thoughts on what we feel we need to do to proceed with white goose season, not only the conservation order but the season in general.

COMMISSIONER BIVINS: I've got one comment on the effectiveness of that [indiscernible] season. It seems that geese are actually learning and as the years go on and the number of mature snow geese return, they do not equal to the electronic calls. They have a more juvenile population; those birds will decoy.

MR. MORRISON: No question.

COMMISSIONER BIVINS: This is from personal experience. My question is, What kind of effect does this have? Have we made any dent in the numbers?

MR. MORRISON: One of the things that we're seeing is, continentally, you look at the continental population, No, the answer is No, we have not succeeded to the level that we had hoped. But part of the reason for this survey that we're doing, with respect to white geese in Texas, is some concerns that we're having with what's going on in Texas. I believe Texas has reached the point where we have achieved what we thought. When the Conservation Order was put into place, there was nobody better equipped to take care of killing white geese because the guides ‑‑ that's what we did. We had a big force so we were there when it happened.

So what you're seeing is, you're correct about some changes, some subtle changes. For example, Kansas, not known for their white geese numbers, are carrying as many white geese as we're carrying on the coastal zone of Texas, so there's some things going on. There's some shifts occurring.

And that's not necessarily ‑‑ I'm not going to say that's tied to hunting pressure because I don't know, but there have been changes in the landscape, with respect to available food and things that heretofore ‑‑ historically, when a bird left the breeding grounds of Canada, he may have stopped once, in southern Canada, and he had a long trek down to the coastal zones of Texas and Louisiana to get his next meal. Now they just kind of stair step all the way down.

And that too was one of the reasons why white goose numbers exploded because on the way north, they had their grocery stores all the way up. They were in great condition so when they got to the breeding grounds, guess what; they produced a bunch of birds.

So that's kind of ‑‑ it's all tied together. But, in answer to your question, there's a lot going on. We are looking at what is going on, not necessarily from the Panhandle, because that's a totally different population than what we're dealing with in East Texas.

And so, we're trying to get to that to find out what does the public really want to do because we think we see some trends that are a little bit disconcerting to us but we want to have some buy-in from the public so they understand where we're going.

MR. MASON: Okay. Related to the east zone goose season, the light and Canadian goose season, October 30th to January 23rd, white-fronted goose season, October 30th through January the 9th. Daily bag limit of light geese, once again, 20 in the aggregate, no possession limit. Dark geese, five in the aggregate, of which three can be Canada geese and two white-fronted geese. The Light Goose Conservation Order beginning the day after goose season ends. Dark goose and waterfowl season ends January 24th through March 27th.

Related to Sandhill cranes in Zone A and B, we're allowed 93 days in these zones. In Zone A we take full advantage of this, beginning November the 6th, running through February the 6th, the daily bag limit of three.

In Zone B, we open this zone about three weeks later than Zone A to allow time for whooping cranes that may be in the area to migrate through to try to minimize any potential impacts that could happen there.

In Zone C, we're allowed 37 days and a two-bird daily bag. The area there in gray, encompassed around Zone C, is the Aransas National Wildlife Refuge, so we wait until late season so the whooping cranes are settled into Aransas and then we start hunting Sandhill cranes in that area.

COMMISSIONER DUGGINS: Why do we have bag limit of two in Zone C and three in the other two.

MR. MASON: Because that's what we're allowed by Fish and Wildlife Service.

COMMISSIONER DUGGINS: The U.S. Fish and Wildlife Service?

MR. MASON: Yes, sir.

COMMISSIONER DUGGINS: What's the rationale behind it; do they say?

MR. MASON: Some of it, with cranes, it's different populations of birds, related to where they winter in Texas. There's a tremendous amount of research been associated where different populations of Sandhill cranes, a really interesting bird, where a lot of these Sandhill cranes have spent a portion of their life in Canada and some even all the way into Russia. And so there are distinct populations of where they winter in Texas is fairly unique. And with that, I'll take any questions. I'm sorry, we have a calendar here.

Sandhill cranes, Zone A, beginning November the 6th through February the 6th, in Zone B, a delayed opening to allow whooping crane time to pass through the area, beginning November the 26th. In Zone C, December 18th through January the 23rd.

To conclude, falconry dates for the north and south zone, January 24th through February the 7th and there's no extended season in the High Plains and Mallards Management Unit because all available days, 107 days for vulnerability are taken account of during the hunting season. With that, I'd be happy to answer any questions you have.

COMMISSIONER BIVINS: What is the ‑‑ as far as harvest data on Sandhill cranes? Is the harvest increasing?

MR. MASON: Harvest, for Sandhill cranes, is actually fairly stable. We have ‑‑ the number of Sandhill cranes are increasing. Our overall numbers of cranes are doing very well. We have ‑‑ this year, we have between 10- and 11 thousand hunters that went through the ‑‑ that obtained the Sandhill crane permit in the state of Texas.

COMMISSIONER BIVINS: Right.

MR. MASON: And ‑‑ but as far as overall harvest, we're actually waiting ‑‑ recently just received information from the Fish and Wildlife Service related to the previous year's harvest.

COMMISSIONER BIVINS: Well, I guess, another thing I'd like to ‑‑ not today, but at some time in the future, if we could get an update on the habitat areas in Canada, the status of those, because I remember when we first addressed this issue, the presentation that you gave was very [indiscernible] devastating to the country, and it's obvious that something had to be done and I'm just curious as to the cause and effect of any of the efforts, in not only Texas but in the other states, that they have implemented.

MR. MORRISON: With respect to what, sir?

COMMISSIONER BIVINS: With the white goose ‑‑

MR. MORRISON: Okay. Okay.

COMMISSIONER BIVINS: — habitat area up in ‑‑

MR. MORRISON: We would be happy to if we would come back ‑‑ as I said, we're hopefully going to be before you in May to provide some updates and, at that time, this white goose survey that we're doing, that we may be able to provide some information of where we're at, because there is ‑‑ we participate as part of the Central Flyway with the American Museum of Natural History, out of New York and they've been doing research on white geese in the Hudson Bay for almost 40 years now.

And so there's a lot of information that we participate in that research, that's available out there, that shows different colonies, what's going on ‑‑ there's a wealth of information on that subject.

MR. SMITH: Dave, I think what he's also asking too, is habitat trends and is there any recovery ‑‑ up there?

(Simultaneous discussion.)

MR. MORRISON: That's all tied to this research.

COMMISSIONER BIVINS: Are we doing ‑‑

MR. MASON: Yes, sir.

COMMISSIONER BIVINS: Thank you.

COMMISSIONER FRIEDKIN: Any other questions? Okay. Thank you very much. If there are no further questions or discussion, I authorize staff to publish the proposed changes in the Texas Register for the required public comment period. Item 5 — Deer Management Permit, DMP Rules, Facility Standards and Release Date. Mitch Lockwood. I like your first slide here, Mitch.

COMMISSIONER HOLT: Yes.

COMMISSIONER FRIEDKIN: I took a peek.

MR. LOCKWOOD: Mr. Chairman and members of the Commission; for the record, my name is Mitch Lockwood and I'm the White-Tailed Deer program leader, also serving as the Interim Big Game program director. This morning I'll present some proposed rule changes to our deer management permit, commonly referred to as DMP.

Now, this permit has been allowed, under the Parks and Wildlife Code since 1997 and this is the permit that allows one to capture up to one buck and 20 does from their own high-fenced property and to detain those deer for natural breeding purposes only.

And, as this program has evolved over the years, it also allows for the use of breeder deer in this facility. In fact, it evens allows for the use of deer that are triple-T'd from the ranch. They may be used in a DMP facility before ultimately being released back to the wild.

These deer can be released soon after breeding has occurred so does can go back out into the pasture and produce their fawns in the pens or they may be detained all the way through August 31st so that the does can produce those fawns in the pens and raise them for a short period of time.

And it's that release date of August 31st that has generated quite a bit of interest and discussion over the last couple of years, actually and was the reason that the White-tailed Deer Advisory Committee convened back in February of this year was to specifically discuss that release date.

Before I get very deep into that discussion, I'd like to first focus on the other main item of discussion at that February White-tailed Deer Advisory Committee meeting, which was facility standards. The current rule requires that a DMP pen be at least five acres in size and no more than 100 acres in size but as this program has evolved through time, an exception has been made for that five-acre minimum pen size requirement, allowing for smaller pens provided that they do have adequate cover, which is defined as 50,000 square feet of continuous natural vegetation.

And, several months ago, the department was asked to consider an exception to this exception. The situation is that there's some deer breeder facilities that are closing and the operators would like to convert those deer breeder pens to DMP pens and there's not currently a cover requirement for deer breeder pens and so there's ‑‑ some of these deer breeder pens that may be closing out, don't have much, if any, cover at all.

And so, the reason for this cover requirement, under DMP, is to reduce the stress on these wild white-tailed deer, reduce or minimize the chance of them bouncing into the fences, getting injured or even dying. So, if you'll look closely at this photo, that opener on the right side, you'll notice there are eight to 12 deer breeder pens there in that open area. None of these are large enough or have adequate cover to qualify for a DMP under current rule.

