Take Back Your Elk

[abqbw]

Yes, the landowner has rights to the elk on his land, but they should not be simply because he has land. And yes, properly administered landowner tags don't get my dander up a bit. But our current system provides largess to a select group, with most of the hunting opportunities going out of state and to support an outfitter/guide industry that would dry up if not for these tags.

David
NM

Landowners don’t have any “rights” to elk or other wildlife on their property. Other than the absolute right to control access to their land to allow or not allow hunting or anything else.

The outfitting industry would not “dry up” without landowner permits and outfitter draw set aside public subsidies that New Mexico provides. Arizona for instance has a very robust outfitting industry with zero landowner permits and zero outfitter set asides. AZ residents obtain 92% of all elk tags in the state through public draw without paying a landowner or outfitter to get the tag. In NM that figure is only 55%. And as I said, AZ has a robust outfitting industry.

 

[abqbw]

Yes, the legitimacy of the landowner tag program in NM is precisely what I call into question.

I left Oregon because of the politics of the state and I found a better job elsewhere (here in NM). But one thing that was done right was allocation of landowner tags - they are based strictly on acreage, and there is a limit (up to 14 if you own 160,000+ acres) for a landowner. They cannot be transferred outside of the family. They are not unit-wide, but are limited to the registered acreage. And, they are available based upon the Management Objective - if the herd is below MO in that area, there are fewer tags.

As a citizen of New Mexico, the elk on Jim-Bob's property where you go hunt belong to me. And to every other citizen in the state. They do NOT belong to the land owner. For a landowner to be able to in effect give someone a tag in exchange for money and not cut me and other New Mexicans in on that transaction is wrong. And for the State to declare that tag good for an entire unit, not just the landowner property, is pure-dee-wrong. And for the State to crow about some 90-is % of tags going to residents is a lie, since the landowner tags are in largest part sold to out of state hunters.

Yes, I would be totally fine if landowner tags totally went away. Increase the number of tags available to residents in the draw, and maybe toss well heeled nonresidents a couple of bones, too. I think non-transferrable, and limited, landowner tags would be fine, and is preferable to their elimination (tho elimination is better than where we stand now). To top it off, the number of landowner tags needs to be published and available to the public to peruse, based again on acreage.

If NM really wants outfitter tags, they NM should have an above-board lottery for them, too. But the $$$ brought in by outfitters is limited, does not benefit the herd nor the state beyond any small amount of sales taxes collected, and as far as I am concerned the outfitters should be guiding folks that drew their own tags (and there are many that operate that way).

I am glad for you, at least for the time being, that you can bathe in the glow of your cash money and ability to buy a hunt. But the system that allows you to do that here in NM sucks.

David
NM

Well said!

 

[abqbw]

Crazy how few tags actually end up in the diy guys/gals hand.

Sure is. Possibly the most screwed by New Mexico’s outfitter draw set aside and landowner permit privatization is the DIY nonresidents. DIY (unguided) nonresidents only receive 1005 (2.8%) of elk tags out of the 36,162 tags. Since nonresidents can’t draw cow tags, all of these are bull tags so DIY nonresidents receive 3.9% of the total bull tags.

92% of the 12,757 nonresident elk tags are pay-to-play (outfitter and landowner). Only 8% are DIY.

New Mexicans are concerned about the large share (35%) of elk tags that are nonresident compared to the other states. But our concern has more to do with the fact that the high nonresident share is is not due to it being allocated to nonresidents by public process. It is that the share is high because of privatization, the greatest ability to pay. In an allocation scheme that is based on wealth, the 327 million nonresident population is obviously going to swamp the 2 million New Mexicans. It’s the privatization that leads to high nonresident tag acquisition that most concerns us. We have nothing against nonresidents receiving elk tags at rates on par with other western states. But want it to be achieved by public process. Not private sale.

 

[abqbw]

Guys like you crack me up David. Your dreams of Utopia and how you wish the world to work.
In your state I play by the rules and laws set by your state government.
Its not entitlement at all.
I play the cards as they are delt.

Entitlement is people that don’t own large areas of property with game on it attempting to dictate to those that do how to manage it.
My original point was New Mexico land owners should be allowed to do as they please with their property and everything on it. Those are the people putting money in the ground in the form of taxes and agricultural infrastructure.
The very same infrastructure that benefits the cattle, and the wildlife.

Let me break it down for you.
Hypothetically I own ten sections bordering BLM and said game animal is standing on my side of the fence, I do what I want with it, sell it, kill it, leave it alone.
If he jumps the fence over where your camped on BLM drinking your Mtn Ops smoothie, he’s all yours. Simple

That wildlife is not owned by landowners to do what they please with it is not in question. On one hand you argue that owners should be able to do whatever they want with what they own. I agree with this, within reason. You can’t build an unlicensed nuclear power plant on your property. But on the other hand you argue that landowners should be able to do whatever they want with wildlife that they don’t own on their property. Just like landowners don’t own the air over their property or water that passes through their property, they don’t own the wildlife.

Here is a non-hypothetical. New Mexicans own all the wildlife in New Mexico and all of us, not landowners and outfitters, and especially not Texans or other state residents, should decide how it is used and allocated. Public trust is not that complicated of a concept. It might be inconvenient for people that would usurp the public trust for personal gain. But it is nonetheless real and the overriding principle that should dictate how New Mexican’s elk are allocated. It doesn’t. But it should.

 

[lowpressure]

Sure is. Possibly the most screwed by New Mexico’s outfitter draw set aside and landowner permit privatization is the DIY nonresidents. DIY (unguided) nonresidents only receive 1005 (2.8%) of elk tags out of the 36,162 tags. Since nonresidents can’t draw cow tags, all of these are bull tags so DIY nonresidents receive 3.9% of the total bull tags.

