Texas Parks and Wildlife Commission
Regulations Committee

May 26, 2010

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

BE IT REMEMBERED, that heretofore on the 26th day of May 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: The meeting is called to order. It's May 26th, 2010 at about 9:15. Before proceeding with any business, I believe Mr. Smith has a statement to make.

MR. SMITH: I do, 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 record of this meeting. Thank you, Mr. Chairman.

COMMISSIONER HOLT: Thank you, Mr. Smith.

I'd like to make a few comments. You can see the picture of Wes Littrell on the various screens and I'm going to read a few things because I don't want to miss anything and, you know, when you have people like ‑‑ you lose people like Wes, you know, it certainly has an effect and it has an effect on this organization, it has an effect on the people that work with him on a daily basis, which I did not. I had met Wes. I did not know him well but then, of course, his family and neighbors and everything else.

So, I'd like to read a couple of things that Carter and I have written and I'd ask us all to just think about Wes and his family for a couple of moments here. He was killed, of course, in a tragic accident over at the Gus Engeling Wildlife Management Area on Friday. The service for him was yesterday. He was only 32 years old when he died but he'd already made a pronounced difference as a biologist and was well regarded for his strong commitment and stewardship in habitat management. He started with TPW as an intern, like a lot of people at TPW do and so ‑‑ you know, everybody gets to know each other. He went to Stephen F. Austin, did well there, of course, became a wildlife biologist at his home in Sherman and over the last three years, been working as a biologist at Gus Engeling.

And one of his projects that intrigued me and interested me and I know interested a lot of people, not just in that area but people were starting to hear about it, was the development of a small acreage habitat research and demonstration area. Unfortunately, this is the area he was killed in. It was a 30-acre block that Wes used to demonstrate to small acreage landowners, okay, how they could implement habitat enhancement projects, such as native grass restoration, prescribed fire, control of exotic species, disking and other practices on their land to improve wildlife. And the project was garnering a lot of accolades and this is, again, how, you know, as we tried to ‑‑ we being Texas Parks and Wildlife and this department, tried to help all landowners be conservation minded and help them in trying to accomplish whatever goals they want to with things like habitat enhancement and all the things that go with it, can be done on small plots or large plots and he was really focused on that and it really ‑‑ people were starting to notice what he was doing and I want ‑‑ I'm hoping and will be encouraging that we keep that work going.

To his wife Lynne, his parents, his brother and particularly his fellow employees at Gus Engeling WMA and in the Wildlife Division, I offer the Commission's wholehearted condolences and sympathies for this tragic loss of a fine man who unquestionably exemplified the best at TPW. I'd also like to thank Commissioner Duggins for traveling over to WMA on Saturday to express the Commission's support and sympathies to the local staff and I'd like to thank Jeff Gunnels, who was Wes's supervisor and also a very close friend. Jeff has been the department's point man in dealing with this whole situation. I know it's been a very difficult time for everybody and, of course, particularly Wes's family.

So, at this time, I'd like to take an extra moment of silence to honor Wes's life and memory.

(Pause.)

COMMISSIONER HOLT: Thank you and I appreciate you giving us a few minutes to honor a good, good man, Wes. Thank you. With that, we'll move on to business that we do have at hand and we'll start with Regulations with Chairman Friedkin.

Chairman Friedkin?

COMMISSIONER FRIEDKIN: Thank you. The first order of business is approval of our previous committee meeting minutes. Do I have a motion for approval?

COMMISSIONER HUGHES: So move.

COMMISSIONER MARTIN: Second.

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

(A chorus of ayes.)

COMMISSIONER FRIEDKIN: Any opposed? Hearing none, motion carries. Committee Item One. Update on Parks and Wildlife Progress in Implementing the TPWD Land and Water Resources Conservation and Recreation Plan.

Mr. Smith.

MR. SMITH: Thank you, Mr. Chairman, I appreciate it. Just a couple of things I'd like to go through with you this morning. First, I'm very proud to announce that Gary Saul is our new Division Director for Inland Fisheries.

(Applause.)

MR. SMITH: He rose to the top through a very, very competitive process that Ross led and you all know Gary, been a long-standing biologist with this department. He's been our Deputy Director and we're really proud of him and the leadership that he brings, as well as that of his team that already exists and I know that they're going to work together to do great things and so, Gary, congratulations, a proud moment for us to have you in that leadership role.

A couple of things I want to share with you. We do have one action item from the Land and Water plan that I want to report to you on. One of the specific action items was that we would review our rules ‑‑ all of our rules ‑‑ every four years to make sure they're still germane and appropriate and relevant and they're updated with the most current information. Ann Bright, as you know, has been kind of leading that effort. We actually just recently went through the update of the shrimp and oyster rules, really going back to a 2008, 2009 cycle. You approved those changes. She has put together a schedule of all of our rules, over a four-year period. We'll start those again in 2012 and 2013, but I just wanted to catch you up on that.

Ann's got the schedule for what part of our rules will be reviewed every four years. If you want to have more detail on that, just let her know.

Also, just a quick update. You had authorized us to formally enter the Interstate Wildlife Violator Compact and I'm proud to say we're now the 34th member in that compact and that will take effect formally on the 1st of June and we learned last night that I think Oklahoma's governor has just approved their entry so they'll be the 35th state. So, we're seeing really more and more and I suspect, ultimately, most all the states will be a member of that compact. So, I think that's very, very positive and I just wanted to let you know that that was moving forward.

The last thing I want to do, Mr. Chairman, if I could, is just a very short update on the Deepwater Horizon oil spill and, specific preparedness actions that the agency is taking and then some options that may be available to the commission. I've got a very short presentation. I'm just going to move over here to walk you through it. I am not going to spend much time this morning at all sort of going through the background and details. You've all read extensively about what has transpired in the Gulf. Obviously, our colleagues in the Gulf states are deeply, deeply concerned about this and what it may mean to the health of the Gulf of Mexico; bays and estuaries, marshes impacted, et cetera.

What I want to kind of brief you on is where we are on the Texas side with respect to our level of preparedness and what options may be available to the Commission should any decisions need to be made about affecting our fisheries' resources. You know, just as quick reminder, you know, the nearest oil to Texas is about 180 miles away from us and so we're very fortunate in that regard. Whatever oil that we expect to get out of this is likely to come in the form of weathered tarballs that will float our way so we likely will see impact from that at some time on our beaches and how much of that ends up on the sort of Sabine River, the upper part of the coast versus the lower coast; a lot of that will depend on the loop currents and how it gets into that. Kind of two measures of readiness that we have underway ‑‑ I think as all of you know, we do operate under the State Operations Center when the governor declares an emergency and his department of emergency management, under DPS, activates that.

As an aside, last week we lost another great state leader and friend of this agency, Jack Colley, who was the Chief of Emergency Management, who just was extraordinary in Hurricane Ike and other tragedies that hit the state, and he died of a heart attack and all of us are mourning his loss in passing.

Major Willie Gonzales from our law enforcement team is our liaison to the State Operations Center. That has not been activated yet but we have supplied them with information on all of our physical and people assets, should it be activated. We also have an interdivisional team that's been established that Mike Ray is leading, that has representatives from all of the relevant divisions, to make sure that there's appropriate communication and coordination. Don Pitts, who is one of our environmental specialists and biologists, is kind of the lead on communicating with other agencies and in making sure that there's good communication inside the department and Don is with us today, if there are any more specific questions that you want to ask about.

Some of you had asked about the extent of coordination with other state and federal agencies. Let me just assure you that is going on. It's very active. Don, in particular, every day, is talking to General Land Office, TCEQ, Mike Ray, Robin Reichers, working with all the fisheries chiefs and NOAA. There's a regularly scheduled call that they have to discuss matters impacting fisheries throughout the Gulf. The Department of Agriculture has also recently organized a coordination call with commercial fishing interests and Mike's our representative on that call but basically, I just want to assure you all of the relevant agencies from Coast Guard, et cetera, we're working with on a daily basis.

This is a shot that shows the most recent federal closure area. It encompasses between 50- and 54,000 square miles, roughly 20 to 25 percent of the Gulf waters that NOAA has closed to recreational and commercial fishing and so I wanted to make sure that you had a chance to see that map.

COMMISSIONER HOLT: On that ‑‑ let me see if I ask the question the right way. Does he read ‑‑ sometimes it's just the general stuff that's everyday, watch it on TV or whatever. I remember I called you a few days ago and, you know, it made it sound like the whole Gulf was closed. I mean, how are we getting out to our local constituency, particularly with Memorial Day coming and those kinds of things, that, you know, luckily, the Texas coast is not closed. Our federal waters around ‑‑ you know ‑‑

MR. SMITH: We've got an update on our website on our home page, Chairman.

COMMISSIONER HOLT: I'm getting ahead of you? Okay.

MR. SMITH: No ‑‑ well ‑‑ no, it's a very, very good question and so we have a specific link on the home page that folks can go to for updates on the oil spill and the extent of closure. I think, thankfully, the media is doing a better job of not going down to the path of the entire Gulf is shut down and reporting on that a little more accurately through coastal fisheries certainly serving as an important liaison to the commercial fishing industry but I think that's improving and, certainly, you know, Chairman, the good news, and we'll report on this a little later, we're seeing our fishing participation increase in April and May, just like we hoped it would. So, certainly, hopefully, that will continue on through the Memorial Day weekend. This is an important weekend for us as we hope for anglers to get into our waters.

This picture shows the assemblage of state and federal waters that are closed. Louisiana controls her territorial seas out to three miles, I believe, and so this sort of shows you the extent of both the state and federal closure. You can see that most of that is aggregated in and around the mouth of the Mississippi River. Louisiana is doing everything they can to open every bit of water they can, if they think it's safe and they can get fishing in those areas so they're very, very focused on it but that just shows the closures in the aggregate.

There's been a lot of talk ‑‑ I think you've heard this in the media about the Loop Currents and is oil going to get into the Loop Currents and what that means. Those currents are very dynamic, very fluid. They fluctuate literally on an almost daily basis and so they're a little hard to predict but, as you can see from that slide, that's the basic current that would transport oil eastward into the Atlantic, through the Keys and over into the Atlantic side of Florida. There's a lot of concern about that. Now, if you just look this way. I'm sorry I'm going to have to show with you this pointer, this map. I'll try not to hit anybody between the eyes here if I turn around. You know, basically, that oil spill is right in this area and I'll show another map that shows a portion of the spill that's kind of approaching that current. Again, the concern is that it would be transported around the peninsula of Florida and past the Keys and into the Atlantic.

There is another part of the Loop Current which takes oil back to the west. That's obviously one that typically kicks in June and should we get any oil movement over here then we've got concern about what that means for Texas and, again, we're certainly doing all we can to be prepared for that. This is the latest projected trajectory of the oil spill through May 28th. The trajectories that we get are on a three-day horizon. That is as accurate as they can get. Any more long-term projections are just simply not accurate so this just note that the red shows where we've got beached oil on beaches and in marshes ‑‑ a little over 50 miles or so of Louisiana coastline are we seeing, you know, oil in there and this kinds of shows you, with the dark blue, where the heaviest concentrations are right now in the Gulf, obviously, very near the spill itself.

This is the offshore projected trajectory. This shows that little strand that we're concerned about that may move into the Loop Current and may get caught up and be brought around the tip of Florida and the Keys and so that has folks watching that very, very carefully but I wanted to show you that little strand that's kind of broken off from the main aggregation of the oil. So, what are the options that may be open to the Commission, if and when something specific or different should be done, with respect to our management of commercial and recreational fisheries? You know, obviously, we want to, first and foremost, protect the resource. We know that is your mandate to us. Also, we want to make sure though that if there is some need to change the rules or regulations to facilitate additional fishing opportunities that you know what tools are at your disposal.

With that said, basically everything has to go through normal rulemaking procedures with two exceptions. And so, I want to just mention those. With respect to the Gulf shrimping season. In statute, that is open and closed with the approval of the Executive Director. Per our normal authority, we closed the Gulf shrimping season May 15th. We typically close it for around 60 days. This allows the smaller brown shrimp to go out with the ebb tides into the Gulf and to grow, you know, the three, three and a half inches, helps with juvenile recruitment into the population and also allows those shrimp to get a little bigger so that they're more marketable. We have had some interest in asking the department to consider continuing of the season. We don't feel that that's the right thing to do right now and so we went ahead and closed the season for a number of reasons. But, we do have the ability to open it back up with a 24-hour notice. So, just wanted to let you know that.

Also, I think a number of you will remember from last session that there was an interest in having some emergency rulemaking that was invested in the department in some kind of a natural disaster. This only goes into effect if the governor declares a disaster area for the state and it does give specific emergency rulemaking authority and let me just read to you what it says in Code: "If a disaster is declared by governor, the Commission or the Executive Director finds that there is an imminent danger to a species authorized to be regulated by the department or that strict compliance with department rules would in any way prevent, hinder or delay necessary action in coping with a disaster" and so there's a little statutory flexibility if something might need to be changed or looked at, if the oil were to be moved this way and you wanted us to look at some options again. That would only go in effect if the governor declares a disaster area.

