TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER 35 CAPTIVE WILDLIFE USES
PART 6 AUTHORIZED
USES OF WILDLIFE FOR EDUCATION, LAW ENFORCEMENT,
RESEARCH
AND SCIENTIFIC PURPOSES
19.35.6.1 ISSUING AGENCY: New Mexico Department of Game and Fish.
[19.35.6.1 NMAC -
Rp, 19 NMAC 35.6.1 & 19 NMAC 36.2.1, 12/30/2013]
19.35.6.2 SCOPE: The department of game and fish and persons
seeking authorization for the taking of protected wildlife for educational, law
enforcement, scientific or research purposes.
[19.35.6.2 NMAC -
Rp, 19 NMAC 35.6.2 & 19 NMAC 36.2.2, 12/30/2013]
19.35.6.3 STATUTORY AUTHORITY: Sections 17-1-14, 17-1-26, NMSA 1978 and
17-2-37 through 17-2-46, and 17-3-1, NMSA 1978 provide that the New Mexico
state game commission has the authority to establish rules and regulations that
it may deem necessary to carry out the purpose of Chapter 17, NMSA 1978 and all
other acts pertaining to protected species.
[19.35.6.3 NMAC -
Rp, 19 NMAC 35.6.3 & 19 NMAC 36.2.3, 12/30/2013]
19.35.6.4 DURATION: Permanent.
[19.35.6.4 NMAC -
Rp, 19 NMAC 35.6.4 & 19 NMAC 36.2.4, 12/30/2013]
19.35.6.5 EFFECTIVE DATE: December 30, 2013, unless a later date is
cited at the end of a section.
[19.35.6.5 NMAC -
Rp, 19 NMAC 35.6.5 & 19 NMAC 36.2.5, 12/30/2013]
19.35.6.6 OBJECTIVE: To provide consistent criteria for
application and permit issuance for the take, possession and use of protected
wildlife for educational, law enforcement, research or scientific purposes.
[19.35.6.6 NMAC -
Rp, 19 NMAC 35.6.6 & 19 NMAC 36.2.6, 12/30/2013]
19.35.6.7 DEFINITIONS:
A. “Applicant”: A person who has submitted an application for a
permit pursuant to this rule.
B. “Apprentice”: A person who is over the age of 14 and is in
training under the direct supervision of a permittee or sub-permittee, who
assists in the use of wildlife for scientific and educational purposes.
C. “Carnivore”: Any
animal within the order carnivora
D. “Department”: The New Mexico department of game and fish.
E. “Director”: Shall mean the director of the department of game
and fish.
F. “Designated cooperator”: Shall mean a person designated in writing
by the director of the department of game and fish, as an official cooperator
of the agency.
G. “Educational purposes”: Shall mean the possession or take of
protected wildlife as specimens for educational programs and instructional
display as approved by the department.
H. “Permit”:
A document issued pursuant to this rule that authorizes a person to conduct
specific activities involving protected wildlife.
I. “Protected wildlife”: Shall mean those taxonomic groups listed
in Chapter 17, NMSA 1978, including any species that are listed as either state
or federally threatened or endangered.
J. “Scientific purposes”: Shall mean the possession or take of
protected wildlife for conducting research or monitoring for management
purposes, as approved by the department.
K. “Sub-permittee”: Shall mean a person authorized by a permit to
conduct specified activities in the absence of a permit holder.
L. “Take”: Shall mean the act of killing, capturing, pursuing,
harassing, salvaging, retaining, or sacrificing protected wildlife by any means
or device including attempting to take by the use of any method.
[19.35.6.7 NMAC -
Rp, 19 NMAC 35.6.7 & 19 NMAC 36.2.7, 12/30/2013; A, 12/15/2014]
19.35.6.8 APPLICATION REQUIREMENTS:
A. The following requirements must be
met for an application to be considered:
(1) A completed application form and the non-refundable application
fee must be submitted to the department.
(2) Applicant must be 18 years of age or older and provide
their full name, date of birth, home address and facility address; unless they
are an apprentice who must be at least 14 years of age.
(3) Applicant must provide two references able to verify the
applicant’s ability to conduct activities relevant to the species and purpose
requested.
(4) Application must include a containment or confinement plan
describing where and how permitted species will be maintained, if applicable.
