Texas Parks and Wildlife Commission
Regulations Committee Meeting

April 5, 2006

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

BE IT REMEMBERED, that heretofore on the 5th day of April, 2006, 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 FITZSIMONS: The meeting is called to order. Before proceeding with any business, Mr. Cook, you have a statement to make.

MR. COOK: Mr. Chairman. 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 of the 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, sir.

COMMISSIONER FITZSIMONS: Thank you, Mr. Cook. We'll begin today with the Regulations Committee. I call this committee to order. The first order of business is the approval of the previous Committee meeting minutes, which have been distributed. Is there a motion for approval?

COMMISSIONER PARKER: So moved.

COMMISSIONER FITZSIMONS: Moved by Parker.

COMMISSIONER MONTGOMERY: Second.

COMMISSIONER FITZSIMONS: Second by Montgomery. All in favor, aye.

(Chorus of ayes.)

COMMISSIONER FITZSIMONS: Any opposed?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none, the motion carries. Let's see. Committee Item 1, Land and Water Plan update. Mr. Cook, Chairman?

MR. COOK: I have several items for you this morning on the Regulations Committee. Since the program's inception in 2002, over 18,000 crab traps have been removed from the Texas inshore waters with the assistance of almost 1,600 volunteers and the use of almost 600 private vessels.

Crab trap use was closed February 17 through 27 of 2006. And trap removal efforts were focused on the weekend of February 18, 19. We had some tough weather that weekend, but we got about 200 traps known to be removed during that event. So that program continues to move along.

We also completed another buyback round and opened another license buyback application period for commercial bay and bait shrimp and commercial finfish, both licenses. In the 17th round of the shrimp buyback, 96 of 143 licenses sale applications were accepted at a projected cost of $741,937 which is about a $7,700 average.

In the eighth round of the finfish license buyback, 12 out of 18 offers were accepted at a projected cost of $65,000. In the sixth round of the crab license buyback, one of two offers was accepted, at a projected cost of $5,600. So those buyback programs are moving along, and I think we are accomplishing what we had intended to begin with.

COMMISSIONER FITZSIMONS: On that one, Vice-Chairman Ramos brought up this point some time ago, that we make sure that we are only buying active shrimp licenses. Larry, staff, am I remembering that right? Do you remember that point, you were making. Make sure that we weren't buying inactive licenses. In other words, when we buy something, it really is taking pressure off the resource?

MR. MCKINNEY: We'll probably need to give you a briefing on that on what we can and cannot do.

COMMISSIONER FITZSIMONS: Well, can we set that up for a later meeting?

MR. MCKINNEY: Yes, sir.

COMMISSIONER FITZSIMONS: A briefing on that, because wasn't that your point?

COMMISSIONER RAMOS: Yes. My point was that it would be a preference, or perhaps we should prioritize those that are not being used, because those — excuse me. The opposite. The ones that are being used, because those are the ones that are really impacting the resource.

And to the extent that we can do that, fine. If there is a problem with it, well then, we understand.

MR. MCKINNEY: For the record, I am Larry McKinney, Director of Coastal Fisheries. I am sorry, I didn't mean to interrupt.

COMMISSIONER PARKER: No, go ahead.

MR. MCKINNEY: That is the direction we want to go and in fact, we set up at the beginning of this year, a program to begin to gather that information. We have not had that capability before. But we have put a program that is called Trip Ticket into place, so that we can generate that information, and so that we can do exactly what you are talking, though, because that is what we want to do.

Now, where we want to be on that, because putting these programs in place takes a little while. We can give you a briefing on where we are, and what we are doing, even now, to make sure that we are trying to buy as active a license back as possible.

COMMISSIONER FITZSIMONS: Right. So $7,700, you are not going to have any danger that somebody is going to activate an inactive license just in order to sell it, with the cost of fuel and the price of shrimp. That is not going to happen, is it?

MR. MCKINNEY: Although I can't tell you for sure, I think we have passed that point. I think we are at the point where we have taken care of those issues. But we will be prepared to brief you on that, sir.

COMMISSIONER FITZSIMONS: And it would be within our discretion of how to determine what is active and what isn't. Some evidence of —

MR. MCKINNEY: Yes, sir. It is the Commissioners' prerogative.

COMMISSIONER FITZSIMONS: All right. I didn't mean to interrupt you there. I am reminded by that.

MR. COOK: I think it is just a matter of us being able to make that determination. And like Doc says, we have got a system in place that we think will help us with that. At the invitation of Texas Water Development Board, TPWD provided input regarding technical and procedural improvements to the regional water-planning process. We continue to be involved in that process.

As for Senate Bill 1 of the 75th Legislature, the Texas Water Development Board is required to review the rules guiding regional water planning process. TPWD's comments focused on the need to better incorporate environmental water needs into the planning process, and to more effectively quantify environmental impact associated with proposed water development projects.

Finally, we had a — Flat Out Fishing workshops were held in Corpus Christi on January 28, and Lake Jackson on February 11, for the general public, to inform them of marine fishing opportunities along the Texas coast. Specialists instructed participants during the one-day seminar covering gulf and bay fishing, boating and kayaking.

Sixty-one adults attended the Corpus Christi workshop and 100 adults and five children attended the Lake Jackson workshop. Funds raised will be used in the abandoned crab trap cleanup program. Thank you, sir.

COMMISSIONER FITZSIMONS: Thank you, Bob. Another update on the environmental flows, we had the first meeting of the Environmental Flows Commission. It was reconstituted by the Governor several months ago. We had that meeting about two weeks ago. And you know, I am happy to report that we haven't lost any ground, but we haven't necessarily gained any ground since not having the bill pass in the last session.

When I set this as my first priority when I came on the Commission, and first priority as chairman to secure the waters for fish and wildlife, I didn't have any idea it was going to become a five-year career. We are holding our own. The next meeting is set, I believe, in early May.

The good news is, there doesn't seem to be any — we haven't lost any support or consensus for the ability to dedicate water for instream use. You know, the way the law is right now in Texas, it is not a recognized beneficial use. And all the presentations we have, every one — the good news is, national fish and wildlife, no, that is not what it is called.

National Wildlife Federation and the water development community, TWCA, have come up with a joint proposal, really sort of a compromise, which recognizes the ability to dedicate water for instream. And that is a big step forward. But anyway, that is moving along.

Let's see, next we have got Item 2, proposed amendments to the Public Lands Proclamation. Mike Berger.

MR. BERGER: Good morning, Mr. Chairman and Commissioners. I am Mike Berger, Wildlife Division Director, and I am here today to brief you on some changes we are proposing to the regulations governing public hunting lands. These are primarily housekeeping matters.

First, we are removing the Aquilla Wildlife Management Area owned by the Corps of Engineers from our public hunting program. The Corps has basically declined to make this area available for public hunting.

Earlier this year, the State Park share of the management of Matagorda Island was transferred to the Wildlife Division. This area no longer functions as a State Park and the name will be changed to Matagorda Island Wildlife Management Area.

Next, we are removing regulations addressing recreational activities and camping from 65.192 and creating a new section to deal specifically with recreational activities on wildlife management areas. We are eliminating the waiver of fees for youth and disabled participation in events limited to youth or disabled persons, or for the purposes of research, education or charity. There are no application or permit fees for events or activities other than hunting, and thus, there is no need to have this waiver ability.

And finally, we are eliminating provisions relating to concessions on wildlife management areas. There are no concessions on wildlife management areas. We have never received a request to operate a concession on a wildlife management area.

And we feel that if we did have one, we would be in violation of federal aid requirements anyway. So we would like to remove that provision as well. So these are —

COMMISSIONER FITZSIMONS: Explain that. Why would that be a violation of the federal aid?

MR. BERGER: When the federal aid funds the acquisition of wildlife management areas or we operate those areas as we do with federal aid reimbursement, they want the area to be used for the purposes for which it was acquired, and for which we operate it. And concessions usually are not part of that. So they would object to our use of federal funds to assist or have a concession.

COMMISSIONER FITZSIMONS: Even if they were directly related to hunting and fishing? Public hunting and fishing?

MR. BERGER: Probably they would, if they were interested in raising money for that, yes. It might interfere.

COMMISSIONER FITZSIMONS: Because the federal Pittman-Robertson money would be going to a private concessionaire?

MR. BERGER: That would be, could be an interpretation.

COMMISSIONER FITZSIMONS: But if the concessionaire is paying for the concession, that is not a problem.

MR. BERGER: If the concession —

COMMISSIONER FITZSIMONS: The money is coming our way.

MR. BERGER: Well, it shouldn't be. But if — it should not be.

COMMISSIONER FITZSIMONS: Well, you don't want to foreclose the opportunity that the money could come our way, right?

MR. BERGER: Right.

COMMISSIONER FITZSIMONS: So would this change do that? Only that we would take Pittman Robertson money and pay it directly to a private concessionaire.

MR. BERGER: I think the problem is that the operation of a concession would not be relative to hunting. The operation of the concession would be for something else that would be contrary to the purposes for which the area was acquired, and therefore, they would deny that they could fund our operations of that area, because those operations might be compromised by the concession.

In some cases, we have wildlife management areas that we do not operate with federal funds for that reason. Old Tunnel is one where we operate, we do some sales of products and things. Mason Mountain is another, because of the way it was set up. So that we cannot use federal funds to operate those areas.

COMMISSIONER FITZSIMONS: I guess — maybe I wasn't clear here. Does your change foreclose only the payment of Pittman Robertson money to a third party but we can still receive private funds? For public hunting and fishing —

MR. BERGER: Well, Pittman Robertson —

COMMISSIONER FITZSIMONS: They are not — PR would not pay for the concession in any event. The money would always come to us. But it would — the rules and the understanding that I have is, that those concessions would be viewed as in conflict with the purposes for which the research and demonstration — the purposes for which the area is operated.

COMMISSIONER RAMOS: But Mike, do you think that having a concession might serve a need, a public need. In other words, that we would make these wildlife management areas more attractive or more palatable to the public because we offer, for example, bait, lures or something like that?

In other words, it seems to me that a concession is not necessarily inconsistent with the purposes of hunting and fishing, but rather, something that supports the activity. And to that extent, I mean, I can see where, for example, if you had a — you were running a restaurant or a bar or something, totally unrelated, I can see that. But to the extent that you would have a concession to support the activity, be it, for instance, Cokes or whatever.

COMMISSIONER FITZSIMONS: Well, for instance in Caddo, where you rent canoes and fishing poles. Now that is at a State Park. Would this foreclose somebody renting canoes and fishing poles at a WMA? But the federal money is not going to the private party. Phil?

COMMISSIONER MONTGOMERY: Is it necessary to remove the commission issue, do we have a problem now? Why wouldn't we leave ourselves the flexibility in the future, rather than debate the abstract here. Is there a practical problem today? Is there a reason to delete that?

MR. BERGER: No, because we have never had a request to operate one, and we have never had one. So there is not — the rationale for this was there is not a need for it, because we have never had an application to do one, and we don't foresee an application to do one.

COMMISSIONER FITZSIMONS: Okay. But there is no cost in leaving the option open, is there.

COMMISSIONER MONTGOMERY: Why not leave the option open?

COMMISSIONER HOLT: We want the flexibility.

COMMISSIONER RAMOS: Yes. And I would go a step further and find out if in fact it would impact our federal funds or not. It may be that it is a use consistent with the purpose of having it.

I mean, I can see certain activities being supportive of fishing and hunting, and some that would be inconsistent. That is just a thought, because it may be that down the road, someone may be interested.

COMMISSIONER FITZSIMONS: For instance, we have some WMAs and hopefully, we will have more in the future that are attached physically, contiguous to State Parks. I think of Llano, south Llano River.

MR. BERGER: Walter Buck.

COMMISSIONER FITZSIMONS: Walter Buck, other examples where you could have — we have concessionaires in the park, and we don't want that person not able to rent a fishing rod or canoe and go into the WMA, because we are trying to promote public hunting and fishing. It doesn't make any sense.

COMMISSIONER PARKER: The difference is, that is not the Feds. It is ours.

COMMISSIONER FRIEDKIN: I think we need clarification on all of that.

COMMISSIONER FITZSIMONS: Yes. But we encourage people to use both when they go to those parks and WMAs.

COMMISSIONER MONTGOMERY: I think we are all feeling like we should keep our options open and not take this out.

COMMISSIONER FITZSIMONS: All we need to be clear about is that no federal money will go to a private concessionaire. That is, in my opinion, all you need to be clear about, is that the money is coming this way. Not use of federal money to a private concessionaire. That all the federal money is used on the WMA.

MR. BERGER: We can leave our option open and leave that.

COMMISSIONER FITZSIMONS: Does that make sense?

COMMISSIONER RAMOS: It makes sense to me, yes.

MR. BERGER: This is requesting permission to publish only, so we will take that out.

COMMISSIONER FITZSIMONS: All right. Any other discussion by the Commission on any of the other items there, Matagorda or Aquilla WMA? Not hearing any further questions or discussion I authorize staff to publish this item in the Texas Register for the required public comment period.

Thanks, Mike. Next up, Oyster Daily Sack Limit rules Bill Robinson.

MR. ROBINSON: Good morning, Mr. Chairman, Commissioners. My name is Bill Robinson, Chief of Fisheries Enforcement. At the August 25, 2005, Commission meeting, amendments were adopted that created a definition of sack for measuring oysters taken from Texas waters.

The second part of this section was intended to reduce the commercial daily bag limit for oysters to preserve and stabilize the economic value of oysters taken during the open seasons. However, the language published in the Texas Register only changed the amount of oysters that may be in possession on board a commercial oyster vessel and did not make it clear that 90 sacks was intended to be the daily limit as well.

The proposed amendment would correct that error and clarify that the daily bag limit for commercial oyster fishermen is 90 sacks, and the daily bag limit for recreational fishermen is two bushels, which is equal to two sacks. This amendment would also change the recreational limit units from bushels to sacks to remove the possibility of confusion in the fishery that could result from using different units to measure take.

Currently, not more than 90 sacks of culled oysters may be on board a licensed commercial oyster boat. This proposal would clarify that the legal one-day limit is 90 sacks of culled oysters of legal size. This amendment would also clarify the recreational possession limit and allow a person to take in one day, or possess not more than two sacks of legal sized oysters.

And this concludes my presentation. I would like to request permission to publish this proposal in the Texas Register and would be glad to answer any questions.

COMMISSIONER FITZSIMONS: Any questions for Bill on the oyster daily sack limit?

(No response.)

COMMISSIONER FITZSIMONS: If there are no further questions or discussion, I authorize staff to publish this item in the Texas Register for the required public comment period. Thanks, Bill.

MR. ROBINSON: Thank you.

COMMISSIONER FITZSIMONS: Next up, Item 4, repeal of the Sea Rim State Park Hunting, Fishing and Trapping Proclamation permission to publish. Hi, Vickie. You're running on time.

MS. FITE: Mr. Chairman, and members of the Regulations Committee. I am Vickie Fite, the Public Accounting Coordinator. In January, a request to publish for public comment was granted by the Regulations Committee for the repeal of the Sea Rim State Park Hunting, Fishing and Trapping Proclamation.

I would like to once again take just a moment to give you a brief history on this proclamation. In 1971, the Legislature gave TPWD Commission right under sound biological management practices to open seasons for hunting on state parks. Hunting would be by special permit only, and would be no longer than three consecutive days.

In 1981, the Legislature added Subchapter 62.0631 that gave the Commission the authority to provide for an open season on Sea Rim State Park that basically mirrored the seasons and bag limits for Jefferson County. This was when this proclamation was established, and the primary species to be hunted were going to be waterfowl and fur-bearers.

In 1985 substantial changes were made by the Legislature to the TPWD code, Chapter 62, Sub-chapter D, Hunting in State Parks, which allowed for a more of a recreational-type hunting to be allowed on the state parks. These changes provided the opportunity for parks to become part of the public hunting program.

In 1990, Sea Rim was added to the list of state parks to be hunted under the Public Lands Proclamation. This was done to streamline the regulations process, and to allow for more flexibility and hunting opportunity.

The Sea Rim State Park Hunting, Fishing and Trapping Proclamation is basically in duplication and regulation and there is no longer a need for a separate proclamation. We received no public comment on this item. Mr. Chairman, that concludes my presentation. Any questions?

COMMISSIONER FITZSIMONS: Actually, I was just asking Bob. State natural areas are open to public hunting like state parks and WMAs?

MS. FITE: If they go through the same process. Yes, sir.

COMMISSIONER FITZSIMONS: Okay. So that is all consistent.

MS. FITE: Yes, sir.

COMMISSIONER FITZSIMONS: Across all the Department's properties.

MS. FITE: Yes, sir.

