NM Lawmakers Question Legality of Outfitter Set-Aside Law

By Ben Neary

NMWF

A group of New Mexico legislators has asked the state attorney general for a formal opinion on the legality of the state law that reserves 10 percent of the big game hunting licenses in the public draw for hunters who contract with registered outfitters.

The lawmakers filed a letter Wednesday with New Mexico Attorney General Raul Torrez asking whether the outfitter set-aside violates the anti-donation clause of the New Mexico State Constitution. That provision prohibits the state and local governments from giving public funds or property to private parties.

“Increasingly, we are concerned that many New Mexico families are unable to pass on the hunting tradition and are excluded from any opportunity to harvest healthy wild game as big game draw odds worsen year after year for residents,” the lawmakers wrote. “This is the result of a system that shifts hunting opportunity on our public lands away from average residents to wealthier, most often non-resident, hunters. No other western state excludes its own residents in favor of providing a better chance for non-residents, as New Mexico’s system currently does.”

The following representatives signed the letter: Michelle Paulene Abeyta (D-District 69); Christine Chandler (D-District 43); Meredith A. Dixon (D-District 20); Anita Gonzales (D-District 70); Joseph Franklin Hernandez (D-District 4); Susan K. Herrera (D-District 41); Charlotte Little (D-District 48); Kristina Ortez (D-District 42); Andrea Romero (D-District 46); Sarah Silva (D-District 43); Debra M. Sariñana (D-District 21); and Nathan Small (D-District 36). The following senators signed: Heather Berghmans (D-District 15); Angel M. Charley (D-District 30); Carrie Hamblen (D-District 38); William P. Soules (D-District 37); Elizabeth "Liz" Stefanics (D-District 39); and Linda Trujillo (D-District 24).

The lawmakers’ request for a legal opinion follows last week’s action by the New Mexico Department of Wildlife in releasing the big game draw results for the coming hunting season. Many resident hunters expressed frustration on social media sites that they and their relatives have been largely unsuccessful in drawing hunting licenses in recent years.

Attorney general opinions don’t have the force of law. However, an opinion that the outfitter set-aside law violates the State Constitution could bolster a future attempt by lawmakers to change state law. It could also help prompt a legal challenge to the law from the AG’s office.

The New Mexico Wildlife Federation and its partner organizations have undertaken detailed analysis of how New Mexico allocates elk permits, both in the public draw and through direct transfers to private landowners. 

The most recent “Take Back Your Elk” report by the NMWF and its partners showed that nonresidents drew 1,429 of the “outfitter set-aside” licenses (90.2 percent) in the 2022-23 season for elk while residents drew just 155 (9.8 percent). 

“The outfitter set-aside is an unnecessary subsidy for a private industry that caters primarily to nonresidents of New Mexico. We’ve long believed it is illegal because it gives away a public resource to private interests with little public benefit,” said Jesse Deubel, executive director of the NMWF. “We’re glad to see legislators respond to the concerns of New Mexico hunters and hope to see this rigged system fixed so residents get more opportunities to carry on their cultural traditions and feed their families.” 

Since the law was enacted in 2012, many New Mexico outfitters have taken to advertising that contracting with them will give hunters a significant advantage in drawing coveted hunting licenses. Nonetheless, not all outfitters avail themselves of the system.

“As a resident hunter, guide and co-outfitter, I’ve noticed the misuse of the outfitter set-aside, as well as the manipulation of the bighorn sheep hunt codes to which I feel are both illegal. I’m grateful there are elected officials who want to examine how this impacts resident hunters,” said Ryan Gentry, owner of the Black Horn Guide Service in Artesia. "I believe we can reform the system while still supporting small businesses like ours and maintaining a healthy outdoor recreation industry for New Mexico.” 

The lawmakers’ letter to AG Torrez specifically asks him for an opinion on whether the rule enacted by the New Mexico State Wildlife Commission for issuing bighorn tags is legal. 

Since 2014, the game commission has lumped all Rocky Mountain ram tags into one hunt code, all Rocky Mountain ewe tags into a second hunt code and all desert ram tags into a third hunt code. Lumping all the sheep tags together raises the number of tags high enough that the state to give sheep licenses to hunters under the outfitter set-aside as well as to nonresident hunters. 

Without lumping the tags together, those two groups would be ineligible to draw tags under the state’s quota law, which specifies that state residents must receive a minimum of 84 percent of the tags for each hunt. The law reserves 6 percent of tags for nonresident hunters and 10-percent for the outfitter set-aside hunters.

“The State is particularly limited in the number of Bighorn Sheep licenses available each year,” the lawmakers wrote to Torrez. “The Department has adopted a practice unique to Bighorn Sheep licenses. The Department currently combines hunting units for determining license allocation for Bighorn Sheep, rather than, as for other big game species, issuing licenses on a per-unit basis. One effect of this practice is that it effectively increases the number of licenses counted for purposes of determining whether any are designated for the pool of outfitter-mandated licenses.”

The NMWF has pointed out for years that by lumping all the tags together under single hunt codes, the commission effectively has ignored the state law definition of “hunt code.” The law states that a hunt code must specify the species, weapon type and time frame for a specific hunt. The various bighorn and desert ram hunts the commission has lumped together are spread out over several months and many are hundreds of miles apart.

Wrapping up their letter to Torrez, the lawmakers asked whether the current system of wildlife management in the state meets the legal requirement that the state manage wildlife for the benefit of the people in the state. “On behalf of New Mexicans who cherish and wish to preserve their family hunting traditions, we ask for your guidance and input regarding these concerns,” they said.

The NMWF encourages New Mexico hunters who want to see reform of the current system to contact their lawmakers and urge action to reform the state’s system of allocating hunting licenses. The federation particularly encourages resident hunters to express their thanks to the lawmakers who have asked Torrez for his opinion on the legality of the outfitter set-aside issue.