But, some cross-fencing could be removed, making two wide open six-acre pens, which would make legitimate DMP pens, under current rule. But the White-tailed Deer Advisory Committee recognized that these open areas do not provide a good environment for wild white-tailed deer and, therefore, they've recommended that this Commission repeal that exception to that five-acre-minimum pen size requirement.

Actually, I just got a little bit ahead of myself and ‑‑ the main concern with the slide before you is the open area of these six-acre pens. As I said, they actually are large enough to qualify under current rule but the concern here is, despite the fact that there are more than five acres, they don't have any cover and that's not a good environment for wild white-tailed deer.

And, so with that in mind, the White-tailed Deer Advisory Committee recommended that all DMP facilities should contain at least 50,000 square feet of cover in the form of natural vegetation. But they did acknowledge that that 50,000 square feet of cover didn't necessarily need to be continuous. The staff concurs with that. There is some advantage to have a good mosaic of cover in the pens.

MR. SMITH: Mitch, just to the point of reference, you know, 50,000 square feet of cover ‑‑ an acre is about 43,560. Just a little benchmark there.

COMMISSIONER HOLT: So all of those to the left would qualify, even though they're under five acres, they have the 50,000 square feet.

MR. LOCKWOOD: That leads to the next point I was going to make for this slide, when I got a little bit ahead of myself a minute ago. These on the left are DMP pens or very well could be and, as you see, they qualify as a DMP pen under current rule. They are less than five acres but they do have at least 50,000 square feet of cover. And so then, we spent a lot of time ‑‑ I say We, the White-tailed Deer Advisory Committee and some other stakeholders, on how much cover is enough cover ‑‑ or how much space, rather, is enough space for wild white-tailed deer because, as Director Smith just mentioned, 50,000 square feet is approximately 1.1 acre, which our advisory committee and staff believe is not nearly enough space to hold, for any extended period of time, wild white-tailed deer.

COMMISSIONER HOLT: Okay. Stop here. Do we have counts ‑‑ because I mean, you're saying wild deer. I mean, you know, you put one in there, maybe, maybe not. If you put 10 in there, obviously not. Walk me through how we regulate that.

MR. LOCKWOOD: Well, the regulation allows for one to capture no more than one buck and no more than 20 does on your property. If you are to use breeder deer in this facility, it's still the same number, a maximum of 21 total deer. Obviously, one could use fewer deer in their facility than that. In fact, over the years, a lot of these operators have learned that they are far more successful with fewer deer because one buck can service, say, a dozen does in one cycle, one estrous cycle, but if 20 does are in there, you can't service them all in one cycle, causing later fawning dates, which, in some cases, contributes to this poor fawn survival we'll talk about later in this presentation.

But, if I understand your question correctly, the ‑‑ excuse me, the regulation simply limits the total number of deer that can be in that facility.

COMMISSIONER HOLT: Regardless of size.

MR. LOCKWOOD: Regardless of size.

COMMISSIONER HOLT: So, theoretically, it could be 21, in any ‑‑ whatever the size of pen.

COMMISSIONER FALCON: That's the question that I have. The way I understand this, you could have 21 animals in 50,000 square feet.

MR. LOCKWOOD: Under current rule, that is correct.

COMMISSIONER FALCON: Okay.

MR. LOCKWOOD: And that's the major concern right now among many stakeholders. That's simply not enough area, enough space, for 21 wild deer and so when the discussion ‑‑ progressed with this discussion and they're thinking, Well, how much space is enough? How much area do 21 deer need, especially for an extended period of time and after hearing some different ideas, the advisory committee finally recognized that we already have a good standard in place, a five-acre minimum requirement, with no exceptions.

And so, in the end, the White-tailed Deer Advisory Committee recommends just that, that this Commission repeal that five-acre minimum pen size requirement ‑‑ that exception to the five-acre minimum pen size requirement and just use that standard that we already have in place.

COMMISSIONER FALCON: So, tell me again. If you're requiring five acres or more and a minimum of 50,000 square feet of coverage?

MR. LOCKWOOD: Yes, sir. In fact, this next slide I'd like to go ahead and summarize what we've talked about so far. The recommendations that have come out of the White-tailed Deer Advisory Committee, of which staff concurred, are: Number One, for this Commission to repeal the exception of that five-acre minimum pen size requirement so, in other words, all pens be at least five acres ‑‑ all DMP facilities, be at least five acres in size and no more than 100 acres in size, no exceptions.

The second recommendation that came from the White-tailed Deer Advisory Committee is that all DMP pens contain at least 50,000 square feet of cover in the form of natural vegetation.

Now, the final recommendation that came out of that White-tailed Deer Advisory Committee is to grandfather some facilities that maintain an active permit. They recognize that some permitees, some people currently permitted under DMP, may have built their facilities, under current rule, smaller than five acres, knowing that they had that exception and recognizing the expense in pen construction and whatnot, they do recommend that we grandfather those facilities that remain active. But as soon as one would allow that facility ‑‑ or not permitted for a given year, then, from that time forward, this new rule would apply to that facility as well.

And I emphasize the word "facilities" in this third bullet here. What they are talking about is not grandfathering a permitee but rather the facility. The facility may change hands but it would still be grandfathered. Or, from a different angle, a permitee may have multiple facilities but only some of which may qualify for this grandfather clause.

COMMISSIONER DUGGINS: How many facilities are we talking about?

MR. LOCKWOOD: The last number I saw was in the neighborhood of 170-some-odd DMP permitees in the state. They average more than one facility apiece. But I don't know offhand, Commissioner, what that number is.

COMMISSIONER DUGGINS: And you're suggesting that we grandfather the facility even though they may change through change of ownership, that may occur.

MR. LOCKWOOD: That's the proposal. To grandfather the facility as long as it currently has an active permit and maintains that active permit.

COMMISSIONER DUGGINS: Well, isn't that a little bit inconsistent with the notion of grandfathering ‑‑ that you're grandfathering the owner because that person invested whatever he or she invested, as opposed to ‑‑

MR. LOCKWOOD: I suppose it is. I think the main concern with grandfathering the owner is, what if some of his facilities are currently permitted and could be grandfathered but some of the facilities are not, should those be grandfathered as well, if they're not currently permitted. Maybe he skipped a couple of years and let them sit out. So there was some discussion on what you're mentioning right now, Commissioner. And I think really, for simplicity, this was the final recommendation but, there may be a better way to consider to grandfather this or to consider a grandfather clause.

COMMISSIONER HOLT: You're talking about grandfathering an individual, not the facilities?

COMMISSIONER DUGGINS: No, grandfathering in the facility but tying it only so long as the current owner ‑‑

COMMISSIONER HOLT: In the individual's name.

COMMISSIONER DUGGINS: — has it. If it changes hands, given the strong belief that this is too small to be doing it, that seems to me like we ought to be encouraging that.

MR. LOCKWOOD: That would be easy to do, if I just understood you correctly, was basically maintain this proposal as I've mentioned but grandfathering facilities currently permitted ‑‑ I'd have to think about the wording here, but under the existing owner or permitee ‑‑

COMMISSIONER DUGGINS: Only so long as the current permitee continues to own that facility.

MR. LOCKWOOD: Yes, sir. Or operate that facility, maybe. Yes, sir. If the Commission would like to direct us to reflect that change, we'd be glad to do so and, with that in mind, and if the remainder this proposal before you here, this ‑‑ well, before I go any more ‑‑

(Laughter.)

MS. BRIGHT: For the record, I'm Ann Bright, General Counsel. Actually, Clayton suggested I come up here. I probably should have just asked Clayton to do it himself. We just wanted to get some clarification on the change in ownership. Would that include a change as a result of a death? For example, if a spouse obtained ownership as a result of a death of a spouse or a child obtains ownership. Would you want us to include those in the chances in ownership? Do you see what I'm saying.

MR. SMITH: Ann, I think you're saying, like limit it to the immediate family around the ‑‑

COMMISSIONER HOLT: You'd almost have to. Otherwise, see what you opened up, a can of worms here, didn't you, Duggins?

COMMISSIONER DUGGINS: I'm thinking about it.

MS. BRIGHT: We've got a little bit of time to really sort of stew on this before this actually has to go to the Texas Register.

(Simultaneous discussion.)

COMMISSIONER DUGGINS: I'm sensitive to the comments you just made but I do think, given staff saying that we confirm that this is too small to be having these facilities, that we ought to do what we can to phase them out over time and that seems to me to accelerate it.

COMMISSIONER FRIEDKIN: I think it'd also be helpful to know how many we're talking about. I mean, how many, you know, are ‑‑ would, under the new proposal be, you know, be inconsistent, smaller than five acres.

COMMISSIONER HOLT: Is that that 179 ‑‑

COMMISSIONER FRIEDKIN: That's total.

COMMISSIONER HOLT: Is that total or is that the number?

(Simultaneous discussion.)

MR. LOCKWOOD: How many would qualify based on this exception, less than five acres?

COMMISSIONER FRIEDKIN: Right. Or how many wouldn't, either one.

MR. LOCKWOOD: I don't know that number now. I could obtain it very quickly. It is a small number.

COMMISSIONER DUGGINS: I thought you said it was 170.

MR. LOCKWOOD: I'm sorry, that's the total number of permitees ‑‑

(Simultaneous discussion.)

MR. LOCKWOOD: Sorry for that confusion. I could find out, Commissioner Friedkin, on what that figure is but we did discuss this in passing and I was left with the understanding that it is a small percentage of our permitees.