92% of the 12,757 nonresident elk tags are pay-to-play (outfitter and landowner). Only 8% are DIY.

New Mexicans are concerned about the large share (35%) of elk tags that are nonresident compared to the other states. But our concern has more to do with the fact that the high nonresident share is is not due to it being allocated to nonresidents by public process. It is that the share is high because of privatization, the greatest ability to pay. In an allocation scheme that is based on wealth, the 327 million nonresident population is obviously going to swamp the 2 million New Mexicans. It’s the privatization that leads to high nonresident tag acquisition that most concerns us. We have nothing against nonresidents receiving elk tags at rates on par with other western states. But want it to be achieved by public process. Not private sale.

Very well put together response. Thanks much brother.

 

[Big Fin]

While at the RMBS booth last week in Reno, the Executive Director of the New Mexico Council of Guides and Outfitters saw me buying raffle tickets for my soon to be statewide Colorado bighorn tag. She asked if I would come over to her booth and talk to her, as she and many of her members had listed to the podcast with @abqbw and Jesse Duebel. So, after buying what I am sure will be one of the winning tickets, I moved the adjacent booth to listen.

She gave me her view and the view of her organization as to the New Mexico EPLUS program. We had a friendly conversation of the role and duty of public trustees, who are the beneficiaries of the New Mexico wildlife held in trust, and the standing of citizens as equal beneficiaries. Very similar to other discussions I've had with her counterparts in other states, with the same economic points being made.

She asked if I would entertain having her and one of her members on the podcast for a different perspective. I told her I would think about it. And I am thinking about it. Here is why I would consider it.

The Public Trust Doctrine and all of its facets gets manipulated to rationalize some rather interesting programs, often under the guise that have nothing to do with Public Trust assets. The understanding of how a Trust works, whether a Private Trust or a Public Trust, seems to have a lot of confusion. The basic components of any Trust are:

Grantor - founder of the Trust.
Trustee - manager of Trust assets for the Beneficiaries.
Corpus - the Trust assets managed by the Trustee.
Beneficiaries - those for whom Trust assets are managed, both current Beneficiaries and future Beneficiaries.
Trust Document - the laws and regulations that define how the Trustee must operate and what rights the Beneficiaries have.

These discussions are really about the roles, duties, and responsibilities of the Trustees of the Public Trust of Wildlife.

- Are they accountable to the Beneficiaries in a transparent manner?
- Do they show impartiality and independence in their actions?
- Do they treat all Beneficiaries equally?
- Do they avoid self-dealing?
- Do they make reasonable and prudent decisions in managing Trust assets?
- Are they using best information and rely on outside experts for their decisions (biologists and scientists)?
- Do they provide an annual accounting of their performance?
- Do they manage Trust assets with adequate consideration for the future Beneficiaries (as Roosevelt would say, "for those yet unborn")?

That is what I focused on when I did the podcast with Brandon and Jesse. Both sides making the claims for/against EPLUS need to analyze these aspects of Trustee duty and responsibility in claiming that the current actions of the Trustees are improper.

Here's an easy example I use for people not familiar with Trusts. Wyoming raises $12million+ per year selling preference points to non-residents. As much as I dislike point systems, a Wyoming Trustee would be sued into oblivion if they refused to do what Wyoming currently does with points. Here's why.

The Trustee looks at that through this lens - I am presented with a program that generates $12million for my Trust. It has very low administrative and overhead costs. It imposes no additional impact (harvest) on my Trust Corpus (herds). The revenue to the Trust is almost all from folks who are not Beneficiaries (non-residents).

Image if a Wyoming Trustee voted to stop a program as explained above. Wyoming residents, Trust beneficiaries, would/should raise hell if a Trustee got rid of a deal that is so good for the Wyoming Public Trust of Wildlife.

Point being, there are things a prudent Trustee must do, and must not do, even if we/I/you have a personal dislike for that action or policy taken/adopted by the Trustee.

Let's take that Wyoming example that is so easy to see and apply it to the New Mexico EPLUS that is the subject of this thread.

Q: Can the New Mexico Trustees show that the current EPLUS is a net benefit/detriment to the Wildlife Trust of New Mexico?

That is the question a Trustee should pose to themselves when evaluating the current EPLUS program. They must compare what the state of the Trust would be if EPLUS disappeared, stayed the same, or it was enhanced from where it is today.

Opposing sides of the program would need to present a case to the Trustees as to why the program should be eliminated, left as is, or expanded. Such case would need to appeal to the manner in which Trustees must arrive at their decisions. Claims that it helps create jobs, that it brings in tourism dollars, that it represents privatization, all might be valid, but the Trustee must evaluate if the claims are even a consideration in the Trustee's decision.

As a Public Trustee of Wildlife, there is no duty to provide jobs with that wildlife asset, absent other compelling benefits to the Trust. As a Public Trustee, there is no duty to bring tourism dollars to the states, absent other compelling benefits to the Trust. That is why we have Chambers of Commerce and Tourism agencies. Now, if it helps with license sales and P-R matching, the Trustee must give it consideration.

Likewise, there is no prohibition to working with private parties under programs that might be a net benefit to the Trust and the Beneficiaries, even if there are claims of privatization. Example - If a non-resident landowner provided public access to 500,000 acres and guaranteed to maintain an elk herd of 3,000 animals, in exchange for 3 bull tags, the Trustee would likely get sued for turning down a deal such as that. It would clearly be in the best interest of the Trust and the Beneficiaries. Yet, it would involve a private party, so there could be claims of "privatization" of those 3 bull tags. Yes, an extreme example unlikely to happen in NM, but serves to illustrate that working with private parties is not prohibited, so long as a Trustee can do so in a prudent manner and demonstrate the benefit to the Trust/Beneficiaries.