COMMISSIONER FITZSIMONS: Great. Took a while to get there, but we are there, finally.

MS. FITE: Yes, sir.

COMMISSIONER FITZSIMONS: Great. Any questions for Vickie on that?

(No response.)

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

MS. FITE: Okay. Thank you.

COMMISSIONER FITZSIMONS: Thank you for your hard work there.

Next up, Item 5, Statewide Hunting and Fishing Proclamation and Alligator Proclamation. Robin Riechers? You are first.

MR. RIECHERS: For the record, my name is Robin Riechers. I am with Coastal Fisheries Division. I am here to present to you Coastal's 2006-2007 Statewide Hunting and Fishing Proclamation proposed changes.

During the public hearing portion of our process, we only received 29 comments. The support or opposition of the issues really did not change as relevant — or change from the scoping comments that I presented you at our last meeting.

Again, as indicated prior, the small tooth sawfish is protected under the Endangered Species Act, and our Chapter 68 Texas Parks and Wildlife Code after it has been listed under endangered species. But in addition to protecting the small tooth sawfish, we are also asking that we prohibit the take of large tooth sawfish.

Obviously, you can see the large tooth sawfish on the right hand side of the screen, and the small tooth as well. If you have those on a hook, it is going to be pretty difficult to tell which you have got on the hook.

So we are recommending that we do that to protect both of those fairly rare occurrences, even though their range did hit Texas waters in the past. And of course, we have a lot of support for that proposal.

In addition to the sawtooth proposal, we are also asking that we remove the requirement for the tarpon tag. We basically would replace that with a one-fish bag limit setting the minimum size limit of 80 inches.

This would allow us to basically take a state record tarpon, which you can do under the current tag system, but we are basically getting away from that tag system. As you can see there, we have averaged only 15 tags per year, so our cost of producing those tags and filling those tags has been greater than what we have earned in revenue in that respect. And so after some discussion with some of the real people who support tarpon, and the preservation of tarpon, they have kind of warmed up to the idea.

You can see we have about 80 percent support there. There was some concern that we would be taking away from the conservation of that animal by doing this, but I think we have alleviated those concerns.

In that same vein, we are also proposing that we maintain the five-fish bag limit for black drum with the current slot that we have between 14 and 30 inches minimum and maximum size limit. But we would allow one-fish over 52 inches. The same idea there, allowing them to take a state record, which we can't do now, and basically allowing someone who actually catches one of those larger black drum, while we don't understand why anyone would want to eat it, they could actually retain it for the state record.

For southern flounder, we basically are asking you to reduce the recreational flounder possession limit to equal the current bag limit, which is ten fish per person, per day. As you know, if someone stays out past midnight now, they basically can end up with a 20-fish possession limit at this point in time. And we are hoping to reduce that. We have seen some of those fish and Law Enforcement testified to you at the last meeting that some of those fish, we do understand, enter the commercial channels at this point in time.

Because if you have two people on board, you basically have got 40 fish on board. And so we think this will help in reducing that, and help to support conservation of southern flounder.

COMMISSIONER FITZSIMONS: Have you seen a resource impact there?

MR. RIECHERS: We believe that this will help with that resource impact. I mean, we have been watching flounder. Flounder is one of our species of concern. We have been making small incremental steps, and this is kind of in continuation of that idea, along with the buyback programs, the limited entry programs on finfish and some of the other things that we are doing.

But this is just another step in helping to protect that species. Less support on this one, as I indicated before. There is only about 30 percent people who have supported this. But if you move those from the support, from the opposition category who actually wanted more stringent rules than we proposed, and you pulled them over. It is basically is a 50-50 at that point.

COMMISSIONER FITZSIMONS: In other words, the 69 were not the people who were staying up past midnight and getting two bags.

MR. RIECHERS: That is right. It is more like about a 50 percent support, or 45 percent support if you do that. Yes, sir.

COMMISSIONER PARKER: Is the flounder a game fish?

MR. RIECHERS: Flounder is not a game fish, currently. Game fish status basically just means that it gets caught by hook and line, under the way we set up our rules. Of course, the flounder fishery has a very large recreational gig fishery and also a commercial gig fishery.

COMMISSIONER PARKER: Is there any possibility that you scientists might recommend that it become a game fish?

MR. RIECHERS: I mean, certainly, we have been involved in some of those discussions with outside groups who have had that discussion. The issue there though, is that even on the recreational, I mean, all you would be doing is taking away the gig fishery.

And if you then just catch those animals in another way, there is not really any biological benefits. You are just shifting the pie around. If reduced mortality is enough, you might see some benefits from that. And certainly, the gig fishery, it is a pretty lethal fishery when the conditions are right, and they can really catch those. But obviously by reducing the take on the recreational side, we would hope to gain some of those same benefits without taking away a pastime that is part of the culture on the coast, as far as gigging goes.

COMMISSIONER FITZSIMONS: But to follow-up on Commissioner Parker's question, there is two categories of gig; recreational and commercial. No? Is that what you are saying?

MR. RIECHERS: We don't distinguish when we do game fish right now.

COMMISSIONER FITZSIMONS: But because it is not a game fish, there is not any real regulation on the commercial is there?

MR. RIECHERS: Well, there is a 60-fish bag limit.

COMMISSIONER FITZSIMONS: Other than the bag limit.

MR. RIECHERS: Right. That is correct.

COMMISSIONER FITZSIMONS: But it is not a separate permit.

MR. RIECHERS: That is —-

COMMISSIONER FITZSIMONS: For a commercial, like you have commercial licenses.

MR. RIECHERS: Well, we have a commercial finfish license that allows them to fish for a flat — typically our commercial finfish license, you are either fishing for black drum or flounder in the state of Texas.

COMMISSIONER FITZSIMONS: All right. Well, it would seem that that would be the place to regulate the impact first, wouldn't it? From the commercial side?

MR. RIECHERS: You could certainly also do something similar on the commercial side. Now currently our commercial possession limit and bag limit are equal. We don't have this kind of distinction. So we are basically just mirroring now what we have done on the commercial side previously.

COMMISSIONER FITZSIMONS: Phil?

COMMISSIONER MONTGOMERY: I want to follow up and make sure I understand the answer to your question. Is the population increasing, declining? What are the population trends?

MR. RIECHERS: The population has basically, it has declined from a historic high, and it has leveled out now, and we are actually maybe seeing a slight upturn. And we believe that has a lot to do with the buyback programs and the finfish limited entry programs.

COMMISSIONER MONTGOMERY: Over what period of time and how coincident are those events.

MR. RIECHERS: The slight upticks are very marked with our finfish limited entry program and the bird requirements that we placed in the shrimp fishery.

MR. MCKINNEY: Just one comment. Larry McKinney, Director of Coastal Fisheries. You know, when we looked at that issue of a namely game fish from a resource perspective, when we look at mortality, and correct me — I think our mortality is about 87 percent due to bycatch.

COMMISSIONER FITZSIMONS: So the BRD (Bycatch Reduction Device) made a big difference.

MR. MCKINNEY: So the issue of doing something for the flounder is so — that's what Robin was saying, we can play around with the commercial and recreational gig fishery, but it is such a small part of what the issue of where you are going to do something on a biological basis is in that bycatch, which is in reduction due to BRDs the birds and the buyback is where are getting the benefits.

COMMISSIONER FITZSIMONS: And is the BRD, the bycatch reduction device, is that really where you have gotten the greatest improvement or impact positive result?

MR. RIECHERS: Well, and I will just say, it will be hard for us to pull out buyback versus BRDs. I mean, we require BRDs in the year 2000. They were required offshore in '98. And of course, our aggressive program started in '96 for buybacks and it has continued to today. So it would probably be hard for us to tease those out very well.

We do know that in all of our research we have been around a 20 percent overall reduction in all finfish, in poundage caught on board shrimp vessels with that bycatch reduction device. So you know we think it has a significant impact. But teasing it out would be pretty difficult.

COMMISSIONER FITZSIMONS: So your point is, instead of fooling around, where I think what you said instead of looking at the bag limits, do you really want to impact the flounder research on prudence finder resource you look at buyback and other bycatch —

MR. MCKINNEY: Right. In fact, the Commission has taken three steps to readdress that. One is the buyback. The other is the BRDs. And in 2000, the shrimp regulations, the process we went through to set-aside nursery areas. That is all — that, I would tell you is the basis for the cautionary look at it, it is kind of turning around.

COMMISSIONER FITZSIMONS: The nursery areas?

MR. MCKINNEY: Yes, sir. And I think all those regulations help, altogether. So I am hoping at this time, we are going to be looking at ways to accelerate the recovery, because I think we are back on the right trend, we hope.

MR. COOK: But we are not where we want to be.

MR. MCKINNEY: We are not where we want to be, and we don't know if we are — you know, it is a variable deal. We have to look at it.

COMMISSIONER FITZSIMONS: Where was the historic high on flounder that you described?

MR. RIECHERS: I would say in the 70s, as I am remembering. It would be back in the 70's probably the historic high. Is that —

MR. MCKINNEY: Sounds about right.

COMMISSIONER PARKER: And when you count the highs or do you count the commercial catch along with the sporting catch, or are you separating them out?

MR. RIECHERS: Actually for our highs, when I speak to the highs, and I am glad you asked the question, it allows me to clarify. I am basically looking at our resource sampling trends where we are doing our gears so that we can see through time, where it takes away the effect of more commercial pressure or less recreational pressure or the —

COMMISSIONER FITZSIMONS: That is not a harvest high?

MR. RIECHERS: It is not a harvest high. It is a resource trend.

(All talking at once.)

MR. MCKINNEY: It is our data, independent of fishers, so we can see the impact of fisheries on that data. But as we talked about, that is independent.

COMMISSIONER FITZSIMONS: Well, I know it is an area of concern.

MR. MCKINNEY: Absolutely.

COMMISSIONER FITZSIMONS: I think a number of us have heard from folks concerned about flounder. But I think you make a good point, that the real action is on the bycatch side. If we learned anything on our field trip down there to the coast, is that that is where the impact is.

MR. MCKINNEY: Well, that is where all of our focus is, on recovery. For example, in our enhancement programs, we are looking at our hatcheries and developing that. Everything we can do, we are trying to put into place to be ready to go.

COMMISSIONER FITZSIMONS: It is not a kid with a gig and a flashlight.

MR. RIECHERS: Okay. And lastly, we are proposing that we add Tripletail to the game fish list. This basically will establish a minimum size limit of 17 inches, a bag limit of three fish and a possession limit of six fish. Tripletail is kind of a rare occurrence on our coast. Most of our catches occur in Matagorda Bay and the Galveston Bay area. But it is — its popularity is increasing.

And so before it becomes a more sought after species, we wanted to establish this. By establishing the minimum size limit, that is basically, we will get all those females to first spawn, or at least the majority of them to first spawn, and that is why we have established that as the limit.

COMMISSIONER FITZSIMONS: Okay. Well, there was some comment from some CCA folks that that might be too high a bag limit. And what you are saying is that is mitigated by the 17-inch rule?

MR. RIECHERS: Correct. That is what we are trying to do.

COMMISSIONER FITZSIMONS: Okay. So they are not — it is not real easy to catch the three?

MR. RIECHERS: Right. It won't be real easy to catch the three. And this obviously is our first entry into regulating tripletail. We will be looking at those abundance trends closely, and coming back to you if we see we need to reduce that bag limit even further.

COMMISSIONER FITZSIMONS: Yes. Well, I will just tell the other Commissioners that what I have heard from folks that really focused on this and were interested in it, is that we assume we are wrong on this first attempt. Assume we are wrong.

COMMISSIONER HOLT: Assume we are wrong. You mean, too many?

COMMISSIONER FITZSIMONS: I mean, just watch it carefully, because it wasn't even a game fish, first. This is the first regulation of it.

COMMISSIONER HOLT: No, I know that. Yes.

COMMISSIONER FITZSIMONS: And that there is some people that are concerned, that we look closely at the —

COMMISSIONER FRIEDKIN: What are the recent population trends with them. What is going on?

MR. RIECHERS: Population trends in Texas basically have remained flat. But we don't catch a whole lot of these in our gear. I say that to make sure you understand that. Over the past 20 or so years, we have caught around 600 fish. So we are not basing that on a real large sample size.

COMMISSIONER FITZSIMONS: So this is essentially — I wouldn't say arbitrary — but it is a first cut at it.

MR. RIECHERS: Well, it is first cut, and it is real similar to actions that Alabama and Florida have recently taken. They basically — Alabama is at a three-fish bag limit in the 16-inch fish, and Florida is at a slightly lower size limit, 15 inches and two fish. They have kind of made a very similar cut at it.

COMMISSIONER FITZSIMONS: And 17 inch protects that breeding?

MR. RIECHERS: Right. Based on the data we have, it basically gets them into that first spawn.

COMMISSIONER FITZSIMONS: Every other Gulf state it's a game fish?

MR. RIECHERS: Louisiana and Mississippi don't have any of these kind of rules in place yet, but Florida and Alabama do. And lastly, as indicated to you at the last meeting, we did vet these through the Coastal Resources Advisory Committee, and they concurred with these as the previous staff recommendations.

And staff still recommends these for adoption. I would be happy to answer any other questions at this time.

COMMISSIONER FITZSIMONS: Anything for Robin?

COMMISSIONER FRIEDKIN: Thank you.

COMMISSIONER FITZSIMONS: Thank you, Robin. Ken Kurzawski, up on freshwater fisheries.

MR. KURZAWSKI: Good morning, Commissioners. My name is Ken Kurzawski, in the Inland Fisheries Division.

And before I get started, I would like to thank Commissioner Montgomery again for joining us last Wednesday down on the San Marcos River for the opening of the first Texas paddling trail. We had a successful event, it didn't rain. And we got out on the river and I didn't dump the photographer from the Lockhart paper in the river along the way. So it was a successful event for all of us, we had a good time.

And today, I am going to go over our proposals and give you what we have heard in the public input through the scoping and public hearing process. The first one is on Marine Creek in Tarrant County. Our proposal was to change the bass limits there from a 14-inch minimum to an 18-inch minimum.

And the goal here is to protect some of the Operation World Record bass fingerlings that we are stocking in there to harvest for four years, so the growth of these fish can be evaluated with just a limited number of these fingerlings will be produced, and we would like to give them a good opportunity to study those in those five other — this reservoir and the five other reservoirs in that program. We just had a few comments on that. A couple for, and one against.

The next proposal is on some regulations on bait fish in West Texas, where our proposal is to add Kinney County to that list. A few years ago, we added 17 counties in West Texas to restrict the use of some bait fishes. The species already present in the Pecos River watershed, some of these were native and non-natives. For example, you can still use carp and goldfish and sunfish.

And this was done to protect the Devil's River pupfish, and we would like to extend that to protect the Devil's River minnow in Kinney County. The minnow is only found in Val Verde and Kinney counties, and Val Verde County was already on that list.

We did have a hearing down there in Bracketville. And we did have a few people show up. But none of them made any comments on this particular proposal, nor have we received any others.

The proposals to allow the harvest of catfish by bowfishing. For catfish, this would allow lawful archery equipment, which include crossbows and other types of archery as a legal means to take blue, channel and flathead catfish. This sort of originated with the petition from the Texas Bowfishing Association for this regulation change.

The proposal, as it stands now, the existing minimum length, the daily bag limits would be filed, blue and channels as statewide limits, the 12 inches and 25 fish per day. And for flatheads, it is 18 inches and five fish. And the goal here would be to allow the bowing with some increase in harvest opportunity.

The public comments that we have received to date of the various avenues, basically, it is through the scoping and this process, it has kind of run three to one against. Against, those most of them coming by e-mail. About a little over half were received in the scoping process.

We did receive some individual letters. One TBA, there was a petition with 102 signatures. And then we also received some letters from other organizations. SCOT sent a letter speaking against this, and also CCA board of directors is against this for possible impacts on other game fish.

COMMISSIONER FITZSIMONS: You mean impacts on fish other than catfish?

MR. KURZAWSKI: Yes. If, as a possible avenue of allowing other means and methods for other game fish.

COMMISSIONER FITZSIMONS: Yes. But this is only a proposal on catfish.

MR. KURZAWSKI: Right.

COMMISSIONER FITZSIMONS: So their concern is that it would start a trend.

MR. KURZAWSKI: Correct.

COMMISSIONER FITZSIMONS: To other species?

MR. KURZAWSKI: Yes. And to summarize many of the main points that we heard in the comments from the public. Those in favor of the proposal, who don't believe the harvest will cause any damage, want to harvest some catfish for eating while they are out there bowfishing for other species. There was some support there for some limits.

