By BEN NEARY
NMWF Conservation Director
Approximately 40 percent of New Mexico’s elk licenses go to private landowners through the state’s Elk Private Lands Use System (EPLUS). But the state game department says it doesn’t have records showing many details about what happens to the tags after that.
Despite that lack of information and repeated requests from the New Mexico Wildlife Federation and many other hunters’ organizations, the State Game Commission is refusing to revise the EPLUS system. The state’s Legislative Finance Committee staff recently urged overhauling EPLUS after finding the system favors nonresidents over New Mexico hunters.
Under EPLUS, the New Mexico Department of Game and Fish issues transferable permit authorizations to private landowners who have properties in elk habitat. The authorizations allow hunters to buy elk licenses from the state without going through the competitive draw.
Landowners commonly sell the authorizations for thousands of dollars to hunters, the great majority of them nonresidents. Some authorizations, limit hunting to the landowner’s private property but others allow hunting anywhere in a game management unit, including on public lands.
In cases where hunters hunt public lands with a unit-wide permit they’ve purchased through the EPLUS system, they compete with state residents who have drawn elk licenses through the public license draw system.
The New Mexico Wildlife Federation has been trying since last summer to get detailed information from the New Mexico Department of Game and Fish about the permit authorizations it issues under the EPLUS system.
However, the game department has stated it has no document or record that includes “the data as defined in this request” for a range of information on EPLUS. Among many other examples, the department said it had no records that would provide the following information about private land authorizations:
_ “Total numbers of unit-wide private land elk authorizations issued in the Primary Management Zone:
_ “Total number of ranch-only elk authorizations issued in the Primary Management Zone:
_ “Total number converted to resident licenses, broken down to total numbers issued for mature bull, either-sex and antlerless licenses;
_ “Total number converted to nonresident licenses, broken down to total numbers issued for mature bull, either-sex and antlerless licenses;
_ “Total number not converted to licenses, broken down by authorizations for mature bull, either-sex and antlerless licenses;”
The NMWF filed its request for information about EPLUS last August with the game department under the state’s Inspection of Public Records Act.
The game department responded that the information the NMWF was seeking existed solely on department databases. Getting the information, the department said, would require following a state law that sets limits on the release of database information.
The game department said it would search its databases for the information the NMWF requested about the allocation of elk permits under EPLUS only if the federation staffer making the request – Conservation Director Ben Neary – signed an affidavit agreeing to a range of restrictions on its use of the information.
Among the restrictions the game department demanded were not to use the information for any political or commercial purpose unless the game department approved of it, not to allow any other person to access the information without the department’s permission and to agree to pay a royalty to the state “as may be agreed upon by the New Mexico Department of Game and Fish.”
The NMWF responded that it wouldn’t agree to those conditions and told the game department that it wasn’t seeking entire databases. Rather, the federation said it was seeking information from the game department that might require the department to search its databases. The federation emphasized that its request was under the state records law, not the database law.
The federation in November filed a complaint with the New Mexico Attorney General’s Office charging that the game department had violated the state’s Inspection of Public Records Act.
In a determination letter dated Feb. 16, Assistant Attorney General John Kreienkamp stated his office had some concerns about the manner in which the game department had responded to the federation’s request. He recommended the department undertake a search for already-existing records that contained some or all of the data the federation had requested.
With respect to the state law governing databases, Kreienkamp stated, “…(W)e disagree with the Department’s interpretation as to its ability to condition access to ‘information contained in information systems databases,’ and therefore recommend that it not insist upon Mr. Neary’s signature of its database request form.”
On March 16, game department officials informed the NMWF that compiling the information the federation has requested will require the federation to pay to cover more than $2,500 in staff time necessary to run the reports from agency databases. “The Department is prepared to do this upon your acknowledgement of and compliance with the legislative mandate regarding database requests,” it stated.
The federation has asked Kreienkamp to review the game department’s response once again referencing the database law.