The paragraph above shows that in many of these discussions it is not the program or the action, but the degree to which the program gets leveraged beyond any net benefit to the Trust/Beneficiaries. Many of our Trustees have no idea they are a Public Trustee. And many Trustees who have heard the concept only think of it in the abstract and not as a directive to guide their actions and decisions. We need to do a better job of informing them and holding them to the Fiduciary standards they agreed to, often unknowingly, when they were appointed/elected/hired.

Without data, support, research, and expertise, any of the arguments are hard for a Trustee to sort through. And to my knowledge, there is not much, if any data, that shows how the EPLUS program benefits/harms the New Mexico Public Trust. Such data would surely be helpful.

If I do invite the New Mexico outfitter groups on the podcast, I suspect that as the host I will be need to keep the discussion focused on these Public Trust concepts.

 

[ccc23454]

To me outfitter and guide associations should have no say in wildlife management as their interest is strictly in financial gain. To grant them a platform only legitimizes their views and gives credit to their goals. The fact they have a seat at the table is the biggest problem.

 

[Benfromalbuquerque]

To me outfitter and guide associations should have no say in wildlife management as their interest is strictly in financial gain. To grant them a platform only legitimizes their views and gives credit to their goals. The fact they have a seat at the table is the biggest problem.

Randy wrote a terrific viewpoint from an accountant’s perspective of a trust. I agree completely with your sentiment, hell with ‘em! Yet I want to convey that better.
So I (we) are stating that the Trustees are mismanaging the Corpus by way of favoring select contemporary Beneficiaries without regard to all current Beneficiaries or future of same.

Industry knee-jerk response: No, we bring $millions into NM and you’re taking away our livelihood!

Impartial objective NM hunters: That’s a lie. AZ has no private tags and yet there is a thriving outfitter industry. Because of their tag system, AZGFD is self-supporting. AZ also maintains the Heritage Fund with a portion of lottery revenue. Have NM outfitters ever used proceeds to study herd health or constructed a park? No, yet if NM adopted the AZ model, outfitters would continue and $ would be available that currently remains in private hands.

 

[Big Fin]

Randy wrote a terrific viewpoint from an accountant’s perspective of a trust. I agree completely with your sentiment, hell with ‘em! Yet I want to convey that better.
So I (we) are stating that the Trustees are mismanaging the Corpus by way of favoring select contemporary Beneficiaries without regard to all current Beneficiaries or future of same.

Industry knee-jerk response: No, we bring $millions into NM and you’re taking away our livelihood!

Impartial objective NM hunters: That’s a lie. AZ has no private tags and yet there is a thriving outfitter industry. Because of their tag system, AZGFD is self-supporting. AZ also maintains the Heritage Fund with a portion of lottery revenue. Have NM outfitters ever used proceeds to study herd health or constructed a park? No, yet if NM adopted the AZ model, outfitters would continue and $ would be available that currently remains in private hands.

You've pretty much laid out the framework of how this debate progresses. Not just on this and not just in New Mexico. But, I will stick it the New Mexico EPLUS system since it is the focus of this thread.

If I was one of your Trustees in New Mexico, or if I was advising a Trustee, purely based on Trustee fiduciary duties, I would have the following replies and the following requests:

Response/request to Industry - It's not the role of this Trust to provide livelihoods, unless the activity and programs around which livelihoods are built can be shown to be beneficial to the Trust, the Corpus (wildlife), and all the Beneficiaries (citizens of New Mexico). Come back to me when you have data that shows how EPLUS benefits the Public Trust of which I am a Trustee. Until then, take your economic data to the Chamber of Commerce meeting. I need data that shows the current EPLUS system is a net benefit to New Mexicans, not just the select few beneficiaries who profit from the current system.

Response/request to Hunters - What happens in Arizona has no bearing on my decisions for New Mexico's Public Trust and what is best for our Beneficiaries. We have a different landscape than other states. I am happy to consider what those states do, but those states will not drive my decision of what is best for New Mexico. Please come back with data that supports your claims. To make a decision you are asking of me, I need to see data that the current EPLUS system is detrimental to the Public Trust, the Corpus, and the Beneficiaries of New Mexico.

I would then call the Director of New Mexico Game & Fish to meet in executive session with my co-Trustees. I would inform the Director to commence a study of the EPLUS system by outside experts to determine if the EPLUS as currently operating is a benefit or detriment, as measured by many criteria, not just financial criteria. If this program is deemed to be a net detriment to the Public Trust of New Mexico, as a Trustee, my ass is hanging out there by letting this program continue. And if this program is a net benefit, I need to have that data so we can move on to the many other important topics that face us as Trustees.

Thus to my point that nobody, to date, that I'm aware of, can show whether the EPLUS program is a net benefit/detriment to New Mexico. I don't live there, so this is all an exercise of observation for me. My gut tells me the program is being used in a way that is not maximizing the benefit to the Beneficiaries, and that is why I had Brandon and Jesse on the podcast. But, I admit that previous sentence is merely my gut feeling and not supported by anything concrete.

Here is a "walk through" of a reasonable and prudent Trustee's analysis, using numbers I've made up. I have no idea how real these numbers are, but reading in this thread, I picked some numbers that seem in the ball park. If the data provided or study requested of the Director showed that removing EPLUS would put New Mexico to a 90/10 scenario like most states, and the harvestable elk surplus only dropped by a small percentage, then a Trustee could do some math as simplified below.