And those against, basically they feel that bow and arrow is not an acceptable method for harvesting game fish. There is concern about possible impacts on big catfish, upon other blues and flatheads in some of our rivers. And then also the precedent of this possibly opening an avenue for allowing these type of non-pole-and-line methods for other game fish. And I guess from our perspective, some of the pros and cons:

As we know, this probably would have, may increase harvest opportunity for bow anglers. Could read to a possible increase in bowfishing. And we don't have any biological data to show any negative impacts at this time.

Some of the cons, there could be potential mortality of undersized fish with the length limits for catfish. There could be some targeting of larger fish, those sought after larger fish. And it could open an avenue for the use of methods other than pole and line for other game fish.

And finally, it is sort of a break with our ongoing management approach of selective harvest. Over the years, we have always maintained that harvest has been an important part of the fishing opportunity. But giving anglers a choice on harvesting of fish when they catch it, whether to retain that fish or release it has been beneficial to improving the quality of our angling other species such as bass.

Catfish management is moving in that direction over the last ten years, we enacted a minimum size limit. Other states have even put some trophy size limits into place and just the sort of press generated by the catch of splash, or real big catfish. There is a group of anglers that are out there, that are specifically targeting those big catfish.

And you know, we have worked to elevate the status of catfish over the years, from just a fish for food fish to a recreational fish. And allowing the additional pole-and-line methods could have the impact of devaluing the catfish as a game species.

Previously, there was a petition submitted on the same topic in 2004, at that time, staff did recommend the denial of petition and the petition was denied. Although we have received some additional comment on it through the public process, we have not had much new information has surfaced during the current process.

And based on that, we don't see any compelling reason to break with the previous management approach for catfish. So with that, I would take any questions that you would have on this proposal, or any other ones?

COMMISSIONER FRIEDKIN: Ken, how many people currently fish by that method in the state, and what are the trends, if any, in the growth of both issues?

MR. KURZAWSKI: We really don't have a lot of information on that. The numbers are reasonably small. Some of the organizations, they have 50, 60, 70 members. Some seem like there is some increase in interest in it.

We usually have at Expo, there is a group that comes out and have a nice display on bowfishing. And people have to be — you know, it is a fairly avid way to fish. You have to — most of the people have a boat and a generator, airboat.

So you have to be pretty avid to do that. You know, for people starting fishing, you have to invest a fair amount to get into that type of fishing. When we do our — we do a statewide survey every three years which we will talk a little bit tomorrow, the numbers of people just don't show up in our survey when we do that.

COMMISSIONER FRIEDKIN: What are other states doing about it?

MR. KURZAWSKI: Most states there is only a couple of other states that — where catfish or game fish, that will allow bowfishing for them, and that is Arkansas and Louisiana. Most states that have catfish designated game fish don't allow anything other than pole-and-line methods.

COMMISSIONER FITZSIMONS: But those other states, it is not a game fish, so it is allowed.

MR. KURZAWSKI: Well, some — it is sort of a hodgepodge there. Some states where they are game, are not game fish still don't allow any sort of other methods.

COMMISSIONER FITZSIMONS: Phil?

COMMISSIONER MONTGOMERY: Actually, you all, somebody sent me a survey of other states, which I appreciate. The count I had, was of the 15 southern states surveyed, 10 do allow bowfishing for catfish. Now the designation of game fish —

MR. KURZAWSKI: Right. That is the difference right there.

COMMISSIONER MONTGOMERY: But that two-thirds of them allow it.

COMMISSIONER FITZSIMONS: Okay. So right now, you can bowfish for carp?

MR. KURZAWSKI: Non-game fish.

COMMISSIONER FITZSIMONS: Non-game fish.

MR. KURZAWSKI: Right.

COMMISSIONER FITZSIMONS: And so, what are these people doing now? Bowfishing for carp?

MR. KURZAWSKI: Carp, gar, just pretty much. Buffalo, pretty much anything we have seen, results in where they have shot gizzard shad, just various other species.

COMMISSIONER FITZSIMONS: But the real issue here seems, I mean, just to kind of boil it down from what I have listened to is, it is not a resource issue as to catfish. It is the concern that we are crossing a line of the traditional game fish pole-and-line take, to go to a lethal means like bowfishing. And I share that concern.

If you go bass or any other game fish. Is that really what this boils down to? It is not so much an issue, because you have still got restrictions on the take of catfish, right.

MR. KURZAWSKI: Correct.

COMMISSIONER FITZSIMONS: But it is really about the concern that this would expand beyond catfish. It is not really about catfish. Is that fair to say?

MR. KURZAWSKI: Well, it is about catfish in that catfish have been — it is like catfish is our second most popular recreational species. And a lot of those anglers hold them in a regard where they are a game fish and they like to maintain that status as a game fish; pole-and-line angler.

COMMISSIONER FITZSIMONS: It is still protected by length and bag restriction. Well, like I said, this is a tough one, because I share the concern that I am not comfortable with it expanding to bass or other species. John?

COMMISSIONER PARKER: I am going to have some help from Phil on this.

COMMISSIONER FITZSIMONS: Well, there he is.

COMMISSIONER PARKER: I know. And also Pete. I want Pete to get in on this, too. I am a little bit older than the rest of you. I was around when they started building —

MR. COOK: [inaudible].

COMMISSIONER PARKER: I heard that. But I was around when the good Lord served up to the State of Texas the great Bob Kemp, who developed our freshwater fisheries into what it is even until today. And Bob Kemp, and I would suggest that you all read the book sometime, that he wrote. It is a great book about how that was accomplished.

But Bob Kemp took the State of Texas, and you know, I don't care what those other states are doing. It doesn't make me any difference what they do. Let them handle their bailiwick. I am only interested in Texas. Bob Kemp took fishing in Texas from a harvest to a sporting event.

And when that happened, the sport fisheries of Texas erupted, and we are known worldwide for that. And if I can remember it properly, he had one basic philosophy about sport fishing. And harvest fishing. And it will spill out over into the bays and estuaries.

When a man or woman or child catches a fish, they have got two choices. Their first choice is to determine is this a legal fish. Is it legal by all aspects? Species? Length?

And at that time, he can throw the fish back if it is not a legal fish. The other choice that he has to make is, I could keep it, or I can throw it back. Or I can, as it evolved, I can keep it in my live box until I might have the opportunity to catch a larger one to replace it with.

At that point, throw the smaller one back and keep the larger one. But when you take a fish by lethal means, those two choices are wiped off the table. And we are back to the harvest thing.

We are back to gill netting in the bays that we finally — thanks to one of my heros, Perry Bass, who led that charge. I think that it would be a tremendous mistake. It would be going backwards for us to even consider this issue.

That is, I think I told the philosophy just exactly right. But it is a philosophy of sport fishing or it is philosophy of harvest. It is a sport.

It is a philosophy of catch-and-release of which the legal catfisherman in the State of Texas are on the upswing of doing catch-and-release. They are even starting to have tournaments, catfishing tournaments. Catch-and-release.

And I just think it would be going back to the 1970s and '60s when anything went. I would like for —

COMMISSIONER FITZSIMONS: I think you make a good point, that we don't want to — or at least I don't want to do anything that undermines the culture of catch-and-release. But I think the argument that is being made here is that the — if I am correct, is that the bowfishermen are going to be taking one hell of a risk and responsibility when they — just like you do with a rifle or anything else, when you pull that thing back and let it go, you had better be right. Then it comes to the issue of enforcement, which I am sure Phil can —

COMMISSIONER PARKER: Joseph, let's talk about enforcement a little bit. You know, let's do a scenario.

COMMISSIONER FITZSIMONS: Hold on. There are a few other folks who want to get in. I think you made your point. Catch-and-release is a philosophy we want to advance.

COMMISSIONER PARKER: Well, it is supported by the law enforcement issue.

COMMISSIONER FITZSIMONS: Right. I agree, but hold on. We have got some — everybody wants to say something.

COMMISSIONER RAMOS: I just have a few comments. The concern that I have is, is this truly "fishing," or is it really hunting? That is a fundamental issue. And let me tell you, I am the first one to support fishing and/or hunting opportunities in this state.

To the extent that there is a true market and a true demand for this, I have a couple of thoughts. One would be that we identify areas that are of particular interest, and that lend themselves for this type of a fishing or hunting sport. We could make a site specific authority.

And I am kind of shifting over, kind of like the ATV problem that we have. We all recognize that we need to put ATVs somewhere in the state. I think we have a comparable issue here, that there is definitely a group of people that are sensitive to this, and we need to accommodate them.

But in the back of my mind, I am very hesitant, because of the philosophy. This is not really fishing. And the catch-and-release issue. So perhaps a compromise might be to have some site specific. Either we exempt catfish as a game fish in a particular site, or we make an exception, if in fact we tend to support that.

My gut feeling, and I am a gut feeling person to a great extent, is that this is not really fishing. And it could become a resource issue. So before we would dive off and support this, I would — perhaps we could do an experimental program where we could see if it becomes a resource issue.

Because if it is not — the resource is a big factor. And we don't have the history within our state as to whether it will have an impact on the resource. But by the same token, I don't want to deprive those that truly believe this to be a sport and another fishing opportunity, another opportunity out there in the outdoors.

So we need to be very careful. I definitely would never want this to extend over into the bass and the game fish area. So that is the big struggle in my own mind regarding this.

COMMISSIONER FITZSIMONS: It is a tough one, because you know, gigging isn't fishing either, then. That is bearing. So, yes. These are really tough philosophical issues, here.

Because when you cross that line as John points out, from rod and reel to lethal, where do you stop? But from a resource standpoint, we get back to the fact that we still allow takes, we still have bag limits. People can still take fish. And they are responsible for having the right length and the right number.

And you know, it is a tough one. And I know Phil, you have got something to add. Well, let's go to Mark here.

COMMISSIONER BIVINS: Do we have any harvest data on this method?

MR. DUROCHER: No. Well, let me just say, first of all, the Commission needs to understand that we don't have any issues with bowfishing. I mean, when the carp people tried to prohibit bowfishing on Town Lake here in Austin, we testified in favor of the bowfishermen.

The bowfisherman, it is not a recreational — it is not an increase in a recreational opportunity. Right now, the whole state is open to them. They can bowfish anywhere they want. And if you look on their web sites, they harvest lots of fish, non-game fish. So what we are talking about here is increased harvest opportunity.

Our big concern is the message that we are giving to the catfish fishermen. We are basically devaluing that animal to them. It is very important to them. We have about anywhere in this state from 200,000-300,000 catfish fishermen. And we think that is growing. They are becoming more conservation minded.

And perhaps the message we are giving them is, is that catfish are not important. You know, it doesn't matter if people kill them. And that is what has us concerned. That is the change in the philosophy. We try to make — we try to increase value of these animals, recreational value. And I am afraid we would be devaluing with this move.

COMMISSIONER RAMOS: Mark, did you have something?

COMMISSIONER BIVINS: I got it. They didn't have the harvest data, is what I was curious about. And I don't know if there was other states that keep tabs on that. But the opportunity issues, wanting to provide, for instance, if someone comes to Texas and is not able to bowfish, will he then go to another state to do it. And do we lose those dollars in the process.

COMMISSIONER RAMOS: Do we know, Larry, whether this is, excuse me Phil, whether this is regional sport? In other words, is there like a high concentration in this part of the state or that part, or is it fairly widespread, as far as you know —

MR. DUROCHER: As far as I know, it is fairly widespread. You know, they are going to want to be in water where they can see fish. I imagine it is much more effective in the western part of the state, where the water is a lot clearer. If you get into real turbid water, it could be difficult to see them. But I really don't know.

There is — we just don't have a lot of information on what they are doing. The information that we got, we looked at the web sites. And it is not unusual for these people to take 300 and 400 fish in a day.

COMMISSIONER FITZSIMONS: Carp and gar? 300 and 400?

COMMISSIONER HOLT: Do we have any idea of what they are doing with 300 or 400 fish? I mean, they are non-game fish. Is it strictly a hunt?

MR. DUROCHER: Right.

COMMISSIONER HOLT: A harvest.

COMMISSIONER PARKER: I'll tell you what they do with them over there in East Texas on our lakes. They drag them up there on the shore, and leave them. They really smell good, too.

COMMISSIONER FITZSIMONS: Phil.

COMMISSIONER MONTGOMERY: We are talking about a specific relation with a specific limit, and I assume a wasting of game would apply here. So I think we need to focus on the issue on the table, and not on the inflammatory —

COMMISSIONER HOLT: I understand the patterns of this has — how this group has operated before.

COMMISSIONER MONTGOMERY: I would like to hear John's questions, because I have also got a couple of law enforcement questions, and I would like to respond to a number of these all at once, rather than take them piecemeal.

COMMISSIONER FITZSIMONS: Yes. The law enforcement, we need to get to. But keep this in mind, because I see both sides of this. If we start saying one means of take is or sporting is superior to another, I am a fly fisherman. And I have got a lot of friends who are really getting into fly fishing for carp, okay. So now we are moving towards the carp.

They are bowfishing the carp, and we are going to say, you have got to quit bowfishing the carp because we are going to make it a game fish and start catching them with a fly rod. You see? You start getting into this competition of I guess you are saying, yes. My way is superior to your way, which — my fishermen have been accused of that before.

COMMISSIONER PARKER: But it is not the action, Joseph, it is the resource.

COMMISSIONER FITZSIMONS: Well, let's talk about the resource issue.

COMMISSIONER PARKER: And with regards to law enforcement.

COMMISSIONER FITZSIMONS: Okay. Well, Pete. Are you going to —

COMMISSIONER MONTGOMERY: Can we take the resource issue, since it got raised? My understanding, Phil and Ken, is that nobody has made the argument that there is a biological basis for saying that we have got to protect the species or protect the populations, that the bowfishing is a de minimis issue that is a philosophical debate, but not a resource issue. And there is a law enforcement issue, depending on how you manage law enforcement.

MR. DUROCHER: That is absolutely right. And you know, when we talk about increasing value. For instance, you don't have to have trophy-sized large-mouth bass to protect the bass population. But we are heading that direction, because of the value of these large fish.

A 14-inch minimum basically protects bass populations. Not that you have a lot of small fish, but you don't have to worry about the bass going away. So you are right in terms of a resource issue. But it is the value issue that we are — so it is philosophical. That is basically what it is.

COMMISSIONER FITZSIMONS: Okay. But it is a resource issue, assuming you have practical enforcement.

MR. DUROCHER: Right.

COMMISSIONER FITZSIMONS: In other words, it is not a resource issue, so long as you have —

MR. DUROCHER: It is not a resource issue at this time, because we don't know how extensive it is, or what it will grow to. It could be — I can't say that it will never be a resource issue. It could be a resource issue at one point in time. I doubt it very seriously, but it could be, and we'll have to address that when that happens.

MR. KURZAWSKI: It will probably have to make most of the impact on maybe reducing some localized option populations of big catfish if there was a spot where they could harvest those said concerns with noodling other methods like that, whether you are targeting large flatheads or blues.

COMMISSIONER FITZSIMONS: Is noodling on the agenda today?

MR. KURZAWSKI: No.

COMMISSIONER FITZSIMONS: I have got to leave something for future —

MR. DUROCHER: Even noodling, and graveling, the option there is to release those fish if they want it. That is one of the differences. It is not lethal. You know, I agreed with Mr. Holt last week when he said, when you put them in the ice chest, it really doesn't make any difference at that point.

COMMISSIONER HOLT: That is right.

MR. DUROCHER: But we are trying to convince people that it may be to your advantage and it may be a greater value to the State of Texas not to put them in that ice chest. And that is what we do with bass. That is what we do with redfish. And that is where we feel that the catfish are moving and you know, we want to promote that.

COMMISSIONER HOLT: That is right.

COMMISSIONER FITZSIMONS: Donato.

COMMISSIONER RAMOS: One more questions. Phil, is there any data that we have that would indicate that catfish as a whole, that could become a resource issue or is it a resource issue today? Just forget bowfishing. Just that resource.

MR. DUROCHER: It will be localized. There are some, we have some issues with catfish resources, in some places in East Texas in the Clear Lake. And we think it is primarily due to predation from large-mouth bass.

I mean, we have some areas where we have trouble maintaining real good populations of catfish. But you know, in small city lakes. I mean, look, we stock probably a million, a million and a half catfish every year.

But it is primarily in urban areas where we want to promote fishing. Overall, no. I would say the catfish populations are in pretty good shape.

COMMISSIONER RAMOS: Do we have the reverse, and that is, lakes that might have an excess or an overpopulation of catfish to where we could make an exception and have a dual purpose. You would create an opportunity for that particular sport, and then take care of a problem.