Again, at this time, our coastal fisheries team is strongly recommending that we hold the course. It's what other states are doing as well, outside of Louisiana, in order to protect that resource. We do have options available in all of these fisheries. Again, with the Gulf shrimp fishery, we can open or close that season early if need be. If warranted and we're concerned about excessive pressure coming in to the Texas territorial seas, we do have the ability to remove the transferability of licenses. So, if you have a shrimping license and it's sort of dormant and somebody wants to transfer that, sell that to another commercial fisherman in another state, if we're concerned about an abundance of pressure, we do have the ability to restrict that through that means.

The Gulf menhaden fishery is open right now. As you will recall, two years ago the Commission put into rule a total allowable catch, 31 and a half million pounds, more or less, in Texas territorial seas. Because the ‑‑ that total allowable catch was not met in full last year, there's a 10 percent allowance increase that you allowed us to build in, which is in effect now so a little over 34 million pounds of menhaden can be caught this year. Again, that fishery is open right now. If the situation warrants, there is the possibility for closing the season early or if you want us to consider increasing the total allowable catch, that is something that we can come back to you on.

With respect to the inshore fishery, we're not expecting a lot of impacts. Again, remember ‑‑ expecting weathered tarballs ‑‑ we're not expecting a lot of movement through the passes. Most of these we expect will get hung up in the Gulf or on the barrier islands. The teams are looking at the efficacy of placing silt curtains ‑‑ you know, you see those on kind of a highway, those black silt curtains along wash-over passes, so if you're going to have a hurricane or something else or tides that might roll through a wash-over pass to see what you can do with the silt curtains to catch the tarballs. Standard booms aren't going to do it. They're just too buoyant, they're just going to float right over the booms. But, we've got teams, for instance, at Sea Rim State Park that are looking at wash-over passes right now and looking at the efficacy of that, if need be.

So, Mr. Chairman, I just wanted to share that update and just kind of let you know that we are and our team actively working on this on a daily basis. Again, we are very fortunate in terms of where we sit with respect to the majority of oil. We expect to get some at some time but certainly, right now, we're not plagued with the challenges that our sister states are, around the Gulf.

So, with that, I'd be happy to answer any questions about any of these matters.

COMMISSIONER DUGGINS: Carter, let me ask a couple of questions. On the menhaden, why was the ‑‑ why do you think the total allowable catch was not met last year?

MR. SMITH: It's a good question. You have a response to that, Mike or Robin? Yes.

MR. REICHERS: For the record, Robin Reichers, Director of Coastal Fisheries. The reason it wasn't met, or at least what we hear from the fleet is, you know, they're centered in Louisiana so if they can catch fish off of Louisiana, that's where they will do most of their fishing and last year they were able to catch and spend most of their time fishing in Louisiana so they didn't really come over to Texas much last year and they were under by quite a bit. So, you know, that's really what it was. It was just ‑‑ when they can catch them closer to home, they're going to catch them there. So ‑‑

COMMISSIONER DUGGINS: Have our stocks increased as a result of the reduction in pressure, or do we know?

MR. REICHERS: Well, it's really a ‑‑ it's a Gulf stock that we're dealing with so I wouldn't say that. You know, as we presented to you at the time, they're working on a new stock assessment. It should be upcoming in the current year now. Given the oil spill and all the things that have gone on, I'm not certain whether they're going to complete that in this year because they may have some difficulties in regard to NEPA scientists being pulled away from stock assessments and doing other things. But that, you know, total stock size is ‑‑ we wouldn't have expected it to change just because of them catching fewer in our waters last year.

COMMISSIONER DUGGINS: Is there any concern that by raising the total allowable catch, that we're defeating the purpose of imposing the ceiling in the first place?

MR. REICHERS: The only thing I would say to that is obviously any of those options that we put up there were options ‑‑ any less restrictive options associated with that whole suite of things was really directed at helping the fisheries constituency because of kind of a larger impact to their overall Gulf opportunities. Certainly, there's going to be some concerns and some worries and issues that we're going to have to discuss regarding the biological implications if we were to increase tack or change a season to allow us more shrimp to be harvested. You know, obviously, we may be part of the Gulf here that may be not as impacted as other parts and so, we're going to be real concerned and watching and making sure that we're not harvesting to a level that it's going to impact recruitment in other areas as well.

COMMISSIONER DUGGINS: Last question, Carter. Is there a ‑‑ are we keeping track of our costs we're incurring in connection with this spill, with the thought that we ultimately may have the opportunity to present that to BP for reimbursement?

MR. SMITH: I think we absolutely are tracking that. You know, I think again, we'd have to see a more direct impact to Texas waters before, you know, we'd be in a position to ask for reimbursement but for that but absolutely, we're tracking that. The other thing I should have mentioned that we're also doing, are some baseline sampling, Commissioner, of invertebrates and fishery-related organisms to make sure that we have a sense of where we are now versus if something were to change. And so, that's an important part of this as well so but, yes, your point is well noted.

COMMISSIONER DUGGINS: Thank you.

COMMISSIONER FRIEDKIN: Thank you, Carter.

MR. SMITH: Thank you, Mr. Chairman. That concludes my report. Thank you.

COMMISSIONER FRIEDKIN: Item Number Two, Update on Implementation of Revisions to Exotic Aquatic Species Rules. Ken?

MR. KURZAWSKI: Good morning, Commissioners. My name is Ken Kurzawski with Inland Fisheries Division and I'm here today to update you on staff's implementation of the revisions to Exotic Aquatic plant rules. `Currently, Texas has ‑‑ TPWD has the authority to regulate exotic aquatic plants and we do that by a prohibited list; plants that have been deemed harmful or potentially harmful are listed in our rules and those rules are approved by the Commission.

We do allow some plants, such as water spinach, to be possessed with an exotic species permit and those permits have conditions that minimize the risk of those plants. There are some disadvantages to this system. Bringing it before the Commission, developing information out of that, can be a lengthy process and that can make it difficult to respond to new threats. New plants that are brought into the country and that list possibly allows non-listed species to be established before we can declare them to be harmful. And this can lead to environmental damage and economic costs to treat those plants. Currently, our department spends about $1.2 million treating exotic plants.

Giant salvinia, which is one we've talked about a lot recently, has been causing us a lot of problems in East Texas and the other two main species of concerns, hydrilla and water hyacinths. In light of this, in the last legislative session, through the Sunset Bill, we were directed to develop a new way to regulate exotic aquatic plants. Through that bill, we were directed to publish a list of exotic aquatic plants that are approved for use in Texas, which is 180 degrees different from the previously approved list and then these rules that we have developed were to have be as permissive as possible without allowing any plants that would pose problems in Texas. And, finally, these new rules were ‑‑ we were directed to have these new rules in place by January 1st of next year.

Even though most of the focus recently has been on plants in freshwater, this does impact fresh and saltwater in our surrounding riparian areas. After the legislative session, we had assembled an interdivisional team of all the affected divisions; inland fisheries, coastal fisheries, law enforcement, legal, wildlife and EO and I'm here representing that team. But we've been working on this issue since last summer and the goals for our team were to develop that list of exotic aquatic plants that were approved in Texas and develop new rules to administer these new regulations.

In the legislation, the exotic aquatic plants were defined as those ‑‑ as non-indigenous aquatic plants that were not normally found in aquatic and riparian areas of the state and we are ‑‑ for the purpose of this, we are including both vascular plants and algae in these regulations. One of the most crucial portions of this is the approved list and the criteria that we used to develop to list. The legislation had ‑‑ contained some directives. We were to evaluate the plants for harm by a risk assessment models. Any other published scientific research from other agencies or a third party labs and the approved list ‑‑ we were directed that the approved list must include plants that are widespread in the state and determined as us, through the risk analyses or other methods, to not be harmful. We realized there were some challenges in going in this direction. Numerous plants have been in trade for years. There's not much information available on the life history of some of those plants. There's quite a bit of information on how you raise them in your aquarium but sometimes that life history information is lacking.

Another challenge was varieties of a particular species or a group of plants, such as water lilies. Water lilies are native to Texas but they're also found in other parts of the U.S. and the world and they've been hybridized in various varieties so we have to consider instances like that, including all the relevant stakeholders. Prior to this, we didn't have a lot of contact with the people in this arena. We've been working to develop that, both to get them the information on our new regulatory and also to get information back from them so we could determine what's being done in Texas. And, another challenge has been the emergence of algae. Algae has some particular challenges for this. We've recently been contacted by Exxon-Mobil. They're considering doing an experimental project in the Baytown area to look into the use of algae for biofuels.

As I've mentioned, we've been working on this since last summer. In November we put together a letter on our new regulatory direction and request for candidate plants. We're working on our stakeholder list. We've contacted wholesalers, both in state and out-of-state various business, trade groups, organizations, both governmental and non-governmental and various individuals to get this information out to them and from this information we began compiling that draft approve list. We did get some input from the public. We put together a draft list for the 150 plants. Once we got that put together we went back out to our stakeholders and tried to add some other, important groups after that time. We also added ‑‑ looked on the internet, found some of the aquatic hobbyist groups; people we had contacted originally, groups of ‑‑ you know, in Austin or other cities, that are just interested in raising aquatic plants so we reached out to them, gave them information on this.

COMMISSIONER DUGGINS: Ken, is the list of the prohibited plants or the permitted plants?

MR. KURZAWSKI: These are plants that would ‑‑ candidate plants for the approved list.

COMMISSIONER DUGGINS: The approved list.

MR. KURZAWSKI: We also scheduled seven public input meetings around the state. We had those in Houston, Dallas, Ft. Worth, Austin, San Antonio, Corpus Christi, Brownsville and El Paso. And we also posted this information on our website and all the correspondence on this we tried to inform people of the new regulatory direction, either gave them the approved list ‑‑ the draft approved list directory or gave them a link to that on our website and we also tried to inform them of the public meetings. From that we've been gathering public input since then. At the public meetings we had 32 attendees and we did receive some support for the approved list but concerns about the specific plants, such ‑‑ as I mentioned, water lilies, those are very popular plants, have a lot of economic impact plants ‑‑ we're addressing that and also about adding new plants to the list.

The opposition that we received to the approved list were people saying we should maintain or not go in this direction or maintain the prohibited list and they signed the legislation. That's really not an option. We were directed by the legislature to go in this direction so that's the direction we're proceeding at this time. And we did receive some additional candidates ‑‑ plants for our draft approved list. Our crucial point here is the evaluation of those candidate plants. We're using a widely accepted risk analyses that incorporates factors on growth, climate and adaptability, similar to some of the things that we use for water spinach and if that determination is made that the risk is low, the species will be placed on the draft approved list.

Initial risk analyses are being done by TPWD staff in various divisions and then we have arranged ‑‑ have a contract with the Texas Invasive Plant and Pest Council to review our analyses to determine if they meet ‑‑ they're rigorous enough and so far we've ‑‑

COMMISSIONER HOLT: Can I stop you on that?

MR. KURZAWSKI: Sure.

COMMISSIONER HOLT: TIPPC?

MR. KURZAWSKI: Yes, that's the Texas Invasive Plant and Pest Council.

COMMISSIONER HOLT: Do I know who they are? Help me.

MR. SMITH: You probably don't, Chairman. Ken, do you want to elaborate a little bit on that?

COMMISSIONER HOLT: Yes, somebody elaborate. The Commission needs to know who these people are.

MR. KURZAWSKI: Earl Chilton probably could answer that, sir.

MR. SMITH: Earl's been our representative with that. So ‑‑ yes.

COMMISSIONER HOLT: We may as well find out who has somebody on this ‑‑

MR. SMITH: Sure.

COMMISSIONER HOLT: ‑‑ and are we involved in it.

MR. CHILTON: For the record, my name is Earl Chilton, Inland Fisheries. The Texas Invasive Plant and Pest Council is an organization composed of a number of different organizations; has academics in it, has botanists from the Lady Bird Johnson Wildflower Center in it, it's got people from the nursery industry in it, some folks from the aquarium industry. So basically, it's an organization that covers a wide range of people that have expertise in this field.

COMMISSIONER HOLT: Are you on the council? Do you represent ‑‑

MR. CHILTON: I represent Parks and Wildlife Department and I'm on the Board.

MR. SMITH: Earl's been involved since its inception; one of the ones who helped create it.

COMMISSIONER HOLT: I mean ‑‑ I started asking a question but there are too many questions but, I mean, how did it evolve? Is it appointed or is it ‑‑ I mean ‑‑

MR. CHILTON: It's almost like a professional organization. American Fisheries Society.

COMMISSIONER HOLT: Okay, okay.

MR. CHILTON: But some of the ‑‑ because it's a non-profit, it's ‑‑ and they have a great deal of expertise on invasive species, particularly plant because the Lady Bird Johnson Wildflower Center has a number of botanists on the Board. So, it looked like it was a really good place to get some expertise and some feedback.

COMMISSIONER HOLT: Okay.

MR. SMITH: Chairman, we felt that it was really important to have a third-party review ‑‑

COMMISSIONER HOLT: Sure.

MR. SMITH: ‑‑ of our risk assessment and because you have so many different stakeholders that are involved in TIPPC that that would be a good representative body to help look at this risk assessment. We've also got scientists that have got expertise or can get access to them. It was born out of the concern that we've all had about the proliferation of exotic species and wanted to get people together to try and deal with it more comprehensively in the state and so that was kind of the genesis and, again, Earl's been involved since its inception but I think they'll do a good job with the review and help provide, again, a little third-party review here.

MR. CHILTON: Basically, some of the botanists from the Lady Bird Johnson Wildflower Center are going to be doing the reviews.