Example that applies numbers for a Trustee - Currently, residents, who are my Beneficiaries, get 50% of the harvestable elk surplus. If they got 90% of that surplus by removing EPLUS, how much could elk numbers drop and my Beneficiaries still be better off? Assume the study says that harvestable elk surplus would drop by 40%. Simplified math says that 90% of the remaining 60% is 54% of the harvestable surplus to residents. That is greater than the 50% that currently is allocated to residents. So, under this simplified illustration, a prudent and independent Trustee would be compelled to junk the EPLUS program, or at least consider changes to EPLUS, that do even better for residents than 54%.

Now let's do it the other way. If the data and study showed a 50% drop in harvestable elk surplus, then residents would be getting 90% of the remaining 50%, which is only 45%. That is less than the current 50% the Beneficiaries are getting. Any prudent and diligent Trustee would have to look hunters in the face, knowing he/she would take a lot of heat for the decision, but he/she would have to vote to stick with the EPLUS program and hope to tweak it for more benefit to resident Beneficiaries.

Yeah, that was a super simplified walk through that ignores possible "in between" options that could provide the public even more benefit/less detriment via more and better access, more public tags, less consequences of excluding so many, the negatives of hunting allocation by economic strata, etc. Until each side, and the Department, get actual data and expert studies, the Trustee is making decisions based on something other than "informed experts."

If I was a New Mexico beneficiary, I'd be focusing some effort on accumulating data to support my claims against EPLUS and I would present it to Trustees such that they would have no choice but to make changes. I would want to be the first one to the debate with data to support my claims. And in doing so, I also run the risk that the data doesn't necessarily support what I want for change.

 

[abqbw]

Very well put together response. Thanks much brother.

Thank you. I have tried to explain this concept quite a few times - that us New Mexicans are not anti-nonresident. We are anti-privatization. I think that most of us New Mexicans might be satisfied with greater share nonresident tags than the 10% of many or most western states if it was achieved by public process. I probably would.

 

[abqbw]

You've pretty much laid out the framework of how this debate progresses. Not just on this and not just in New Mexico. But, I will stick it the New Mexico EPLUS system since it is the focus of this thread.

If I was one of your Trustees in New Mexico, or if I was advising a Trustee, purely based on Trustee fiduciary duties, I would have the following replies and the following requests:

Response/request to Industry - It's not the role of this Trust to provide livelihoods, unless the activity and programs around which livelihoods are built can be shown to be beneficial to the Trust, the Corpus (wildlife), and all the Beneficiaries (citizens of New Mexico). Come back to me when you have data that shows how EPLUS benefits the Public Trust of which I am a Trustee. Until then, take your economic data to the Chamber of Commerce meeting. I need data that shows the current EPLUS system is a net benefit to New Mexicans, not just the select few beneficiaries who profit from the current system.

Response/request to Hunters - What happens in Arizona has no bearing on my decisions for New Mexico's Public Trust and what is best for our Beneficiaries. We have a different landscape than other states. I am happy to consider what those states do, but those states will not drive my decision of what is best for New Mexico. Please come back with data that supports your claims. To make a decision you are asking of me, I need to see data that the current EPLUS system is detrimental to the Public Trust, the Corpus, and the Beneficiaries of New Mexico.

I would then call the Director of New Mexico Game & Fish to meet in executive session with my co-Trustees. I would inform the Director to commence a study of the EPLUS system by outside experts to determine if the EPLUS as currently operating is a benefit or detriment, as measured by many criteria, not just financial criteria. If this program is deemed to be a net detriment to the Public Trust of New Mexico, as a Trustee, my ass is hanging out there by letting this program continue. And if this program is a net benefit, I need to have that data so we can move on to the many other important topics that face us as Trustees.

Thus to my point that nobody, to date, that I'm aware of, can show whether the EPLUS program is a net benefit/detriment to New Mexico. I don't live there, so this is all an exercise of observation for me. My gut tells me the program is being used in a way that is not maximizing the benefit to the Beneficiaries, and that is why I had Brandon and Jesse on the podcast. But, I admit that previous sentence is merely my gut feeling and not supported by anything concrete.

Here is a "walk through" of a reasonable and prudent Trustee's analysis, using numbers I've made up. I have no idea how real these numbers are, but reading in this thread, I picked some numbers that seem in the ball park. If the data provided or study requested of the Director showed that removing EPLUS would put New Mexico to a 90/10 scenario like most states, and the harvestable elk surplus only dropped by a small percentage, then a Trustee could do some math as simplified below.

Example that applies numbers for a Trustee - Currently, residents, who are my Beneficiaries, get 50% of the harvestable elk surplus. If they got 90% of that surplus by removing EPLUS, how much could elk numbers drop and my Beneficiaries still be better off? Assume the study says that harvestable elk surplus would drop by 40%. Simplified math says that 90% of the remaining 60% is 54% of the harvestable surplus to residents. That is greater than the 50% that currently is allocated to residents. So, under this simplified illustration, a prudent and independent Trustee would be compelled to junk the EPLUS program, or at least consider changes to EPLUS, that do even better for residents than 54%.

Now let's do it the other way. If the data and study showed a 50% drop in harvestable elk surplus, then residents would be getting 90% of the remaining 50%, which is only 45%. That is less than the current 50% the Beneficiaries are getting. Any prudent and diligent Trustee would have to look hunters in the face, knowing he/she would take a lot of heat for the decision, but he/she would have to vote to stick with the EPLUS program and hope to tweak it for more benefit to resident Beneficiaries.

Yeah, that was a super simplified walk through that ignores possible "in between" options that could provide the public even more benefit/less detriment via more and better access, more public tags, less consequences of excluding so many, the negatives of hunting allocation by economic strata, etc. Until each side, and the Department, get actual data and expert studies, the Trustee is making decisions based on something other than "informed experts."