I am trying to see how we can — I don't want to support it and then we end up with a resource issue and then we reverse everything as compared to knowing that there is certain places where there is an overabundance. And maybe that would be a way of harvesting the overabundance.

MR. DUROCHER: We could certainly look at that. If that is the way the Commission wanted to go, I am sure we would find some places. I can't just name them off the top of my head.

COMMISSIONER FITZSIMONS: Are the bowfisherman, and I think you answered this, they are not really concentrated in one part of the state, or where they are.

MR. DUROCHER: We have no way of knowing. But I have no indication that they are. I mean, I am sure there are more of them around the major metropolitan areas, just like there are people.

COMMISSIONER FITZSIMONS: This is a tough one. Don't anybody say that this Commission dodges the tough ones. Phil, I think you —

COMMISSIONER MONTGOMERY: I'd like to let John finish, since we have different points of view, and bring Law Enforcement up. I have a law enforcement question I would like to respond to variety since I have been studying up on it.

COMMISSIONER FITZSIMONS: John?

COMMISSIONER PARKER: Well, my next point was going to be the law enforcement issue. And you know, this is what I have been told this and it is a good scenario. It is 1:00 in the morning on Saturday morning, and we have a couple of game wardens out patrolling the lake. They are looking for night deer hunters and whatever else.

They see some lights going off over across the lake. And so they head over there. But when they get there, the first thing that they do, they see that there is some bowfishermen there. They say, can we see your fishing license, and they have got — everything is order with their licenses.

And they look around with the lights that are still operating, and here is three flatheads, measuring 14 inches over here. And a couple of blues over here on the other side. And they are two or three inches shorter of the limit.

Now then, their first question is, did you guys shoot these fish? No. They were here when we pulled up here. The only reason we came here is we saw another light, and then he moved on down the lake, down the shoreline, and that is the reason we came over here. But we didn't shoot them.

Well, the game warden thinks that probably they are lying. And so they write them up. Now then, I would like to hear from Pete as to what good a chance that he has got in a JP court at making good on that outreach.

MR. FLORES: Mr. Chairman, Commissioners, I am Peter Flores, Director of Law Enforcement. In all cases that our Game Wardens have to work, we have to have the burden of proof beyond a reasonable doubt. So we would have to prove that they did that.

And they would pretty much come down, just like a lot of other similar type of activities, and witnessing them doing that. Actually, taking that undersized fish, and then of course, they are in the act of returning it to the water, which would also violate a statute of leaving fish to die.

If you can't — currently the state statute requires that any fish taken from public waters must be retained only for the use of consumption or bait. And to just leave them to die is against the law.

COMMISSIONER FITZSIMONS: That is already the case, whether it is bowfishing or line.

MR. FLORES: That is statute for all fish currently.

COMMISSIONER PARKER: But when you stick them, they are dead.

MR. FLORES: That is my experience. And I have encountered bowfishermen throughout all of the state.

COMMISSIONER MONTGOMERY: Pete, if you took John's story and substituted the words "deer" or "quail" for catfish, would you have the same problem?

MR. FLORES: We still have the burden of proof for everything.

COMMISSIONER MONTGOMERY: Okay.

COMMISSIONER PARKER: The only difference is that the quail are generally either in a truck or in a bag and that would be the big difference.

COMMISSIONER MONTGOMERY: Let me ask the question differently. Is there anything particular to bowfishing that creates a different problem in this regard with respect to the burden of proof issue that other sports don't. That is not the case there.

MR. FLORES: Specifically to the burden of proof? No, sir. Other factors, as Chairman Fitzsimons pointed out, this is like shooting a rifle. You had better make sure that you know that that is within the slot before you kill it.

COMMISSIONER MONTGOMERY: Let me ask you another question, Pete. We have passed regulations allowing setting a minimum size limit spread on deer antlers in 20 counties, if I remember correctly, of 13 inches.

MR. FLORES: Yes, sir.

COMMISSIONER MONTGOMERY: Do you remember about how many violations of that over the last year there have been, out of how many possible number of hunters?

MR. FLORES: It wasn't very significantly high. It was good compliance. A good compliance rate.

COMMISSIONER MONTGOMERY: And I may have the wrong number. I believe that David Sinclair told me there were 13, 13 or 15 violations in those counties entire deer season. So it was a minimal number.

MR. FLORES: Yes. A very high compliance rate. Yes, sir.

COMMISSIONER MONTGOMERY: And how did we handle that one, in terms of enforcement?

MR. FLORES: Primarily, like we do any other new law, we educate. We take the time to educate the public. And then we enforce the second year very vigorously.

COMMISSIONER MONTGOMERY: And under the published rule, we are mirroring — the bowfisherman would mirror the fishing, if the Commission chose to reduce the number of fish allowed. I understand we have the prerogative of doing that.

MR. FLORES: It still doesn't take away from existing statute which requires that they — if you kill them, they need to be retained. You can't just leave them to die without retaining them for bait, or consumption.

COMMISSIONER MONTGOMERY: But that is true of any fisherman.

MR. FLORES: It should be, yes.

COMMISSIONER MONTGOMERY: The same is going to apply to both of them. I guess where I was going with the question reducing the number, if the Commission were concerned about the size limit enforcement, or the minimum size enforcement, we could reduce the number by one, so you could have one below the limit.

So that if somebody shoots one below the limit, they have got to stop, or they really have got to be right on the next one. Would that be an easier way to enforce and avoid minor infractions. I guess to be — we don't want to be passing regulations that create a lot of minor infractions, rather than have law enforcement focus on bigger issues.

MR. FLORES: Certainly, the issue here is they don't have the option currently to have catch-and-release, you have the option to have a live animal. You measure it and see if it is in the slot, and then return it to the water or retain it if you so desire.

Under current regulations certainly that one, allowing them one again would probably alleviate that somewhat. But you still have — they still have a lot of responsibility once they let that arrow go.

COMMISSIONER MONTGOMERY: I completely understand, but I guess, if we wanted to create a regulation that allowed for honest mistakes, that would allow for one honest mistake, and then you had better be right, or stop. As opposed to regulation that doesn't allow for an honest mistake at all.

MR. FLORES: That certainly would, it would allow it for that particular group, yes. As opposed to the others.

COMMISSIONER FITZSIMONS: As a practical matter right now, you are checking these guys anyway, right? Because you are making sure that they are not taking game fish?

MR. FLORES: Correct.

COMMISSIONER FITZSIMONS: That they are only taking non-game.

MR. FLORES: Correct.

COMMISSIONER FITZSIMONS: So this wasn't required. Presumably, you are checking these guys now, right?

MR. FLORES: We do check bowfishermen, like when I worked San Antonio area, tilapia is a big thing in the lakes for bowfishermen there.

COMMISSIONER FITZSIMONS: Oh, it is?

MR. FLORES: And of course, the difference is, is that in those other target species, there is no minimum, there is no slot.

COMMISSIONER FITZSIMONS: Are you making any cases against any bowfishermen for taking game species?

MR. FLORES: That, I would have to research for you. I am sure that there is probably a few out there. It is generally classified as taking game fish by illegal means and method —

COMMISSIONER FITZSIMONS: Okay.

MR. FLORES: — is the violation, because currently, that is an illegal means to take a game fish is by bow.

COMMISSIONER FITZSIMONS: Is there a safety issue here? That you know, you would have people bowfishing next to fishing piers where if everybody else is fishing with a line, and pole —

MR. FLORES: Certainly. You know, working an urban lake like I have there in the San Antonio area, it is a lot of a matter of common sense and ethics. You know. They are shooting into the water primarily. And a lot of them — and I have not seen anything bounce off the water.

COMMISSIONER FITZSIMONS: Well, we can restrict it around piers or public fishing piers or something like that. That is within our —

MR. FLORES: I am not sure if public safety is part of the realm of this Commission, sir.

COMMISSIONER FITZSIMONS: Is there a problem now, as they bow hunt for non-game? Conflicts with other fishermen, is what I am saying, on the lake, on the water?

MR. DUROCHER: Mr. Chairman, not that we know of at this time. But to address one of Mr. Montgomery's comments about creating an exception for a mistake, you know, we get that request a lot, from people who say, you know, I deep-hooked a fish, and it was too small. Why can't I keep it?

And you know, if we do that, you would be surprised how many deep-hooked fish we would find in people's ice chests. So that is a slippery slope going down that area, to say well, it is okay to have one that is not in the size. That could be an issue.

COMMISSIONER FITZSIMONS: Good point.

MR. FLORES: You find a lot of that. But it opens up a lot of other things concerning bowfishing of fish. I mean, it is currently against the law to just kill and leave them on the bank. It is. By statute.

MR. KURZAWSKI: But as far as conflicts, a lot of the bowfishing takes place at night. So a lot of those conflicts, people fishing from shore are less —

COMMISSIONER FITZSIMONS: So there is not really an inherent conflict then in form of water.

MR. FLORES: No. I have not experienced that, sir.

COMMISSIONER FITZSIMONS: Okay. Phil, anything?

COMMISSIONER MONTGOMERY: Yes. If I can address a series of them, because I didn't want to do it piecemeal. Ken and Phil, I wanted to thank you all. You all have been very generous. I know you don't agree with the position I have got, but I appreciate your professionalism and the data provided, and the civility of the discussion. It is much appreciated.

And I certainly learned a lot about the history of how we have gotten to where we are. I do see our position, and I will come back and summarize with that, very different.

I think we are at a juncture where the challenge for this Department is how to get people out of the city. We have moved way beyond harvest culture that Commissioner Parker is referring to, and that our original, the ethic you all describe was developed to modify in which people really lived off of game and lived off of fish in a far more prevalent way than they do today, and we have come a long way.

Everything I have heard from everyone is that this is not a resource issue in the sense of managing a population. Not unlike what we just heard with flounder; that there is not a problem with catfish populations. There is plenty of them. That bowfishing is a de minimis impact if it were allowed, there is just not many bowfishermen out there.

So I see it as a question of, do we regulate philosophy of competing groups, when there is in fact, there does not appear to be a user conflict. I personally would draw a huge distinction, I know, on this argument of is this opening the door to other things with bass or redfish or other species.

You are going to have very clear directives or conflicts. You have massive investment in rehabilitation of those species. You do have very clear demonstrable commercial values. I think there is a number of extenuating factors that really differentiate other species and other movement.

I think you have seen the Commission be very firm on a lot of issues. And I don't think that because we say yes to one group, it means we are automatically going to say yes to every group who walks in and asks for anything. So I tend to think that is not an argument that really weighs in on this issue particularly, relative to the others.

With respect to the devaluation issue, that presumes that, one, the users have sort of a sense of exclusivity in the way they value it, and that there is an economic value because of that. Again, we are talking about a very small group. I think we shoot birds. We hunt animals. We do kill them. I think, in fact, it increases the value, by increasing the usage.

So I would make the argument that they are probably at the margin, as a very marginal effect, you could argue that it increases the value by increasing the number of users and the activity, and therefore, the overall value. I find it hard to believe that a catfish fisherman is not going to go fish for catfish because somebody somewhere in the state is shooting them with a bow. I just find that a hard argument to buy with credibility.

And I also find it hard to believe that because we allow bowfishing, it will somehow cause people not to fish, or undermine the catch-and-release ethic. I am primarily a catch-and-release fisherman too.

I understand the ethic. I agree with it, I think, where it affects resources are areas where fish are quite scarce. And where particular species are scarce. And it is a very important management tool there. I again, don't hear that is the issue with catfish.

So I find to me that argument doesn't outweigh the others. I did serve on the Committee of five that developed the Land and Water Plan and the language and the theme in the Land and Water Plan is that we took on as our task and our mission in that plan, which is the operating plan for the Department to expand.

And the word "expand," I went back and looked at the Plan. It was used a lot. Hunting and fishing opportunities. We did not say we were there to restrict opportunities or we were there to impose philosophy through regulations.

We are certainly free to advocate philosophical differences. But I think advocating philosophical difference, where there are not user conflicts or resource issues is to me, a step beyond what we ought to do as a Department. Our time and energy ought to go into managing the resource and conserving the resource.

But not into managing user groups because we don't like what they do, if there is not an ethical problem or a resource issue. If there is an ethical problem like internet hunting, clearly, we should weigh in there. That one goes way beyond anything I think any of us would support.

But I don't think — in fact, I bowfished as a kid. It is not easy. It is hard. Bow hunting is hard. We ought to encourage sportsmen who want to get out there and try difficult sports where they are using a resource and getting outdoors and getting out of the cities. That is what I think we are trying to do.

So to me, without making an issue, it is a fairly small issue. A fairly small group. But I think that we are here to expand opportunity. We are here to listen carefully to resource issues.

We are here to get people outdoors and get them out hunting and fishing and that is what this one boils down to being. I say that with all respect to you all. And I know that you feel strongly about it, and I respect that.

And I just view it as a different view of where this Department is, and where the State is, historically in terms of how we ought to look at using our resources and applying our regulatory authority. So that is why I have a different point of view, where it comes from.

And I want to say that will all respect to the historical trends and philosophy as has been the case here. Thanks. I appreciate all the work you all did and the material you have sent me.

I hear you about the slippery slope, Phil. But at the same time, I — on the enforcement issue, we have had minor infractions on the deer size. It wouldn't bother me at all in this to reduce the catch and allow one under, so that we don't create minor infractions or a lot of opportunities for minor infractions.

You may tell us not to do that, and that is fine too. But the one thought I had with regarding to dealing with the law enforcement issue.

MR. DUROCHER: Just for the record again, I am Phil Durocher, the Director of Inland Fisheries. The issue about the difference between hunting and the fishing is, we are fortunate on the fisheries side, because we have non-lethal, efficient methods for people to take, to enjoy the recreation. I would daresay if they had non-lethal, efficient methods on the wildlife side, we would probably be promoting them. But we don't have them now.

And so, you know, the bowfisherman, if he wants to take catfish, he can go catch catfish just like everybody else can, if he is interested in eating catfish. When he goes out at night, go set a trot line, catch a catfish and eat it.

COMMISSIONER MONTGOMERY: We do promote birdwatching. We do promote nature tourism. We do promote non-lethal means on wildlife. I don't think the two are necessarily incompatible. And even though we may promote catch-and-release, the law allows anglers to kill all those fish in those limits, and allows trot lines.

And I think what everyone told me all the way through this was that the numbers of those activities far dwarf what probable potential for bowfishing is. So again, if we are concerned about large fish conservation, really the place to first address it is across the board with angling.

The same with take and with catch. If we really think people are taking too many, the bulk of that is happening with traditional angling and trot lines. And they're allowed —

COMMISSIONER FITZSIMONS: It seems that the whole thing boils down to game, non-game. Nobody here is arguing that we ought to outlaw bowfishing right. But if bowfishing undermines the culture of catch-and-release, then maybe we should.

I mean, the whole line is all about game, non-game fish. We don't seem to have a problem if they take all the carp and gar they want. And then we move the line.

Do you see what I am saying? If it is bad, it is bad. I am struggling with this, because I am not comfortable moving bowfishing to bass and all that.

MR. DUROCHER: We surveyed. I think we have a list here of about 15 or 20 states. And I agree with Mr. Montgomery, some allow the take of bowfishing for catfish.

But of the states that list catfish as a game fish, only Arkansas and Louisiana allow the take with bow, by bowfishing. And none of these other states allow it except these two allow the take of any other game fish by bowfishing. So you know, when we classified the catfish as a game fish, that is when that decision was made to treat it as a game fish.

COMMISSIONER FITZSIMONS: That is what I am saying. It really boils down to where you draw the line on game fish, and as we learned today with tripletail, that line can move. But as my able Vice-Chairman often does, he has the solution.

COMMISSIONER RAMOS: Well, let me tell you Phil. I am a strong advocate of expanding opportunities. I am a fanatic for that. But in this particular case, I am in favor of doing it, but I think we ought to take a small step before we take the giant step.

My thinking is that perhaps we could have staff do a study to determine if there are lakes or reservoirs that have an overabundance of catfish, and that we make a site-specific exception for those sites to give them the opportunity in hopes that we are not going to impact the resource. I am afraid that if we do it statewide, and then we learn in a year or two that there has been a resource issue, then we are back to square one.

I would rather be conservative, take those areas where we know there is an overabundance of catfish, and let's try it. I really believe we need to create a niche for them. I am inclined to say that in those instances, rather than say that we are going to start allowing bowfishing with game fish, that we would, by definition, exclude the catfish in that reservoir as being a game fish.

In other words, site-specific. And again, this is just off the top of my head. But I struggle because I am very much in favor of the opportunity. Whether I necessarily would do that, I don't think is of any significance. But we need to be cautious in taking that step.