COMMISSIONER FRIEDKIN: I'd be inclined to consider the number before we do something that would get a little complex.

MR. LOCKWOOD: Before I make a final determination on that or tell you I simply don't know, with your permission, could give the opportunity for a team member here in charge of the permit shop, Ms. Karen Pianka, to attempt to address this question. She's in the crowd and she may know offhand the answer to this.

COMMISSIONER FRIEDKIN: Thanks.

COMMISSIONER MORIAN: I just want to make one comment. I'm sensitive to that and there ought to be a way you can word this where you're not ‑‑ I don't think grandfathering is the right word for what you're doing. What you're doing is giving a permit exemption to a facility, as long as they maintain their permit. We've already determined that that's not an adequate facility. To me it'd be pretty simple to word it where either a change of ownership or a ‑‑ out of the immediate family, I mean, there's a simple way to do that, just so you don't give a permanent exemption to an inadequate facility. That's my point ‑‑

MR. SMITH: Well, what about this as a proposal. If we go forward with it written now but understand that we're going to work on what you've asked us to look at and then, before we publish it, would come back to you as chairman of the Regulations Committee and get your concurrence on that before we go out and get it published to get public comment and then come back to you all in May for action.

But give us a little time to answer these questions about how many DMP permits are, you know, are under five acres, how we might address this issue of grandfathering and their keeping it in the family. If you all would be comfortable with that we can come back to you, as chairman of the committee and get concurrence.

COMMISSIONER FRIEDKIN: Yes.

COMMISSIONER BIVINS: Would it be possible to disseminate that information via email to us all rather than just submitting ‑‑

MR. SMITH: Yes, we can certainly disseminate that, just, you know, you can't have an active discussion about

it, but yes.

COMMISSIONER BIVINS: I just would like to stay current.

MR. SMITH: Sure, sure.

COMMISSIONER FRIEDKIN: Okay, and then, when we talk about facilities also, is the facility on the permit? Obviously, we have the specific pens within ‑‑ is the facility a pen or is the facility the group that's permitted, the group of pens that's permitted.

MR. LOCKWOOD: Karen, would you like to address that question?

MS. PIANKA: For the record, I'm Karen Pianka, Wildlife Permits team leader, and so, for each DMP permit, you may have more than one facility, more than one pen ‑‑

COMMISSIONER FRIEDKIN: Okay.

MS. PIANKA: — can be covered under a DMP permit holder. It's the same permit number. Does that cover it?

MR. LOCKWOOD: As I understand, each pen is its own facility so you can have multiple facilities under one permit.

MS. PIANKA: Right, exactly.

COMMISSIONER FRIEDKIN: So let's try to gather information on how many have facilities that don't ‑‑ that would not be compliant under the new proposal and within that, how many specific facilities and how many DMPs that involves, so we can actually consider the ownership question.

COMMISSIONER FALCON: Can we also consider maybe on these facilities that we're going to grandfather in, for lack of a better term, that we change the number of animals that are allowed there so, in other words, if we feel that some of them are too small for the number that we have now, maybe the smaller ones could have a smaller number of animals in them. Is that possible?

COMMISSIONER FRIEDKIN: Currently it requires the signature of the biologist in the field ‑‑ the technical biologist. Right?

MR. LOCKWOOD: Well, the biologist approves the facility in the Deer Management Plan and could approve fewer deer. The regulation just won't allow us to approve more than one buck and 20 does. There was quite a bit of discussion in the different meetings that we've had with different stakeholders on this and this idea came up a few times but it never did get much traction because of the concern of how complicated this could make the rules with, you know, the pen is this size, you can have this many deer but if it's only this size, you can have this many deer and folks saw how this could get complicated pretty quickly and thought that we really have a good standard in place right now, if we just stuck with that. And so, that was the recommendation if we should revisit different options for different pen sizes.

COMMISSIONER DUGGINS: But, aren't you talking about the inadequate ones?

COMMISSIONER FALCON: We're just talking about the exceptions.

MR. LOCKWOOD: Correct.

COMMISSIONER DUGGINS: He's only talking about those exceptions.

COMMISSIONER FALCON: Until they're phased out.

COMMISSIONER DUGGINS: We're only talking about a handful, apparently. Right?

MS. PIANKA: Right, I think so.

COMMISSIONER HOLT: I think it ‑‑

(Simultaneous discussion.)

MR. LOCKWOOD: I may not fully understand.

MR. SMITH: I think the question is, could we consider for the proposed exemption, I mean, you know, they're going to be grandfathered under five acres, would we consider allowing less fewer deer in those pens and I suspect the response is, right now we really don't have enough information to address that in a very thoughtful way. If that is something the Commission wants to come back for us to talk about with the White-tailed Deer Committee and all the stakeholders involved, we could certainly come back and visit about that but, I mean, we haven't done much research into that, Mitch, is that a safe ‑‑

MR. LOCKWOOD: That is a very safe thing to say.

COMMISSIONER HOLT: Well, you said, it's just not that many. I mean, yes.

MR. LOCKWOOD: It's my understanding we can find that out very quickly.

COMMISSIONER HOLT: Dealt with on the ground by the local biologists, who signs off on it. Right? Maybe there's a way we can influence that in the sense that, not making a direct reg, but influence them that we want, in these areas, tightened up, versus than just the one and 20.

MR. SMITH: It ‑‑ maybe best practices or ‑‑

COMMISSIONER HOLT: Something like that. Yes. Anyway, we'll gather ‑‑

COMMISSIONER FRIEDKIN: Again, depending on the number.

COMMISSIONER DUGGINS: Well, we could come back for [indiscernible] let's find out how many we're talking about.

COMMISSIONER HOLT: Right.

COMMISSIONER DUGGINS: Follow up with best practices, routine on those handful of whatever it is.

MR. LOCKWOOD: That sounds good and I like the approach that I believe I understand is that, before going to the Texas Register we'll get final approval from this Commission, in writing, from the Chairman, before proceeding.

Well, this may not be what you want to hear but I'm not done yet.

COMMISSIONER HOLT: You deer guys have been pretty good to us over the last couple of years. Now you're sucking us back in.

MR. LOCKWOOD: Well, as I mentioned earlier, the main reason why the White-tailed Deer Advisory Committee convened this past February was to discuss this release date of August 31st. We had three wildlife biologists, researchers who happened to be members of the White-tailed Deer Advisory Committee that gave us presentations on deer survival, the different release strategies out there, not necessarily looking at deer released from DMP facilities. We heard some information about when's the best time to release breeder deer, when the best time to triple-T deer, et cetera, but did also receive some information on some projected fawn survival out of DMP facilities under this current release date.

And so, the Committee, obviously, discussed this for quite some time. The situation is that we've got a few DMP permitees in South Texas who have observed very low fawn survival from their facilities. And this is based on the observations or lack thereof the following year of ear-tagged deer. We're simply not seeing these ear-tagged yearlings that they would expect to see.

And this is not an exception that's for any one year. They've observed this for the last few years and these cooperators observing very poor fawn survival are detaining these deer for the full amount of time allowed under rule, releasing the does, their fawns on August 31st.

There are some other permitees in South Texas who are also releasing their deer at that very same time and have relatively high fawn survival, higher than what most people see in the wild, on their ranches. And then there are some permitees and biologists out there who believe that they observe ‑‑ receive higher fawn survival from their programs by actually releasing those bred does right after being bred, allowing them to fawn out in the pasture instead of the pen.

So there's lots of opinions on this. The fact of the matter is, there has been no research designed to investigate the differences in fawn survival for spring/summer versus fall releases. There's a lot of opinions going around here. Nonetheless, those that are observing very low fawn survival believe that they would have higher fawn survival if they were allowed to hang on to those deer longer, beyond August 31st, allowing those fawns to be older upon release.

And so, in the end, the White-tailed Deer Advisory Committee discussed three different options on which members ‑‑ on which two of those options members voted. One is ‑‑ one motion was to extend the release date and, to be specific on how that could operate, I think what makes the most sense for all, would be to extend that release date to a date 45 days prior to the latest capture date of the subsequent permit year. Now, that might sound a little bit complicated but I think I can simplify ‑‑

COMMISSIONER HOLT: Can you translate that, buddy?

MR. LOCKWOOD: — with this next slide. I think all of you will recall that we have a trapping deadline for DMP. This is the last day at which one may trap deer of the DMP and this is based on our breeding chronology data and so that's why there's a different date by ecoregion. This is the last day in which there's a high probability of catching does that have not yet been bred. And so, the idea here is take that day that you see before you, that date, and subtract 45 days from it. And that should be the release deadline. So, this next slide would show those dates, how that would work out so let's take South Texas, for example.

The last day on which one may trap deer would be December 14th so that following year, under this concept, they would be able to keep those deer in captivity all the way up until October 30th, which is two months longer than they are currently allowed to hold those deer in captivity.

Now this would accomplish ‑‑ before I get that far, I'll say that this would accomplish a few objectives. Number one, it would allow permitees to hold deer in captivity for a longer period of time. Secondly, it would allow permitees 45 days to capture deer that following year. The longer one is allowed to hold deer in captivity, the less time he would have to trap deer that following year before this deadline shows up.