COMMISSIONER HOLT: Thank you.

MR. KURZAWSKI: As I was saying, so far we've sent several of our risk analyses. We've transmitted about 50 of them. The staff is continuing to work on our risk analysis and we hope to be finishing those up over the next month or so. After that, after these reviews, we will put together that draft approved list and, once again, make that available for public comment. Started to work on developing the new rules to administer these new regulations and we will ‑‑ within those rules ‑‑ we will provide a mechanism for adding new plants, if people have that desire and we also will maintain the use of some permits ‑‑ exotic species permits ‑‑ for some plants and in order to meet our January 1st deadline, we plan to come back to the Commission at the August meeting and present the proposed rules with the draft approved list and, at that time, request permission to publish in the Texas Register and then, in November, come back, after we ‑‑ just discuss public input with you and, at that time, request final input.

And, we're very confident that, you know, once we get to the end of this process, this will give us a better mechanism to protect our environment from some of these threats that we're facing from aquatics. And, if you have any other questions or comments, I'd be happy to answer.

COMMISSIONER DUGGINS: I think it's great that we're working with TIPPC and the risk assessments but are we also checking with other southern states to see if they've done any kind of similar work and what their risk assessment might be ‑‑ number one ‑‑ number two, whatever we end up doing, are we sharing our data with them so they might benefit from all the work that you and Earl have done?

MR. KURZAWSKI: Well, we are checking with other states, not to see what they're doing as far as approved lists or not approved lists, I don't know if we've gone out and seen what type analyses they've used and we are collecting all this information, information we're submitting to TIPPC that would be available for other states to use. The risk analysis that we're using is widely used and other agencies have used that, so ‑‑

COMMISSIONER DUGGINS: But are we ‑‑ for example, if Louisiana has ‑‑ hypothetically ‑‑ has undertaken a similar study, are we checking to see what their conclusions were, to at least take that into account, whether we reject or accept it.

MR. KURZAWSKI: Yes, we've gone out and see what, you know, where determinations have been made of certain plants that have been ruled, you know, invasive in other states. Earl Chilton, again.

MR. CHILTON: We have checked with several other states. One of the states that I've checked with most has been California. California has developed their own risk analyses and the person I talked to in California is one of their leading botanists ‑‑ developed their risk analysis and he's very comfortable with this one. In fact, he endorses this one for the kind of analyses that we're doing. We've also been working with botanists out of Florida that is ‑‑ and she's been working also with the Lady Bird Johnson Wildflower Center on this, as well. But, she's testing different risk analyses and was able to give us information about how accurate this risk analysis actually is and how accurate they anticipate it will be in the future.

MR. SMITH: Commissioner, there are very, very few states that have a white list process like what is being developed in Texas. I think Oregon and Hawaii, at least all or in part or have been, so there's a lot of attention and focus on Texas right now as we go through this and so your comments about making sure that we export and share whatever information we glean as part of this is, we absolutely will. There's just a lot of national attention in this right now because it's so unique.

COMMISSIONER DUGGINS: Good.

COMMISSIONER FRIEDKIN: And on the provision for adding new plants, is it our view that we would go evaluate this process in the future; go through the same steps, obviously, it'd be a little quicker to add, but a similar process to that?

MR. KURZAWSKI: Yes, we will do the same thing and all those will have to be brought before the Commission for your approval and we will, you know, we will certainly write into the rules the procedures for doing that and the information that we request.

COMMISSIONER FRIEDKIN: Thank you. Committee Item Three, Proposed Seagrass Conservation Rules Regarding the Redfish Bay State Scientific Area- Recommended Adoption of Proposed Changes.

MR. HEGEN: Good morning, Ed Hegen of Coastal Fisheries Division. I'm before you today to bring forth and remind you of the proclamation that we want to renew for the Redfish Bay State Scientific Area. This is kind of a condensed version of what you saw in March. A little history ‑‑ that we've been involved in seagrass management for about 20 years. Specifically, we want to address the State Scientific Area designation 2005 that had a five-year term. We've done about four and a half, five years of extensive investigations, outreach effort ‑‑ that type of thing. In 2006, we had a proclamation from the designation by the state scientific area which prohibited the uprooting of seagrasses by propellers.

We've done ‑‑ here's a slide of a typical propellor scar and that's what we're addressing in the state scientific area. This is the Redfish Bay State Scientific Area on the Mid-Central Coast, again, on the lower right, Port Aransas, Port Aransas jetties, Corpus Christi Ship Channel on the lower, going to the left, towards Ingleside, the Intracoastal Waterway goes up to the upper right, just south of Rockport, and that big triangle, about 32,000 acres of submerged, aquatic vegetation. The white dots are the boat ramp access sites.

We used a number of techniques. We used in-the-water swimming of transects; 35 transects in the upper and lower Redfish Bay, encountered scars over the last five years and saw a reduction in the number of scars crossing those transects. We also used high resolution aerial photography. That in front of you is a comparison between 2005 and 2007, 2008 and 2009, showing a reduction in the high-density areas of scarring; significant reduction in scarring, hopefully based on our outreach efforts, education, those types of things that we've done to inform boaters of the importance, the value of the seagrass beds. You can see where the high-density scarring occurred and where it has been reduced over the last three years, from the dense red. The conclusions of ‑‑ if you'll remember, in March, a lot of the research and efforts and outreach efforts, these are the conclusions: scarring is reduced. During our recovery study of scars, we found that scars are recovering faster than we had actually expected. From that aerial photography, you saw that there are some high-density areas of scarring. Those have also been reduced but scarring is susceptible in some of the shallow areas of Redfish Bay and our education outreach efforts are successful.

All of the media and news releases, as well as results from our human dimension surveys, in which we've gotten results from the users of Redfish Bay, in responses to questions asking them whether they knew about the regulation, knew about the importance of seagrasses and whether they've changed their behavior in fishing or not and which they indicated they have. So, those ‑‑ that education outreach covers that area.

COMMISSIONER HOLT: Can I stop you there? I want to congratulate you on that. I just happened to be down there this last weekend and the education outreach ‑‑ there's a lot of awareness. A lot of it. Much higher awareness than a few years ago.

MR. HEGEN: Yes.

COMMISSIONER HOLT: And, if you go down and people really are, I think, trying to do the right thing.

MR. HEGEN: I think they are too.

COMMISSIONER HOLT: Everything from changing their equipment to how they fish to where they fish, you know, doing it in a different way but just understanding what this scarring does and the issues it creates. I think you've done a very good job in the education research.

MR. HEGEN: Thank you. We've had a lot of cooperation from news media, magazines, Coastal Bend Bay estuary recently, they started ‑‑ they re-started their public service announcements. You'll hear that during the weather and that type of thing in local areas, so we've had tremendous cooperation of those people who have methods to get that outreach to the public, as well as our own.

COMMISSIONER HOLT: And I think just word-of-mouth too.

MR. HEGEN: And, of course, law enforcement has been on the water ‑‑

COMMISSIONER HOLT: Uh-huh.

MR. HEGEN: ‑‑ and issued some citations, a lot of education and presence and warning and things. As a result of the requested change, the removal of the ‑‑ Redfish Bay State Scientific had a five-year term limit and what we would like to do is remove that term limit so that the state scientific area stays in effect, it doesn't expire and hence the proclamation does not expire. We had public hearings and we had 54 people in support, one person was against these rule changes. The comments came from email, web and the public hearings in Rockport and in San Antonio. Commissioner Hughes attended a meeting in San Antonio. At that one, we had a spokesman submit a letter from the Coastal Conservation Association of Texas supporting our efforts in research and management in Redfish Bay and we ‑‑ as you see ‑‑ unanimously endorsed by the Coastal Resource Advisory Committee meeting, at their meeting. So, I don't think there's any reason not to go forward with this. Any questions?

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: Ed, at the last ‑‑ the March meeting, Commissioner Hixon suggested that we try to work with the guide associations in getting the brochures ‑‑ education material out and I suggested that we make it available to boat registrations. Are we going to move forward on both or either of those fronts?

MR. HEGEN: I think we looked at boat registration and boat registration comes on a monthly cycle and I don't know if we had the ability to send those brochures out on a monthly cycle. I'd have to defer to Robin on that one. I think we looked into that and that was a little more difficult to process.

MR. REICHERS: And I think what Ed's referring to, is early on, I think there was an attempt to link up with boat registration. We think we've gotten a little more sophisticated in our abilities here within the department now computer-wise and so forth and what we're going to try to do is go back and look at that again. Since there's a ‑‑ such a focus of that San Antonio area, we think we probably can identify, by zip, those particular boat registrations and maybe try to put in a campaign that when it's going to those particular zip codes, we'll be sending that information to them, as well.

And, certainly, we're going to continue to work with those guide associations and the local interests in trying to get that word out. You know, this isn't an effort that we stop now that we take the expiration date away. We have to continue that education and outreach effort from now till ‑‑ through time and the good news is, these same boaters that are here also boat in other areas and so when they learn these practices, they're carrying that seagrass conservation up and down the coast. So, you know, this is just the beginning of the effort. It's certainly not the end. So ‑‑

COMMISSIONER HOLT: That leads to the next question. Are we going to expand this up and down the coast? I've lost track of that.

MR. REICHERS: Well, kind of as we discussed at the last meeting, we're going to certainly be ‑‑ we've tasked our biologists to looking at other areas that are potential areas and we're going to looking at those, working with those communities and trying to come back with you ‑‑ to you with a set of recommendations of where we might go next.

COMMISSIONER HOLT: Okay.

COMMISSIONER FRIEDKIN: Any other questions? Thank you. No further questions or discussion, I'll place this item on the Thursday commission meeting agenda for public comment and action. Committee Item Number Four, Migratory Game Bird Proclamation Update. Dave Morrison.

MR. MORRISON: Good morning, Mr. Chairman, Commission members. My name is Dave Morrison. I have two presentations to give to you this morning. The first is kind of an update on the migratory bird regulations proposals that were presented at the last commission meeting and the second deals with requests from the Commission to provide an overview of what's going on with snow geese and ‑‑ continentally and both locally.

At the last Commission meeting, Wildlife Division presented proposals for all migratory bird hunting season for the 2010 and 2011 hunting season. At this time, we are here to tell you that we have received very few comments and we don't anticipate any changes to the proposals that were presented. Based on federal processes though, the early-season migratory regulations will have to adopted s till in July. We're not sure of the date yet. This will be the last time that you'll have an opportunity to see these dates before Mr. Smith, in consultation with the Chair of the Commission, will have to select the dates for Texas for the early-season migratory species that includes ducks.

With that said, I'm going to kind of give you a quick overview of what the proposals were from last month. These are the seasons that are currently being considered: for teal, rail, gallinules, snipe and woodcock, essentially calendar adjustments from last year. With respect to dove in the north and central zone, again, calendar adjustments with probably the biggest change from last year would be opening the second split on Christmas Day. With Christmas falling on a Saturday, we're going to try to provide a full weekend of hunting that weekend.

In the south zone and the special white-winged dove area, these are the dates that have been proposed. Those dates in red are the first four days of the special white-winged dove area. The dates in blue represent where those two seasons overlap and those dates in gray are the last four days in the south zone. Both zones will actually have a 70-day season, it's just how they're structured. The late season species includes ducks, mergansers, coots, geese and Sandhill cranes. Many of the surveys that help drive the decision are still ongoing and we really don't know what to expect yet. But, based on habitat conditions and what we're seeing, everything tends to lean towards having a liberal season for ducks for the 15th straight year. As a result, the dates that have been presented are based on a liberal package; four ducks, which is 74 days and a conventional bag of six birds. The season for geese and Sandhill cranes will be basically unchanged from last year.

This is the High Plains Mallard Management Unit season and these are the dates that were proposed last month. This is a liberal package. It should be understood that the High Plains Mallard Management Unit can get up an additional 23 extra days. The season that's shown here has a seasonal length of 89 days. In the north and south zones, for duck hunting, these seasons are essentially calendar adjustments from last year and there's no change and it's also a 74-day season. Since we're in a liberal package, that means that Texas will probably be offered the opportunity to take a six bird conventional bag, with the species and sex restrictions that are shown here.

I do need to point out that, again, we'll be hearing that Texas will probably be held to hold a five-day closure on what we consider a dusky duck, which is a mottled duck, black duck and Mexican-like duck. We're still not certain but we'll discuss that with the Service Regulations Committee at an upcoming meetings in Washington and hopefully we can get them to back off of that. With respect to geese in the west zone, except for calendar adjustment, will open on November the 6th and run through February the 6th. The daily bag limits are unchanged from last year. The conservation order would open the day after the goose season closes and run through March the 27th. The east zone, again, calendar adjustments. The one thing I do want to point out is the white-fronted goose season would be ‑‑ is shorter simply because the management plan calls for a 72-day season, based on the numbers that were seen last fall.

Published dates for Sandhill cranes in Zone A, that season's structure will run concurrent with the west zone goose season. In Zone B, we would open on the Friday after Thanksgiving and close on February the 6th. The reason for the delayed opening is so that any whooping crane that are migrating through the state of Texas will be in and through that area before the open hunting season and avoid any potential conflicts. Zone C, we're taking advantage of the maximum 37 days that are allowed. We'll go from December 18th to January 23rd. That concludes this part of the presentation. I'll be happy to answer any questions that you have on those proposals.

