By BEN NEARY
NMWF Conservation Director
In response to a state legislator’s request for a legal opinion, the New Mexico Attorney General’s Office has concluded that the state game commission’s practice of lumping the state’s bighorn ram tags into single hunt codes to allow outfitted and nonresident hunters to draw them is legal.
Rep. Nathan Small, D-Las Cruces, requested the legal opinion following a game commission meeting in March in which game managers urged the commission to continue the practice of putting all Rocky Mountain bighorn ram tags in a single hunt code and all desert bighorn ram tags into another single hunt code.
Bighorns became subject to the state quota law that’s supposed to guarantee New Mexico residents at least 84 percent of the tags in any big-game draw in 2014. The commission that year began the practice that continues to this day of lumping all the ram tags into single hunt codes.
The effect of lumping all the bighorn ram tags together is to create a pool of tags large enough that some tags may be allocated under our state’s quota law to hunters who retain an outfitter and to nonresident hunters. If the tags weren’t lumped together, those categories of hunters wouldn’t be capable of drawing any.
New Mexico’s quota law specifies that residents must receive a minimum of 84 percent of the tags for each hunt. The law reserves 10 percent for residents or nonresidents who have contracted with an outfitter and 6 percent for nonresidents who haven’t contracted with an outfitter.
In order to have enough tags to give New Mexico residents the required minimum of 84 percent and still have a tag left over for an outfitted hunter, a specific hunt must have a minimum of seven tags. And in order to give a tag to a nonresident hunter who hasn’t contracted with an outfitter, a hunt must have at least 13 tags.
For all other species, New Mexico uses the term “hunt code” to mean a single hunt in a single place at a given time. State law defines “hunt code” as, “a description used to identify and define the species, weapon type and time frame authorized for a specific hunt.”
At the March 4 commission meeting in Socorro, Commissioner Roberta Salazar-Henry asked the New Mexico Attorney General’s Office to research whether the commission’s system of allocating bighorn sheep tags is legal. Rep. Small later requested an opinion from the AG’s office on that same point.
On April 5, Assistant Attorney General Sally Malavé wrote to Rep. Small with her office’s OPINION. It concluded that the game commission’s current approach to allocating bighorn tags is legal.
In reaching that conclusion, Ms. Malavé stated that the commission has a statutory duty to issue permits to residents, outfitted hunters and nonresidents in every draw for each hunt code.
“In sum, the current population levels of Rocky Mountain and Desert bighorn sheep make it impossible for the Commission and the Department to assign a single hunt code to each hunt area during each hunt window for the bighorn sheep hunting season without running afoul of the statutory allocation requirements for resident and nonresident hunters dictated by Section 17-3- 16(B),” Malavé wrote.
However, the game commission doesn’t allocate licenses to residents, outfitted hunters and nonresident hunters in every hunt code for other species.
Albuquerque hunter Brandon Wynn undertook an analysis of all the hunt codes for all species in the 2021-2022 license year. Of 891 hunt codes in the public draw, he found that 106 of them offer six tags or fewer. As a result, only resident applicants – not outfitted applicants nor nonresidents – were capable of drawing tags in those 106 units.
Wynn’s analysis shows the game commission excludes both outfitted and nonresident hunters from special drawings in nearly 12 percent of its drawings. Among the species in which only residents drew licenses in the specific 106 hunt codes were antelope, deer, elk and oryx – all species for which there is considerable hunter demand.
Wynn’s analysis also found that in another 133 hunt codes – 15 percent of the total hunt codes – only residents and outfitted hunters are able to draw permits. Unguided nonresidents are not capable of drawing permits in these hunt codes.
Overall, at least one category of hunter is excluded from receiving a tag due to the department’s application of the quota law in 27 percent of the state’s total hunt codes, Wynn found.
It’s so common that outfitted hunters and nonresident hunters are excluded from certain hunt codes that the current 2022-2023 Hunting Rules and Information book gives the following warning on page 13:
“Nonresident and Outfitted Applicants Please Note: It is extremely unlikely for an outfitted applicant to draw a hunt code with six or fewer licenses or for a nonresident to draw a hunt code with twelve or fewer licenses. Residents planning to apply with one or more nonresidents should also be aware of this when applying.”
Malavé coined the new term “hunt window” to explain how specific bighorn sheep hunts held months apart, and hundreds of miles away from each other, could all be lumped under a single hunt code.
Malavé states in her opinion, “Hence, in order to satisfy the allocation requirements for resident and nonresident hunters set forth in Section 17-3-16(B), the Department has recommended and the Commission is being asked to approve, as it has before, rules for a bighorn sheep hunting season that combines the Rocky Mountain bighorn sheep (species) by sex and weapon type (the specific hunt) in several hunt areas and over several hunt windows under one hunt code. Similarly, it groups the hunting season for Desert bighorn rams in several hunt areas and over several hunt windows under one hunt code.”
Neither state law nor the existing bighorn rule recognize the concept of “hunt windows” within hunt codes.
The New Mexico Wildlife Federation holds that the existing bighorn rule, and the game department’s proposed new rule, are not supported either by the commission’s longstanding practice of allocating licenses, nor by the clear language of the state law that defines “hunt code.”
Jesse Deubel, executive director of the NMWF, wrote to game commissioners following the AG’s opinion urging them to treat bighorns the same as any other species under the draw.
“The New Mexico Wildlife Federation is the oldest conservation organization in the state representing the interests of the state’s wildlife as well as public land hunters and anglers,” Deubel wrote. “More than a century ago, the federation worked to establish the game commission structure of wildlife management in our state specifically to insulate wildlife management from the influence of money and politics.”
Some out-of-state groups as well as some in New Mexico’s outfitting industry are lobbying commissioners to keep allocating bighorn tags under the present system. They’re emphasizing the substantial amounts of money that nonresidents have put into New Mexico sheep conservation through auction tags and the like.
“Rest assured,” Deubel wrote to commissioners, “the sort of wealthy hunters who are able to purchase bighorn sheep auction tags will still bid on the tags if you have the courage to reform New Mexico’s bighorn sheep draw system.”
Deubel told commissioners that the NMWF supports nonresidents drawing tags in accordance with state law. But the federation is strongly opposed to seeing the game commission continue to apply a uniquely twisted definition of “hunt code” for bighorns.
“The federation opposes seeing the game commission adopt a bighorn rule that skirts and ignores state law and the game commission’s own long-standing practice of license allocation for every other game species solely to accommodate nonresident hunters and outfitted hunters at the expense of resident hunters,” Deubel said.
If the quota law needs to be changed, it’s the commission’s job to inform the Legislature of that fact and it’s the Legislature’s job to change it, Deubel stated. Other states in the West that face distribution of extremely limited numbers of bighorn sheep tags have special provisions in their quota laws to address those tags specifically.
Deubel said he encourages resident hunters to speak up at the game commission meeting in person or through the webcast to ask commissioners to reform the bighorn hunting rule and to apply the same definition of “hunt code” to every species.
The game commission is set to continue consideration of the bighorn sheep rule, and discuss several other proposals, at its meeting on Mon., April 11, from 9 a.m. to 5 p.m. at the Santa Fe Community Convention Center, 201 W. Marcy St., Milagro Room, Santa Fe. To reach the webcast, click HERE.