COMMISSIONER MONTGOMERY: If anyone had told me that catfish were anything other than prolific and abundant, I think it would be a different debate. But everything I hear is, catfish breed rapidly, their population is really controlled by habitat and not by fishing pressure, and certainly not by bowfishing pressure.

Because there is — nobody can give a number on bowfishing, but the association has got 150 people in it, or something like that. It is just not a big sport. We are not talking about something that is going to affect the population at all, by anybody's admission, except possibly for people who go out and are lawbreakers.

But you know, that is trot line fishermen, commercial fishermen. We have got Law Enforcement to deal with it. And that is not the issue on the table today with respect to this. These guys do like to fish in rivers as well as lakes.

This is a huge state, with an enormous amount of water. I think if we are going to deal with it, we let them go try it. If everybody in Dallas, Fort Worth, Austin, San Antonio goes out and buys bowfishing gear and starts bowfishing, we may have a population problem. My guess is, how long does it take for a catfish to grow to 14 inches?

MR. DUROCHER: It depends on the lake. Two, three years.

COMMISSIONER MONTGOMERY: I think the answer is, I am not the biologist, a professional, but you could deal with the population problem fairly quickly through limited restrictions to turn it the other way around. If you have a population problem in an area, you can then restrict that area.

But I have got to believe that angling and trot line fishing are the things that are going to affect population far in excess of any possible bowfishing use. I may be wrong. If I was wrong, then the argument would be —

COMMISSIONER FITZSIMONS: That is a really good point, though. If at the end of the day, there are a lot more catfish going to be killed on a trot line or a rod and reel than by a bow.

COMMISSIONER MONTGOMERY: Again, I raise the question, are we here to regulate when there is not an ethical or a resource issue? Or shouldn't we encourage people to go out and use the resources? That is what we said we would do in this plan.

COMMISSIONER RAMOS: The concern that I have Phil is, we don't know whether it is a resource issue, because we have never done it.

COMMISSIONER FITZSIMONS: We are doing it now.

COMMISSIONER RAMOS: Not as to catfish. No, we are not.

COMMISSIONER MONTGOMERY: If we use the —

COMMISSIONER RAMOS: And what I am saying is, let me tell you. I am really struggling with this issue. What I am saying is, we don't know whether it is an impact on catfish or not because historically, we haven't done it.

I would assume we don't have data from other states to see whether it has ever become an impact. To me, the most prudent and the most conservative way of handling it is, identify areas where there may be an overabundance. And I recognize that perhaps you can replace it a lot faster than the bass and so forth.

Catfish are very efficient converters with feed and so forth. But if we could identify reservoirs within the state whether it is an overabundance, then let's assume that it does have an impact, we can use that as a basis for saying guys, we thought there was not going to be an impact but it is. Or it can confirm that it is not an impact.

Then we can go to the next step. And it creates two things. It creates the opportunity, and you are still protecting the resource, and you are not putting it at risk. Plus three, you are developing data that we can rely upon in the future. That is what I am thinking.

COMMISSIONER FITZSIMONS: Why don't you just do it and Sunset it for three years.

COMMISSIONER RAMOS: Well, that is another —

COMMISSIONER FITZSIMONS: You can Sunset it in three years.

COMMISSIONER MONTGOMERY: One point I left out of what I said to respond to that. I think that would be the most conservative approach. I think it would be the least prudent, and here is the reason. The other set of data I asked for from Mary and from Phil was license sales. And it is very hard.

And the history of fishery, the last couple of years is like the Book of Job. I told Phil. We have had alga plagues and floods and hurricanes. It is very hard to tell. And that clearly has had an impact on license sales. But if you look as best as you can ferret them out from looking at the information, the overall trend on hunting and fishing sales is flat and declining with an aging demographic.

I think the least prudent thing to do is to make it more difficult to get out and hunt and fish when we don't have a resource issue. I think we need to be aggressively seeking people who want to go out and hunt and fish.

And I think the strategic challenge for this Department is, do we have a constituency in 20 years, or do we have a world full of TV environmentalists. That is what we are growing in the urban areas. We need to get people outdoors more and more and not less and less. And we should not be regulating when we don't have a resource issue, we don't have an ethical issue.

And we are giving opportunity. I think that should be the theme, and I think there is a lot of things in the Department we need to look at with that lens on, looking forward at an urbanizing growing state that is losing its touch with the outdoors.

COMMISSIONER FITZSIMONS: You make a good point. When you test it against the Land and Water Resource Conservation Plan, it tests. Okay. To me, it all boils down to this, which I share this uneasiness with a cultural shift that is along that borderline of game fish and non-game fish.

Another option, what Donato is saying is that you could do it for three years and Sunset it. And if you come back and say, my God, there are people just killing fish all over the place, and there is now a website and a tv show on bowfishing and it is out of hand, well, it sunsets.

COMMISSIONER MONTGOMERY: Don't we want TV shows on sporting and fishing. Don't we want activity. Isn't that what we want?

COMMISSIONER FITZSIMONS: Yes.

COMMISSIONER MONTGOMERY: I mean, that is what we are trying to do.

COMMISSIONER FITZSIMONS: If it is not a resource issue. But yes, I share that. There is not a good answer to where you draw the line, because we keep on moving the line on what is a game fish. We just did it.

We are about to do it with tripletail. I mean, you are adding one, but you will be taking it away from the lethal —

COMMISSIONER MONTGOMERY: I know we are not making the designation issue. But the purpose of that, in the case of tripletail was to handle the harvest of a very limited population.

COMMISSIONER FITZSIMONS: To control the harvest of an unknown resource.

COMMISSIONER MONTGOMERY: I wasn't here when catfish were designated. But why do we have that designation if it is in fact preventing usage. What are we doing? We are trying to encourage.

I keep arguing that we are trying to encourage usage. I will quit talking. I have made my opinions, and I am pretty sure everybody has got — it is a small case, but —

COMMISSIONER RAMOS: Do we have much data from the other states? I mean, I hate to look at other states, but you know, there is some benefit to the historical data that we have from other states. I mean, is it a non-issue. On enforcement, on the impact on the resource?

I mean, has that industry just grown tremendously, or I mean I just want a little more data. Since we have never done it, and we are diving off into a new arena, we should have the benefit of what has happened in other states. But I feel, believe me, I believe in more opportunities.

COMMISSIONER FITZSIMONS: Dan, do you have anything? You are a bow hunter and a fisherman.

COMMISSIONER FRIEDKIN: No.

COMMISSIONER FITZSIMONS: John?

COMMISSIONER PARKER: Bow hunter all right. I just got back from a multistate Commissioners meeting. We didn't have time to put together a presentation on it.

One thing that I heard there from Arkansas and Missouri, if you don't have it, don't start it. They would love to get rid of their bowfishing for their game fish.

COMMISSIONER FITZSIMONS: Now they just have it for catfish.

COMMISSIONER PARKER: They have it for catfish.

COMMISSIONER FITZSIMONS: Not all game fish.

COMMISSIONER PARKER: Two states have it for catfish.

COMMISSIONER FITZSIMONS: Right.

COMMISSIONER PARKER: Of course, in Louisiana, you know, if it moves, stick it.

COMMISSIONER FITZSIMONS: Well, I will tell you what. Anybody who thinks that all we do is talk about deer, and that we don't debate these issues in an open and transparent way wasn't here today. Do you have any — does anybody have any ideas other than what we have published or referred to the agenda for tomorrow on this issue, either as is.

COMMISSIONER MONTGOMERY: My other one would be the size issue. That is the only new thing I have thought of, other than what was published, if everybody is concerned about that. And you can also apply that to the large fish if you are concerned about that.

But then why don't you restrict the large fish for fishing where the most of them are taken. So I am okay with it as it stands, but I wanted to at least offer an alternative.

COMMISSIONER FITZSIMONS: Does anybody have anything they want to add or delete? Phil? I am going to give you the last word.

MR. DUROCHER: We'll hear some testimony tomorrow, I am sure.

COMMISSIONER FITZSIMONS: Okay. This is a fascinating one. It really is. There is very interesting arguments on both sides. Thanks. Is that it for freshwater?

MR. KURZAWSKI: That is it. I think that is enough.

COMMISSIONER FITZSIMONS: You think that is enough? We could go another round.

Next up, Mike Berger. You don't have any time left, Mike. Would you rush us through the deer deal real quick?

MR. BERGER: I will try.

MR. COOK: Commissioners, we have a request from our reporter over here to speak up a little more so that the reporter picks up the information and so that the audience can also hear.

MR. VON WOLSKE: We missed so much of that last conversation, especially from this man here. You know, we want to hear that.

MR. BERGER: Good morning, Mr. Chairman and Commissioners. I am Mike Berger, Director of the Wildlife Division. I am here today to talk about the wildlife portion of the changes to the statewide, affecting white-tail deer, upland game birds, and alligators. I will be brief.

COMMISSIONER HOLT: Wide ranging.

MR. BERGER: In Upton County, white-tail deer regulation in Upton County currently has a split regulation. The portion that shows in green is a three-deer, one-buck regulation. The brown portion has four-deer, two-buck regulation.

The population in Upton County is growing and expanding. Habitat is improving. And the proposal is to simplify the regulations and expand hunter opportunity by making the entire county four deer, two bucks with no antlerless permit required.

There was only one public comment on this proposal, and it was in favor of the proposal. White-tail buck deer antler restriction proposals, as you know, and have heard several times, we have had a lot of success with this antler restriction proposal. Last year, we expanded it from the original six into 15 additional counties, as seen in the hatched areas on the map.

This year, we would propose to add another 40 counties or portions thereof to the regulation. Those are the green counties or portions of the counties that are unhatched. As you will recall, the regulation allows a two buck limit, one of which must have at least one unbranched antler. The other may have an unbranched antler, or an inside spread of 13 inches or greater.

The comments on this proposal have been 181 in support and 63 opposed. Some of the opposition contended that the deer would be left to rot in the fields, would discourage youth participation, and that the regulations would promote basket racks.

But it is still about a three-to-one support for this regulation. Moving on to the Managed Lands Upland Game Bird Program, the birds depicted here are the ones that would be included in this new Managed Land Game Birds Program. Currently, the season lengths and daily bag limits for these birds vary by species and by county.

The counties in red on each map are the ones where the species may legally be hunted. Under the proposed program, landowners would have the opportunity to manage for one or more of these upland game bird species. The Managed Land Game Bird Program has a number of incentive portions, and they are grouped into non-regulatory and regulatory portions.

In the non-regulatory incentives are wild bird translocations. This would work under our existing Triple-T regulation and would allow an area which would develop, for example, bobwhite quail habitat would have no quail, but would have good habitat.

If after a few years, quail did not move into that area, we would allow the Triple-T'ing of quail in from some area nearby to that location to establish quail in that area. Habitat management equipment is an idea that we would work with NGOs or implement dealers to have equipment that these new smaller landowners may not have available to them.

And this equipment could be made available to them at a cost compatible with their ability. This would be seed drills or aerators or roller-choppers or things that they might not have available for their small acreage, but would be very helpful to them in improving their habitat for upland game birds.

Developing game bird cooperatives is another feature that is proposed to assist as land in Texas becomes fragmented and we have smaller land holdings, that it becomes advisable for animals like upland game birds that can benefit from larger areas under common management, that we would encourage the use of game bird cooperatives, berm cooperatives, or whatever you would like to call them. But where a number of landowners come together with common management over a larger area that would be beneficial to the game birds in the area.

Leveraging landowner dollars for habitat work, we envision as primarily as assisting landowners in reaping the benefits of the Farm Bill, particularly through EQIP and WHIP. And people who were landowners who would enroll in our Managed Land Upland Game Bird Program, we would work with NRCS and FSA to have them score extra points on their applications, so they would score better than people who were not in the program and who were not managing their land for upland game birds, so that they would be more likely to receive those habitat benefits.

And the game bird stewardship recognition is that people like to be recognized for the things that they do. And so we would develop a criteria for habitat enhancement and habitat management on people enrolled in this program. And when they achieved a certain level of that habitat management, they would receive some kind of recognition.

In the regulatory incentives, the harvest and regulatory incentives, we had talked about a property season limit, or a quota. And we would also allow for the modification of season length. In the regulatory proposal, a portion of that property would be required to have a wildlife management plan.

They would have to implement habitat management practices. There would be a pre- and post-season population survey that would be used to develop a harvest quota for that property. And enrollment would be for at least three years.

The regulatory portion of this Managed Land Game Bird Incentive Program has been in the works for some time. There was preliminary review of the quota concept late last summer. The regulatory proposal was formally made to you in January as part of the statewide proposal. As you will recall, we have had a number of people concerned about extended seasons and no daily bag limit under the property quota approach, even though this is a voluntary incentive package with significant requirements to be eligible for quota consideration.

The regulatory proposal has been out for public comment, and has been reviewed twice in March by the combined Game Bird Advisory Committee and the Quail Council. Both committees are very supportive of the non-regulatory parts of this incentive package, but they do not favor implementing the regulatory portion. So staff feels that the regulatory portion should be withdrawn from consideration at this time.

There was support in the committees for conducting a three- to five-year pilot study to investigate the value and the workability of the property quota concept as a management tool for game birds before further consideration of that concept.

And we intend to go forward at this time with implementation of the non-regulatory incentives as the Managed Land Upland Game Bird Program. Comments so far, other than from the committees, which I have already discussed are two in support and 36 opposed.

COMMISSIONER FITZSIMONS: That is for the regulatory?

MR. BERGER: That is for the regulatory portion, which was the only portion that was really available for public comment, because that is the only portion the Commission needs to act on. Anyway, questions?

COMMISSIONER FITZSIMONS: Yes. I spoke to and most of you probably saw my letter to the combined committees, to Ernie and — well, I didn't. I couldn't blast e-mail. I thought you had distributed it to the other Commissioners.

MR. BERGER: I distributed the other portion that you asked.

COMMISSIONER FITZSIMONS: Oh, okay. Well, make sure John gets it. I guess everybody else got one. But get one to John. Anyway, what I said in that letter was, we are committed to habitat programs. We are committed to multispecies management.

And the concern I heard from people like Dale Rollins and some other people on one or the other committee was that, and I am paraphrasing, but I think I am getting this right. That the quota idea, which was first brought forward by the technical committee of the Quail Council a year ago — Lenny Brennan. Right?

MR. BERGER: Correct.

COMMISSIONER FITZSIMONS: When he made his presentation, Caesar Kleburg may not be. It is not a tool that we know enough about to justify the quid pro quo of regulatory changes.

MR. BERGER: It was a concept that everyone in that joint committee meeting agreed to and thought it was something that would work. And I think they were waiting for a little more detail. And so far, it hasn't been able to be tested.

COMMISSIONER FITZSIMONS: Right. What I said in my letter was, that if people are concerned about the quota tool as a management tool being used in lieu of daily bag limits, then use both in the beginning. I mean, if you are worried, go with belt and suspenders.

Keep the daily bag limits where it is, and use the quota in the programs or the properties that participate in the program. Obviously, without any regulatory change, you are going to have some pretty committed people that get in there but that is what we want. So what you are telling me is, we can instruct the staff to move forward with a program, rather than a permit.

MR. BERGER: Correct.

COMMISSIONER FITZSIMONS: To enroll properties.

MR. BERGER: Correct.

COMMISSIONER FITZSIMONS: They will get no change in season or bag limit.

MR. BERGER: Correct.

COMMISSIONER FITZSIMONS: But we will be testing the quota concept as a tool. Gathering that data. But all with the objective of coming back with a workable plan.

MR. BERGER: That is correct.

COMMISSIONER FITZSIMONS: Okay. I mean, I don't want just — Dan, do you have anything?

COMMISSIONER FRIEDKIN: No.

COMMISSIONER HOLT: We want to focus on habitat. I mean, that is what you are trying to do.

MR. BERGER: Right. This was always a habitat program.

COMMISSIONER HOLT: Yes. I think that is the key.

MR. BERGER: The focus was to be on habitat. But we would want to look at various-sized properties in the Rolling Plains for example, and South Texas. And work with this property concept to refine it and have it ready to work with.

COMMISSIONER FITZSIMONS: Dan?

COMMISSIONER FRIEDKIN: Yes. If staff could get to us sort of a plan methodology and kind of the deliverables, what we expect out of this three-year period. What we are trying to learn, the data that we are going to compile, and what our goal is through this process, that would be helpful.

MR. BERGER: Yes. We are working on that as we speak.

COMMISSIONER FITZSIMONS: Donato?

COMMISSIONER RAMOS: Yes. It seems to me, Mike, that although we call it a program, isn't it intrinsic within the program that we are going to have some regulations within it? And this is what I am thinking.