COMMISSIONER DUGGINS: Dave, how do we know that the whoopers are through zone B, for example, by November 26th. What's the basis?

MR. MORRISON: Basically, historical data and how they move through the country and it's all based on history and how long they typically come through and that is actually a little bit beyond what time they typically would pass through that area.

COMMISSIONER DUGGINS: Thank you.

MR. MORRISON: The second part of this presentation is sort of an overview of the midcontinent snow goose population. At the last Commission meeting, we were requested to give an update about what's going on and what I'd like to do this morning is to kind of give you an overview of both continentally and locally what's happening with snow geese since the implementation of expanding harvest opportunities back in the late '90s.

First of all, continental background. The "Arctic Ecosystem in Peril" is a document that was published in 1997. What this document did, it recognized that snow goose numbers and white goose numbers were expanding and also, with this expansion, there was a population ‑‑ there was a problem that was going to grow. And the reason for the expanding white goose populations can be tagged back to agricultural practices in wintering areas and in migration corridors, essentially finding a lot more food for them across a larger area of this country and basically, they were no longer constrained by traditional flyway routes.

Modern agricultural practices have continued to have contributed to this problem but, you know, agriculture is not something that we normally deal with, from the standpoint of regulatory processes and there's some problems associated with this expanded population, particularly in the Arctic and the Subarctic. Early spring foraging when these birds hit that breeding ground is very destructive to the salt marshes and freshwater meadows. The removal of that plant material results in hypersaline conditions, loss of organic material and drying out of the soils. Add to the fact that these birds are very colonial and gregarious only adds to the problem.

As a result of these expanded populations, the Canadian Wildlife Service and the United States Fish and Wildlife Services initiated an expanded harvest program in 1997 to reduce the midcontinent population until the population reaches a size that prevents further damage and allows recovery of damaged areas. The whole intent of this expanded harvest opportunity was to avoid a catastrophic collapse of the coastal tundra ecosystem.

Just a little bit of background here, just so you understand what we're looking at, there's two areas that have been looked at very extensively over the last 30 years. There's Karrak Lake and La Perouse Bay. La Perouse Bay is located just outside of Churchill on the Hudson Bay. And just to give you kind of a point of reference, the snow goose ‑‑ the snow geese at La Perouse Bay are part of the midcontinent population whose spring numbers have grown from $1.5 million in 1970 to more than $12 million today. Historically, they wintered along a very narrow strip of the coastal marshes of Texas and Louisiana but you can see that orange represents where they're being seen now.

When the Hudson Bay project started in La Perouse Bay, there were 2500 breeding pairs. Today, there are over 60,000 pairs. Well, if people have questions to ask, I do midcontinental objectives. One of the best way we can ‑‑ looking at this is through satellite imagery and if you look at that photo, the red, blue and yellow represent the biomass loss in ten-year increments, starting from 1973, ending in 2000. The green kind of gives a false impression of the remaining ecosystem because much of this vegetation is not usable by geese and other species. Pay particular attention to those reds, blues and yellows. You can see how it started along the coast and through time is going inland. So, those birds are expanding into places where they typically weren't before.

These two photos kind of provide a ‑‑ these are the photos that people have seen all along. The one on the left is a plot of impact salt marsh that was exposed before there was any damage caused by snow goose foraging. The undisclosed habitat is barren and hypersaline. That photo on the right is a once intact salt marsh after the area was denuded of vegetation. What you see there is, yes, it's turning green but that's been over 20 years that that's been excluded and that's how long it takes for this area to recover.

South of La Perouse Bay, that basin's extended all the way to the boreal forest where black spruce and tamarack are being killed because the soils are now hypersaline. The habitat was once home to song birds and grouse. The habitat degradation in the La Perouse Bay has resulted in snow geese expanding from historic La Perouse Bay, much like people leave crowded and urban areas. La Perouse Bay is up in the upper lefthand corner. Well, because they started seeing this expansion, they started increased monitoring in the Wapusk National Park, which is a park along the Hudson Bay.

In 2001, there appeared to have been a major influx of snow geese south of La Perouse Bay, that area to the lower right-hand corner and this is just an example of how these birds are shifting and adapting to the conditions. This shift has led to a level of destructive foraging, similar to those at this historic La Perouse Bay research site. The present ‑‑ there's no sign of abating. The damage will continue until the foreseeable future. We're uncertain if current nesting and post-hatch locations are suitable for expanded populations. You have to ask yourself, will this problem continue to spread? Even more importantly, can we even begin to monitor the vast Arctic ecoregions?

This is kind of an overview of the continental and I want to try to bring it home ‑‑ a little bit closer to home and the information we're going to provide is based on some midwinter surveys that do. Our midwinter surveys for geese are part of a continental approach, where the lower 49 states take a snapshot in time about the last week of December, first week in January. We survey geese based on concentrations, essentially from Beaumont to the southern tip of Texas.

Now, our goose surveys differ from our aerial waterfowl surveys because they are actual counts, where our waterfowl inventories are transects that we expand the numbers out. This is what historic midwinter estimates show from 1978 to 2010. The yellow line represents what our long-term average is. So, you can see from the late '70s to the late '90s, we were up to along there about 700 ‑‑ 750,000. We did see a peak in 1999, which corresponded to the first year of expanded harvest opportunity and a 20 bird bag limit. Since then, though, you can see that the numbers have been climbing downward and we're now below what the long-term estimate is.

I would point out that yes, there was an increase this year but those numbers come on the heels of one of a severe cold snap that pushed about every snow goose in the central flyway into Texas. This is just to give you a different time frame so you can see a comparison of 1993 to 2010 in Texas compared to another population on Karrak Lake. You can see ‑‑ pay attention particularly to the line with the black dots. You can see what's going on Karrak Lake, with respect to nesting geese from 1993 to 2010.

So we have two different problems. We have a problem in Texas that it appears that on the coastal and rice prairies of Texas snow goose numbers appear to be on the decline but, continentally, there is no end in sight, if these birds continue to increase. About harvest in Texas ‑‑ Texas is known as a goose-hunting state so when this expanded harvest opportunities were put in place, who was in the best position to take advantage of it? Texas was. So you can see in 1999, when it started, we killed a bunch of geese that year. And since then, our harvest has declined to a point that it's very similar to what it was back in the late '70s through the mid-90's. Even though we've had an increase in bag limit up to 20 birds per day, what our information shows, that 93 percent of the people who hunt geese, kill five or less per day, with 50 percent killing only one per day.

So even with the expansion of the up to 20 birds, the bulk of the hunters can kill but ‑‑ less than five. Our goose hunter numbers in Texas since 1999 have been stable to slightly decreasing. And, if you take a look at the light goose conservation season hunter numbers, you can see in 1999, the very first year, we had about 27 ‑‑ 28,000. That number has declined to, in the most recent survey, we've got about 2500. As a result in the decline in hunters during the conservation order, our harvest has also declined, as part of that conservation order. The very first year, we killed 100,000 plus. Now, we're killing around 15,000 in that season.

COMMISSIONER HOLT: And why do you think this is happening?

MR. MORRISON: I'm sorry?

COMMISSIONER HOLT: White goose conservation season hunter numbers. Why would they be dropping off so dramatically?

MR. MORRISON: Lack of interest. Honestly, lack of interest.

COMMISSIONER HOLT: Bored.

MR. MORRISON: Just ‑‑ it was fun at first and then they just said, Okay.

COMMISSIONER HOLT: We've already done that.

MR. MORRISON: Yes, sir, pretty much. To summarize, the continental populations of white geese appear to continue to be increasing. Texas numbers, on the decline in the coastal regions and the rice prairies we, as an agency, need to continue to monitor and determine what, if any, proposals need to be brought forward. I would like to point out that we have made an attempt through an online survey to establish some information. I'll be very honest with you. That survey was up for about 35 ‑‑ 40 days. We only got 345 responses so the information we have, we're not real sure what it tells us. Add to the fact that some of the recent information coming up from Human Dimension workshops is not very flattering towards online surveys so I have opted not to present that information because we're not certain if it has any real validity. With that, I'd be happy to take any questions.

COMMISSIONER FRIEDKIN: Good presentation, Dave. Thanks.

Any questions? Commissioner Duggins.

COMMISSIONER DUGGINS: You say the continental numbers are increasing but ours are declining.

MR. MORRISON: Yes, sir.

COMMISSIONER DUGGINS: Does that mean that these birds are going to other states because there's less hunting pressure or more food. I mean, that doesn't seem to be ‑‑ it seems incongruous that the overall continental numbers are going up while ours are going down.

MR. MORRISON: Yes, sir. There is a much longer presentation I wasn't going to bore you guys with but when you take a look at places like Kansas, Arkansas, Missouri, Iowa, Louisiana, you can see those numbers are increasing. You can also see, based on midwinter data, that the percentage of geese that are counted in the Central Flyway is trending downwards was the number of birds counted, in the midwinter survey, and the Mississippi Flyway is trending upwards, so there appears to be some shifting of these birds.

Kansas, last year, on Quivira ‑‑ in December they had something like 400,000 snow geese. That's unheard of in Kansas. Add to the fact that Kansas, during their goose season for white geese, they may kill 10 ‑‑ 15,000 but they're wintering a lot of birds. So, it is a shifting of these birds. There are a lot of things going on. Agriculture has changed. Why these geese want to fly any further south, they have all the groceries they want where they're sitting. The show's a little bit different because we did have some substantial cold fronts that did force those birds into Texas in late December, early January. But the changes in the landscape is what's driving these birds now. Thank you very much.

COMMISSIONER FRIEDKIN: Okay. Committee Item Number Five, Deer Management Permit Rules (DMP), Pen Requirements and Release Provisions, Recommended Adoption of Proposed Changes. Mitch Lockwood.

(Simultaneous discussion.)

(Laughter.)

MR. LOCKWOOD: Good morning, Mr. Chairman, Members of the Committee. For the record, my name is Mitch Lockwood and I am the White-Tailed Deer Program Leader and acting big game program director. This morning, I will review our proposed rule changes for the deer management permit or DMP. This is the permit that allows one to trap up to one buck and 20 doors from a high-fenced tract and detaining those deer for a period of time for natural breeding purposes only.

I think the underlying concern for many was this permit and the issues that we will discuss today is the need to maintain a clear distinction between the deer breeder permit and the deer management permit because the deer breeder permit pertains to or applies to pen-raised deer whereas the DMP applies to wild cut deer that are detained for an extended period of time but not indefinitely. The purpose of this permit is quite simple. It's to increase the reproductive success of a single buck. Conceptually, this is simple to do. You remove competition.

So, in practice, what a lot of people do is, they attempt to remove that competition through aggressive harvest, removing all the bucks that they don't want contributing to that population and leaving those top end or top quality bucks in a population. But others find it more efficient to go out and capture a superior buck and to pen that deer with up to 20 does to ensure and increase its reproductive success. These deer may be released soon after breeding or they may be detained for a longer period of time, allowing those does to drop their fawns in the pens and raise them for a short while prior to being released.

Under current rule, the final day in which deer may be released from a DMP facility is August 31st. The current rule requires that a DMP be at least five acres in size and no more than 100 acres in size. This program has evolved over the years and now allows for pens smaller than five acres, providing that those pens have adequate cover, which is defined as 50,000 square feet of continuous natural vegetation.

COMMISSIONER HOLT: Let me stop you there.

MR. LOCKWOOD: Yes, sir.

COMMISSIONER HOLT: In the five to 100 acres, is there a requirement to have a minimum of 50,000?

MR. LOCKWOOD: The current rule has no cover requirement for pens that are five acres or greater.

COMMISSIONER HOLT: No cover requirement.

MR. LOCKWOOD: That's correct.

COMMISSIONER HOLT: That's correct.

MR. LOCKWOOD: If I may just elaborate on that at this time. That exception that you see in the second bullet, of course is something that appeared through time as this permit has evolved. Initially, cover requirements really weren't considered, is my understanding. It was just the thought that a pen size should be between five and 100 acres, assuming that there would be cover but as this has evolved, allowing for smaller pens, it became quite clear that those pens could be considered but only if there was adequate cover.

An unintended consequence of this rule is what you've just mentioned, Mr. Chairman, that it does allow for some pens with no cover and this certainly does not provide a good environment for wild white-tailed deer. The reason for this cover requirement, I think, is quite obvious. It's to reduce the stress on these wild deer and to minimize the chances of them bouncing into fences and getting hurt, potentially killing themselves. Therefore, we have proposed to require that all DMP pens contain at least 50,000 square feet of covering in the form of natural vegetation.

Additionally, we proposed to repeal that exception to that five-acre- minimum pen-size requirement and the reason is that exception allows for pens that just over one acre in size. 1.1 acres and I think everyone who has provided comment or input on this proposal has agreed that one point one acres simply is not enough room for 21 wild white-tailed deer and, as I think many of you are aware, there's been quite a bit of discussion over the past few weeks, both internally and externally with feedback that we're receiving of how much space is required for 21 deer?

And I'm sure it's no secret that I don't have that magic number. We don't have ‑‑ we're not aware of any good, scientific data out that suggests x amount of space is required for a specific number of deer. I'm sure it depends on a variety of factors such as the deer population itself, habitat types, the cover types and availability, perhaps distribution of food and water; any number of factors.