(5) Application must include copies of all applicable municipal, state
or federal permits.
(6) Supplemental information must be supplied as requested
by the department.
(7) Each application must include the applicant’s
signature as well as signatures of all sub-permittees being requested on the
permit.
B. Additional requirements for educational use
applications:
(1) Applicant must provide verifiable experience of at
least 240 hours in handling, caring for and training live non-releasable
wildlife of the same or similar species as those identified in the application.
If this requirement cannot be met, an
apprenticeship with a permitted individual or approved organization is required.
(2) Letters must be supplied from at least five separate
and legitimate organizations or entities requesting wildlife related
educational programs.
(3) Wildlife proposed for educational use must be obtained
from a department approved source.
(4) Applicant must provide a detailed educational class or
program curriculum or lesson plan which is subject to department approval prior
to permit issuance.
C. Additional requirements for scientific use applications:
(1) Applicant must identify the specific wildlife being
requested and provide details for disposition.
(2) Applicant must provide detailed justification for all activities,
methods and locations.
(3) Applicant must provide requested take amounts, locations and
specific take time frame.
(4) Applicant must provide detailed explanation of the scientific
benefits to the species and the state of New Mexico. Scientific benefits will be subject to
department review and approval.
(5) Applicant must provide evidence of
education or experience supporting qualifications to conduct wildlife related research or monitoring
activities.
[19.35.6.8 NMAC -
Rp, 19 NMAC 35.6.8 & 19 NMAC 36.2.8, 12/30/2013]
19.35.6.9 PERMIT ISSUANCE:
A. Permits may be issued or denied under the authority of
the director or his/her designee.
B. Authorizations and permits shall only be issued to
individuals and not to parties or organizations.
C. Only those individuals that the applicant intends to utilize to
take or possess protected wildlife when outside the immediate oversight and
supervision of the permittee will be listed as sub-permittees.
D. A permit shall not be issued to applicants who cannot
demonstrate sufficient wildlife handling qualifications and containment and
confinement facilities to ensure the humane care of captive wildlife.
E. Applicant must obtain a permit prior to conducting
requested activities.
F. Upon issuance of a permit, containment and confinement facilities
shall be subject to random inspection by department employees.
G. Initial permits shall be issued for one year. Permit renewals may be approved for up to
three years subject to director approval.
H. Each
permit shall specify the number and species of protected wildlife the permittee
shall be authorized to collect, possess, or handle for scientific or educational
purposes.
I. Applications
for permits or permit renewals shall not be considered if the applicant is
subject to pending criminal charges or violations of any municipal, state or
federal law relating to wildlife or other animal violations.
J. The state game
commission must review any permit application for the possession or use of any
carnivore that is held, possessed or released on private property for the
purpose of recovery, reintroduction, conditioning, establishment or
reestablishment in New Mexico. The
director shall only issue a department permit in accordance with commission
direction following their review of an application submitted under this section
of rule.
[19.35.6.9 NMAC - Rp,
19.35.6.8 NMAC, 12/30/2013; A, 12/15/2014]
19.35.6.10 PERMIT PROVISIONS:
A. General
permit provisions:
(1) All protected wildlife, their offspring, and any parts
held under the authority of a permit shall remain property of the state of New
Mexico. The director shall have the
authority to require that any permitted wildlife be returned to the department
or to direct the disposition of such wildlife.
(2) A permit issued pursuant to this rule does not
authorize propagation of wildlife unless specifically allowed in writing by the
director.
(3) Protected wildlife held under the authority of a
permit may not be sold, bartered, or exchanged unless specially allowed in
writing by the director.
(4) Protected wildlife may not be disposed of, released as
prescribed by permit provisions, or transferred to another permittee, unless
specially allowed in writing by the director.
(5) Protected
wildlife may not be imported from another state or another country without
first obtaining an importation permit from the department.
(6) The director may apply specific provisions on
individual permits to carry out the intent of this rule and applicable statutes.
(7) A copy of a valid permit must be in the possession of
permittees and sub-permittees at all times when conducting permitted activities
and must be available upon request by department officials.
(8) A permit holder shall carry out all educational
activities in a humane manner.