So, it would still allow 45 days to trap deer the following year and do this again. And then, this strategy would also prevent or at least minimize any chance of having two years of breeding of the same deer, under a single permit.

And so, this committee did have a vote on this motion, by a very narrow margin, did not pass this motion and chose not to extend the release date, as described here.

And so, a second motion was made to ‑‑

COMMISSIONER HOLT: Can I stop you there?

MR. LOCKWOOD: Yes, sir.

COMMISSIONER HOLT: I guess, can you give us some of the reasons people were opposed.

MR. LOCKWOOD: Well, there's some of it biologically based but, as I said earlier in this presentation, opinionated, since there really hasn't been any research designed to address some of these. That being the biological I'll say, opinion to some degree are, that some believe that it's actually in the best interest of these deer to release them soon after breeding and allow those does to go back to their home ranges, produce their fawns in the pasture and be less dependent on the pen and all of the variables associated with that pen and believe that would produce the highest success.

There are some philosophical differences here amongst all the people involved. Some questioning what the intent of this whole permit is in the first place. Is it for rearing deer in captivity or is it just for natural breeding purposes only. What does that mean that's in regulation, natural breeding purposes only. Some believe it means breed and release. I'll tell you our Committee Chairman, Chairman Bass, did research this, did visit with some of the legislators involved in the tracking of that bill in 1997 and we had a pretty clear understanding from those discussions that this issue really didn't come up at that time on whether or note they should breed and release or let them raise the deer for a little while. So we can't really say there was an attempt, one way or the other, but to answer your question, I think that some of those differences in what that intent was may have influenced this vote somewhat.

Obviously, there's some people who strongly believe they would have much higher fawn survival if those deer were older when released and I think there's a lot of us can understand the common sense to lead us to believe that as well. So again, one argument that doesn't support that would state that the longer deer are in a pen, depending on that feed, the less independent they become, the less chances they have at surviving and, therefore, it's better to release them early. So there are different opinions.

COMMISSIONER HOLT: Okay.

COMMISSIONER FRIEDKIN: But we also have to keep that side open, is it a month? On release?

MR. LOCKWOOD: You have to keep that site ‑‑ when the gates are opened, they have to remain open for 30 days. We did see a presentation from Dr. Charlie DeYoung, actually, quite interesting, showing very high pen site fidelity from these deer. When the gates are open, they stay in there. In fact, in this example that he presented, they did not apply for a permit the following year so the gates have stayed open throughout the next year and the deer still are in those pens several months later.

But it doesn't mean that they can't be ‑‑ place a feeder and water farther outside of the pen, once the deer leave, close the gates. I'm not saying we can't get the deer out of the pen. I had something that I thought was important but I just forgot it.

COMMISSIONER HUGHES: As a relatively new member of the Commission, educate me, give me a history like of how did we get to August 31st in the first place. Is there a biological reason we picked that date or is there ‑‑ why is that the date that we set?

MR. LOCKWOOD: I may need to get my predecessor, Clayton Williams.

COMMISSIONER HOLT: Clayton.

MR. LOCKWOOD: Clayton Wolf.

MR. SMITH: Come on up Clayton.

MR. LOCKWOOD: I was thinking of something else, of Clayton Wolf to help me.

COMMISSIONER HOLT: You're just passing the buck, I think.

COMMISSIONER HUGHES: I was wondered if there's a reason we picked that date.

MR. WOLF: Well, the DMP ‑‑ I mentioned a couple of times in this presentation how it evolved through time. We actually had two levels of DMP that allowed for some extended breeding and rearing and whatnot but I'd better stop right now and trust your memory, a little better, Clayton, on how we got there.

MR. WOLF: For the record, I'm Clayton Wolf, wildlife division director and Mitch is correct. When the first rules were promulgated and probably a little bit of modification in the early years, the short story is that there was a version of the permit that allowed people to hold deer and their offspring and hold them back. And when we gave a briefing to one of our earlier White-tailed Deer Advisory Committee meetings on deer management permits, and revealed this ‑‑ there were some folks that were involved in that early legislation that, at least at that time, told us that that was not the intent, that this was, at least in their minds, something more short-term, have these does bred by a specific buck. Whether the fawns are raised in the pen or not wasn't discussed but, basically, we had a long, protracted period. Many of the committee members felt like that was getting into the realm of deer breeding and, of course, we have a permit that allows for captive deer breeding and so they thought if permitees want to do that, a deer breeder permit is most appropriate and, for DMP, that this ought to ‑‑ at that time, ought to be truncated.

At that time and now, the extent of our short-term permit was August 31st. So, at that time, there was a recommendation from the committee to choose that, since that's when the permit expired and there was a vote by the advisory committee and they accepted it.

At that time, no one really contemplated this issue of fawn survival, I can pretty well say and so it's basically an arbitrary date that was associated with the permit year that was selected, when they decided that folks shouldn't hold these deer over a long protracted period of time.

MR. LOCKWOOD: Which brings up another point. If this release date were extended, then we would also need to consider modifying the rule ‑‑ the permit year that is in rule, that ends on August 31st, so that would be another slight modification that we'd need to consider.

COMMISSIONER FALCON: I thought that this issue came up again because it was also a geographic issue and the age of the fawns in South Texas are younger than the age of the fawns up in the other parts of the state. And wasn't this more of a local issue for why they wanted an extension, or am I incorrect in thinking that?

MR. LOCKWOOD: Well, the only request that I've received showing strong interest in this from individuals are those operating in South Texas but I can tell you that the Texas Deer Association, as a whole, strongly supports this extending this deadline, I think it's safe to say, in representing their membership in general and not just their South Texas membership,

I have heard an argument from one of their leaders that there's deer in other ecoregions in the state on these high-fenced ranches that are being used in DMP that originated in South Texas and they are maintaining the South Texas breeding chronology and, therefore, having later born fawns and so I think there would be an argument to apply any such change if this date were extended to apply it statewide, as described ‑‑ as opposed to limited to just South Texas plains. And, I think, Clayton answered, the remainder of your question, Chairman Holt, on why some people may have voted in opposition to this. Some of it, as I mentioned earlier, deals with ethical or philosophical viewpoints and people ‑‑ some people, quite frankly, don't think that these wild deer should be maintained in captivity for that period of time.

COMMISSIONER HOLT: And I'm aware of the makeup of the advisory committee and so I understand that some people have other agendas that may not be directly related to making this particular decision.

COMMISSIONER MORIAN: I've just got one question. I thought I knew who ‑‑ some people are breeding, under the program, and then releasing the bred doe right back into the wild.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER MORIAN: And some are keeping the doe and the new fawn until August 31st and releasing those.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER MORIAN: And there's no data to tell us which survival rate is the highest.

MR. LOCKWOOD: That is correct.

COMMISSIONER MORIAN: Okay. I think I understand now.

COMMISSIONER HOLT: Like anything, it gets passed back in the '90s and then it gets more complex, it gets more twists and turns to it and that, you know, we're going to be dealing with this, I assume, the Commission is going to be dealing with this as long as these laws and rules are on the books.

MR. LOCKWOOD: And the best we have in that doe information, people that are releasing fawns into the wild in August can have those fawns ear-tagged so they can observe the next year who is still out there and who's not and at least observe.

Those releasing in the spring may ask, Well, how do they know if they're producing fawns but these does that they're releasing may be ear-tagged.

COMMISSIONER MORIAN: They're ear-tagged ‑‑

MR. LOCKWOOD: Are they carrying fawns, basically, that are or are not ‑‑ well, that wouldn't be ear-tagged, of course. And so, there's a lot of speculation there and anecdotal information at best.

COMMISSIONER HOLT: Uh-huh.

MR. LOCKWOOD: I think that the next thing to mention at this point is that there was a second motion, after this one didn't pass, by, again, a narrow margin, eight to seven vote, then there was a motion to simply maintain the current release date of August 31st until we did have some data from some well-designed research, investigating the differences in fawn survival in the spring/summer versus fall releases.

The committee did vote on this. The first vote, we had a few people that abstained. On this vote, we had a few more people that abstained. The vote was eleven in favor of this motion and zero opposed. And then, finally, there was the other concept that was discussed to some extent, which is, require that all deer be released soon after breeding. This never did develop into a formal motion and there was no vote on this concept.

I think all of you know that there've been letters written to Committee Chairman Bass, Chairman Holt ‑‑ some of you have received some of these letters from board leaders of Texas Deer Association, expressing their strong desire to see an extension in this release date. I think you all also know that late last week and early this week, we've received letters from Senators Van de Putte, Gallegos, Uresti, Zaffirini, and even Hinojosa, just today. All of these letters were expressing their support for consideration of the later release date.

I should also mention to you that Texas Wildlife Association's deer management committee and executive committees have deliberated extensively on this topic as well. Their discussions were not much different from those of the White-tailed Deer Advisory Committee.

In the end, the official position statement of the executive committee of the Texas Wildlife Association is to not change the release date at this time but, they made it clear that they'll be ready to provide any comments or respond to any comments this Commission might have.

And, finally, I should state to you that staff does not have a recommendation on this issue. We really do not ‑‑

COMMISSIONER HOLT: You're bailing out on us ‑‑

MR. LOCKWOOD: Well, I'll tell you what.

(Laughter.)