And so, with that in mind, when the White-Tailed Deer Advisory Committee discussed this item and going over these different options to be considered, they recognized that we already do have a standard in place with the five-acre-minimum pen-size requirement and recommended that we stick with that, with no exceptions. Now, when we discussed this in March, at this Regulations Committee meeting, we had some discussion on what I'll call grandfather clause. I think, amongst this committee, there may some other thought as to whether it's grandfathering or exemption or what the right term is. For the purpose of my presentation this morning, I'll refer to it as a grandfather clause but what we've talked about was grandfathering those who currently have a Deer Management Permit and maintain an active permit through time. As soon as that permit would elapse a year, then that permitee would no longer be grandfathered.

And, we also talked about permitting the child or spouse who inherits a facility that has been grandfathered. This is another item that's been discussed quite a bit since we met in March and we've received a lot of feedback, questioning why we would not include those in this grandfather clause that had a permit, say, two years ago, as opposed to last year. Or why we wouldn't consider those with a permit ‑‑ excuse me, who were currently building new facilities under our current rules.

And, we've thought about many other options of how this grandfather clause could work and, to be quite honest, I see it getting very complicated. I'm thinking about my staff, who issue these permits and what kind of administrative burden will they be asking for and so, having said that, I would like to propose an alternative approach for this grandfather clause this morning.

I've visited with staff about this, including our General Counsel, and we believe this is a logical outgrowth of what was published in the Texas Register. And that is, that if the facility standards that are proposed are adopted, that again, being a minimum of five acres for these pen sizes and all pens having at least 50,000 square feet of cover. If that is indeed adopted that it take effect on September the 1st, 2011, the beginning of the 2011, 2012 permit year and, with that, then anybody that would be grandfathered at that time would be those who have a permit in the 2010-2011 season, which is this upcoming DMP season.

So with that, that would give us an opportunity to again publicize this approach, make sure constituents out there are aware of this approach. That if they want a permit in 2011 or beyond, they need to get one in 2010, to be grandfathered. So, that's a new concept that I present this morning and a new approach and would like for that to be considered, if we were to grandfather anyone with this facility standard adoption. And you are all also aware of the final, main item of discussion that has generated quite a bit of talk over the last ‑‑ more than the past year and that is the release date for deer detained under a DMP, which is current August 31st.

There are a few permittees in South Texas who have observed very low fawn survival in their DMP operations the last few years and they attribute this to this release date. They believe that the fawn survival would be greater if they were allowed to hold onto those deer for a little bit longer, let those fawns be older, get bigger, upon release and I believe that would improve fawn survival.

As we discussed in March, we're not aware of any scientific data out there that indicates that one release strategy has ‑‑ results in higher fawn survival than another release strategy but it has been this Commission's policy to provide landowners with the flexibility needed to effectively manage wildlife populations while this department provides technical guidance to help those landowners achieve their goals for the benefit of those natural resources.

And so, with that in mind, this Commission authorized staff to publish a proposal allowing for a modified release date, which reads that, All deer within a DMP pen shall be released on or before the date specified for the facility by the Department. We intend for that release date to be a date 45 days prior to the latest capture date of the subsequent permit year. Now, as I said in March, it sounds a little bit complicated. I think I can explain it or simplify it some with this next slide or two.

As you may recall, we have a tracking deadline for trapping deer under the authority of the DMP and this deadline varies by ecoregion. It's based on our breeding chronology data that we have and these dates that you see on the slide before you are the last dates in which there's not a high-probability of capturing pregnant does, bred does because, again, the intent of this permit is to ‑‑ for natural breeding purposes. And so, the idea that we have in mind here ‑‑ before I get that far, I think it would be wise at this time to address a public comment that some if not all of you are aware of, that we received in recent days, challenging these breeding chronology results.

We ‑‑ there's a couple of different models that you can use to determine conception date based on the lengths, the measurements of these fetuses and when we did this study there were a couple of models at that time. We chose to use the older of those two models because we needed to compare these conception dates to our data that we collected about 20 years prior, in our first breeding chronology study. And, at that time, there weren't two models, to my understanding. And so, to make that comparison, to see if we have had some changes in conception dates in these different ecoregions, we needed to use the same methodology, the same techniques. Having said that, our researchers at that time, actually ran these measurements through both models and they found that the differences in conception dates between the two models was negligible. We're talking very, very few days' difference between the two.

If I were to ‑‑ or if we were to run all these dates today through this newer model, you would likely see some slight changes to these dates on this slide before you but I'm talking a difference of one to two to maybe three days' difference in some of these. So what I did here is to utilize these dates that we obtained from our breeding chronology data and continue using those for trapping deadlines but then subtract 45 days from those dates to establish a release date, as you see here. So using South Texas Plains, as an example, where the trapping deadline is December 14th, you subtract 45 from that, you end up with a release deadline of October the 30th. That gives people in South Texas an additional two months to hold fawns in their facilities prior to release.

This approach would achieve a few objectives. Number one, it would allow them to hold deer in captivity for a longer period of time but it would also allow these permittees up to 15 days to capture deer that following year. And let me explain what I mean by that. Our current rules require that upon release ‑‑ once a DMP facility is opened up, the gates are open, they must remain open for at least 30 days and the artificial food and water must be removed for that same period of time and so if one were to take full advantage of this proposal, and in South Texas release deer on October 30th, then those gates would have to remain open for a month and that would leave approximately two weeks of trapping deer that following year, to meet this December 14th deadline, which is plenty of time.

They certainly don't wait to schedule the helicopters and ‑‑ so that does provide time so this proposal still provides them about 15 days to catch deer that next year. And then it also would prevent two years of breeding of the same deer held under a single permit. It would minimize risk of lion breeding, for example, and I think this, to some extent, addresses that underlying concern I addressed earlier in this presentation of many and needing to maintain that clear distinction between a deer breeder permit and a deer management permit.

So, in summary, we recommend that all deer management pens do contain at least 50,000 square feet of cover, in the form of natural vegetation. We also recommend that all DMP pens be at least five acres in size, no greater than 100 ‑‑ excuse me, 100 acres in size and, with respect to this ‑‑ what I call a grandfather clause, we recommend that facility standards shown in these first two bullets above, become effective September 1st, 2011, and, at that time, grandfather ‑‑ exempt those who have a permit who have a permit in 2010 and 2011 permit year.

And, I should clarify something right now, too. When I said permit to individual, we mean for the facilities that are permitted in the 2010, 2011 season. This wouldn't allow someone to ‑‑ three years later, add a three-acre pen to the facility. It wouldn't grandfather something like that or ‑‑ that's not even grandfathered but it wouldn't allow one to add that ‑‑ make that addition. And then ‑‑ and continue with the idea of allowing for a child or spouse who inherits the property to be exempted as well. And then, finally, we recommend that the release date is extended as I described in this presentation.

One other thing that I should mention at this time is that, as a result of any extension to the release deadlines in the permit year, would have to be modified as well. We couldn't allow one to detain deer for a longer period of time than the permit year, which currently ends, I believe, on August 31st but because where this falls in Texas Administrative Code, this will be proposed in the following presentation by Scott Vaca and Brad Chappell.

Public comments to date, we have 137 comments. In fact, this morning I looked, it's now 142 comments. The percentages that I'm about to show you have not changed though. Fifty-eight percent of those agreed completely with this proposal. Nineteen percent disagreed completely with this proposal and then 23 percent disagreed specifically on one aspect or another and I wanted to display it this way because the way the public comment went out for this item this year, didn't break it up by pen size, cover requirements and release date. It was all one proposal.

Fortunately, the people who disagreed did take advantage of the comment fields and explained why they disagreed. And what we found out was, in almost all cases, if they supported the deer management permit, then those who disagreed, disagreed because they didn't think we should limit the pen size to five acres or greater. And there were some comments about how it's easier to work deer in smaller-than-five-acre pens. Even a comment about easier to tame deer in smaller pens and some comments that were a little bit inconsistent with ‑‑ or rather consistent with that concern of maintaining that clear distinction between deer breeder permit and a DMP.

There were quite a few other comments though that for various reasons just didn't think that was practical or necessary to reduce that pen size. We have almost ‑‑ in fact, every comment that I saw for those in favor of a deer management permit, in general, did support the later release dates. I keep qualifying that because some of these comments that you see in here, especially those who disagree, do not agree with this practice.

COMMISSIONER HOLT: Right.

MR. LOCKWOOD: There was even a comment or two under the "agreed completely" who agreed because they saw this as putting more sideboards on the permits, which they thought were required because they weren't too keen on the program either. But I'll also state that for most of the comments were supportive of the deer management permit program. And, finally, some comments that we received were that, this simply is overregulating and there were a few comments pertaining specifically to the grandfather clause. One idea is that we should not limit the exemptions to those children ‑‑ a child or spouse of a permitee but also allow anyone who were to purchase that property ‑‑ change of ownership ‑‑ for those people to be grandfathered as well. That was one comment we received.

And then, finally, we received some comments that there shouldn't be a grandfather clause at all. We're just thinking that if this is ‑‑ if this practice is smaller pens and no cover is not acceptable for new permits, then why on earth would it be acceptable for older permits. And, I believe that wraps up the general sentiment of most, if not every, comment we received. And so, with that, I'll conclude my presentation. I'd be glad to answer any questions or comments that yo might have.

COMMISSIONER FRIEDKIN: Mitch, a real quick question. If we can go back to the breeding chronology study and the release deadline. As an example, on South Texas Plains, release date of October 30th ‑‑ sorry, trapping deadline of December 14th, about what percent of those are bred, you know, just based on the studies that we have available now.

MR. LOCKWOOD: On December the 14th, it's right at 10 percent or less of does have been bred. On December the 15th, it spikes and it increases at a very rapid rate from the day after this one.

COMMISSIONER FRIEDKIN: And the median's about the 24th or 25th or something.

MR. LOCKWOOD: I believe that's correct.

COMMISSIONER FRIEDKIN: Okay. So ‑‑ and that would be consistent with the trapping deadlines, probably, give or take for all the ecoregions?

MR. LOCKWOOD: Absolutely. These dates you see here are just that. It's the last date in which 10 percent or less of the does have been bred. But again, that very next day is when it really starts to spike.

COMMISSIONER FRIEDKIN: Okay, and then, can you speak a little bit to what, you know, when the biologists establish the number of deer for a given pen, they take into consideration a whole host of factors but maybe you can just talk about that a little bit. Certainly, vegetative cover would be warranted. How do they establish that number?

MR. LOCKWOOD: To my knowledge ‑‑ you're right, biologists do have the authority to approve a certain number of deer and, theoretically, we could approve a smaller number of deer ‑‑ fewer deer than what the applicant is applying for. To my knowledge, we really haven't applied that. I believe in every case with someone who's requested 21 deer, we have it approved for that number and not fewer. I could be wrong. There might be a few exceptions that I'm not aware of.

That is something that we might need to take into consideration as we move forward with all of the interest and discussion that we've had on this topic and also what we've learned from many permittees, I think this is something that we can use our technical guidance program for, as we're working with landowners, and we're learning from DMP permittees that 21 deer ‑‑ there are not many of them doing that anymore as they're learning.

They're having more success with 14 does, 15 does and they're sharing that with potential permittees and we're able to share that information as well, as we learn it. And so, there's a lot of value for having the relationship we do with these different permittees that we deal with and there's one good example.

COMMISSIONER FRIEDKIN: Thanks. Commissioner Hughes.

COMMISSIONER HUGHES: Mitch, do we have any data on the mortality and pen size ‑‑ is there a greater mortality for our DMP pens as opposed to five acre or bigger or do we know?

MR. LOCKWOOD: That's a very good question. I looked into that last week. I'll start by telling you we have very little mortality data. I assume that we have data for all the mortalities that have occurred in the last five years. That's as far back as I looked. And in the last five years, we've had a total of 40 mortalities, across the board, statewide in DMP facilities. This past year ‑‑ this current that's I say, coming to an end, people are getting close to the original release deadline, we've had ten mortalities, I believe it is, for this year.

For this year, Commissioner, what we had to do to answer that question for myself is go back in paper files and hand-enter the data and it took quite a while so I just stopped for this year because I was convinced after I saw that and this year, of all 10 mortalities, zero of those reported came from pens smaller than five acres. They all came from larger pens.

I don't know how true that is for the four years prior to that but the number of mortalities is so negligible that I wouldn't be able to defend, statistically, any other response than I'm giving now. It does not appear from that limited data set that the pen size has resulted in higher mortality.

COMMISSIONER HUGHES: If the other question ‑‑ the follow-up question ‑‑ do we know how many pens ‑‑ what percent are we talking about that are five acres or bigger in the state versus smaller than five acres? Do we know that?

MR. LOCKWOOD: I hope you don't get much deeper in your questions because I didn't bring my printout with me but I do have it ‑‑

COMMISSIONER HUGHES: I probably put you on the spot.

MR. LOCKWOOD: Well ‑‑ exactly.

COMMISSIONER HUGHES: That sort of raises the next question. If not, what are we talking about?

MR. LOCKWOOD: I'm just kidding. I just hope I'm able to continue answering these ‑‑ well, listen to this ‑‑ but I know ‑‑

(Laughter.)

MR. LOCKWOOD: Thirty-five percent of all pens are less than five acres in size; 65 percent are five acres or more and that's out of a number of 318 pens and that was for 2009 and 2010 season. I looked at the 2008 and 2009 season as well and the numbers are almost identical, percentage-wise.