B. Amendment
and renewal requirements:
(1) Amendments to permits must be requested in writing,
include justification, and be signed by permittee and any proposed additional
sub-permittees;
(2) Payment of a fee approved by the director
shall be required for each permit amendment.
(3) Annual reports must be filed and received by the
department prior to renewal or reissuance of any permit.
(4) Permits must be amended prior to any changes in
activities, including the addition of sub-permittees, type and numbers of
wildlife to be collected, and collection locations and time frames.
C. Education
permit requirements:
(1) Only a permit holder shall be permitted to possess wildlife
specimens and no sharing of permitted wildlife shall be allowed between other
permit holders.
(2) A permit holder must conduct a minimum of 12
educational programs per year or have the permitted animals available on static
display to the public a minimum of 100 days per year.
(3) A permit holder shall carry out all educational
activities in a manner which will benefit the species represented and wildlife
in general.
(4) A permit holder shall not allow public contact with
permitted wildlife. Applicants may
request a waiver to this restriction. Waiver
requests must be submitted to the department in writing and include
justification for the request, and a signed waiver of liability and
indemnification shall be required from the permit holder.
(5) All protected wildlife displayed must be controlled at
all times and be presented in a professional manner.
(6) The loss or escape of any permitted wildlife shall be
reported to the department within five business days.
(7) Health records shall be maintained at the housing
facility approved for the permitted wildlife.
D. Scientific
permit provisions:
(1) Specimens may not be donated, sold, exchanged, or
otherwise processed except as allowed by permit provisions and in accordance
with municipal, state or federal law.
(2) The disposition of progeny of wildlife taken or
possessed shall be defined by permit provisions.
[19.35.6.10 NMAC - Rp,
19 NMAC 35.6.12 & 19 NMAC 36.2.8 & 10, 12/30/2013]
19.35.6.11 ANNUAL REPORTS:
A. A permit holder must submit an annual report by the deadline specified by
the director.
B. Annual
reports must be submitted, received, and approved by the department prior to
renewal or reissuance of any permit.
C. The
annual report shall include the disposition of all wildlife taken pursuant to
the permit and any additional information required by the permit.
D. Annual
reports shall be completed in a format as determined by the department. All data submitted shall become property of
the department.
E. Educational
permit annual reports shall include:
(1) dates of all presentations;
(2) names of organizations and schools at which
presentations were given;
(3) number and age group of attendees;
(4) subject matter covered;
(5) specific wildlife or wildlife parts used in each
program; and
(6) number of persons viewing wildlife on permanent
display.
[19.35.6.11 NMAC - Rp,
19 NMAC 35.6.13 & 19 NMAC 36.2.11, 12/30/2013]
19.35.6.12 FACILITY STANDARDS:
A. Permit
holders shall adhere to department guidelines for reasonable and humane care of
captive wildlife. Requests for
variations on facility guidelines must be submitted to the department in
writing and include justification. All
facility variation requests are subject to department review and approval prior
to making any facility changes.
B. Permit holders must comply with all provisions,
guidelines and specific requirements listed on their permit.
C. Permitted
wildlife must be housed separately from human living areas and domestic pets.
D. Permit
holders shall utilize travel containers that are appropriately sized,
constructed, and maintained to ensure a humane and safe environment for
wildlife in transit.
E. All
permittee and sub-permittee facilities shall be subject to random inspections
by department personnel.
[19.35.6.12 NMAC - Rp,
19.35.6.14 NMAC, 12/30/2013]
19.35.6.13 DIRECTOR’S AUTHORITY:
A. The
director shall have the authority to:
(1) establish and approve any forms, applications and
documents necessary to carry out the provisions of this rule;
(2) establish and approve all notice and posting
provisions for public displays of wildlife;
(3) impose corrective measures to ensure the safety and welfare
of humans and wildlife;
(4) require an applicant to purchase the appropriate
hunting, fishing or trapping license when applicable;
(5) establish
collection limits for protected wildlife;
(6) deny any application if it is determined that the
applicant has provided false or incomplete information;
(7) deny any application that conflicts with current
conservation measures, negatively affects local or regional species numbers, or
is contrary to angling, hunting or trapping objectives;
(8) deny
any application that does not represent a valid scientific or educational
benefit; and
(9) declare
any applicant or permittee who fails to comply with all of the application
requirements, director’s conditions, permit provisions, or rule requirements as
non-compliant; upon a declaration of non-compliance, the director may deny any
subsequent application and requests for amendments until all permit violations
are corrected and the appropriate certificate of compliance is issued and fees
are paid in full.