MR. LOCKWOOD: Seriously, we don't see this as a resource issue. We see it more of an ethical or philosophical issue. Quite frankly, we could have a zero percent fawn crop in every DMP facility throughout the state of Texas and it won't affect the resource or hunting opportunity one bit and so, with that in mind, once again, as usual, I'm seeking the guidance of this committee as to whether or not we want to modify the proposal that we've already discussed, to go to the Texas Register, to include perhaps one of these three options, which again, are to extend the release date, and I've described one way in which that could be done.

COMMISSIONER HOLT: Can I stop you there?

MR. LOCKWOOD: Yes, sir.

COMMISSIONER HOLT: Let's talk about things from enforcement issues, paperwork, administration, et cetera. Let's use this one first. Does this create more issues, since these are the same, once you ‑‑ walk me through those issues.

MR. LOCKWOOD: Well, I welcome David Sinclair or Pete to come up here, if they disagree with any of this, but I really ‑‑ I don't see any change, administratively or enforcement-wise, to implement this. I mean, yes, there's some administrative change. The database will be changed to reflect when is the latest time that person may hold deer in captivity but here, in recent years, our law enforcement ‑‑ our game wardens in the field have actually been going out to these facilities to verify that these deer have been released on August 31st.

So the way this would change is it could change the time in which they go out there to check the facility to make sure the gates were open but, that's the only change that I envision is when they go out there to check the facility.

COMMISSIONER HOLT: And then, let me just add, because right now, it's August 31st across the whole state.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER HOLT: Is that correct? Now, if you go to a regional ‑‑ an ecoregion type set-up with these different dates, you now have borders, you're going have a map that would have these on them, you'll have one county in one and, contiguous to it, another county and, I mean, theoretically, you could play all kinds of ‑‑ try to play games. I don't know if it would even be worth it. I'm talking about an individual. But your sense of it is if you all thought through this that that's not a big issue for you.

MR. LOCKWOOD: We have, and we have, in our application package, not only do we have that table that I showed you, with the trapping deadlines but we have a table showing the ecoregion that every county in the state of Texas falls within.

COMMISSIONER HOLT: Right.

MR. LOCKWOOD: And so, I would say, with few exceptions, our game wardens are tied to one ecoregion.

COMMISSIONER HOLT: Okay.

MR. LOCKWOOD: But nonetheless, the game wardens are tied to a select number of counties and they would know, based on the county they work in, when that release date would be. I don't think we're talking about more administrative or enforcement headache here with this approach.

MR. WOLF: No, and I think my recollection was, we did ask that question a while back and I know we talked to the folks in wildlife permitting and they thought it was something they could handle. Isn't DMP in the TWIMS system now ‑‑ I mean, will law enforcement have access to that now or in the future?

MR. LOCKWOOD: Well, that's a very good point. We're not far from having DMP in our TWIMS system.

COMMISSIONER HOLT: Okay.

MR. LOCKWOOD: So that's going to make things much more efficient itself.

COMMISSIONER HOLT: What I'm trying to do is look at the unintended consequences with ‑‑ you know, you can think through as much as you can. I know all you thought about it a lot more than certainly I have. Okay. Any other issues on this one that you could think about? So, from the department's point of view, and obviously we're going to talk about and spend a lot of time talking about our constituencies because, at the end of the day, that's our job, but you don't see this creating any real issues?

MR. LOCKWOOD: I do not.

COMMISSIONER HOLT: Okay. Gotcha.

MR. LOCKWOOD: And then, of course, the second option presented here would be no change, maintain the status quo and then the third option is, again, and was discussed, just to share all discussions with this committee, would be to actually require deer to be released earlier. And, of course, most of the discussion that we've had over the past year ‑‑ excuse me, was revolves around that first bullet of extending the release date, in one form or another.

COMMISSIONER FRIEDKIN: Can you say, Mitch, that the first suggestion or proposal has more of a biological basis though conceptually, than the second, which is an arbitrary date because it's, you know, ecoregion-specific, has to do with, you know, probability of breeding.

MR. LOCKWOOD: Well ‑‑

COMMISSIONER FRIEDKIN: Would it make more sense to study, if we're going to look at research findings, study something that's potentially biologically based as opposed to something that is an arbitrary date.

MR. LOCKWOOD: I think that comment is a very good one, Commissioner. How do I say this, the front end of that, the way in which we obtained this 45 days prior to the latest capture date, the way in which we obtained that capture date most certainly is biologically based. Based on breeding chronology. The 45 days prior is really an attempt to allow them to still trap again the next year, to prevent some of what Clayton was mentioning earlier with some potential line breeding from the same group of deer.

Let the deer be older when they're released. I think it's a Win/Win.

COMMISSIONER FRIEDKIN: And at least it appears to be anchored to a, you know, the breeding cycle ‑‑

MR. LOCKWOOD: Yes, sir.

(Simultaneous discussion.)

COMMISSIONER FRIEDKIN: Commissioner Morian pointed out it's arbitrary so it seems that we'd rather apply science towards something that has some biological basis. Commissioner Duggins.

COMMISSIONER DUGGINS: Well, it seems to me that we've already defined, by the trapping deadline, we've defined the geographic or ecoregions that exist and we're recognizing that there are differences among these eight ecoregions so, I think your point is well-taken that August 31 has no relevance to our biologically based trapping deadline. I don't know why we wouldn't support the change to the 45 days ‑‑ the first proposal you've thrown out and I think was the one that apparently David Langford discussed or brought up at the White-tailed Deer Advisory Committee. That gives us maximum flexibility and is biologically based.

MR. LOCKWOOD: That's a very good point from a ‑‑ that's one comment I left ‑‑ when I lost my train of thought earlier, it's just that, although some wildlife biologists firmly believe that the most successful operations would be those with early spring releases the way that we have always operated in this division, at least in my career, as you said, it provides the maximum flexibility inside that framework to let that operator make those decisions and we use education to inform them of why we might think it would be more advantageous to release those deer earlier.

COMMISSIONER FRIEDKIN: Any other ‑‑

COMMISSIONER BIVINS: How difficult would it be to begin, at this point, creating a database so that we can get some actual information in place. It seems like we're using a little bit of science but we're also using a lot of supposition.

MR. LOCKWOOD: Absolutely. One thing that Committee Chairman Bass made very clear in that meeting, I certainly agree with wholeheartedly, is that any such research at this ‑‑ in this economic times we're dealt with is probably going to be privately funded research ‑‑ privately conducted research. There is some interest out there. We know of some situations where there are multiple ‑‑ several pens in one operation, which would lend itself to a very nice design for checking early mid-summer, early fall releases, for example.

And so, in short, I'll tell you that if there's enough interest in the private sector to conduct research, I'll issue them a permit to do it.

COMMISSIONER FRIEDKIN: Okay.

COMMISSIONER DUGGINS: I don't think it should be required. It should be encouraged.

MR. LOCKWOOD: Yes, sir.

MR. WOLF: If I might, Clayton Wolf again. Yes, Commissioner, you used the term "database" but I think what Mitch is referring to is a specifically designed study as opposed to us collecting data all across the state from every permitee.

COMMISSIONER BIVINS: That's fine. That would at least give us some better information in subsequent years than we've had.

MR. WOLF: Yes, sir.

COMMISSIONER FALCON: I know that anecdotal evidence is not good scientifically but how strong was that ‑‑ was that just one person come in and saying that this is my experience, was it several, were they reliable people, people that have been doing this for a long time? And the reason I ask this, I know in medicine sometimes the best practice is just on what's the best experience in a certain group of people and so, I'm asking, how ‑‑ was it just one person complaining or several and what was the evidence that they brought forward?

MR. LOCKWOOD: That fawn mortality is quite high for August 31st releases. We heard a presentation showing some data from one, maybe two sites, in that presentation, showing virtually zero percent fawn survival, however, I am aware of ‑‑ I'll go on a limb and say several places in South Texas, that are disappointed by the fawn survival and their DMP pens.

There is no information that anyone has that indicates a later fawn survival ‑‑ excuse me, a later release date would result in higher fawn survival but, I think intuitively many of us would assume that fawn survival should increase if those fawns are a little bit older and bigger when they're released.

COMMISSIONER FALCON: But what we know now is that what we're doing now has not worked with some of the landowners or, it seems to be poor outcomes. Is that fairly well established?

MR. LOCKWOOD: Yes, it's fairly well established that this is not working for some landowners. I think I should take just a few more seconds to explain that it may not all be tied to the release date. In fact, maybe none of it is tied to the release date. Because, as I mentioned earlier, we are well aware of a number of places in South Texas that release on August 31st that have high fawn survival and when I say high. I mean higher than 75 percent fawn survival in South Texas.

And you know the droughts we've been through in the last few years. There are very big differences. In fact, this may have consumed an hour or better of that advisory committee meeting was learning about the differences in these different operations. One person is putting more does in with that buck. All 20 does. And another person may only be putting in ten does. And the person using fewer does is having fawns all drop at the same time, at that earlier time, because they're bred in the first estrous cycle.