The game commission is scheduled to begin developing a new four-year rule governing public land elk hunting at its April 11 meeting in Santa Fe. The rule will specify hunt dates and the number of licenses to be issued through the public lottery process in each hunt area for the next four years.
But despite a recent legislative audit that recommended overhauling the “EPLUS” system, Game Commission Chair Sharon Salazar Hickey said at the March 4 commission meeting in Socorro that the game commission has no intention of doing so.
While the public land Elk Rule comes up for review every four years, EPLUS is classified as a “permanent rule,” meaning that it stays in place until the game commission votes to consider changes to it.
Jesse Deubel, NMWF executive director, said the federation remains committed to getting a full accounting of how the game department administers the EPLUS program.
“It’s a bedrock principle that wildlife belongs to all the people of the state,” Deubel said. “Everyone in New Mexico has a right to know who’s getting these elk tags and where they’re being used. This is clearly public information.”
Deubel said the NMWF believes the information on the EPLUS program that it has requested is all material that the game department managers should have at their fingertips.
“How can the game department manage New Mexico’s elk herds if it can’t say how many permits were used and who used them?” Deubel said. “And if the department can’t provide that information to the public, how can the game commission move ahead to enact a new elk rule covering the rest of the elk licenses issued in the state?”
Deubel said the federation is committed to getting answers from the game department and looks forward to laying out in detail information about the EPLUS program to the public.
“EPLUS tags aren’t used exclusively on private lands,” Deubel said. “Many landowners are selling unit-wide tags to the highest bidder – about two-thirds of whom are typically nonresidents. These hunters who can afford to pay top dollar to hunt every year then compete for elk owned by all New Mexicans on public lands with those who drew their tags through the public lottery. The number of EPLUS tags issued and where they’re used directly affects the average New Mexican public land hunter.”
In late 2020, the state’s nonpartisan Legislative Finance Committee staff recommended that the game commission make sweeping changes to EPLUS to bring elk management in the state in line with neighboring states that commonly reserve 90 percent of all elk licenses for state residents.
“Game and Fish takes great effort to set hunt levels for big game in a way that sustains herds; however, landowners and out-of-state hunters, not New Mexicans and public land hunters, are the beneficiaries of department policies,” the LFC audit report states.
The LFC audit prompted Sen. Martin Heinrich, D-N.M., to write to game commissioners in 2020 urging them to act to reform EPLUS.
“Each year, the so-called ‘EPLUS’ program takes thousands of opportunities to hunt elk on our public lands away from average hunters and instead gives these public land hunting opportunities to the wealthiest few,” Heinrich wrote.
State law requires that 84 percent of the hunting licenses allocated through the state’s annual public draw process go to New Mexico residents. It reserves 10 percent to hunters – either resident or nonresident – who are required to hire an outfitter and reserves 6 percent to nonresident hunters. However, those restrictions don’t apply to tags sold through EPLUS.
The LFC audit found that in 2019, 76 percent of landowner vouchers in the state’s primary elk management zone were converted into nonresident licenses. “The EPLUS program overwhelmingly benefits out-of-state hunters,” the audit states, adding that this in turn benefits the game department because nonresident hunters pay more for licenses.
“Accounting for both the public and private systems, in-state residents purchased 74 percent of the elk licenses issued from 2017 to 2019, nonresidents purchased 21 percent, and hunters with outfitter contracts purchased 5 percent,” the LFC stated. “This seems to go against the legislative intent that 84 percent of available licenses be offered to New Mexico residents and puts the state in contrast with some of its other western neighbors that cap the number of nonresident tags at 10 percent, including Montana and Arizona.”
Deubel encouraged New Mexico hunters to contact game commissioners and the governor’s office and demand that the commission address the inequities in the EPLUS system as it moves this year to update the elk rule.
“The public should demand that the game commission put reforming EPLUS on the table as it develops the new elk rule,” Deubel said. “There’s no way the commission can make informed decisions about statewide elk management if the game department truly doesn’t know or won’t say how 40 percent of New Mexico elk licenses are being used under EPLUS.”