B. Certificate
of compliance fee: The director shall
determine the appropriate certificate of compliance fee per violation, not to
exceed $500.00 based on the following criteria:
(1) department expenses including staff time and travel
costs associated with inspection and compliance monitoring;
(2) department office expenses including mailing, shipping,
and certificate issuance;
(3) animal care, treatment, housing and feeding; and
(4) other miscellaneous expenses.
[19.35.6.13 NMAC -
N, 12/30/2013]
19.35.6.14 VIOLATIONS AND ENFORCEMENT:
A. Any
violation of state statutes, rules, or permit provisions, including amendments,
may result in cooperative compliance or denial or of a permit in addition to
any applicable civil, criminal or administrative remedies and penalties.
B. The
signature of an applicant, permittee, or sub-permittee on any application,
annual report, permit, or any other department document, shall obligate the
signatory to adhere to all applicable statutes, rules, and permit provisions. Violations of this rule shall include but not
be limited to:
(1) providing
false or fraudulent information on any application or annual report;
(2) late submission of an annual report;
(3) exceeding authorized take limits of wildlife;
(4) take of protected wildlife in an unauthorized locality
or manner;
(5) take
of protected wildlife during an unauthorized time frame; or
(6) take or possession of any wildlife not authorized by
the permit.
C. The director may declare any permittee who fails to
comply with all requirements or provisions as ineligible for future permits
until all violations are corrected and the appropriate certificate of
compliance fees are paid in full.
(1) The director may impose additional corrective measures
in those instances where violations of this provision have been identified.
(2) The director may deny any subsequent applications or
amendments submitted by a permittee or sub-permittee that has failed to
implement corrective measures or has committed repeated violations.
[19.35.6.14 NMAC - Rp,
19 NMAC 35.6.10 & 19 NMAC 36.2.12, 12/30/2013]
19.35.6.15 APPEAL PROCESS: A permit
applicant may appeal a denial by the director in accordance with the following procedures:
A. Commission
appeal:
(1) The applicant must submit, by certified mail, a
written appeal to the chairman of the state game commission within 20 days of
denial by the director.
(2) The written appeal must include the reason for the
objection.
B. Commission
decision: The commission may reverse the
director’s decision if:
(1) the commission determines that the decision of the
director was arbitrary or capricious;
(2) the decision of the director was not based on law or
regulation; or
(3) the appellant provides additional data or evidence
that contradicts the data or evidence used by the department to deny the permit.
(4) The decision of the commission shall be final.
C. Schedule of appeal: Appeals filed
with the commission will be heard at the next scheduled commission meeting
subject to agenda item availability and related time constraints.
[19.35.6.15 NMAC - Rp,
19 NMAC 35.6.11, 12/30/2013]
19.35.6.16 EXEMPTIONS: The following are exempt from applying for
or holding permits for conducting activities under this rule:
A. employees
of the New Mexico department of game and fish and other government agencies
acting in the course of their official duties as determined by the director;
B. persons
that salvage or aid in salvaging dead, injured or otherwise incapacitated
wildlife at the direction of the department or others authorized for such
possession; and
C. designated
cooperators and department contractors provided the activities are consistent
with their contractual or cooperative duties.
[19.35.6.16 NMAC - Rp,
19 NMAC 36.2.9, 12/30/2013]
19.35.6.17 COMPLIANCE AND ENFORCEMENT
ALLOWANCE: A law
enforcement officer operating in a director approved covert operation may take
protected wildlife pursuant to a license issued to a covert identity or
pursuant to a permit or written authorization issued by the director or his
designee.
[19.35.6.17 NMAC -
N, 12/30/2013]
HISTORY OF
19.35.6 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the State Records Center:
Regulation
No. 705, Regulation for the Taking and Possession of Protected Wildlife for
Scientific and Educational Purposes, filed 3/11/93.
History of
Repealed Material:
19
NMAC 35.6, Educational Use of Wildlife, filed 10/19/94.
19
NMAC 36.2, Taking and Possession of Protected Wildlife for Scientific and
Educational Purposes, filed 1/18/96.