COMMISSIONER HOLT: And about the same number, total.

MR. LOCKWOOD: There were a few more pens in 2008 and 2009 than there were this current year.

COMMISSIONER HOLT: Oh, really.

MR. LOCKWOOD: But it's not a whole lot more. Percentages, though, really didn't change. So, a little more than a third of all pens are smaller than five acres. I also looked at, if we had no grandfather clause, who would be affected ‑‑ how many people would be affected by this rule change and there would be 17 people that had a permit in 2008 and 2009 that would not meet these new standards, that did not have a permit in 2009 and 2010. Now that statistic ‑‑ it would become a moot point if we were to proceed with the concept of making this effective September 1st of 2011 and grandfathering everybody permitted this coming season.

COMMISSIONER DUGGINS: You said last time that more than one facility can be listed on a permit. Is that right?

MR. LOCKWOOD: Yes. The signing of facility really is the term "facility" and "pen" are used synonymously and so one permit may consist of numerous pens or facilities.

COMMISSIONER DUGGINS: How do we go forward with this without tying a permit to a particular facility?

MR. LOCKWOOD: Actually, I think what we're going to have to do is tie not ‑‑ I'd say backwards of that ‑‑ tie a facility to a permit. I think, just to give you an example, I receive a permit today for a place that would like to have five pens permitted under one permit. I think what we need to do, which would not require regulation change, is for each one of those pens to have its own facility ID, so that we can allow our database to track these pens through time so that our staff doesn't have to go, in subsequent years, and pulling out paper files to see, okay, was this one grandfathered or not.

If we have a facility ID for that site then that database will be able to keep track of that through time. So, in a nutshell, I think what it's going to require is that we do collect ‑‑ establish a facility ID for every single DMP pen out there, in the application process, then we can identify them.

COMMISSIONER DUGGINS: And then, your recommendation about the alternative that this take effect September 1st, 2011, it concerns me that that creates a period of time where people can go build new pens that don't have the 50,000 square feet of cover. Would you be receptive to the suggestion that if the pen were constructed today forward, that it'd have to have the 50,000 square feet of cover, in order to be grandfathered? Before you answer that, let me say that ‑‑ looking at the statutes that authorizes these permits, 43.601(b) and it says, The deer managed under the permit remain the property of the people of the state and the holder of the permit is considered to be managing the population on behalf of the state. So, the consensus seems to be that we have to have 50,000 square feet of cover and I just would like to ‑‑ I would hope that we could encourage that with any pens built from now through the cutoff on the grandfather date, if that's doable.

MR. LOCKWOOD: I had struggled with this one, Commissioner, because some ‑‑ I think what I've proposed this morning with that grandfather concept is ‑‑ may defeat the purpose to some degree, for the reason you gave, with a mad rush of applications and new pen construction. To be quite honest with you, the main thought that I have in my mind with this idea is to find the most efficient way to administer these permits, without requiring an administrative nightmare for staff.

I like the idea that you just suggested. I'm just I can't work it out in my mind as to how much more that may complicate the process for those who are receiving these applications and issuing the permit and verifying when the permit was complete ‑‑ when the pen construction was completed, going through another step or two, maybe, to make sure that person's able to defend that. Maybe I'm digging way too deep for in this and it's a lot simpler than I'm thinking. That's my only ‑‑ my only concern is the administrative time.

COMMISSIONER DUGGINS: Should we currently require a site inspection, as part of the process for approval?

MR. LOCKWOOD: We do have site inspections. Yes, sir.

COMMISSIONER DUGGINS: So it could be part of that.

COMMISSIONER HOLT: Let's go back. How many permits total do you have right now?

MR. LOCKWOOD: This current year we have 134 permits, which includes 318 pens.

COMMISSIONER HOLT: I just want to remind everybody that, you know, this is not cattle or something. You know, we're not talking about ‑‑ I mean, thousands of people aren't going to run out and build five-acre pens, doing between now and September of 2011. That's all I was thinking about.

COMMISSIONER DUGGINS: But my question is ‑‑ doesn't concern existing ones, I'm just saying that if someone commences construction ‑‑

COMMISSIONER HOLT: Yes.

COMMISSIONER DUGGINS: ‑‑ on a facility, say, from June 1 forward, in order to take advantage of this proposed grandfathering, that that new pen has to have the minimum of 50,000 square feet of cover. I'm asking ‑‑ I'm suggesting that we consider that as part of this alternative concept, if it's practical and it seems to me ‑‑ I don't see why it should be big problem but I'm ‑‑ that's why I'm throwing it out for discussion.

MR. LOCKWOOD: I think it is a good thought. Personally, one reason why ‑‑ another reason why I lean towards the concept I've presented this morning is because I do realize that these permittees, they want what's best for the deer too. I mean, they have a lot invested in this resource and they may not agree with other deer managers in the state on how to manage deer but they do have a lot invested in this and would lose a lot if they had high-mortality in these pens.

And so, I think that they certainly have the same interests that others have in taking care of the deer. So, having said that, those that don't have enough cover through time, I think has been more a factor of ignorance, for lack of a better phrase and as they're learning more and talking from the veterans who have been doing this for awhile ‑‑ what makes a good operation, I think we're seeing that people are selecting better sites for these pens. So, I think it's another factor of using the technical guidance program and benefit from other permittees, to have good site selection.

COMMISSIONER FALCON: I don't have any problems with the 50,000-square-foot cover. I don't have any problems with the release date but you haven't convinced me of the size and we haven't even considered numbers and, in your discussion this morning, it seems like both two are ‑‑ you cited some information that is important so how do you convince me that a smaller size is better, assuming that we agree on the 50,000 and assuming we agree on the release date, why should a pen be smaller and why haven't we considered limiting the number of deer per pen or per square foot?

MR. LOCKWOOD: Well, I'm not suggesting, Commissioner, that the pens be smaller. This is something I think I touched on or meant to touch on at presentation is that everybody has an opinion. In fact, some of the public comments we received ‑‑ we realized 1.1 acreage is not enough but three acres is. I can do it with three. I hear that 2.5 acres is the magic number. I hear that four acres is the number and then there's some that think ten acres isn't enough. And, as I intended to say, I don't know how much space is required for X number of deer and I do believe that that number varies greatly by cover types, habitat types, other factors that are involved in it. And so, what this proposal entails is basically maintaining the standard that's already in place, which was the recommendation of the White-Tailed Deer Advisory Committee.

But again, that's not to say that seven acres isn't required or that 3.5 acres wouldn't work just as well. The answer to the numbers of deer that are permitted, I think is no different than my response to pen size. They're related. Should it be 15 deer? Should it be 12 deer? Should it be six deer? And again, there's not really any good data out there that suggests one way or another, as far as the welfare of the animals.

Now, the permittees do have some pretty good information. What they've learned through time and what works best for them in their operations and what results in 100 percent conception for the does that are in there.

And there's a number of them that will lay that magic number at 14. Some believe it's 15. And I haven't heard that number change, whether it's a two-and-a-half-acre pen or a five-acre pen and so, again, there are some thoughts as to the best number of does that would allow for maximum conception but I don't have good information as to the number of deer that would be best for the overall welfare of those animals.

COMMISSIONER FRIEDKIN: And you raised a good point. It's in their best interest and they want to do the right thing ‑‑ deer breeders do. So ‑‑ any questions on it?

Does that answer your question? We're heavily there.

COMMISSIONER FALCON: Yes, you know, because it seems like there's some vagueness to the pen size and we're maybe trying to change it ‑‑

COMMISSIONER FRIEDKIN: Are you talking about density in the pen? Is that kind of the one that where we, right now, we're really not looking at specific densities.

COMMISSIONER FALCON: Yes, I think that may be it because it seems like those two numbers are related and that may be a more important thing is if you're going to have a pen size of three acres then should you limit the number of deer in those three acres.

MR. LOCKWOOD: Well, we're ‑‑ as wildlife biologists, think we're pretty well trained in coming with good density estimates, with respect to habitat quality and whatnot and certainly three acres is nowhere near enough land for one white-tailed deer, from that perspective. But we're not ‑‑ or I'll speak for myself and say that I'm not well trained in the field of animal husbandry or animal welfare and so, again, I really don't have good answers to defend a certain pen size with a certain number of deer over another, from an animal husbandry or welfare point of view.

MR. SMITH: Well, Commissioner, I think Mitch made an excellent point at the outset of this. The genesis of this program was to try to maximize the reproductive success of one buck with wild does and so it was set up for that purpose and that's why he's referencing the animal husbandry standard. As he said, it's never really been tied to traditional ways that we would encourage landowners to manage their deer densities outside of a penned environment and so that's the real distinction here.

COMMISSIONER FRIEDKIN: And we're really not aware of any preliminaries ‑‑ we're really not aware of any significant mortality issues.

MR. LOCKWOOD: That is correct.

COMMISSIONER HOLT: And, at the same time, my understanding is, we don't have great science about density ‑‑ you know, what size pen you need relative to how many animals you have in the pen. And that's part of our issue. Am I saying that correctly?

MR. LOCKWOOD: Yes, sir.

COMMISSIONER HOLT: Yes.

COMMISSIONER DUGGINS: I think that it's the proposed language ‑‑ I'm moving off the ‑‑ this topic onto some of the language. We used the word "person" in here and I suggest that we make clear, at some point, that "person" is a term that used in the Code Construction Act, which includes "entity" because some of these people may own it as an entity and that, when we talk about the grandfather language that we track "entity" through here so it can be passed on from an "entity" to, for example, an "entity that's controlled by a spouse or a child" ‑‑

MR. LOCKWOOD: Right.

COMMISSIONER DUGGINS: ‑‑ so we don't defeat the purpose of this, which is a direct transfer and it also should include ‑‑ should not be limited, in my view, to inheritance. It could be a sale from a parent to a child, over a period of time, for estate planning. So, I just ‑‑ I think that's consistent with the intent that we were all talking about on the transfers.

MR. LOCKWOOD: I agree.

COMMISSIONER DUGGINS: And I gave some language to Ann on that and I think she's okay with it.

COMMISSIONER FRIEDKIN: Okay. Any other thoughts or discussion? Are we comfortable with the recommendation, as is? Any other discussion? Okay.

MR. WOLF: Mr. Chairman, I just want to clarify. Our recommendation was to provide this compliance window and so for it to go into effect September 1st of 2011 and that would be the recommendation we're bringing forth to you tomorrow to consider. Is that still the direction you have for us?

(Pause.)

COMMISSIONER FRIEDKIN: As I see it, yes.

MR. LOCKWOOD: Good point. Thank you, Clayton. The only part ‑‑ and I did stress this on the record, I know. The part that we would like to take effect on September 1st, 2011, just pertains to facility standards. We propose that the release date be modified, effective immediately. And, just to elaborate on that, if that is effective immediately, our intention is to modify ‑‑ amend existing permits that are out in the field right now, to allow them to go ahead and release this year's deer later, if adopted.

COMMISSIONER FRIEDKIN: Yes, that's a good point. Okay.

COMMISSIONER HOLT: Make sure it's clear tomorrow, though before we take it to action. Okay?

MR. SMITH: I think we could have a slide, Mitch, that just hits that specifically on the release date, as to the timing of that, that that would be in effect, assuming it's approved, immediately, for existing permit holders. So ‑‑

COMMISSIONER FRIEDKIN: And, if we can, one slide that also comprises everything that, you know, that we are contemplating here so that it's all on one panel as well.

MR. LOCKWOOD: Yes.

COMMISSIONER FRIEDKIN: Okay. Thanks, Mitch. If there's no questions or discussion, I'll place this item on the Thursday commission agenda for public comment and action.

Number Six, Deer Permit Program Standards for Denial/Refusal to Renew — Inclusion of Lacey Act Violations — Recommended Adoption of Proposed Changes. Brad Chappell?

MR. VACA: Good morning. Mr. Chairman, Commissioners, For the record, my name is Scott Vaca. I'm Assistant Chief of Wildlife Enforcement. Joining me this morning is Sergeant Investigator Brad Chappell. We're here to present some proposed amendments to the TTT, DMP and Deer Breeder Permit Rules. The current department rules allow denial of permit issuance or renewal for five years following conviction or deferred adjudication for violating certain subchapters of Chapter 43, Parks and Wildlife Code.

Specifically, these subchapters are Subchapter C, which deals with scientific research, educational display, zoological collection and rehabilitation permits. Subchapter E is the TTT permit and that is Trap, Transport and Transplant game animals and game birds. Most people think of it as a deer TTT, but it is game animals and game birds. Subchapter L, deer breeder permit and subchapter R, which is the deer management permit.

Traditionally, a conviction or deferred adjudication for a Class A or B misdemeanor or felony or a conviction for violating 63.002, which is Possession of Live Game Animals. And, if you'll note the asterisk, that denotes that it applies to a person acting as an agent for a permitee as well. The proposed rules would allow the department to deny permit issuance or renewal following a final conviction or assessment of a civil penalty for violating the federal Lacey Act and to discuss the Lacey Act more in depth, I'm going to turn it over now to Brad.

COMMISSIONER HOLT: What drove this? You know, we've been talking about it long enough now, I've lost track of what drove this, to begin with. Is it because other states are doing this, is it because we felt it was something that's been a problem? Walk me through it, somebody.