If I was a New Mexico beneficiary, I'd be focusing some effort on accumulating data to support my claims against EPLUS and I would present it to Trustees such that they would have no choice but to make changes. I would want to be the first one to the debate with data to support my claims. And in doing so, I also run the risk that the data doesn't necessarily support what I want for change.

Wow. Brilliant write up!

 

[abqbw]

Randy wrote a terrific viewpoint from an accountant’s perspective of a trust. I agree completely with your sentiment, hell with ‘em! Yet I want to convey that better.
So I (we) are stating that the Trustees are mismanaging the Corpus by way of favoring select contemporary Beneficiaries without regard to all current Beneficiaries or future of same.

Industry knee-jerk response: No, we bring $millions into NM and you’re taking away our livelihood!

Impartial objective NM hunters: That’s a lie. AZ has no private tags and yet there is a thriving outfitter industry. Because of their tag system, AZGFD is self-supporting. AZ also maintains the Heritage Fund with a portion of lottery revenue. Have NM outfitters ever used proceeds to study herd health or constructed a park? No, yet if NM adopted the AZ model, outfitters would continue and $ would be available that currently remains in private hands.

Well said. I would make the following observations to your comment.

First, beneficiaries. In my opinion you properly make them the central figure because wildlife is a public trust asset. But I would argue that the “favored” by privatization are not beneficiaries at all. This is I think a key observation on the issue of privatization. And that is why privatization is is a violation of the public trust. In a trust relationship a non beneficiary can only receive privilege from the trust to the extent that such privilege generates much greater benefit for trust beneficiaries. For instance, private trustees properly and legally pay for tax advice and preparation, legal, investment advice from the trust assets because these are required and/or benefit the trust beneficiaries. But privatization does not come close to meeting this test. When a landowner or outfitter, even if they be New Mexican, receives a private license authorization to sell privately or is allowed to privately control and sell access to a tag in the draw, they are not operating as trust beneficiaries. The benefits from these transactions by far flow to non beneficiaries. The only legitimate beneficiaries, all New Mexicans receive scant benefit. Therefore the disgorgement of the public trust assets to non beneficiaries through private tags does not comply with the most basic elements of public trust doctrine and the public trustees have failed their public trust obligations.

You mention “future beneficiaries”. I believe New Mexico officials are satisfactorily meeting their public trust obligations to future beneficiaries. In terms of population sustainability, wildlife in New Mexico is managed roughly on par with the other western states. Which is pretty good. Who kills big game and how they were allocated the licenses does not alter the likelihood that the big game will exist in the future or its population potential. Future beneficiaries are fairly well treated. What this looks like at the Game Commission level is that the game commission almost always accepts the license numbers, time and place, etc recommendations from the professionals at the Department of Game and Fish. Which is reasonable on the part of the commission because these professionals have a good record of managing for sustainable wildlife populations. If and when they miss, they take corrective action too. Except maybe there is one wrinkle. Current beneficiaries are deprived of the opportunity to learn how to hunt and teach and hook their children on hunting when they are deprived of the required tag to do it. Later generations of beneficiaries are being molded as non hunters by current tag policies. They will be less likely to be able partake of the wildlife benefit through hunting than they might be if NM tag allocation policy was not so heavily skewed away from the trust beneficiaries. I often point to this factor as one of the many negative outcomes that accrue to the trust beneficiaries from privatization.

I often use the AZ tag allocation model largely as you have. What I try to say is that the argument that privatization is necessary to meet the wildlife sustainability and funding requirements is proven false by states like Arizona that have at least and maybe even better sustainability in the short and long term than New Mexico while also meeting public trust obligations to current beneficiaries. So cessation of privatization would not present a risk to the corpus of the wildlife trust. Cessation would not be a risky experiment. This is empirically proven in other states that are otherwise similar enough to New Mexico that they are valid comparisons and examples.

 

[abqbw]

While at the RMBS booth last week in Reno, the Executive Director of the New Mexico Council of Guides and Outfitters saw me buying raffle tickets for my soon to be statewide Colorado bighorn tag. She asked if I would come over to her booth and talk to her, as she and many of her members had listed to the podcast with @abqbw and Jesse Duebel. So, after buying what I am sure will be one of the winning tickets, I moved the adjacent booth to listen.

She gave me her view and the view of her organization as to the New Mexico EPLUS program. We had a friendly conversation of the role and duty of public trustees, who are the beneficiaries of the New Mexico wildlife held in trust, and the standing of citizens as equal beneficiaries. Very similar to other discussions I've had with her counterparts in other states, with the same economic points being made.

She asked if I would entertain having her and one of her members on the podcast for a different perspective. I told her I would think about it. And I am thinking about it. Here is why I would consider it.

The Public Trust Doctrine and all of its facets gets manipulated to rationalize some rather interesting programs, often under the guise that have nothing to do with Public Trust assets. The understanding of how a Trust works, whether a Private Trust or a Public Trust, seems to have a lot of confusion. The basic components of any Trust are:

Grantor - founder of the Trust.
Trustee - manager of Trust assets for the Beneficiaries.
Corpus - the Trust assets managed by the Trustee.
Beneficiaries - those for whom Trust assets are managed, both current Beneficiaries and future Beneficiaries.
Trust Document - the laws and regulations that define how the Trustee must operate and what rights the Beneficiaries have.

These discussions are really about the roles, duties, and responsibilities of the Trustees of the Public Trust of Wildlife.