That's one example. There's differences in how the different operations are rearing their deer, how they're releasing their deer. Is it more of a soft release or ‑‑ I'll loosely use the term "hard release." There's several differences between how these facilities are operated that could be contributing to these differences in survival, as well. But, as I told you, Commissioner, as a wildlife biologist, I would argue that if they're allowed to stay in through August 31st, my gut feeling is that they should have higher survival, if they're allowed to stay in a little bit longer ‑‑

COMMISSIONER FRIEDKIN: Okay. So, I think the direction you're getting from the Commission is that we would go forward to the Texas Register with a proposal of a minimum acreage size of five acres, regardless of vegetative cover, 50,000 square feet, regardless of size of facility of vegetative cover, and to extend the release date to a date 45 days prior to latest capture date of subsequent permit year. Any objections or thoughts or additional discussion on that from the Commission? Okay, thank you both, appreciate it.

MR. LOCKWOOD: Thank you.

COMMISSIONER FRIEDKIN: So, can I go ahead and authorize.

MR. SMITH: Authorize to put in on the Register, understand we're going to come back to you on that one issue.

COMMISSIONER FRIEDKIN: Okay, so if there are no further questions or discussion, I authorize staff to publish the proposed changes in the Texas Register for the required public comment period.

Item 6 — Deer Permit Program Rules — Denial of Issuance or Renewal for Lacey Act violations.

MR. VACA: Mr. Chairman, Commissioners; for the record, my name is Scott Vaca. I'm Assistant Chief of Wildlife Enforcement. Joining me is Brad Chappell, Sergeant Investigator with our Special Operations. We're here to present some proposed changes to deer permits, specifically changes would apply to Triple T deer breeder and DMP permits.

Current rules allow the denial of permit issuance or renewal for five years following conviction or deferred adjudication for violating Parks and Wildlife Code Chapter 43, Subchapters C, E, L, and R. And those ‑‑ subchapter C is scientific, educational, zoological and rehabilitation permits. Subchapter E is the Triple T permit. Subchapter L is the deer breeder permit. Subchapter R is the DMP.

In addition of violation that is a Class A or B misdemeanor or felony and a violation of Parks and Wildlife Code 63.002, which is the possession of live game animals. Let me back up, this ‑‑ the denial of the issuance or renewal also applies to a permit person acting as an agent for a permitee.

The proposed rules would allow Parks and Wildlife to deny permit issuance or renewal for five years following the final conviction or assessment of a civil penalty for violating the federal Lacey Act. I'll give you some background on the Lacey Act. This Act was passed; it's a federal law enacted in 1900. It prohibits trade in wildlife, fish or plants, taken, possessed, transported or sold in violation of state law. The Act makes the violation to knowingly engage in a prohibited [indiscernible]. And, the Lacey Act conviction may be obtained without a state prosecution.

The implication of the Lacey Act in Texas are persons convicted in federal court are convicted of violating federal law. Unless the department obtains a conviction in state court, our current department rules concerning permit denial cannot be applied. Duplicate prosecutions are redundant, time consuming, costly and divert time and resources from other duties and obligations and, currently, persons convicted of Lacey Act violations are continuing to obtain permits and renewals and to engage in permitted activities.

And, to expand on this last bullet, I'm going to turn it over to Sergeant Chappell.

MR. CHAPPELL: Good morning, members of the Committee; for the record, I'm Sergeant Game Warden Brad Chappell, with the Special Operations Unit of the Parks and Wildlife Department. As you all are aware, the department has restricted or prohibited the importation of live white-tailed deer and mule deer into Texas since the spring of 2002.

This has been done in an effort to maintain a CWD free status in a bovine tuberculosis-free status for the state of Texas. So far, those efforts have been successful. Since 2002, Texas game wardens, in conjunction with special agents from the U.S. Fish and Wildlife Service, have conducted investigations in regard to importation of deer into Texas, in violation of the federal Lacey Act.

And, if it would please the Chairman, at this moment, I would like to cover a couple of examples of Lacey Act convictions as a result of those investigations. The first one that I'll discuss involves an activity that took place in 2006. A deer breeder from here in Texas coordinated efforts with a deer farmer from the state of Minnesota and managed to import 14 live buck, white-tailed

deer into Texas, in two different shipments about a week apart.

They were brought to Texas for the intent of conducting guided hunts on those deer. Through the course of the investigation, both defendants wound up pleading guilty. The breeder here in Texas also wound up pleading out to a felony Lacey Act violation and he was subjected to a sentence of 18 months in a federal penitentiary and 36 months supervised release upon his completion of his prison term.

He also was assessed a $50,000 fine and forfeited a vehicle that was used in the commission of some of these offenses. This individual is still eligible for application of permits issued by the department, although he still is serving his sentence in federal prison.

The second scenario involved several occurrences between the fall of 2003 and the fall of 2006, involved two breeders, father and son, illegally importing white-tailed deer from northern Arkansas. They were obtained from a deer farmer in northern Arkansas. They paid in excess of $63,000 for these deer over the course of those four falls.

Each one of these defendants ultimately wound up pleading guilty to a misdemeanor federal Lacey Act violation. Each defendant was sentenced to 12 months with the Federal Bureau of Prisons and, upon release, they'll be facing 36 months of supervised release also. Each one of these defendants are currently permitted with our agency, however, they're not able to conduct activities themselves because they began serving their sentence on the 19th of this month.

The Lacey Act charge is predicated by the deer breeder proclamation, which prohibits a person from possessing deer obtained or acquired from an out-of-state source. In other words, the proof for a state charge must exist in order to prosecute a federal Lacey Act charge regarding obtaining deer from an out-of-state source.

I might also mention, at the present time I'm aware that a minimum of 17 separate cases involving investigations that indicate Lacey Act violations, in regard to obtaining deer from out-of-state ‑‑ live deer from out-of-state. These cases vary in different levels of progress, from infancy stages to near-final disposition. It might be worth mentioning that out of these 17 separate cases, there's a minimum of ten of them where there is at least one individual that is permitted by the agency at this time.

I might also mention that these 17 cases represent basically 17 different destinations in Texas where shipments were made to so, ultimately, you can see that there would be 17, a minimum of 17, separate source locations outside of Texas, which would indicate a minimum of 34 possible or prospective suspects in this investigation. Honestly, it's probably going to be a few more than that.

On February 3rd of this year, I presented a program to the White-tailed Deer Advisory Committee regarding this proposal and the committee discussed it and supported this proposal unanimously. The addition of a Lacey Act conviction as an exclusionary rule, the permit issuance by the department would send an undeniable message to those individuals that are willing to jeopardize the health of our wildlife resource as well as our domestic livestock for their own personal financial gain.

MR. VACA: And with that, the proposal is to amend the rules to allow Parks and Wildlife to deny permit issuance or renewal for up to five years, following conviction or assessment of a civil penalty for a violation of the Lacey Act, involving white-tailed deer or mule deer, provided the civil penalty has become final and unappealable or a court has entered final judgment in favor of the United States. This five-year denial period applies to a person acting as an agent for the permitee, as well. The five-year period begins following release from confinement, community supervision, deferred adjudication, parole, mandatory supervision, pretrial diversion or supervised release, whichever is latest. And with that, I'd be happy to answer any questions.

COMMISSIONER MORIAN: I've got one immediately. Why limit it to a violation of the Lacey Act, involving white-tailed deer or mule deer? Why not just stop it as a violation of the Lacey Act.

COMMISSIONER HOLT: Yes, all of them.

COMMISSIONER MORIAN: A guide that's trading in eagle feathers, you probably don't want to issue him any permit [inaudible] deer.

MR. CHAPPELL: Actually, this question was discussed by the White-tailed Deer Advisory Committee and there was some concern voiced about if someone goes out-of-state and exceeds the bag limit on pheasant, for instance, comes back into Texas, that could constitute a Lacey Act violation and they voiced ‑‑ some of the individuals in the committee voiced some concerns, about whether or not we wanted to preclude an individual from being able to apply for a captive deer permit, based on that type of Lacey Act infraction.

COMMISSIONER DUGGINS: But doesn't this give you the discretion to decide that?

MR. CHAPPELL: Actually, the intent of this proposal would only apply to the Lacey Act violations involved in the importation or possession of deer, white-tailed deer and mule deer, from an out-of-state source.

COMMISSIONER DUGGINS: But your question is whether we can ‑‑ how we, you know ‑‑

COMMISSIONER FRIEDKIN: Yes. I mean excludes the other way. I think we're saying the same thing. Yes.

COMMISSIONER DUGGINS: It says, Would allow the department to deny. It doesn't say, Requires the department to deny. So, I mean, you want to add the choices? You have a choice of whether or not to deny it or not. I think it should be expanded. And, in fact, I question whether it shouldn't apply to other criminal violations.

COMMISSIONER HOLT: That's why I was wondering why just civil ‑‑ I'm not a lawyer. These guys are in jail because of the criminal. Right?

MR. CHAPPELL: It applies to the criminal and ‑‑ there's quite a bit of criteria involved in the civil work for a Lacey Act violation. It applies to criminal or civil, either one.

COMMISSIONER DUGGINS: But why not simplify it and just say the department has the discretion to deny a permit for any violation of the Lacey Act?

COMMISSIONER HOLT: I'm all for that because, you know, I understand you shoot one more pheasant than you should, then ‑‑ but you'll have that choice, theoretically, you will then look at what the individual was convicted of. If he was convicted of something like that. But then, the problem is you're excluding too many things, just saying white-tailed deer and mule deer, in my opinion. If they, again, end up shooting eagles or something then, you know, I don't particularly want them to have a permit to do anything in this state, that we give them.