MR. CHAPPELL: Chairman Holt, we've had a recent history, in the last five or six years of several importation issues involving a live white-tailed deer into Texas, in violation of our importation restrictions that have resulted in Lacey Act convictions and, at the same time, although there was no prosecution at the state level for those offenses, the basic elements for a state offense had to be proven in order to make a case as prosecutable as a Lacey Act violation. In essence, the violations ‑‑ even though there was no state conviction, the offense had to occur in order to obtain the conviction at the federal level. If, as opposed to pursuing it federally, those cases would have gone to state court and we would have achieved a conviction, in violation of our Proclamations which prohibit the importation. The department would have already had the justification and authorization to not renew those permits.

And, that's kind of what started the interest in doing so. The more that we looked at it and associated with the flagrant activities associated with Lacey Act convictions ‑‑ if they raised to that level, to be handled by prosecutors with the U.S. Attorney's Office, we felt like that it was probably something that the department would be interested in knowing about and taking into consideration for possible denial of permit issuance and renewals.

COMMISSIONER HOLT: Okay.

MR. CHAPPELL: For the record, I am Sergeant Game Warden Brad Chappell, with Special Operations Unit of the Parks and Wildlife Department. The Lacey Act is a federal law that was enacted in 1900, which was established to help deal with the excess market hunting contributing to drastic decline in wildlife populations. Basically, the Act prohibits trade in wildlife, fish or plants taken, possessed, transported or sold, in violation of state laws, as well as federal or tribal laws.

The Act makes it a violation to engage in prohibited activity and convictions may be obtained without state prosecution, kind of along the lines of what I was stating. You have to show that there was a state offense occurred, as part of the elements for establishing it ‑‑ as a predicate, actually, in order to pursue prosecution for the Lacey Act.

COMMISSIONER HOLT: But a Lacey Act conviction can be obtained without state prosecution.

MR. CHAPPELL: Yes, sir. That's correct.

COMMISSIONER HOLT: But you have to ‑‑ otherwise, you have to ‑‑ I'm going back to the second sentence ‑‑ the second bullet point, the Act prohibits trade, et cetera, et cetera, or sold in violation of state law.

MR. CHAPPELL: Yes, sir. You have to have a violation of a state law. The federal Lacey Act, as it's applied, has to be predicated or based on a violation of a state law first and then, once the animal is transported or possessed, after it is established ‑‑ the fact is established that it was possessed or taken unlawfully, well then it can be handled as a Lacey Act case.

COMMISSIONER HOLT: Okay.

MR. CHAPPELL: If you don't have a state level case to ‑‑ it has to be involving an interstate commerce. Once you establish that it was illegally possessed or illegally taken, as a base for the offense.

COMMISSIONER HOLT: If it's not illegally taken, then how does it become a violation of the Lacey Act? Through the Interstate Commerce ‑‑

MR. CHAPPELL: You have to have a predicate case first.

COMMISSIONER HOLT: You have to have a predicate case.

MR. CHAPPELL: Yes, sir.

COMMISSIONER HOLT: Okay.

MR. SMITH: Now, that doesn't mean there's a conviction.

COMMISSIONER HOLT: No, no, no. I understand that. Okay.

MR. CHAPPELL: Basically, you have to be able to prove the same elements for the state offense ‑‑

COMMISSIONER HOLT: Right.

MR. CHAPPELL: ‑‑ in state court and carry that same information, same evidence into the federal court system ‑‑

COMMISSIONER HOLT: Okay.

MR. CHAPPELL: ‑‑ kind of as a base for the Lacey Act.

COMMISSIONER HOLT: Gotcha.

MR. CHAPPELL: Persons convicted in federal court are convicted of violating a federal law. Unless Texas Parks and Wildlife seeks prosecution at the state court level, Texas Parks and Wildlife department rules concerning permit delay for trap, transport and transplant and deer management permits cannot be applied. Unless Texas Parks and Wildlife Department obtains conviction in state court, Texas Parks and Wildlife Department rules concerning permit denial cannot be applied, in regard to trap, transport and transplant, deer management permits or deer breeder permits.

Duplicate prosecutions are redundant. They're time-consuming, costly and divert time and resources from other duties and obligations of all of our law enforcement officers. Currently, persons convicted of Lacey Act violations are continuing to obtain permits and renewal and engage in permitted activities. If you will recall at the last meeting of the Commission on March 31st, I covered two separate Lacey Act cases with a brief summary, which resulted in three Lacey Act convictions.

I'd like to summarize a case that resulted in a Lacey Act conviction since our last Commission meeting. On October ‑‑ oh, I'm sorry ‑‑ on October the 28th, Parks and Wildlife Special Operations Unit coordinated efforts with the special agents of the U.S. Fish and Wildlife Service to intercept a load of live white-tailed deer, which were imported into Texas from a deer breeder in Oklahoma.

Upon completion of the investigation, a defendant who is and was a current Texas deer breeder, agreed to plead to a felony Lacey Act charge if the state agreed not to prosecute seven trap, transport and transplant charges pending against him, which are Class B Parks and Wildlife Code misdemeanors. The state agreed not to prosecute the pending state charges and the defendant pled guilty to felony Lacey Act charge on April the 14th of this year, associated with the illegal importation of live white-tailed deer.

The subject is awaiting sentencing and is still currently engaged in permitting activity. I might mention at this present time, the Texas Parks and Wildlife Department does have the authority to deny permits when there is a conviction for trap, transport and transplant violations.

COMMISSIONER HOLT: Yes, but you dropped that, in this case.

MR. CHAPPELL: Yes, the prosecutor ‑‑ the local prosecutor agreed not to prosecute.

COMMISSIONER HOLT: Well, that makes sense and then, this way, get him on the heavier felony ‑‑ those are misdemeanors but we don't have any ‑‑ because we've dropped those state charges then we can't deny him any permits.

MR. CHAPPELL: That's exactly right. Yes, sir.

COMMISSIONER HOLT: Okay. He's pled guilty but he's not been convicted. Is that correct? Help me ‑‑

MR. CHAPPELL: No, sir. He's been convicted; he just hasn't faced his penalty yet. The penalty ‑‑

COMMISSIONER HOLT: He's only awaiting sentencing. I'm sorry. Okay.

MR. CHAPPELL: Yes, sir.

COMMISSIONER HOLT: So, he's pled guilty. So he is now a convicted felon, relative to violating the Lacey Act. Okay.

MR. CHAPPELL: I might also mention, although we've cleared one Lacey Act case since the last Committee meeting, we now have a minimum of 18 different cases, involving Lacey Act violations, related to illegal deer importation into Texas, which range from the infancy stage up to near completion.

COMMISSIONER HOLT: Can I ‑‑ sorry, if it gets too far, I'll forget my question. One of the things we've been talking about here, or at least dealing with is, if somebody has a Lacey Act conviction some place else. All of these cases you're talking is illegal deer transportation, either coming into the state or leaving the state of Texas. Right?

MR. CHAPPELL: Yes, sir.

COMMISSIONER HOLT: But the breadth we've been looking at is Lacey Act violation anywhere, anyplace ‑‑ theoretically ‑‑ for anything, in any state, anywhere.

Am I saying that correctly?

MR. CHAPPELL: Yes, you are.

COMMISSIONER HOLT: I'm asking kind of a rhetorical question. Okay.

MR. CHAPPELL: Yes, sir. I'm going to give an example of something ‑‑

COMMISSIONER HOLT: Okay.

MR. CHAPPELL: ‑‑ that's kind of come to the surface here in the last day or so, in just a moment.

COMMISSIONER HOLT: Okay. Now this is relative to the worries I think we've all heard from people. Okay. Go ahead.

MR. CHAPPELL: Out of the 18 different cases that we have in different levels of progress at the moment, at least nine of those investigations involve at least one person who's currently permitted by the department.

COMMISSIONER HOLT: Yes, okay.

MR. CHAPPELL: My ‑‑ mention yesterday there was two indictments handed down on two residents of Texas involved in activity in Kansas. They were indicted in Kansas in federal court for Lacey Act violations and it involved ‑‑ Lacey involved illegal activity involving their outfitting and providing paid hunters with an opportunity and place to hunt from the state of Kansas.

According to the indictment that was handed down ‑‑ indictments that were handed down, two individuals arranged for hunting opportunities for a number of hunters from Texas, as well as some other states, I think maybe Oklahoma and Louisiana ‑‑ provide them opportunity to hunt with illegal means and methods, including spot-lighting and exceeding the bag limit and arrange for them to hunt in areas where they did not have proper permits to hunt deer. The indictments also alleged that these individuals arranged for the transport of deer heads and other animal parts ‑‑ deer parts back to Texas from the state of Kansas.

COMMISSIONER HOLT: So they've been indicted under the Lacey Act?

MR. CHAPPELL: Yes, sir.

COMMISSIONER HOLT: In a federal court.

MR. CHAPPELL: Yes, sir.

COMMISSIONER HOLT: Okay. I assume they ‑‑ it sounds like they're breaking the state laws too but, okay.

MR. CHAPPELL: Yes, sir. The adoption of this proposal would enable the department to deny permit issuance and renewal to those applicants that have shown flagrant disregard ‑‑

COMMISSIONER HOLT: Why don't you hit your deal there. I think you're on your next slide. Aren't you on your next one ‑‑ proposed? Sorry, maybe I'm reading the wrong one.

MR. CHAPPELL: It would allow the department to deny permit issuance and renewal to those applicants who have shown flagrant disregard for the laws which are in place and protect our most valuable wildlife resources, as well as provide additional deterrent for those who are otherwise tempted to do so. I might also mention that there was a query ran on Lacey Act cases open in Texas by the Texas ‑‑ excuse me ‑‑ by the United States Fish and Wildlife Service and it reflected over the last five years that list and 1 percent of the dispositions of those cases resulted in a conviction of the Lacey Act.

The vast majority of these cases involve either issuance of a violation notice, which imposes a forfeiture of collateral or importation ‑‑ or involved importation of protected plant or animal, at a port of entry, for instance, resulting in a simple abandonment or a forfeiture of the item and neither of those situations constitutes a conviction.

COMMISSIONER HOLT: Okay. The proposed amendment would allow denial of permit, issuance or renewal, following conviction ‑‑ do I understand conviction?

On what you're just talking about ‑‑ port of entry or something and abandonment and the agreement is that they just abandon or do whatever, would that be considered an assessment of a civil penalty or violation?

MR. CHAPPELL: Actually, my understanding is, the forfeiture of the product ‑‑ a lot of times, if someone brings something in, if it's a small item and it's not involved in interstate commerce ‑‑

COMMISSIONER HOLT: Uh-huh.

MR. CHAPPELL: ‑‑ or something of a commercial type activity, a lot of times, the individuals possessing that item will just forfeit it, abandon it ‑‑

COMMISSIONER HOLT: Right.

MR. CHAPPELL: ‑‑ sign an abandonment form or if they refuse to or if they have trouble making contact with that individual, they'll just file a motion for a forfeiture with the federal court system. There's no conviction associated with those and I understand that there's a significant amount of those that ‑‑ those cases that involve that type of scenario.

COMMISSIONER HOLT: I guess what I'm asking, is that considered ‑‑ so I guess I'm asking somebody here that's a lawyer, would that be considered an assessment of a civil penalty?

MR. CHAPPELL: No, sir.

COMMISSIONER HOLT: No, it would not.

MR. VACA: No, sir. As you've already covered, the proposed amendments would allow denial of permit issuance or renewal following conviction or assessment of a civil penalty for a violation of the Lacey Act. This would also allow the department to deny issuance or renewal of a permit for someone convicted of conspiracy to commit a Lacey Act violation. It's important to note here that under the proposed rules, denial of a permit for a Lacey Act conviction would not be automatic. The rules authorize the department to deny issuance or renewal but they do not require the department to deny it.

On this second bullet, the proposed amendments would allow the department to delay processing DMP and TTT applications if the person is a defendant in a criminal or a civil proceeding for Lacey Act violations. An important note here is that since May 23rd, 2006, the department has had a discretion to delay processing DMP and TTT permit applications if a person is a defendant in a criminal prosecution for a violation of Parks and Wildlife Code Chapter 43, subchapters C,E,L,R, which we've seen, and a violation of 63.002, which is possession of live game animals.

What ‑‑ skip over it ‑‑ some of the factors the department will consider in determining whether to issue or renew a permit based on a Lacey Act conviction or a civil penalty would include but would not be limited to the seriousness of the offense, the number of offenses, existence of a pattern of offenses, the length of time between the offense and the permit application and the applicant's efforts towards rehabilitation. The proposed amendments would allow the denial of permit issuance or renewal following conviction or deferred adjudication for violating Chapter 43, Subchapters C,E,L,R, a Class A or B misdemeanor or felony or Parks and Wildlife Code 63.002. Once again, this applies to a permit ‑‑ a person acting as an agent for a permitee. Currently, a conviction within the previous five years may be considered when processing a DMP, TTT or deer breeder application.

As directed at the last Commission meeting, this amendment removes that five-year limitation. We ‑‑ this was covered in the previous presentation but currently a DMP is valid from September 1st of one year through August 31st of the following year. The proposed amendment would make the permit ‑‑ a DMP permit valid from the date of issuance through the last release date authorized under the permit.