- Are they accountable to the Beneficiaries in a transparent manner?
- Do they show impartiality and independence in their actions?
- Do they treat all Beneficiaries equally?
- Do they avoid self-dealing?
- Do they make reasonable and prudent decisions in managing Trust assets?
- Are they using best information and rely on outside experts for their decisions (biologists and scientists)?
- Do they provide an annual accounting of their performance?
- Do they manage Trust assets with adequate consideration for the future Beneficiaries (as Roosevelt would say, "for those yet unborn")?

That is what I focused on when I did the podcast with Brandon and Jesse. Both sides making the claims for/against EPLUS need to analyze these aspects of Trustee duty and responsibility in claiming that the current actions of the Trustees are improper.

Here's an easy example I use for people not familiar with Trusts. Wyoming raises $12million+ per year selling preference points to non-residents. As much as I dislike point systems, a Wyoming Trustee would be sued into oblivion if they refused to do what Wyoming currently does with points. Here's why.

The Trustee looks at that through this lens - I am presented with a program that generates $12million for my Trust. It has very low administrative and overhead costs. It imposes no additional impact (harvest) on my Trust Corpus (herds). The revenue to the Trust is almost all from folks who are not Beneficiaries (non-residents).

Image if a Wyoming Trustee voted to stop a program as explained above. Wyoming residents, Trust beneficiaries, would/should raise hell if a Trustee got rid of a deal that is so good for the Wyoming Public Trust of Wildlife.

Point being, there are things a prudent Trustee must do, and must not do, even if we/I/you have a personal dislike for that action or policy taken/adopted by the Trustee.

Let's take that Wyoming example that is so easy to see and apply it to the New Mexico EPLUS that is the subject of this thread.

Q: Can the New Mexico Trustees show that the current EPLUS is a net benefit/detriment to the Wildlife Trust of New Mexico?

That is the question a Trustee should pose to themselves when evaluating the current EPLUS program. They must compare what the state of the Trust would be if EPLUS disappeared, stayed the same, or it was enhanced from where it is today.

Opposing sides of the program would need to present a case to the Trustees as to why the program should be eliminated, left as is, or expanded. Such case would need to appeal to the manner in which Trustees must arrive at their decisions. Claims that it helps create jobs, that it brings in tourism dollars, that it represents privatization, all might be valid, but the Trustee must evaluate if the claims are even a consideration in the Trustee's decision.

As a Public Trustee of Wildlife, there is no duty to provide jobs with that wildlife asset, absent other compelling benefits to the Trust. As a Public Trustee, there is no duty to bring tourism dollars to the states, absent other compelling benefits to the Trust. That is why we have Chambers of Commerce and Tourism agencies. Now, if it helps with license sales and P-R matching, the Trustee must give it consideration.

Likewise, there is no prohibition to working with private parties under programs that might be a net benefit to the Trust and the Beneficiaries, even if there are claims of privatization. Example - If a non-resident landowner provided public access to 500,000 acres and guaranteed to maintain an elk herd of 3,000 animals, in exchange for 3 bull tags, the Trustee would likely get sued for turning down a deal such as that. It would clearly be in the best interest of the Trust and the Beneficiaries. Yet, it would involve a private party, so there could be claims of "privatization" of those 3 bull tags. Yes, an extreme example unlikely to happen in NM, but serves to illustrate that working with private parties is not prohibited, so long as a Trustee can do so in a prudent manner and demonstrate the benefit to the Trust/Beneficiaries.

The paragraph above shows that in many of these discussions it is not the program or the action, but the degree to which the program gets leveraged beyond any net benefit to the Trust/Beneficiaries. Many of our Trustees have no idea they are a Public Trustee. And many Trustees who have heard the concept only think of it in the abstract and not as a directive to guide their actions and decisions. We need to do a better job of informing them and holding them to the Fiduciary standards they agreed to, often unknowingly, when they were appointed/elected/hired.

Without data, support, research, and expertise, any of the arguments are hard for a Trustee to sort through. And to my knowledge, there is not much, if any data, that shows how the EPLUS program benefits/harms the New Mexico Public Trust. Such data would surely be helpful.

If I do invite the New Mexico outfitter groups on the podcast, I suspect that as the host I will be need to keep the discussion focused on these Public Trust concepts.

In my opinion there are very good arguments that EPLUS does not pass the public trust sniff test. Here is some. If there exists an example where elk herds on private and public land are sustained, the wildlife agency charged with managing the elk is well funded and successful, and public access by the trust beneficiaries to both private and public land as well the permits to hunt the wildife is enhanced instead of impaired, does that not mean the public trustee is required to follow this example? Obviously the example I illustrated is Arizona. To defend not following the AZ example a public trustee in NM would have to prove that New Mexico is so different than AZ that we have to follow an entirely different model. An impossible task.

Add to this the numerous examples of positive beneficiary outcomes in other states that do not privatize anywhere near the degree that New Mexico does (or at all) that are instead negative in New Mexico. Open gate. AZ with its purely public allocation of big game tags, 90% resident, has 4 million acres of private land enrolled in of open gate type programs. Montana has 6.8 million acres in Block Management. New Mexico has 34,800 acres in open gate. Privatization is the nexus that causes these discrepancies between these states.

Another negative public outcome of EPLUS is that it greatly incentivizes blocking of access to public land. This was made undeniably apparent to me when I was hunting bighorn in Montana (under its very strict nonresident 10% cap on bighorn tags). I spotted a ram on national forest land blocked by private land covered in elk. Were this New Mexico the private land would have EPLUS permits and would be posted. But since it was MT the private land was enrolled in Block Management. I just signed in and crossed the private land and killed the bighorn on public land.

These point to the flaws of EPLUS. The benefits of EPLUS are demonstrably skewed greatly in favor of private interests with little benefit to the New Mexico public. This includes both direct loss of the actual permits plus great external public negatives beyond the loss of permits from the public domain that arise by virtue of the permits being private.