COMMISSIONER DUGGINS: Okay.

COMMISSIONER HOLT: Okay. So I think I'm agreeing with you, Ralph, of how to write and you're the attorney so maybe we can figure out how to wordsmith this thing.

COMMISSIONER DUGGINS: I think I'd keep it simple and just say, The Department will have the discretion to deny any of these permits for any violations of the Lacey Act. I don't know that I'd limit it to five years. Because I think for really serious, serious violations, they shouldn't have any of these permits.

COMMISSIONER HOLT: I agree with you.

COMMISSIONER DUGGINS: And I don't know why it also say it has to be final or appealable because somebody can keep filing petitions, a writ of certiorari to the U.S. Supreme Court and be doing bad things at the same time and yet then say, later get the conviction reversed then you wouldn't have the ability to deny it at that point. I'm trying to suggest you give them maximum flexibility.

COMMISSIONER HOLT: And I guess what Reed was trying to do to make sure they're covering, you know, everything.

(Simultaneous discussion.)

COMMISSIONER MORIAN: I wouldn't make it mandatory. I'd rather have them make the choice.

COMMISSIONER HOLT: Yes, they have the choice.

(Simultaneous discussion.)

MR. CHAPPELL: I believe we're happy with the support that you've given us here.

COMMISSIONER FRIEDKIN: So can we ‑‑ do you want to suggest a rewrite?

COMMISSIONER DUGGINS: I would propose that the ‑‑ it be adjusted or modified to reflect that the department would have the discretion to deny any permit we issue for a violation of the Lacey Act, and it should not be limited to five years. Any conviction of violation of the Lacey Act. Period.

MR. VACA: I'm not sure. Perhaps Mitch might want to address that. I know there's been concerns of and some discussions about changing some minor wording issues and it wasn't discussed at the advisory committee and so we haven't made changes but I'm not sure if they'd like to address that point.

COMMISSIONER HOLT: Sure, we can talk about it. We love our advisory committee but at the end of the day, we make the decisions.

MR. WOLF: For the record, I'm Clayton Wolf, Wildlife Division Director and I shortcut Mitch there, coming up. There's a little history here. When we went through our deer permit denial provisions and some other rule making and when we did that I think maybe some of the Commissioners may have remembered some of that. In fact, I believe maybe we even got some letters from senators. But, at that time, there was at least a fear that the department would not use good judgment in our discretion when we were going through our deer permit advisory rules so there was a pretty strong push to keep some narrow sideboards on the types of violations and the classic example was if I caught a, you know, a nine-inch crappie on Sam Rayburn and got a ticket and got convicted, I could lose my deer permit, whatever deer permit it was.

Now, I will tell you that that was several years back and I think we have demonstrated, if anything, that we have been very, I guess you'd say, conservative, in our use of permit denial rules and we go after the most egregious. In fact, we have even taken a few barbs for not being aggressive enough when we look at some of those convictions out there.

But that's a little history. I don't know, I can't tell you right now if, folks, if our partners out there are more comfortable with the judgments that we have used out there but I can almost assuredly tell you that there's no instance where we have used bad judgment to get rid of or to deny a permit out there.

So, just a little bit of history there. There was a lot of discussion, we were going through that, a lot of parties brought in and, at least at that time, several years back, the Commission at that time chose to keep those permit denial provisions fairly narrow.

And so, it would behoove us, if you want us to go that direction, and we would get back with our partners and get some feedback from them.

COMMISSIONER DUGGINS: I think the Committee ‑‑the Commission has already said, we'd like to ‑‑ at least, that's what I think I'm hearing.

COMMISSIONER FRIEDKIN: That's pretty narrow. Is that a problem?

MR. WOLF: Yes.

COMMISSIONER DUGGINS: If it's a violation of some sort of plea, nolo contendere or guilty to the Lacey Act violation, and then ‑‑ if passed, you'll have the discretion to deny the permit.

MR. WOLF: Yes, sir.

COMMISSIONER DUGGINS: If you look at the statute, the legislature gave the Commission the right to set conditions for these permit issues, 43.603 says just that, The permit issued is subject to conditions established by the Commission.

MR. WOLF: We can do that.

COMMISSIONER HOLT: The Lacey Act is tied directly to wildlife. I mean, I don't want to give permits to people that have shown disregard, okay, to wildlife and I understand the issue of one extra pheasant in a bag and you forgot about it, of course, but that then gives you the choice. I guess that we would not deny that permit and then ‑‑

MR. WOLF: And I believe we've demonstrated that we, at least since that time, we've used good judgment ‑‑

COMMISSIONER HOLT: Sure.

MR. WOLF: — so I'm not going to imply that the reaction from my partners would be the same as it was back then and just give them a little history of where we came from but I think we've made some progress and shown them that we do use good judgment when we have that discretion to deny the permits.

MR. SMITH: Clayton, also it might be helpful too ‑‑ I mean, we also do have a well-established appeals process for individuals that have had their permit denied and they can petition it, for good reason and so, we've used that on at least several occasions that I'm aware of.

MR. WOLF: That's correct.

COMMISSIONER FRIEDKIN: Okay, so we're clear on the proposed changes? Good. Okay. Thank you. No further questions or discussion, I authorize staff to publish the proposed changes in the Texas Register for the required public comment period.

Item 7 — Proposed Rule Review of Chapter 58 Oysters and Shrimp. Ann Bright.

MS. BRIGHT: Good morning, Commissioners. For the record, I'm Ann Bright, General Counsel. As many of you know, we are directed by the Texas Legislature every four years to review all of our rules. The review must include an assessment about whether the reasons for the rules continue to exist. We're required to publish notice in the Texas Register that we're going to do this review and, following the review, the regulations must either be adopted, readopted with changes or repealed, based upon the review.

I should also point out that as a result of the fact that we do a statewide every year, our regulations tend to be in pretty good shape because a lot of them do essentially get an annual review. In January 2010, staff requested and received permission from the Commission to begin the rule review process and, if we identified any changes that were necessary, to publish those in conjunction with the statewide.

We published notice of the review; we've received no comments. We're recommending no changes to Chapter 58. And then, this is the motion that will be presented to the Commission tomorrow and I'd be happy to answer any questions.

COMMISSIONER FRIEDKIN: Questions?

COMMISSIONER HOLT: Ralph says he's read all of these.

COMMISSIONER DUGGINS: I did actually read them.

COMMISSIONER HOLT: Good for you. I figured you would. I wish I could say I had.

COMMISSIONER FRIEDKIN: If there are no further questions, I'll place this item on the Thursday Commission meeting agenda for public comment and action. Thanks, Ann.

Item Eight — 2010-2011 Statewide Hunting and Fishing Proclamation.

MR. KURZAWSKI: Good afternoon, Commissioners; my name is Ken Kurzawski, in Inland Fisheries Division. Although I'm in the freshwater side of it, the proposals that I'll be going over today cover both saltwater and freshwater. If you remember, these are the proposals we brought before you in January. We've taken them to public hearings. I'll go a quick review of them and what we've received in the way of public comment.

Our first one concerns the commercial fishing reporting requirements. We are proposing to strengthen those reporting requirements to ensure that reports are submitted for all freshwater and saltwater commercial fishing activities; we gather information on the harvest of aquatic products to assess the harvest pressure and that has been purported to the catches of commercial fishermen.

Licensed fish dealers are required to file a monthly report of cash sales, if they purchase or receive aquatic products directly from any person other than a licensed fish dealer. There is no provision for situations in which the commercial fisherman sell or transfer their catch to persons who are not licensed fish dealers. Therefore, we were proposing to collect harvest information from commercial fishermen when they sell their catch to someone other than a licensed fish dealer.

This rule would require commercial licensees to take aquatic products ‑‑ aquatic products or file a commercial harvest report with the department unless that aquatic product is sold or transferred to a licensed fish dealer. And, certainly, our department staff in coastal and law enforcement would work with those license holders to inform them of those new requirements.

Next up, a proposal we had was to create separate fishing proclamations. We are proposing to transfer the fishing regulations from the Statewide Hunting and Fishing Proclamation. We would create separate proclamations for recreational and commercial fishing. There would be a couple of advantages to that. We would be ‑‑ it would make it a little easier to find some of those rules and also there are some additional requirements on the commercial side that we have to go through in promulgating these rules and by separating it out, there might be some administrative advantage to that.

These wouldn't be any substantial changes to any of the regulations, just basically moving those around in our Administrative Code. And the final one in which to cover is some of our rules on possession of fish. As I've mentioned, we just want to clarify, make some minor clarifications to some wording covering some fishing rules.

We've received a few comments from anglers and staff on some of the wording in the proclamation. These current rules could lead to some angler confusion. We haven't really seen that causing any problems at this time but we wanted to take this opportunity to eliminate this possible source of confusion and the bottom line is there, we want to make sure all our bag and possession limits can be clearly understood.

The current wording on the possession of fish, most of the problem there is with the ‑‑ if you parcel it out on it being unlawful to attempt to take fish when a protected length limit plankton, which really isn't the intent of our rules so to eliminate that source of confusion, we're just going to separate those two clauses out to make that a little easier to understand.