For example, if you came to my place, and I didn't have the proper habitat, and I didn't have the quail, it would seem to me that you would do me a favor and part of the program would include saying, you know, you shouldn't shoot any quail this year, or you should restrict your quota. So we are almost assuming that everyone is going to get more access to quail.

But to me, the purpose of this program is not that. To me, the purpose is saying, look. I don't know what I am doing. Come to my place. You look at it, and you say, you know what? You have got a horrible habitat. And you don't have any quail, so you shouldn't shoot any quail this year.

So it seems to me that unless we have some intrinsic power in the program to restrict the harvest, that really, we are not getting anywhere, because we are all assuming that you are going to get more quail. And I am not as optimistic.

I mean, when you have the severe drought that we have in South Texas this year, there is a lot of factors that impact this. And it seems to me that the basic assumption here is, we are going to expand it. But we need to have the inherent power to restrict the harvest.

MR. BERGER: And that is the way it has worked with the deer program. I mean, the Managed Land Deer Program, there is a property quota in that deer program. And that has not always been an expansion of those numbers. There has been a restriction of those numbers.

And you are exactly right. When you go to a property and evaluate it, if it doesn't have the habitat to support that, it is not going to have a larger quota. And in very dry years, when reproduction has not been good, that quota is going to be lower than the year before, and restricted. Yes.

COMMISSIONER RAMOS: So theoretically, a landowner could end up with regulations or a program where he cannot harvest as much as he theoretically could under existing regulations. But in order to enforce that, don't we need to have that regulatory power within it?

COMMISSIONER FITZSIMONS: Well, you do have power. You don't need a regulatory change to do that, as I understand it, because it is a voluntary program. So people that get in this program for the first three years voluntarily take the quota.

You are right. But that doesn't require — we are not going to force anybody into this program. So it doesn't require regulatory.

COMMISSIONER RAMOS: So to the extent that they don't follow their program, they just lose, basically.

MR. BERGER: And they hurt themselves.

COMMISSIONER RAMOS: And they hurt themselves. Okay. But I just —

MR. BERGER: Because if the people who want to improve for quail are going to listen to us. They are going to undertake the habitat enhancement or creation recommendations seriously, and they are going to —

COMMISSIONER RAMOS: Yes. And the only reason, Mike — the only reason I say that, Mike is that everything that I am reading implies that you are going to shoot more quail and longer season. And I am not convinced of that.

In fact, I would think it is probably the opposite. If you are really trying to improve the habitat. And we need to be more sensitive to that approach, especially in their current conditions.

MR. BERGER: The real goal of this program is to bring people to us, so that they will understand their land better, what it can produce, how we can make it better, and that they will get involved personally and committed to good land management and good habitat management on their property. At that point, the harvest is probably secondary to their involvement with their land.

COMMISSIONER FITZSIMONS: And I'll tell you what, Lenny Brennan makes a point that is getting missed here, and I heard him described by Dale Rollins when he and I talked, the way I described it was, I have got a two-bird covey limit on my land.

Okay. Two birds, cut. That is it. Well, that doesn't mean anything until you know how many times you are going to take two birds from a covey. That is what the whole total quota concept is, is that the daily bag limit does not protect the resource, because people, necessarily, because you can take 15 a day, as many days as you want, as many people.

As I understood Brennan's point was total harvest is also important. But as I heard Dale saying, yes, but we don't know how to do that yet.

MR. BERGER: Right.

COMMISSIONER FITZSIMONS: Which is a legitimate point in why I think where we are is to study it for three years. But I mean, I just think it is hard to argue, if it is two birds per covey, that is fine. The question is, times how many?

COMMISSIONER RAMOS: And the only point I was trying to make, Mike, is that there seems to be a misunderstanding out there in the real world that by qualifying for this, you necessarily would get more animals. And I think we need to communicate that this program is really designed to maximize the habitat and have the appropriate harvest, which may very likely result in a smaller harvest.

MR. BERGER: Smaller harvest.

COMMISSIONER RAMOS: Exactly. I think there is a misunderstanding.

COMMISSIONER FITZSIMONS: We found that with Managed Lands Deer Permit on mule deer, some people went what? That is all? And yes. That is right. That is all your habitat will take.

Now one of the challenges I see here, Mike. And tell me how this is going to work. Presumably, we will use our WMAs as part of the program?

MR. BERGER: We want to look at this concept on various size properties. We can work with using this estimated technique on WMAs as well as well as on our properties. We are not within our current limit structure on WMAs.

We don't — you know they are open to all comers. Those that are allowed quail, our best ones anyway, are open to all comers. So we are not restricting the harvest in that sense. And in that case, in this year, we got pretty close to what we thought the harvest recommendation was on one of the areas.

COMMISSIONER FITZSIMONS: All right. So you already have total harvest, and the word "quota" has been used. What it really is, is a total harvest restriction. Okay. So the total harvest restriction that already is in place on the WMAs —

MR. BERGER: Well, we are not using it as a restriction, because as you say —

COMMISSIONER FITZSIMONS: Because of the recommendations?

MR. BERGER: We are still looking at it. And I just as a point of interest point out that this year, when we looked at the pre-harvest population of birds, and what we believe that quota would have been, we did not approach it on several areas, but on the Matador, we took — it was a really a good year on the Matador this year.

COMMISSIONER FITZSIMONS: Okay. Now we are focusing here on quail, which is obviously the most problematic, because it seems to me that our traditional concept of managed lands has always been, you have a restrictive season and a restrictive bag, and then the opportunity for flexibility and return for the habitat commitment is there. We have already got a liberal bag and a long season for quail.

MR. BERGER: Right.

COMMISSIONER FITZSIMONS: So let's talk about some of those that aren't like pheasant. Is there an opportunity there? I mean, do we understand the census process better there, than we do with quail?

MR. BERGER: We may understand it a little better. We need refinement in the census on all of these birds, if we are going to do a property quota, and a property recommendation. But pheasants are one of those birds that we could stand more daily bag limit within reason on those birds.

COMMISSIONER FITZSIMONS: And on turkey, you know, the funny thing is, the first person who came up with this whole idea and asked me about why don't I have a managed lands permit for turkey was a rancher on the Devil's River. And her point was, not bag limit, but she said, my birds are gobbling in January and February and by the time your season gets along in April, they are not interested in hens anymore.

So her question was, why not March? If I am still within in the bag limit, or recommended harvest, and it is not a resource issue, what difference does it make. Or she said it, you Commissioners don't know when my birds gobble. She is right. So is that more a season issue with turkeys?

MR. BERGER: Turkeys, I think, are a little bit different, because they require — move around in several different habitat types. And it depends on the size of the acreage and what kinds of habitat you have in your place.

For example, if you have the 100 acres along the river, and you have the turkey roost, you are shooting on your acreage could impact the shooting on many other properties around you that are important for the turkeys. I mean, the nesting habitat, the brood rearing habitat might be some other places that the turkeys in their daily routine may move on to other properties.

And if you heavily shot the roost, you would impact your neighbors on that. So in the case of turkeys, for example, I would hope that and what we would try to do is work with a number of landowners, if the property sizes and the layout of those boundaries are such that —

COMMISSIONER FITZSIMONS: That is an opportunity for co-ops.

MR. BERGER: There is a lot of opportunity for co-ops in all of this. But turkeys especially, we need to all work together to work out who gets and how the equitability of the turkey harvest.

COMMISSIONER FITZSIMONS: John, we'll go on around the room. Phil? And then we'll go all around.

COMMISSIONER MONTGOMERY: A couple of questions. Are you saying that as part —if we go with the program or the regulatory changes, the program will also include pheasant and turkey. The seasonality issue for turkey as well as —

MR. BERGER: The regulatory parts of the program, the quail are already a five-month season. We have like the longest season in the country. And a liberal, a 15-bird liberal bag limit.

So I don't think there is an option for expanding the season length for turkeys under the regulatory portion as proposed. But there is an option, there would be the ability to expand the season length for most of the other species under the proposal.

COMMISSIONER FITZSIMONS: But his question is, under the program, do you have — are you studying it for the other species also?

MR. BERGER: We will study it. Yes.

COMMISSIONER MONTGOMERY: If we go with the program, do we have any ability, regulatory ability to give landowners more flexibility on when they — we have no flexibility in the current rules posted to give flexibility to a season.

MR. BERGER: Right.

COMMISSIONER MONTGOMERY: Can you address that then in the next regulatory cycle?

MR. BERGER: We could address that in the —

COMMISSIONER MONTGOMERY: I know this was mainly about quail.

MR. BERGER: Right.

COMMISSIONER MONTGOMERY: But it does affect these other species. I am sensitive to — I have had the same question raised from other folks.

COMMISSIONER FITZSIMONS: How about pheasant?

COMMISSIONER MONTGOMERY: Other folks. And well, turkeys. I would like to see us address that in the next regulatory cycle if we could.

MR. BERGER: We can talk about turkeys in the next regulatory cycle.

COMMISSIONER MONTGOMERY: Let's study it. On the pheasant, is there the possibility, because personally, it seems — well, let me ask the question so you can answer it. You know discuss this privately. But do you, in your judgment or the judgment of our biologists, is there any resource issue whether we raise the pheasant limit from two to three right now?

MR. BERGER: No. We used to have a three-bird limit. And there would be no reason that we could not reestablish that three-bird limit.

COMMISSIONER MONTGOMERY: Given that, along the same argument I made earlier, I would like to see us increase hunting opportunity, because I have heard anecdotally, and Mark, you probably hear it a lot more than I do, that we are really chasing hunts out of the state or dampening the interest in hunting by dropping it down to two, rather than three, if it is not a resource issue.

I would like to see us, in this regulatory cycle address that issue and go back, to at least have the opportunity to vote on whether we go back to the three-bird limit for this upcoming season, if that is possible. Is that possible, under what we posted?

MR. BERGER: It is possible, not under he posting we have. If we go forward, and we withdraw the regulatory portions of this upland game bird proposal, we can, if you so direct we can put out for public comment a three-bird proposal for this upcoming season, and adopt in May, if that is your preference.

COMMISSIONER MONTGOMERY: Is this Committee meeting the appropriate time to do that, or is that something we can do tomorrow?

COMMISSIONER FITZSIMONS: Well, yes. You can direct him to present that and publish it. And then you can come back and look at it in May, as to pheasant.

COMMISSIONER MONTGOMERY: I am not just talking specifically about pheasant.

COMMISSIONER FITZSIMONS: I wouldn't say that has nothing to do with it. That is a separate issue than what we are talking about right here.

COMMISSIONER MONTGOMERY: Correct. I am just drilling down that one issue.

COMMISSIONER FITZSIMONS: What I hear after listening to the members of the two Committees, the Quail Council and I talked to both Chairmen, Angelo and Osborn, and talked on the phone to lots of people, there seems to be — is it fair to say, there seems to be, I never say universal, broad support for the idea of studying of a program rather than a permit.

MR. BERGER: That is accurate.

COMMISSIONER FITZSIMONS: Okay. All right. And so that is really what we are doing here, at this stage in the Committee is we are replacing the permit with a program for three years.

MR. BERGER: Correct.

COMMISSIONER FITZSIMONS: The idea of the program, I think your Commissioners are telling you, is to come back with — to have a purpose to this program, then at the end, there is some recommendations of how to move forward with multispecies managed lands.

MR. BERGER: Yes, sir.

COMMISSIONER FITZSIMONS: Okay.

MR. BERGER: Understood.

COMMISSIONER MONTGOMERY: May I finish the thought?

COMMISSIONER FITZSIMONS: Yes.

COMMISSIONER MONTGOMERY: If the rest of the Commission agrees, or however the procedural issues, I would like to have us go ahead, and post and be prepared to act on whether we go back to three.

COMMISSIONER FITZSIMONS: Three birds on pheasant. But that is statewide. That has nothing to do with the permit or the program.

COMMISSIONER MONTGOMERY: I understand. That is why I am bringing it out, because it got lost in this discussion.

COMMISSIONER FITZSIMONS: Before we get to that point, John hasn't had an opportunity to talk yet.

COMMISSIONER PARKER: Mike, this whole thing, doesn't it need to take in the most basic premise of wildlife biology, and that is determining the sustainable harvest?

MR. BERGER: That is what the property quota, that is how I would interpret the property quota to be that.

COMMISSIONER PARKER: But that would even, wouldn't that even lap over into the pheasant situation?

MR. BERGER: The direction as I am hearing it, is that we would end up with a —

COMMISSIONER PARKER: We would have to have information on sustainable harvest.

MR. BERGER: We would end up with a quota for all, for whatever species there was concern for. Yes.

COMMISSIONER PARKER: Okay. Especially when we start talking about raising the bag limit.

MR. BERGER: Right.

COMMISSIONER PARKER: Sustainable harvest is a very important aspect of information that we would need.

MR. BERGER: Correct. We want the harvest to be in line with the ability of that habitat to support it, and the population to continue throughout time.

COMMISSIONER PARKER: Right. Okay, good. Would it be possible for us to launch out with our biologists, with our field people, to do a sustainable harvest study statewide, with the upland birds, to give us more information when we are making these decisions?

MR. BERGER: We currently —

COMMISSIONER PARKER: We are charging them an upland bird stamp fee. What are we spending that money for?

MR. BERGER: Well, we are going to spend that money on research of all upland game birds. And we do use the — we do now survey all the game birds. We have to make a determination from those surveys that there is a harvestable surplus.

So I think we are arrived through that process at a sustainable yield. We are not determining that. What we are trying to do through this process, is to drill down to a smaller scale, to the individual property.

COMMISSIONER PARKER: Now then, on the Triple-T?

MR. BERGER: Yes, sir.

COMMISSIONER PARKER: As far as in that program, can you back that thing up a little bit? I want to be sure I am — yes. To bird translocations?

MR. BERGER: Yes.

COMMISSIONER PARKER: Would we be taking birds off of our wildlife management areas and putting them on private properties?

MR. BERGER: That is not my anticipation. The Triple-T program —

COMMISSIONER PARKER: Is that anybody's interpretation?

MR. BERGER: Not that I am aware of.

COMMISSIONER PARKER: Okay.

MR. BERGER: We are talking about moving from one private property to another private property.

COMMISSIONER FITZSIMONS: Yes. The Triple-T, I have heard talk, it never ever was considered that we take birds from public lands and put them on private.

MR. BERGER: No, sir. Triple-T is a permit process.

COMMISSIONER FITZSIMONS: I don't know where that odd business came from. Somebody is making stuff up again, I guess.

MR. BERGER: Where we allow two landowners to cooperate to move animals.

COMMISSIONER FITZSIMONS: Okay.

MR. BERGER: So that is private property.

COMMISSIONER FITZSIMONS: That is not anywhere — I don't know where I saw or heard that somebody said, birds coming from a WMA to a private property.

MR. BERGER: No, sir.

COMMISSIONER FITZSIMONS: No. I mean, if anything, they ought to be going from private to public.

COMMISSIONER HOLT: Yes. And that won't be happening, either.

COMMISSIONER FITZSIMONS: No, we do that. We trap animals and send them to areas where the public can hunt.

COMMISSIONER RAMOS: I just wonder if that is realistic that people are going to want to give up their quail to put somewhere else.

MR. BERGER: I have heard a couple of people say that if they had extra quail, that they would be willing to do that.

COMMISSIONER FITZSIMONS: Does Triple-T work for wild birds?

MR. BERGER: In the case of quail, for example, if you were to move birds from the High Plains to the Piney Woods, I suspect that that would not be as great a chance of success as if you moved them from near the Piney Woods to the Piney Woods. So the closer you can move them from where they —

COMMISSIONER FITZSIMONS: Everything I have read and heard about and it is all about habitat, you can't take birds, bobwhites, and put them in a place if you don't have habitat, and expect them to — I mean, it is all about habitat first.

MR. BERGER: Yes. Right.

COMMISSIONER FITZSIMONS: So the whole Triple-T issue is really, not really —

MR. BERGER: Triple-T, if the place has birds, then the habitat in those good years will support the number of birds it will support. It is what it is.

COMMISSIONER FITZSIMONS: Right.

MR. BERGER: If a place develops habitat, if a group or cooperative comes together and they develop a large area of suitable quail habitat, and there happened not to be quail nearby to come into that area to repopulate it, then they could work with a private landowner who would be willing to donate them some birds.

COMMISSIONER FITZSIMONS: Right. Well, like we did on that project with the mine tailings over here northeast of Austin.

MR. BERGER: That is correct. And that may be the source that we would work for, for some of this, since they don't allow for public hunting. Use those birds from those reclaimed mine sites to move in to other locations.

COMMISSIONER FITZSIMONS: But again, it is not an issue until you have got habitat in a position to receive them.