I believe we have already more than cleared the bar with respect to EPLUS being not being justified from a public trust standpoint. Also, that New Mexico elected and appointed officials won’t even discuss or consider the public and private benefits and costs of EPLUS means they are not meeting their public trust obligations.

 

[abqbw]

In my opinion there are very good arguments that EPLUS does not pass the public trust sniff test. Here is some. If there exists an example where elk herds on private and public land are sustained, the wildlife agency charged with managing the elk is well funded and successful, and public access by the trust beneficiaries to both private and public land as well the permits to hunt the wildife is enhanced instead of impaired, does that not mean the public trustee is required to follow this example? Obviously the example I illustrated is Arizona. To defend not following the AZ example a public trustee in NM would have to prove that New Mexico is so different than AZ that we have to follow an entirely different model. An impossible task.

Add to this the numerous examples of positive beneficiary outcomes in other states that do not privatize anywhere near the degree that New Mexico does (or at all) that are instead negative in New Mexico. Open gate. AZ with its purely public allocation of big game tags, 90% resident, has 4 million acres of private land enrolled in of open gate type programs. Montana has 6.8 million acres in Block Management. New Mexico has 34,800 acres in open gate. Privatization is the nexus that causes these discrepancies between these states.

Another negative public outcome of EPLUS is that it greatly incentivizes blocking of access to public land. This was made undeniably apparent to me when I was hunting bighorn in Montana (under its very strict nonresident 10% cap on bighorn tags). I spotted a ram on national forest land blocked by private land covered in elk. Were this New Mexico the private land would have EPLUS permits and would be posted. But since it was MT the private land was enrolled in Block Management. I just signed in and crossed the private land and killed the bighorn on public land.

These point to the flaws of EPLUS. The benefits of EPLUS are demonstrably skewed greatly in favor of private interests with little benefit to the New Mexico public. This includes both direct loss of the actual permits plus great external public negatives beyond the loss of permits from the public domain that arise by virtue of the permits being private.

I believe we have already more than cleared the bar with respect to EPLUS being not being justified from a public trust standpoint. Also, that New Mexico elected and appointed officials won’t even discuss or consider the public and private benefits and costs of EPLUS means they are not meeting their public trust obligations.

I should add that New Mexico also has 171k acres of private land in EPLUS unit wide. To choose EPLUS unit wide or ranch only is solely up to the landowner. This greatly skews to benefit of picking Unit Wide (public access) toward private interests because they are orders of magnitude more likely to pick unit wide only if the benefit to them is much greater (higher private permit value) than the cost (providing public access) that unit wide as a whole is a private benefit with very little public benefit and cannot be considered as an example of open gate. In fact, EPLUS could go a long way toward being “fixed” from a public trust standpoint if all EPLUS tags were designated unit wide. Straight up public access in return for the grant of private tags.

 

[David58]

I should add that New Mexico also has 171k acres of private land in EPLUS unit wide. To choose EPLUS unit wide or ranch only is solely up to the landowner. This greatly skews to benefit of picking Unit Wide (public access) toward private interests because they are orders of magnitude more likely to pick unit wide only if the benefit to them is much greater (higher private permit value) than the cost (providing public access) that unit wide as a whole is a private benefit with very little public benefit and cannot be considered as an example of open gate. In fact, EPLUS could go a long way toward being “fixed” from a public trust standpoint if all EPLUS tags were designated unit wide. Straight up public access in return for the grant of private tags.

Had not thought of the landowner tags in exchange for access. I like the idea that if you get a landowner tag, then you'd have to enroll in the "open gate" program. Otherwise, enter the draw like the rest of us.

The point is that the herd is managed by the State, not the outfitters, and almost totally not the landowners. In the context of a Trust agreement, there is no way EPLUS meets the standard.

David
NM

 

[sjl2012]

Well said. I would make the following observations to your comment.

First, beneficiaries. In my opinion you properly make them the central figure because wildlife is a public trust asset. But I would argue that the “favored” by privatization are not beneficiaries at all. This is I think a key observation on the issue of privatization. And that is why privatization is is a violation of the public trust. In a trust relationship a non beneficiary can only receive privilege from the trust to the extent that such privilege generates much greater benefit for trust beneficiaries. For instance, private trustees properly and legally pay for tax advice and preparation, legal, investment advice from the trust assets because these are required and/or benefit the trust beneficiaries. But privatization does not come close to meeting this test. When a landowner or outfitter, even if they be New Mexican, receives a private license authorization to sell privately or is allowed to privately control and sell access to a tag in the draw, they are not operating as trust beneficiaries. The benefits from these transactions by far flow to non beneficiaries. The only legitimate beneficiaries, all New Mexicans receive scant benefit. Therefore the disgorgement of the public trust assets to non beneficiaries through private tags does not comply with the most basic elements of public trust doctrine and the public trustees have failed their public trust obligations.

You mention “future beneficiaries”. I believe New Mexico officials are satisfactorily meeting their public trust obligations to future beneficiaries. In terms of population sustainability, wildlife in New Mexico is managed roughly on par with the other western states. Which is pretty good. Who kills big game and how they were allocated the licenses does not alter the likelihood that the big game will exist in the future or its population potential. Future beneficiaries are fairly well treated. What this looks like at the Game Commission level is that the game commission almost always accepts the license numbers, time and place, etc recommendations from the professionals at the Department of Game and Fish. Which is reasonable on the part of the commission because these professionals have a good record of managing for sustainable wildlife populations. If and when they miss, they take corrective action too. Except maybe there is one wrinkle. Current beneficiaries are deprived of the opportunity to learn how to hunt and teach and hook their children on hunting when they are deprived of the required tag to do it. Later generations of beneficiaries are being molded as non hunters by current tag policies. They will be less likely to be able partake of the wildlife benefit through hunting than they might be if NM tag allocation policy was not so heavily skewed away from the trust beneficiaries. I often point to this factor as one of the many negative outcomes that accrue to the trust beneficiaries from privatization.