The comments that we have received on these ‑‑ all the comments that we did receive were from the web. We didn't have any in our public hearings. Almost all of them supported our proposals. The one comment we did receive opposing it, when we initially posted some of the information on our website, we had some of the additional language from our proclamation that we weren't changing. The person actually commented on how that wasn't against that so, basically, no one had any opposition to our proposals.

And those are all the ones that we are presenting before you that we wish for you to consider for adoption tomorrow and I'd be happy to answer any questions.

COMMISSIONER FRIEDKIN: Questions? Commissioner Duggins.

COMMISSIONER DUGGINS: This is a little bit off the subject but, out of curiosity, when will we read this at the gar situation, get some feedback on what studies we've done and I'm just curious about when we'll hear it. I'm not asking for it today.

MR. KURZAWSKI: Well, you know, gar are, as we taught, gar are kind of a long-lived species. We are currently doing work on it, doing tracking studies, doing age and growth, looking at those and we're really just six months in, really, to our new regulation going into effect. We could come back to you next fall or next spring. It'd be good to have a little bit of time there to collect that information and see if there are any impact to the population.

COMMISSIONER DUGGINS: Is August too soon to be reliable?

MR. KURZAWSKI: We would be able to present you with whatever we had at that time. Sure, we could do that.

COMMISSIONER DUGGINS: I'm just interested in seeing it. I don't want you to rush it.

MR. KURZAWSKI: It would probably help if we could help update you on what we are doing, as far as, you know, definitive answers. It would be a little earlier in the process but we'd certainly be able to fill you in on all the activities we're undertaking to investigate that.

COMMISSIONER FRIEDKIN: Any other questions for Ken?

Thanks, Ken. Mitch?

MR. LOCKWOOD: Mr. Chairman, Commissioners; for the record, my name is Mitch Lockwood, White-tailed Deer Program Leader and Interim Big Game Program Director. At the January Regulations Committee meeting, I presented this proposal to offer additional mule deer-hunting opportunities.

To refresh your memories, we have three different mule deer seasons in the state. As you can see, most of the Panhandle has a 16-day season, beginning the Saturday before Thanksgiving. You have ten counties in the western Panhandle that have a nine-day season, beginning at that same time. And the Trans-Pecos has a 16-day season, beginning the last Saturday in November.

Now, if you'll look up there in the northeast Panhandle, you'll see that Wheeler County does not currently have an open mule deer season. We have proposed a 16-day season there. To the southwest, you'll notice that Dawson County has no open mule deer season and we proposed a nine-day season there.

And, as stated before, we are aware that mule deer numbers are not very high in these counties. A lot of that country's in ag production, however, there are areas of mule deer habitat in these counties and they do contain mule deer populations that could be hunted, especially since we offer that conservative buck-only harvest strategy that wouldn't have any effect on population recruitment or expansion.

So, we propose this conservative mule deer season in these counties in an attempt to offer additional ‑‑ some additional hunting opportunities without impacting the resource.

This Committee also decided to propose, beginning the Trans-Pecos mule deer season one day earlier and, again, under current rule, we have a 16-day season there in the Trans-Pecos that begins the last Saturday in November. The intent of this proposal is to allow hunters a little bit more time, take a little more advantage of that long Thanksgiving Day weekend and field staff had no resource concerns with an additional day of mule deer hunting out there. They admitted that they didn't really know what to expect in the way of public comment from landowners or hunters out there. But, of course, since then we have conducted some public hearings and we haven't heard much resistance at all to this idea, which I'll share with you momentarily.

So, our public comment in the slides before, I just received a note a few minutes ago. I'm going to give you some updated figures here that I failed to include in this slide. We have had 24 public comments in all on the Dawson County proposal. Twenty-three in favor, one opposed. For the Wheeler County proposal, we have had 24 public comments, 22 in favor, two opposed and for the extended adding a one day in the Trans-Pecos to the mule deer season, we've had 28 public comments in all, only one of those opposed to extend the season, only one out of 28. I do not know the reason for any of the opposition to these comments but those are the comments we've received.

So, with that, I'd be glad to entertain any questions you might have.

COMMISSIONER FRIEDKIN: Any questions? Commissioner Duggins.

COMMISSIONER DUGGINS: Is there any reason not to ‑‑ we're talking about moving up the Trans-Pecos season to the Friday before Thanksgiving, aren't we?

MR. SMITH: The Friday after Thanksgiving.

MR. LOCKWOOD: I'm sorry. I'm not sure what I did say. But yes, sir, the Friday after Thanksgiving.

COMMISSIONER DUGGINS: Then, my question is, is there is any reason not to include Thanksgiving since we include Christmas on the dove season? I'm not, don't feel strongly about it. I'm just asking about that.

MR. LOCKWOOD: Well, before I presented this briefing on this idea and we discussed it at the last Commission meeting, I did receive some input from the field on this concept. And, we talked about Friday, we talked about Thursday, we talked about the Saturday before and some of them had visited with some landowners in the area about starting on Thanksgiving before and it wasn't a very popular idea. I shouldn't say it like that because I don't have a real big sample size here.

But, from what little information that we had, there seemed to be some resistance of encroaching on some family time that is tradition out there and it's simple as that.

COMMISSIONER DUGGINS: I can understand but I'm saying we do it for dove season. We propose to open that on Christmas day.

MR. LOCKWOOD: Sure.

COMMISSIONER DUGGINS: No, I think it's historically been Christmas Day. I mean, it was changed to Christmas a long time ago.

MR. LOCKWOOD: I could be wrong and we could ‑‑ you know, if we were to repropose this with starting on Thanksgiving Day and went out for public comment again, we may see some of the very same results that I just presented but I do think it would require us to go back and republish and receive public comment again, as opposed to trying and adopt tomorrow.

MS. BRIGHT: There's kind of ‑‑ oh, for the record, I'm Ann Bright, General Counsel. There's kind of a legal answer in the P.R. answer and I'm not the P.R. person but we probably could go ahead and make this change. It's probably within the scope of the original proposal, which was to change the date.

There may be reasons, in terms of dealing with landowners that Mitch can better address in terms of whether it would be a good idea just to go out and get public comment before we go forward.

COMMISSIONER FRIEDKIN: Commissioner Bivins.

COMMISSIONER BIVINS: If you bump it up, does it have to say 16 days?

MR. LOCKWOOD: No, sir.

COMMISSIONER BIVINS: I mean, are you moving the whole season?

MR. LOCKWOOD: I'm still thinking of DMP right now so I'm not sure what I said at this part in the proposal but the idea here for this season is to start the Friday after Thanksgiving and actually make it a 17-day season, still close on the day that it currently closes. It's now a 17-day season in proposal. If it bumped up another day, it would be an 18-day season and so on. I mean, if we bumped up much more than that, then we would probably talk about the closing date of that season moving forward as well but at this time, we have not proposed changing the closing date for that season.

COMMISSIONER FRIEDKIN: Commissioner Hughes.

COMMISSIONER HUGHES: I haven't been involved in MLDP for the mule deer and been involved in this process and knowing the West Texas people, who can be pretty opinionated from time to time, I think a small step a day at a time might be better than to try jump out for two days and that may be something we might want to look at in the next year or two. Maybe, you take Thanksgiving but I think from a public opinion standpoint, maybe one day now, it's what we've talked about ‑‑ I agree with you, I think Thanksgiving would be a great day, a good day to start it, but I think we'd better go on with what we proposed right now.

COMMISSIONER FRIEDKIN: I agree with that.

(Simultaneous discussion.)

COMMISSIONER BIVINS: It also seems that if there was a strong groundswell to open on Thanksgiving Day, you would have heard it ‑‑ public comment. Having not heard it ‑‑

COMMISSIONER FRIEDKIN: So we could certainly ‑‑

COMMISSIONER HOLT: You didn't say you felt that strongly about it ‑‑

COMMISSIONER BIVINS: I don't know. I just ‑‑

COMMISSIONER HOLT: I agree, Dan, and I think this ‑‑

COMMISSIONER DUGGINS: That's a matter of credibility.

COMMISSIONER HOLT: Yes. Credibility, though, out there, we want to make sure we kind of incrementally increase it.

COMMISSIONER BIVINS: I'm fine.

COMMISSIONER FRIEDKIN: And make sure that we can communicate and give opportunity for proper public input. So it's a good idea to look into the future though I think we should try to scope that in the future.

Thank you, Mitch.

COMMISSIONER HOLT: Otherwise with have ‑‑ with a flag Don't-Tread on-Me waver and ‑‑

COMMISSIONER MR. FRIEDKIN: Okay. I will place this item on the Thursday Commission meeting intended for public comment and action.

Mr. Chairman, I think we have concluded our business.

COMMISSIONER HOLT: Yes. I'll have to defer to our ED here. We're going to do something. They say we're going to go over to Infrastructure. Is that correct?

MR. SMITH: We are, and then open up executive session.

(Pause.)

COMMISSIONER HOLT: Okay. So Chairman Friedkin's done with Regs and now we will move on to Infrastructure and Chairman Duggins, will you please call your committee to order?

(Whereupon, the committee meeting was concluded at 2:10 p.m.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission
LOCATION: Austin, Texas
DATE: March 31, 2010

I do hereby certify that the foregoing pages, numbers 1 through 144, 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.

04/06/10
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


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