MR. BERGER: That is correct. Then we would put some seed stock, or allow the DTTing of seed stock into that area to see if they would hold.

COMMISSIONER FITZSIMONS: All right. So the only change you need is "program" instead of "permit." Anything else on your Wildlife Division part?

MR. BERGER: For this? Then we move on to the next.

COMMISSIONER FITZSIMONS: Move on to the next. All right.

MR. COOK: Remember, he was going to be short.

COMMISSIONER HOLT: Yes. We are not letting him be short.

MR. BERGER: The next thing is alligators.

COMMISSIONER MONTGOMERY: The pheasant issue. Are we —

COMMISSIONER FITZSIMONS: On the pheasant issue, we will make that directive at the end, I think.

COMMISSIONER MONTGOMERY: Okay.

COMMISSIONER FITZSIMONS: Don't let me forget.

MR. BERGER: And on alligators, the last Legislature eliminated the alligator-hunting license requirement. So therefore the staff is recommending including alligator regulations in the statewide hunting and fishing proclamation.

And we are also recommending appropriate changes to be made to provisions governing the recreational take, such as lengthening the recreational season, allowing the take of alligators by means of firearms on private land outside the core breeding areas, and simplifying the process for obtaining CITES tags. This slide depicts the core areas of alligator abundance and breeding in the yellow counties. The current regulations would be essentially unchanged.

In the remainder of the state, we would propose that alligators may be taken on private land with landowner permission, with a hunting license, from April 1, through June 30. During this season, the take by means of firearms would be permitted and the required CITES tag could be acquired after the harvest. On means and methods, the hunting hours are a half hour before sunrise to sunset.

You may use hook and line, gig, lawful archery equipment, hand-held snare, and outside the core areas, firearms may be used. No rim fires, no fully automatics, no silencers. And it is unlawful to shoot on, in, over or across public waters. There are no changes in those rules in the core area counties.

How would we do tagging in the remainder of the state? Immediately upon take, we would complete a wildlife resource document and attach it to the alligator. Within 72 hours, complete the alligator harvest report, Form 304(a), which will be readily available in a number of locations and sites.

Attach that report with $20 for the CITES tag and mail it to Parks and Wildlife. We will record the data and by return mail, send a CITES tag to the hunter who will permanently attach that to the alligator hide immediately. Federal requirements on alligators require that that CITES tag be applied to the hide.

We also allow need for some minor modifications in the nuisance alligator provisions that would reduce the burden on law enforcement and wildlife in areas where we do have nuisance problems. This would enable communities in alligator country to have greater control over the alligator populations that they live with, and allow local subdivisions to contract directly with a control hunter, following a site evaluation and a harvest recommendation.

In this recommendation, the alligator proposals, the comments were three in support and 18 in opposition. So the comment was still fairly low, and it nearly all came at the public hearing in Southeast Texas. Comments were that it will lead to overhunting, waste of meat and hides. It would encourage poaching, and would devastate populations.

Just one other little housekeeping thing that I don't believe is in your booklets. But due to the way that the current turkey youth hunting weekends are currently defined, one year in eight, the youth weekend would fall on the opening weekend of the Rio Grande turkey season.

Without this change, that will occur in 2008. So we would redefine the youth weekend to be the weekend immediately prior to the opening of the general season, and the weekend immediately following the close of the general season. That concludes my presentation.

COMMISSIONER FITZSIMONS: Would you address the concerns on the alligator? As I understand it, the landowner permit that was the previous system had the habitat, and the landowner got a certain number of permits. Right?

MR. BERGER: That is correct.

COMMISSIONER FITZSIMONS: And that stays for the core areas?

MR. BERGER: That stays for the core areas.

COMMISSIONER FITZSIMONS: Okay. So address the concerns.

MR. BERGER: It is essentially a managed lands program the same way. You have got surveys. Permits are issued to the landowner.

COMMISSIONER FITZSIMONS: But address the resource impact public comments that it would devastate, that it is overharvest —

MR. BERGER: Well, I think that some of those public comments that were there, and there may be some people here tomorrow that testify about this. But I think they were unclear that the regulations were going to remain the same in their part of the world. And this is mainly in deep Southeast Texas.

I think they like the regulations the way they are. This is where the vast majority of our alligator population is and breeds. And they have a 20-day season that is controlled. And I think they like it that way. And that is the way it is going to stay.

The portion I said, which essentially is unchanged is that they don't have an alligator license anymore, either. Their people would have to have a hunting license to enable them to take it.

But the other parts of that, the issuance of the CITES tags to the landowners who then govern how the take occurs, that and all commercial aspects, which we are not even talking about the commercial aspects of alligators here, all of that remains the same. It is in the rest of the state which heretofore did not have a recreational take opportunity.

Now we are offering a recreational take opportunity with a hunting license, that if you are on private land, your land, any private land where you have permission to hunt, landowner permission to take an alligator, you may take an alligator and report it, and obtain a CITES tag to keep that hide.

COMMISSIONER FITZSIMONS: Except in the core area, which still requires a permit.

MR. BERGER: You need to get the hide tag from the landowner.

COMMISSIONER FITZSIMONS: Okay. And what is the need of the core area?

MR. BERGER: The core area is, I mean, we are still talking about a species controlled by the Endangered Species Act, because of its look alike provisions. So we have those CITES tags that are required to be on there and we — that is the core breeding area. So the status of alligators in this state is going to rise and fall based on where the alligators are, the status of alligators in those core counties.

COMMISSIONER FITZSIMONS: Any questions on the alligator? I still don't understand the core area idea.

COMMISSIONER RAMOS: This is kind of a dumb question, but the CITES tag, is that something that the Parks and Wildlife would issue, or do you have to apply to the Feds for that one?

MR. BERGER: The Feds provide us the tags.

COMMISSIONER RAMOS: But you petition Parks and Wildlife?

MR. BERGER: And then we issue the tags to — in the core counties, we issue the tags to the landowners.

COMMISSIONER RAMOS: In the non-core counties?

MR. BERGER: In the non-core counties, post-harvest, after the hunter has taken an alligator, he puts a wildlife resource document on the alligator in order to reserve his spot or legalize it, as it were. And he sends his harvest report and $20 for the CITES tag to us, and we send him the CITES tag by return mail.

COMMISSIONER RAMOS: Okay. And that is necessary to keep the hide, obviously.

MR. BERGER: Yes.

COMMISSIONER RAMOS: Legalize the hide, as you might say.

MR. BERGER: Yes.

COMMISSIONER BIVINS: Is this circulated without the core area of reference initially?

MR. BERGER: No, sir.

COMMISSIONER BIVINS: I don't understand, from the correspondence that I have received, there seems to be some misunderstanding about that.

MR. BERGER: I agree. I think the opposition is due to a misunderstanding. I know there has been some concern expressed that somebody from — I don't want to pick on any North Texas town in particular, but some other area outside of the core county would come down to Chambers County, shoot an alligator during a different season, or out of their normal season, take it back to their home county, and apply for a CITES tag.

And I mean, that is illegal now. It would be illegal after this. And that is a law enforcement issue. But I think that is one of their concerns, is that their alligator population would be depleted, because there is more alligators there. Everybody would come down and poach alligators. If they are going to poach alligators, they can poach alligators now.

COMMISSIONER RAMOS: Are those seasons overlapping?

MR. BERGER: No, sir.

COMMISSIONER RAMOS: They are not. So they are exclusive.

MR. BERGER: They are exclusive.

COMMISSIONER RAMOS: So you have a —

MR. BERGER: For the four counties, it is a 20-day season in September.

COMMISSIONER RAMOS: But from a law enforcement standpoint, it makes their enforcement a lot easier, because of that.

MR. BERGER: I think so.

COMMISSIONER BIVINS: Mike, can you go back to the first line just for a second, please?

MR. BERGER: The first alligator?

COMMISSIONER FRIEDKIN: Yes. Second, sorry.

COMMISSIONER FITZSIMONS: Does this address the issue that we have been hearing about the last couple of years, on nuisance alligators? Do they get more flexibility or opportunity to deal with a nuisance alligator problem? I saw something on that.

MR. BERGER: Right. That is that one, right there. Currently, if we have nuisance alligators, someone has to contact Parks and Wildlife. Usually, that falls to the law enforcement office that goes out and makes a determination and takes an action.

We know that as urban development occurs around these areas, alligators are going to continue to be a nuisance. This allows our alligator trappers that we select and authorize for a — this would authorize a political subdivision, a government entity, property owners' association to contract with one of those individuals and we would assess their situation and issue an order for an allowable take.

COMMISSIONER FITZSIMONS: So we permit that control hunter.

MR. BERGER: That is right.

COMMISSIONER FITZSIMONS: And that control hunter could be hired by a neighborhood association or a development or something that has a problem.

MR. BERGER: That is correct. So when there is a problem, they call the control hunter. He comes out and takes care of the problem.

COMMISSIONER FITZSIMONS: Yes, because I understand, Pete, that is a big problem with our wardens in that part of the world?

MR. FLORES: Yes, sir. A lot of man-hours.

COMMISSIONER FITZSIMONS: Every time there is a call on an alligator, they have to do it. And this would allow it to be done through a private control hunter.

MR. BERGER: Correct.

MR. COOK: Mr. Chairman, I think it does speak, go back to the slide, Mike. I think it does speak some to the nuisance alligator issue, because in a lot of Texas, other than those yellow counties, we are getting more and more contacts about people that have an alligator in their lake.

As opposed to having to get a nuisance control officer if they want to, or call our guys, during this proposed season, they would be allowed to go out there and harvest that gator and enjoy the thing. We are getting — I mean, you know, this is one of interest to me, too.

Because we are getting lots of alligators in lots of Texas, and that is a good thing. That is not a problem. This provides a hunting opportunity that protects that core area. So it is an interesting proposal. I think it merits approval.

COMMISSIONER HOLT: Get out there with those bow hunters.

COMMISSIONER FITZSIMONS: We don't seem to be very particular about the legal means of take on an alligator.

COMMISSIONER HOLT: No. Nobody cares.

(All talking at once.)

COMMISSIONER FITZSIMONS: Thank you, Mike. Anything else for Mike on alligators?

MR. BERGER: That is enough, I think.

COMMISSIONER FITZSIMONS: Is that enough? Is that enough for right now? Okay.

The comment on directing staff to publish on pheasant, do you want to mention that, Phil?

COMMISSIONER MONTGOMERY: Subject to the approval of the Chairman of the Commission, I would like to ask the staff to publish an amendment, whether by terms of amendment or reissuance of the regulation that will allow us to act on increasing limit for pheasant to three from two in this upcoming season.

COMMISSIONER FITZSIMONS: Okay. And that would be out for public comment. And that would be going back to three. We used to be three, and we went down to two.

COMMISSIONER MONTGOMERY: Right.

COMMISSIONER FITZSIMONS: Mark?

COMMISSIONER BIVINS: That was the one comment that I got in the Panhandle community, with regard to any sort of modification, that they would like to, if they had had a three-bird limit this past season, it would have been very helpful, because we are competing with other states that currently have that.

MR. COOK: We can do that and be back for a decision at the May meeting.

COMMISSIONER FITZSIMONS: At the May meeting. Okay. As to this agenda item, the only change is, you are going to replace the upland bird Managed Lands program with the present proposed permit so there is no vote necessary on that.

MR. BERGER: That is right. We removed the regulatory portions from the statewide proposal.

COMMISSIONER FITZSIMONS: And go with the non-regulatory portions, or what I have referred to as a program, rather than a permit.

MR. BERGER: That is correct.

COMMISSIONER FITZSIMONS: Okay. And any discussion or changes to any of the other items on the statewide proclamation? Saltwater, freshwater, wildlife?

(No response.)

COMMISSIONER FITZSIMONS: Okay. With those amendments and changes, hearing no further discussion, I will place the item on the Thursday Commission meeting agenda for public comment and action. Thank you, Mike. We put deer last?

Number 6. Hurry up through the deer, would you? Proposed deer permit rules. Clayton Wolf.

MR. WOLF: Mr. Chairman, Commissioners. For the record, I am Clayton Wolf. I am the Director of the Big Game Program in the Wildlife Division. This morning, I have a suite of regulation proposals that all of you have seen on a couple of occasions already.

You recall that you were briefed in November of last year, and we came in January seeking adoption of these rules and at that time, we received a letter that was signed by four state senators requesting that this Commission table at least a portion of those rules so that they could be further deliberated and understood. This Commission chose to table all these regulation proposals at that time.

On February 15, we conducted a meeting with our ad hoc group, our breeder user group, and three representatives from the senators' offices were there also. And I am happy to report that there was a better understanding gained from the people that were concerned.

And so what I am going to do this morning, because this is the third time you have seen these, is I am going to skim over, and go quickly through all the proposals that I have gone into detail before, and spend more time on the amendments and the deliberations on those issues that were more contentious. Of course, we are talking about significant revisions to our scientific breeder rules.

Primarily, one of the main components is the development of a movement-qualified program, a disease-monitoring program. A herd would be movement-qualified if it met one of two categories. Either it had a Level A status in a CWD monitoring program with the Texas Animal Health Commission, or they tested 20 percent of eligible mortalities, and that would be a cumulative testing rate.

If you recall, in January, we were asking for a minor amendment here, to meet the intent of this rule. And that we do a property only — or a herd only has to meet one of the categories, that is the way we discussed it. So we are asking for this minor amendment to what is published in the Texas Register currently. The proposal currently reads that these movement-qualified program would become effective April 1, 2007, and be based upon test results beginning April 1, 2006. Of course, April 1, 2006, is past.

And so we would request that if adopted, this would be changed to the time of adoption or possibly an effective date, and then run through March 31, 2007. And of course, our current rules for liberation would be in effect until April 1 of 2007. And at that point, is when our movement-qualified status would kick in.

We are proposing that a facility lose movement-qualified status for a minimum of a year if the owner knowingly accepts deer from a non-qualified facility. We are proposing to abolish purchase permits, transport permits, and temporary invoices. And in lieu of that, implement a transfer permit which is free.

The transfer permit would have to be filled out for every deer movement. A big change for scientific breeders, we are proposing to eliminate a pre-movement notification requirement, where they have to list every single deer and send that to us before they load the deer up. This is problematic for people trying to catch deer.

We propose that persons transporting deer must possess a copy of the transport permit, and at that time, they would have to list the unique numbers of every animal on board. And as now, we would require an activation or a notification of the Department prior to leaving the facility.

These permits could be activated by phone or fax, or a web-based application when we have that complete. Non-breeders holding there for temporary purposes would also possess a copy of the transport permit, which of course, lists all the deer that are in their possession. And the transfer permit would be valid for 48 hours.

Information that we would require for activating a transfer permit would be source and destination facilities. We need to know where they are going. If deer are liberated, we need to know ranch owner, ranch name, location. We need to know the name and location of people holding deer for temporary purposes. Phone number of the person moving the deer, and the activation date.

We did, in our deliberations on February 15 come across an oversight. Currently, scientific breeders, if they have some kind of a veterinary emergency are allowed to load up and go to a vet without any kind of notification. And of course, one could reason that there could be emergency situations where they would not — would prefer not to have to fill out paperwork, while if there is an emergency situation.

So we are requesting an amendment, that is one exception where a transfer permit would not be required for deer being transported to a licensed veterinarian for veterinary care. And that would be the only exception by which someone could remove a live deer from a scientific breeder facility without activating a transfer permit.

COMMISSIONER FITZSIMONS: So you could have as big a trailer load as you wanted, as long as you are going to the vet?

MR. WOLF: As long as you are going to the vet. And licensed veterinarians, we discussed this, licensed veterinarians are required to keep a record of animals that they do see, and so there is an official log. So there is some official documentation.

COMMISSIONER FITZSIMONS: So that is required by whoever administers the veterinarians.

MR. WOLF: The veterinarian board, I would assume. Yes, sir.

MR. COOK: Clayton, what if a trailer load of deer are going down the road, and our guy stops him, and the guy says, I am going to the vet.

COMMISSIONER FITZSIMONS: What does he have to do, follow him?

MR. COOK: King's X.

COMMISSIONER FITZSIMONS: He will go on to the vet.

COMMISSIONER BROWN: He'll find one somewhere.

MR. WOLF: Well, it has been described to me, and I might have to defer to Law Enforcement on it, but obviously there is always a burden of proof that needs to take place. The vet I talked to said that normally when that happens, if there is a load of deer, they know about it, and they are usually a client.

So there is usually, with a little bit of investigation, that claim can be made legitimate or not. If it is full trailer load of deer, because obviously, that veterinarian also risks losing their license if they are lying about some of their operations. So the bottom line —

COMMISSIONER FITZSIMONS: It is as simple as them saying which vet, he calls the vet, and that is it. I mean, it is not really —

Donato.

