March 23, 2012
UNDER THE SAME FLAG?
The 2011 legislative session in New Mexico produced several law changes that negatively discriminate against nonresident hunters. Prior to NM SB196 (2011) nonresident hunters were allocated 22% of deer, elk and antelope licenses. Now, only 16% of those hunting licenses are allocated to nonresidents. Nonresidents are further deprived of the right to hunt cow elk on public lands and also deprived of hunting deer, elk or antelope on State Wildlife Areas – State Wildlife Areas which were purchased largely with Federal funds. Additionally, nonresident outfitters, for all practical purposes, are eliminated on public lands inasmuch as their nonresident clients are ineligible to participate in the drawings for deer, elk and antelope licenses.
All of these discriminatory and prejudicial laws were challenged in a lawsuit heard before Judge Armijo in Federal District Court, March 21 & 22, 2012, in Albuquerque, NM. The plaintiff action was brought about by a group of nonresident hunters and outfitters from Arizona, Colorado and Wyoming asking for injunctive relief from New Mexico laws which violate the constitution of the United States. Judge Armijo acknowledged certain obvious and blatant unconstitutionality and granted a temporary restraining order (TRO) on a portion of the laws. A final ruling will come within the next few months.
It is significant to note that NM SB 196 was inspired by resident hunters, represented by the New Mexico Wildlife Federation, who sought to eliminate 55% of nonresident hunting opportunity for deer, elk and antelope on public lands and , rather, to give those opportunities to the resident hunter. Their original Bill would have designated 90% of the licenses to the resident hunter and 10% to the nonresident.
It is also significant to note that resident desire for more of the available licenses is a common and dominate problem throughout the public lands States, i.e., all of the Western States. As a lifelong advocate of responsible wildlife management, a steward of the land and wildlife habitat, and as a past Colorado Wildlife Commissioner, I have long been aware of a basic tenet of the science of wildlife management. That tenet is; the three most important components required for good effective wildlife management are, Habitat, Habitat and Habitat. We ask ourselves, who owns and manages these most important “habitats” in the Western States? Of course the Federal Government “owns” USFS and BLM thru all Americans (each of whom has an undivided interest in every square acre of this Government managed “habitat”) The remainder of wildlife habitat in the Western states is largely private lands. Some is State lands, but much of that is State Wildlife Areas which were purchased with Federal funds mainly coming from the 11% federal tax, levied nationwide, on the sale of firearms and ammunition. The Pittman/Robertson Act of 1937 authorized this tax to create a fund for the restoration of wildlife and their habitats. For the past 75 years a disproportional amount of PR funds have been spent in the Western States. All Americans can take pride in these State Wildlife Areas that their PR funds have created.
We also ask, who funds wildlife management in the Western, public lands, States? Of course it is the nonresident hunters with their higher license fees who have been historically the extremely important funding source for all western State Game and Fish Departments. We ask who funds the management of the very important wildlife habitat on Federal lands? The answer is disturbing as very little of the millions of dollars in hunting license revenue collected by the various Game and Fish Departments goes toward habitat management on public or private lands.
It is accepted that wildlife belongs to no one (according to the North American Wildlife model) and is held in trust for the people of the various States (residents) by the State. It follows that the financial responsibility for sustainable habitat management should be borne by the people, who “own” the wildlife (i.e., the residents). In most Western States some attempt is made to mitigate the costs or impacts of hosting and producing wildlife on private land, but amazingly little goes toward public land wildlife habitat management.
In summation, the legal action illuminates several problems:
In 2005 Senator Harry Reid inserted a little known clause into the Iraqi War Funding Bill that provides for the various States to be able to determine who hunts within their respective State. The Reid amendment is being used to justify nonresident discrimination despite the fact that all Americans have a vested interest in wildlife habitat on Federal lands and in the funding, historically, for the recovery of wildlife species and their habitats (purchase of State Wildlife Areas).
The greatest threat to wildlife and their habitats on Federal lands is the resident, their growing populations (Colorado has over 5 million residents), their increasing demand for infrastructure needs for roads, homes, schools, etc. and their increasing year round recreation. The exponential increase in outdoor recreation in wildlife habitat – hiking (always with a dog), bicycling, ATVs, etc. is said to be “non consumptive to wildlife while hunting is “consumptive”. Yet, only 20 to 40% of the hunters harvest an animal, so aren’t the 60% who do not harvest an animal non consumptive ? On the other hand, the constant recreational habits of the newly arrived residents who moved to the western states to “love” the outdoors create a defacto “loss of habitat” by virtue of their constant presence within those habitats.
The North American Model of Fish and Wildlife Conservation and the Public Trust Doctrine call for “a democracy in hunting”, i.e. an equality in access for all Americans to hunting opportunities. Hunting opportunity is granted through hunting licenses. What could be more fair, in the public lands States, than allocating 50% of the available licenses to residents and 50% to all Americans, to include residents if they are willing to purchase the higher priced licenses to help fund wildlife conservation and habitat management in their State. We would do well to remember that from the late 1800’s thru the early part of the 20th century our nation was fortunate in having conservationists with vision. When Theodore Roosevelt (a nonresident) and his colleagues sought to recover wildlife species and wildlife habitat thus creating National Forests, those Forests and that wildlife were to be for the benefit of all Americans. We are overdue to reevaluate the future of our wildlife, the funding of wildlife management and to seek sensible solutions.
It is time to collectively abolish greed, selfishness and shortsightedness regarding wildlife and their habitats.
What you can do to help;
Email New Mexico Governor Susanna Martinez, asking for her help to stop nonresident discrimination
Email your own Congressional Delegation asking that the Reid Amendment be overturned
Respectfully submitted,
Dick Ray
Past Colorado Wildlife Commissioner, 2005-2009
Past President, Colorado Outfitters Association, 2010-2011
Past Plaintiff in legal action involving nonresident discrimination, New Mexico, 1975 (we prevailed)
Past Plaintiff in legal action involving nonresident discrimination, New Mexico, 1995 (we prevailed)
Currently a Plaintiff in legal action involving nonresident discrimination, New Mexico, 2012