This slide covers public comment for the expiration date of the DMP permit. As you can see, it's ‑‑ the last figures are 100 percent in favor. As of this morning, these numbers have changed slightly, as far as the Lacey Act proposal. Eighty-six comments have been received in favor and 465 comments oppose the Lacey Act amendments.

COMMISSIONER HOLT: Those all come in at one time?

MR. SMITH: Yes, it might be ‑‑ this might warrant a little comment on that. The Regulations coordinator noticed some fairly unusual patterns with respect to the submission of the electronic comments on our system. Well over 40 percent of the written comments in opposition to the proposal could be traced back to two unique internet protocols, meaning two unique computers and it was curious that, out of those two computers, you would have representations of individuals from counties that are geographically disbursed as Bexar and Medina and McLennan and then up in North Texas, making the exact same comment at the exact same time with the exact same misspellings and grammatical miscues.

So, I just ‑‑ I bring that up not to cast aspersions on the electronic comments as a whole but, in this case, there at least appears to be an instance in which someone tried to deliberately influence the comments, at least quantitatively.

On the ‑‑ you know, we're keenly aware that you had told us to make all the electronic-related communication as available to the public as possible and we want to continue doing that. Obviously, we don't want to tolerate the kind of egregious misuse which may have happened in this case and, again, we can trace this back to the unique computer in which it came from. And so, we take this very seriously and we wanted to make you aware of that. Now, there's a lot of very valid comments that were submitted as part of the electronic comment period but, again, our Regulations coordinator, Robert McDonald, is very advertent and this is kind of the first time we've seen a pattern as egregious as this appears to be and we just wanted to let you know that and that we're going to be watching this very, very carefully from here on out.

COMMISSIONER FRIEDKIN: And how many of these came from the same IP address?

MR. SMITH: A little over 40 percent of them that were written ‑‑ had written reasons for opposition and basically there were kind of three written comments that were replicated over and over again with the same verbiage, same misspellings, including of their own county, which is curious.

So, just wanted to let you know that.

MR. VACA: I have bit of an update for figures up to this morning. It's about 46 percent of the 212 that gave us specific reasons for opposing. Forty-six ‑‑ about 46 percent came from six IP addresses and roughly 32 percent or 145 of those comments that gave a reason for opposition came from two IP addresses in Waco and were submitted over six hours on one day.

This is a summary of some of the public comments that we received. Approximately 104 think it's unconstitutional, a violation of due process, 39 feel that there's no guarantee that the Department would fairly administer the rules, 16 stated that this would devastate potentially innocent people, 12 feel the proposal's just too broad, nine thought the penalty was too severe for minor infractions, eight felt it should be limited to deer violations only, six ‑‑ the punishment should fit the crime, three ‑‑ don't trust the federal government, three feel that we should not be able to deny permanently, two felt the civil penalty should not be a basis for denial of permit issuance or renewal, three felt that denial and issuance should only be affected by convictions and these were some other individual reasons for opposition ‑‑ take a look at those. And that concludes our proposal or presentation for today. I'd be happy to answer any questions you might have.

COMMISSIONER HUGHES: Scott and Brad, nice presentation. I just want to say that I and I'm sure other Commissioners have gotten a lot of feedback just from letters from concerned individuals about the Lacey Act. But, you know, as you pointed out, Scott, the way I read the regulations right now that we currently have in place, it says, Under current rule, the Department may refuse to issue a renewed deer permit ‑‑ almost everything we talked about ‑‑ that "may" is a big part of it. Again, it's not ‑‑ and you brought up, Scott, it's ‑‑ we're not saying that we cannot do it, we're just saying that we're going to ‑‑ if you've violated these laws then we may use that as a reason not to issue you the permit.

I think that's pretty reasonable myself. You've got somebody that's been convicted of importing deer or, you know, things, it gives you the latitude to look at it, as a department, and make that decision. So, I think you did a very nice job of pointing that out.

COMMISSIONER HOLT: And another point that was brought up is ‑‑ let's say you turn somebody down ‑‑ we do turn somebody down, TPW does, is there any appeal process, as part of this? And I'm not smart enough to read any regs or ‑‑ Ann, you want to help us here? Somebody? Plus, Commissioner Bivins was not able to be with us today but it was a question he had too. Is there a way we could put an appeal process in the language somehow, if, let's say, we did turn somebody down.

MS. BRIGHT: There is actually a review process. They're not all ‑‑ there are different sections but they're all pretty much the same for all three of these permits, TTT, DMP, and breeder. These permits are considered privileges so there's no ‑‑ it's not a formal hearing but there is an internal review that basically, in this instance, would go up to Ross, to the Deputy Executive Director.

And, we've conducted those in the past and, you know, I'd just point out, those have not been rubber-stamped either. I mean, those have been taken very, very seriously and it enables us to make sure that we're doing things right so there is an internal review process that is taken very seriously.

COMMISSIONER HOLT: Well ‑‑ and you made a good point too, understanding that, again, all of these things that we're talking about are privileges. Okay. That helps me, again. Thank you.

COMMISSIONER DUGGINS: If you want to see an example of the current process, look at page 100 of the notebook, in item (j), and that's the review process for deer breeder denials and I think it's important to point out that this isn't a giant change ‑‑

COMMISSIONER HOLT: No, it's not.

COMMISSIONER DUGGINS: ‑‑ in the current rules because the current rules allow ‑‑ give the Department the discretion to deny permits for violations ‑‑

COMMISSIONER HOLT: For all kinds of things. Yes.

(Simultaneous discussion.)

COMMISSIONER DUGGINS: ‑‑ we're just expanding the grounds that can be considered as part of this process. So, it's not ‑‑ we're not ‑‑

COMMISSIONER HOLT: No, I know we're not.

COMMISSIONER DUGGINS: ‑‑ breaking new ground, in my opinion.

COMMISSIONER HOLT: No, I'm asking so many questions rhetorically. I want to make sure we get this out ‑‑

COMMISSIONER DUGGINS: Oh, great questions.

COMMISSIONER HOLT: ‑‑ that people do understand that ‑‑ I mean, a lot of this is already really in place. I mean, in the sense that we have a right ‑‑ we, TPW, to withdraw the privilege for all kinds of acts and issues that an individual may get involved in or get convicted of or do things that they aren't supposed to be doing relative to Texas Parks and Wildlife continuing to allow them to participate in those privileges. So, the Lacey Act is just an addition to ‑‑ the way I look at it.

COMMISSIONER DUGGINS: Okay.

MS. BRIGHT: And if I could make one other point about the Lacey Act. I mean, the Lacey Act was originally enacted, really kind of for a purpose very similar to what you are looking at, which is, to fill a gap because once upon a time, someone could engage in some sort of illegal wildlife activity, take the species to another state and avoid conviction. And this was intended to address that.

COMMISSIONER FRIEDKIN: Commissioner Duggins.

COMMISSIONER DUGGINS: I have some recommendations for everybody to consider on some of the language. I can go through them now.

COMMISSIONER FRIEDKIN: Please.

COMMISSIONER DUGGINS: Okay. If you'll turn to page 95 of the notebook under the TTT statutes ‑‑ regulation, rather, 65.109 ‑‑ and let me say at the outset, I think this process is somewhat cumbersome because we have three different rules, one for TTT, one for DMP and one for deer breeder and I talked to Ann and suggested that, in the future, we try to pull all these and put them in one ‑‑ have one regulation that would apply to all, to the extent that we don't have to exclude deer breeders, for purposes of the Administrative Act ‑‑ a carryover under the statute, the Administrative Act.

So, I think that's something for a future day but we start with the TTT language and to Dan's point under item (b) emphasizes ‑‑ the current language says "The Department may refuse" ‑‑ and we're only striking out the five-year restriction but the very next subdivision has the word "finally convicted." That's not in the other section under convictions. I would remove "finally." We'll just say "convicted of."

And then ‑‑ I'm not positive about this, but I'm not sure that a conviction includes a plea of nolo contendere and I would add a nolo plea to each of these subdivisions where we have conviction because a nolo plea is the equivalent of a guilty plea, so I would add that in each of (b)(1), (b)(2), (c)(1) and (2) and make it consistent throughout. And then (c)(2) the words, "the person" should be inserted. I think it was left out. "The person" has been convicted. Then, on (d)on the top of the next page, after "applicant," I would insert "for person acting as agent for any applicant," which is consistent with this all applying to an agent, not just an applicant.

COMMISSIONER FRIEDKIN: Where's that?

COMMISSIONER DUGGINS: At the top of 96, under the top item, after "applicant" I would add "or person acting as agent for any applicant" so if the agent is a defendant in a criminal prosecution or proceeding then the department has the discretion to withhold processing. Then, if you go to the next rule, which is the DMP rule over on page 97 of our notebook, under (d)(1). Again, I'd add nolo contendere pleas and the same under (2)under (d)(2), and then we also need to add after adjudication "pretrial diversion," which was just inadvertently omitted. You see that in the black, highlighted language immediately above it. That's the federal ‑‑ Ann, isn't that the federal term?

MS. BRIGHT: That's our understanding, yes, sir.

COMMISSIONER DUGGINS: It's a term of art in the federal prosecution. And under (f), on page 97, after applicant, I would insert "or a person acting as agent for any applicant." Then, over on the top of 98, I think we should add the language that is at the top of 96, which gives the Department the discretion to withhold processing of an application where the applicant or agent is a party to a criminal proceeding, that that needs to be added here in the DMP rule. And then, it's the last rule, which is the deer breeder rule, over on page 99, under (g)(1), the word "finally" should come out and the nolo language should go in there, as well as in item (2), so it will parallel the other two ‑‑ the provision in the two rules.

At the top of page 100, again, you would need the nolo language in (h)(2) and then, to the Chairman's point, you've got this review process spelled out here in item (j) but Ann confirmed a similar substantively identical review process for the DMP and TTT applications are in other rules and, ultimately, I think we should bring all three rules and have one review process ‑‑

COMMISSIONER HOLT: Ann, as you're doing these reviews over the next four years, or whatever, you

could ‑‑

MS. BRIGHT: And that would ‑‑

COMMISSIONER DUGGINS: You're going to have a little home ‑‑

COMMISSIONER FRIEDKIN: That would be an opportunity.

MS. BRIGHT: That would actually be, I think, helpful for us and that's definitely something we can do as just part of separate rulemaking is just consolidate that ‑‑ did you also want to change "delay" to "withhold" processes?

COMMISSIONER DUGGINS: Yes. I would suggest, even though this is a picayune-ish change at the top of 96, we have the word "delay." I think it could connote indefinitely and I like "withhold" better.

MS. BRIGHT: We can make all those changes and we'll have a slide tomorrow that reflects this ‑‑ you're all ‑‑ within the ‑‑ a logical outgrowth of the rule, as proposed. Yes, sir.

COMMISSIONER FRIEDKIN: That's all the changes we're going to make ‑‑

COMMISSIONER HOLT: Yes.

COMMISSIONER FRIEDKIN: Okay.

COMMISSIONER HOLT: I mean, I wasn't quite sure about "withhold." Yes, I spent all night thinking about that one.

COMMISSIONER DUGGINS: I might bill for that.

COMMISSIONER HOLT: We couldn't afford your bills.

MR. CHAPPELL: I might also let you know that there is an information resource here, representing the U.S. Fish and Wildlife Service today, resident agent in charge, David Hubbard, out of San Antonio. If you have some additional Lacey Act-related questions, he would be available to answer those.

COMMISSIONER DUGGINS: I think that ‑‑ that reminds me of another comment I wanted to make and that is, at the March meeting ‑‑ Brad, I think you were discussing, anecdotally, some of these existing proceedings and you mentioned the father/son breeders who were illegally ‑‑ who were either convicted or pled guilty to illegally importing white-tailed deer from Arkansas. Even though it's considered a misdemeanor, they spent a year in jail and paid a $60,000 fine. Some of the criticisms that I got were, Well, this would allow the department to use a minor violation ‑‑ so, I don't think you could ‑‑ to deny a permit ‑‑ a misdemeanor violation can be a very serious violation, as ‑‑

COMMISSIONER HOLT: Sure could.

COMMISSIONER DUGGINS: ‑‑ given us by that example that you gave and I think that's where ‑‑ to Dan's point ‑‑ we have confidence in the Department's exercise of discretion and in the review process, that we're not going to see an unreasonable denial occur. At least I do.

Thank you.

COMMISSIONER FRIEDKIN: Any other questions?

COMMISSIONER MARTIN: I just wanted to thank you for your work in the recent situations that you all brought to convictions here so I just wanted to thank you.

COMMISSIONER DUGGINS: Thank you very much and we appreciate your support for the entire agency and all of the employees.

COMMISSIONER HOLT: Oh, yes. Absolutely.

COMMISSIONER FRIEDKIN: Thank you. We appreciate your efforts. Thank you.

COMMISSIONER HOLT: Sure. Sure.

MR. CHAPPELL: Thank you.

COMMISSIONER HOLT: Thank you.

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

Chairman Holt? That is all for Regulations.

COMMISSIONER HOLT: Yes, thank you, Chairman Friedkin. We'll move to Conservation.

(Whereupon, the Regulations Committee was adjourned at 11:40 a.m.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission
Regulations Committee
LOCATION: Austin, Texas
DATE: May 26, 2010

I do hereby certify that the foregoing pages, numbers 1 through 106, 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.

06/08/10
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731


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