COMMISSIONER RAMOS: My only comment would be, it seems we ought to put the burden on the breeder, as compared to the vet, to keep the record, and have the breeder notify us, by the way, yesterday, I brought in six deer to the vet, or I intend to do that, as compared to — because if the vet doesn't do it, there is nothing we can do.

But if a scientific breeder doesn't do it, we may have a remedy. I mean, the vet technically would be answering to the veterinary board, but the scientific breeder has no responsibility to us to report it. I don't know if that makes sense or not.

MR. FLORES: They won't have a defense to prosecution, either.

COMMISSIONER RAMOS: Right.

MR. WOLF: I don't guess I am following the suggestion here.

COMMISSIONER RAMOS: Yes. The only thing I am saying, Clayton, is that we are putting the burden on someone that is not privy to us. The veterinarian is off by himself. It seems that the scientific breeder should be the one that is notifying us that he has taken or is taking animals to the vet, to keep a log of that.

We are putting the burden on a vet who could theoretically just say, well, I am not going to do it. And then his risk is to the veterinary board. While, if a scientific breeder did not report it to us, then they would account to us. Do you follow me?

MR. WOLF: Yes, sir. And I suppose that ultimately, the concern is, if our law enforcement, if our game wardens run across someone in possession of deer. If someone goes to a vet, and then returns back to their facility, you know, from our perspective, there is really, there is not much concern.

It is really when the act is occurring, if they catch someone without that permit, without going to that process. If they have already returned, theoretically, they could report that to us, but it is not really a part of that system, our disease-tracking system, you know, because they are going back into their source facility. It was just a temporary movement.

If they were going to go somewhere else, they would have to go ahead and report that to us. So I am not sure, I think the information there at hand, if a trailer load is stopped, is most important. After the act is done, I guess it is possible that if there is an investigation and we heard of some deer being moved, then there would be no documentation that anybody reported that to us.

But that would be your call to decide whether we would want to put some reporting requirements on those trips to the vet. We don't have anything published right now to that effect.

COMMISSIONER FITZSIMONS: I don't know that it is really necessary. The fact is, if there is an illegal hauling, there is illegal hauling. All this is, is a defense. The guy says, I don't have a permit, I am going to the vet. Either he is, or he isn't. It is easy to check.

MR. WOLF: Okay. And of course, it only would apply to permitted breeders and agents. Those are people we already have the names of. If we find anybody else in possession of those deer, they would have to activate a transfer permit, even if they were hauling deer to a licensed vet. And I do want to indicate this is licensed veterinarians only.

Other miscellaneous items, we would propose to change the permit period to begin July 1. And most of the requirements that I am presenting to you today would become effective on July 1 also. That would be the effective date. The only difference would be that disease-monitoring period, that we would indicate would start at the time of adoption, basically, when this, if adopted, when the Texas Register receives that, 20 days later.

The clock would start for the movement-qualified monitoring period. And that just gives folks notice that you need to start making sure you get at least 20 percent of your mortalities. But everything else would be effective July 1.

We propose to require that certified wildlife biologists physically inspect the facilities and certify that there are no deer within the facility prior to the issuance of a permit. We would propose to allow for 30 days for soft releases, and for an increase in the scientific breeder fee from $180 to $400, and to redefine unique numbers to allow for the Department to assign numbers only.

And you will recall in January, as I indicated, bullets one through three here, and everything that I presented previously really were issues that were not in contention. But the permit fee and unique number, and the permit denial provisions that I am going to speak of all were issues that were brought up in the letters from the senators.

I am happy to report as far as the permit fee goes, our White-Tail Deer Advisory Committee, let me back up. Our White-Tail Deer Advisory Committee supports everything I presented at this point, including the two proposals to increase the permit fee and redefine unique number by our definition. Our breeder user group after discussing it, and our explanation of how we calculated the fee increase is satisfied with that explanation and is willing to support it, and willing to support paying for the cost of administering and enforcing the scientific breeder program.

Not necessarily the case with the definition of unique number. This is the one item where we could not get support from our breeders on our staff recommendations. The text on the slide here in front of you, the yellow text is the text that we are proposing. Basically, we are trying to achieve two things.

First, not allow breeders to make up their own unique numbers anymore. This is problematic. That is not in contention. Everyone agrees that we ought to abolish that provision. The second goal on our part was to actually define unique number, to define the true purpose of what unique number is, and that is to know that a unique animal is going from one location to another, and know the person holding it. It has nothing to do with who paid for the deer.

However, we know there are some issues surrounding the ownership of deer. You will note on line 4 there of the slide, the first word, "ownership" is stricken from our proposed definition. And that has caused some concerns with our scientific breeders.

That concern was voiced at our White-Tail Deer Advisory Committee meeting. Our White-Tail Deer Advisory Committee supports the staff recommendation of the definition of unique number that you have here before you. Nonetheless, they suggested as a courtesy to our scientific breeders and to let you know what our scientific breeders were thinking, that we show you a couple of alternative definitions that were developed.

One of them was developed on the fly at our White-Tail Deer Advisory Committee meeting by Dr. Bugai. On the 15th of February when we met with our breeders, they further refined it to be a four-digit alphanumeric identifier used by the Department to track the ownership of a specific deer.

Obviously, their goal is to get the term "ownership" put back in. So I just want to reiterate that this is our breeder user group recommendation. It is not staff recommendation. And that our White-Tail Deer Advisory Committee supports the staff recommendation. On to permit denial provisions.

On the 15th, we spent quite a bit of time talking about permit denial provisions. While we are going to sum it up, the real problem was simply a lack of understanding. Not necessarily knowing that they opposed the provisions, but a lack of understanding, and some bad information that was being circulated out there.

If you will recall, we are trying to standardize our permit denial provision language between our breeder permits, our deer management, and Triple-T permits. By using the term "may refuse," it is just consistent language that allows us discretion.

And some of the misunderstanding was the fact that folks didn't know we already had very broad discretion to deny permits. And once they became aware of that, they were more willing to support this, once they knew that we already have broad discretion and we are not abusing that discretion. We also wanted to make the time period consistent.

The time period that we look back at someone's list of violations, or convictions, to five years, because we had a lot of variability from three years to any amount back in time we wanted to look. You will recall the list of violations is consistent among all these proposals we are going to show you.

We are talking about any violation of Parks and Wildlife Code, Chapter 43, Subchapter C, E, L or R. And that is Bullet 1. Bullet 3 is a violation of Parks and Wildlife Code 63.002. We are basically talking about violations concerning holding live game animals. So we are trying to make it relevant to the permits that they possess.

And then of course, Bullet number 2 deals with more serious violations, that is Class A and B misdemeanors as well as felonies. We had one, our White-Tail Deer Advisory Committee, the only comment they had on this, is they want to make sure that it is the intent of this Department to administer these rules in a fair manner, and that we not go after someone's permit for some simple, minor violation.

We think that has been made very clear in our preamble in the Texas Register. We talk about we are looking for folks that show a pattern of abuse. Some clear disregard for the law, or possibly some single serious violations. For instance, you can get one Class C misdemeanor for catching a deer out of the wild, and attempting to sell it.

So in some cases, it could be one violation. But not if an ear tag fell out. Our breeder user group agreed with this proposal, as well as our White-Tail Deer Advisory Committee, as long as those concerns were issued. We had a request for one minor amendment that we feel is non-substantive, and that is to change the first word from "a" to "any."

We think it means the same. But for that matter, we don't care if it is "a" or "any." And so we are willing to accept that, and recommend that as an amendment. You will know, as I presented in January, that we do not have the ability to keep an agent from being on a permit because of previous convictions. And an agent can do almost as much as a permittee can do.

So we propose to add this provision, that we can prohibit someone from acting as an agent if they have been convicted of, and it is the same list of violations, I will show you. Our White-Tail Deer Advisory Committee supported this. Our breeder user group actually came back and asked for a minor amendment, and that is to change that for a period of up to five years, which of course, allows us our annual discretion. This makes sense.

We have that discretion in our previous proposals. And so we support this amendment and are asking this Commission to consider that. One clarification I need to make, in your booklet, we found an error in the interim, in that under the DMP permit denial provisions, it does not say conviction or deferred adjudication. It says someone who has basically received a ticket.

And so that was obviously not the intent. That is not what I had been presenting to this Commission. And so to be consistent with these presentations, we would ask that we change that to be consistent with all the other permit denial provisions in the provisions to prohibit an agent from being on a permit. Of course, the list is the same.

The two minor amendments are requested here also, for the first ones in Bullet 1 and 2. And then you will recall, we have a proposal that deals with delaying the processing of a permit based on if someone is a defendant in a prosecution forward. In other words, they are not convicted, they have not received deferred adjudication.

We are doing this to clarify our current authority that we have. We have the authority, and in fact, have utilized this authority to delay permit issuance for individuals that have a long list of violations. This authority was challenged with litigation. And so we felt it was prudent for us to go ahead and publish a rule to articulate this.

Not all of our statutory authority has to be reiterated in regulation, but we are choosing to do this, so it is clearly articulated that we do have that authority to delay the processing of a permit renewal if someone is a defendant in a prosecution for a list of violations. Of course, we are asking for the amendment to strike the word "deny."

We have already dealt with that in the previous proposals I presented to you. The comments that I received from the White-Tail Deer Advisory Committee on this, there was some degree of concern, since these individuals have not gone through the court system and had a decision rendered by a court or by a jury.

However, they do realize that the Agency could have some issues with folks, where we have some compelling evidence, and we really want to hold one of these permit privileges back. The recommendation from the White-Tail Deer Advisory Committee was simply to strike Bullet 2 and leave this more relevant to those kinds of charges that are relevant to the nature of the permit, which is holding live game animals.

This recommended amendment seems reasonable, so staff is willing to request this amendment if you also choose to adopt it. And then finally, as far as permit denials are concerned, you will recall that back in May of '05, this Commission asked us to go back and try to deal with the issue of someone who might be disqualified from being a permittee or agent somehow getting someone else to act on their behalf, and them staying in the business of live game animal trade or whatever.

We developed this proposal here before you. This gave our White-Tail Deer Advisory Committee probably the greatest degree of concern of all our proposals. When we presented this to our breeder user group, we actually, they recommended a little bit of wordsmithing and an amendment to replace the word "reason" to "believe with evidence."

Of course, it was always the Department's intent that our reason to believe would be based upon evidence, but this just makes it a little clearer. And so we are recommending this amendment to replace the words "reason" to "believe with evidence." We took this back to our White-Tail Deer Advisory Committee and they chose to support, to go ahead and support this proposal with this amendment in here.

So we have got full support for what you see here before you on the screen from our breeders and our White-Tail Deer Advisory Committee now. We are proposing an identical review process for our breeder permits that we have for our DMP and Triple-T permits, when we deny someone a permit. And that is basically, if we do deny it, and someone has ten days to call us and ask for a review, and we have ten days to render a decision.

And we would report the disposition of all these to our White-Tail Deer Advisory Committee. And of course, our panel would consist of the Deputy Executive Director, the Director of the Wildlife Division and the Big Game program director. At our White-Tail Deer Advisory Committee meeting, the question was asked, why not allow other individuals, non-Department individuals to sit in on this process and possibly add some legitimacy to it.

And there was a request for a change in the regulation. Ann Bright, our General Counsel and staff attorney has discussed this and determined that we already have the ability to do this on our own. So in fact, we have already initiated the process and guidelines for allowing third party observers to sit and observe the process. They would not have a voting part in the process.

And we have decided that the individuals that would qualify to be third-party observer, since these are all deer permits would be anyone from our White-Tail Deer Advisory Committee, if they choose to sit in on the process. Two changes to our DMP rules quickly. If someone applies for a deer management permit, it costs $1,000 the first time.

And if they do not change their plan, it is $600 for renewal. If they change their plan, it is $1,000. We simply would want to add the language that if any statutory change or regulatory changes require them to change their plan, that that not be considered a new application, because it is something we are compelling them to do, and the changes are based on legal requirements.

And in order to clarify an issue that arose as a result of some recent litigation, we are proposing that a DMP will not be issued unless the applicant's deer management permit has been approved by a Wildlife Division technician or biologist. Previously, the old rule or the current rule was misconstrued to mean that when a wildlife biologist or technician approved a plan, that at that point, the Department was compelled to issue the permit.

Obviously, the Commission record from when this rule was adopted and some of the statutory requirements make it very clear that there are other components to the process, in addition to the approval by the wildlife biologist, and so we are just clarifying this. As far as public comment goes, on our scientific breeder proclamation changes, we had eight people that were in agreement with our proposal.

We had one person that said they disagreed, but basically, they were opposed to scientific breeders holding deer in captivity period. So their comments weren't specific to the regulation proposals. On our permit denial provisions, the Triple-T and DMP, we had 21 people that agreed with this.

Eight that disagreed, or they indicated they disagreed with the proposal. But five of those eight basically were making negative comments about the program as a whole, and not specifically about that. In fact, some said, well, our penalties should be greater and enhanced. And some basically had some negative comments about holding deer in captivity.

So they weren't really germane to the proposal. And finally on the scientific breeder permit fee, we had 13 people that agreed. Three that indicated they disagreed. But two of those, because they said the fee was too little.

And so really only one that disagreed in total, and said that the fee was just going up too much. And with that, I will be happy to answer any questions.

COMMISSIONER BROWN: In the associations that you have worked with on all this, they are pretty much in line with what these proposals are, other than where you pointed out some of the differences that were brought up?

MR. WOLF: Yes, sir. And of course, our White-Tail Deer Advisory Committee is comprised of numerous representatives and associations. But also our breeders are represented by Texas Deer Association for the most part, and except for the unique, the definition of unique number, they are in line with everything I presented, and also in line with the comments from our White-Tail Deer Advisory Committee.

COMMISSIONER RAMOS: Clayton, if you go back to that litany, I think it talks about being convicted or deferred adjudication earlier. Before that. There it is. Yes.

MR. WOLF: Yes, sir.

COMMISSIONER RAMOS: Either the person has been convicted of, or received deferred adjudication. It seems to me that we ought to include probation there, because probation is different than a deferred adjudication and a conviction would not include probation.

So it seems to me that it should be either a person has been convicted of, been placed on probation or received deferred adjudication, because technically, you could have people that are on probation, which is very likely in the real world, that technically I guess, would not fall under that category. So I would suggest that amendment.

MR. WOLF: And I am not familiar if probation falls within the definitions here.

Ann, would you be able to help on that?

MS. BRIGHT: I am Ann Bright, General Counsel. And I probably need to get some of our Law Enforcement folks on that one. Not being a criminal lawyer, I am assuming that with a probation, that there is some sort of deferred adjudication.

COMMISSIONER RAMOS: No, not necessarily. Deferred adjudication is where there is no entry of a judgment, and if you behave over a period of time, then everything is expunged. A probation is, there is an actual judgment that is entered, and there is certain terms to it.

COMMISSIONER FITZSIMONS: Pending probation fully completed and everything is expunged.

COMMISSIONER RAMOS: I am an old prosecutor.

MS. BRIGHT: Right.

COMMISSIONER RAMOS: It just seems to me that to make it very clear.

MS. BRIGHT: I think the issue is going to be if that is included within conviction or deferred adjudication. If it is something that is really outside the scope of both of those, then we probably would need to republish and go back through the — as a practical matter. Not as a legal matter.

But go back through the advisory committee process. If it is something that is included within those, and we are just clarifying that, then yes, we could probably go ahead and make that amendment.

COMMISSIONER RAMOS: Well, I just mention it. I really support all of this. But I guess my legal mind immediately hit, where is probation?

COMMISSIONER FITZSIMONS: Well, let's move on with this one.

COMMISSIONER RAMOS: Anyway, let's move on. We can bring it up at some point. I am sorry?

COMMISSIONER PARKER: What did you say about your legal mind?

COMMISSIONER RAMOS: That unfortunately it triggered the term "probation."

COMMISSIONER FITZSIMONS: Those of use who are familiar with it, unfortunately.

COMMISSIONER HOLT: This might be a character issue.

COMMISSIONER FITZSIMONS: Let's keep my experience at probation out of this. Anything else?

MR. WOLF: That is it.

COMMISSIONER FITZSIMONS: All right. Nothing further on this. We'll place the item on the Thursday Commission meeting agenda for public comment and action. Any other business to come before the Regulations Committee? Mr. Cook.

Can we get Conservation done before lunch?

(Whereupon, the meeting was concluded.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission Regulations Committee

LOCATION: Austin, Texas

DATE: April 5, 2006

I do hereby certify that the foregoing pages, numbers 1 through 143, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.

4/17/2006

(Transcriber) (Date)


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