I often use the AZ tag allocation model largely as you have. What I try to say is that the argument that privatization is necessary to meet the wildlife sustainability and funding requirements is proven false by states like Arizona that have at least and maybe even better sustainability in the short and long term than New Mexico while also meeting public trust obligations to current beneficiaries. So cessation of privatization would not present a risk to the corpus of the wildlife trust. Cessation would not be a risky experiment. This is empirically proven in other states that are otherwise similar enough to New Mexico that they are valid comparisons and examples.

"Except maybe there is one wrinkle. Current beneficiaries are deprived of the opportunity to learn how to hunt and teach and hook their children on hunting when they are deprived of the required tag to do it. Later generations of beneficiaries are being molded as non hunters by current tag policies. They will be less likely to be able partake of the wildlife benefit through hunting than they might be if NM tag allocation policy was not so heavily skewed away from the trust beneficiaries. I often point to this factor as one of the many negative outcomes that accrue to the trust beneficiaries from privatization."


Has anyone looked to compare the number of 1st choice resident elk applicants for the last 10 years to New Mexico's actual population growth, then compare that to other Western States to check and see if there maybe isn't a loop hole in the application system somewhere as well that is allowing certain non-residents to apply as residents? Just curious. The general population of New Mexico seems to be stagnant for the last 10 years but there are a lot of transient workers that could easily cause the drastic increase in resident applications. I haven't found enough numbers to put forth a theory but too many to be simply explained away as adult onset hunters.

 

[Benfromalbuquerque]

Had not thought of the landowner tags in exchange for access. I like the idea that if you get a landowner tag, then you'd have to enroll in the "open gate" program. Otherwise, enter the draw like the rest of us.

The point is that the herd is managed by the State, not the outfitters, and almost totally not the landowners. In the context of a Trust agreement, there is no way EPLUS meets the standard.

David
NM

That concept of tags for Open Gate enrollment is a fantastic idea! If NM looks at this from a revenue standpoint, the draw tags are much more profitable to G&F than the pittance paid for authorization to use private tags. Then say NM went 85/15, 90/10 or even didn’t change at all, the public access would increase by whole 640 sections now private.

 

[abqbw]

To me outfitter and guide associations should have no say in wildlife management as their interest is strictly in financial gain. To grant them a platform only legitimizes their views and gives credit to their goals. The fact they have a seat at the table is the biggest problem.

That has been one of our greatest frustrations in New Mexico. Our Game Commission has completely flipped the script on New Mexico residents. When it comes to tag allocations nothing happens unless the outfitters want it. And nothing happens that residents want unless outfitters want it. The last time New Mexicans received anything that favored residents in terms of tag allocation was over ten years ago when the outfitter draw set aside quota was reduced 2%, from 12% to 10%. The legislature's bill began as a straight up 90% Resident and 10% nonresident draw quota. At the bill's first committee stop at the behest of outfitters the bill was amended to the current quota 84% unguided residents, 6% unguided resident, and 10% outfitted. Things have only gotten worse since then. The State Senator that sponsored the 90/10 bill recently told us that if we wanted to see another bill on the outfitter draw set-aside we would first have to obtain the support of outfitters.

 

[abqbw]

Oh! Wildlife is owned equally by every resident! I see the light now.

Theres 2,116,000 plus residents in New Mexico.
The elk herd is estimated at 70-90,000

That means you own an Ear. Maybe.

If I were you I’d hunt something I had a bigger share in.
Maybe fishing.

Really? This is your logic? Believe it or not, there have been systems conceived and implemented that allocate public natural resources fairly and equitably among the public owners of the resource when public demand greatly outstrips the supply. For hunting licenses they are called public draw lotteries. Ever heard of em? They actually award you a whole animal when you win.

Seriously, I am only bothering to respond to your comment to point out that once a debate begins about privatization, the deeper it gets the sillier the comments from proponents of privatization become. And I have to give it to you, you might have found a new level of silly.

 

[abqbw]

Gerald Martin I think you misunderstand my position.
Allow me to explain.
I operate 100% inside the law. As I have previously stated, I play the cards as they are dealt by the respective legislatures.

Comments have been made during this discussion to the effect, landowners shouldn’t be allowed to sell this or that or buy certain tags…..blah blah
But they can. Because its allowed by law.

Outfitters shouldn’t be allowed to do this or that for some reason our another because it benefits their clients.
But they can. Because its allowed by law.

The conversation has become quite convoluted since it started and has lost its way.

By playing Devils Advocate here I have learned alot about the issues at hand and what individuals opinions are, both rational and irrational as well as fact, vs fiction.
The population here is like a cross section of America. A lot of opinions are influenced more by long held beliefs or dreams of how things should be as opposed to how they really are. Thats simply my opinion.
Some individuals have intelligent and well thought out comments. Those are helpful.
Others with nothing intelligent to add to the conversation or lacking in the ability to articulate well, simply resort to name calling. Not so helpful and detracts from the gathering of useful information.

In reality I don’t have a horse in the race nor any influence in the legislatures of the respective states so I wish each citizen luck in his own state.

Overall its been very informative.
Thanks for all the input.

Happy New Year to All

"But they can. Because its allowed by law." is exactly what this thread is about. And that New Mexicans want that to change.