SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 391

49th legislature - STATE OF NEW MEXICO - first session, 2009

AN ACT

RELATING TO GAME AND FISH; AMENDING A SECTION OF CHAPTER 17, ARTICLE 2 NMSA 1978 TO PROVIDE FOR LANDOWNER TAKINGS OF COVERED SPECIES OR PREDATORS THAT THREATEN HUMAN LIFE OR PROPERTY; PROVIDING FOR ASSISTANCE, INTERVENTION, CLAIMS AND PAYMENTS; INCREASING FEES FOR BIG GAME DEPREDATION DAMAGE STAMPS; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 17-2-7.2 NMSA 1978 (being Laws 1997, Chapter 224, Section 3) is amended to read:

     "17-2-7.2. LANDOWNER TAKING--CONDITIONS--DEPARTMENT

RESPONSIBILITIES.--

          [A. A landowner or lessee, or employee of either, may take or kill an animal on private land, in which they have an ownership or leasehold interest, including game animals and other quadrupeds, game birds and fowl, that presents an immediate threat to human life or an immediate threat of damage to property, including crops; provided, however, that the taking or killing is reported to the department of game and fish within twenty-four hours and before the removal of the carcass of the animal killed, in accordance with regulations adopted by the commission.

          B. A landowner or lessee, or employee of either, may take or kill animals on private land, in which they have an ownership or leasehold interest, including game animals and other quadrupeds, game birds and fowl, that present a threat to human life or damage to property, including crops, according to regulations adopted by the commission. The regulations shall:

                (1) provide a method for filing a complaint to the department by the landowner or lessee, or employee of either of them, of the existence of a depredation problem;

                (2) provide for various departmental interventions, depending upon the type of animal and depredation;

                (3) require the department to offer at least three different interventions, if practical;

                (4) require the department to respond to the initial and any subsequent complaints within ten days with an intervention response to the complaint and to carry out the intervention, if agreed upon between the department and the landowner, within five days of that agreement;

                (5) permit the landowner or lessee to reject for good cause the interventions offered by the department;

                (6) require a landowner or lessee to demonstrate that the property depredation is greater in value than the value of any wildlife-related income or fee collected by the landowner or lessee for permission to take or kill an animal of the same species on the private property or portion of the private property identified in the complaint as the location where the depredation occurred; and

                (7) permit the landowner, lessee or employee, when interventions by the department have not been successful and after one year from the date of the filing of the initial complaint, to kill or take an animal believed responsible for property depredation.

          C. For purposes of this section:

                (1) "commission" means the state game commission;

                (2) "department" means the department of game and fish; and

                (3) "intervention" means a solution proposed by the department to eliminate the depredation.]

          A. A landowner or lessee, or an employee or agent of either, or any other person may take or kill a predator that presents an immediate threat to human life, livestock or family pets; provided that the taking or killing is reported to the department within twenty-four hours. The department shall determine disposition of the carcass. Nothing in this subsection authorizes a taking in violation of the Wildlife Conservation Act.

          B. The department shall provide assistance to a landowner, lessee or employee of either who requests assistance in remedying or preventing reasonably anticipated damage to property or physical harm to humans, livestock or family pets caused by a covered species or predator. The request shall be made in writing or to a toll-free telephone number to be provided by the department and within seventy-two hours of discovering facts requiring assistance. Within twenty-four hours of receipt of a request for assistance, the department shall consult with the complainant and make arrangements to conduct an on-site investigation of the complaint. As soon as reasonably possible, no later than fourteen days following the investigation, the department shall offer its assistance and reasonably available interventions that may include forage leases, harassment, temporary fencing, population management hunts or other appropriate interventions. The complainant shall accept the department's assistance and implement or permit the department to implement suggested interventions as a condition to receiving damage compensation under a future claim for damages to property caused by the covered species or predator designated in the request for assistance. Refusal of assistance or interventions shall not preclude future claims for damage and payment for those claims if the claimant provides the department with written good cause for refusal to accept assistance or interventions. As an intervention, and as appropriate to on-the-ground circumstance, the department may supply materials or other goods or services to the claimant.

          C. Pursuant to Subsection B of this section, if a landowner or lessee has suffered damage to property from a covered species or predator, the landowner or lessee, within ten days of notifying the department that assistance or intervention is not working or of refusing to accept assistance or intervention, may file a written claim. Unless provided by rule, claims for growing cultivated crops may not be made until the time of harvest. Claims shall be made on a form provided by the department, verified under penalty of perjury, that shall include:

                (1) the date the damage occurred or was discovered;

                (2) the number and type of species causing the damage;

                (3) the type of damage claimed;

                (4) the date of initial request for assistance from the department;

                (5) the fair market value of the damage; and

                (6) the location of the damage.

          D. The claimant shall provide evidence that the damages for which the claim is submitted are not covered under an insurance policy and that the claimant does not anticipate receiving insurance compensation for damages claimed. The claim shall also contain a statement that damage prevention materials supplied by the department, if any, were used in an effort to prevent or reduce the extent of the damage and were not used for any other purpose. The landowner or lessee must advise the department on an ongoing basis of continuing damage and whether the department-provided interventions are not effective.

          E. Damages shall not be awarded to a landowner or lessee who, during the period of five years preceding the claimed damage, has received state or federal funds for use in the improvement or management of the real property, other than water development or distribution enhancements for multiple species benefit, on which the damaged property is located solely for enhancement of the real property as habitat for the damaging species of wildlife.

          F. The department shall make a decision on a claim within thirty days of receipt of the claim. If the claim is accepted, the department shall deliver to the landowner or lessee a written acceptance of the claim and shall initiate payment of the claim concurrently with the written acceptance from money appropriated for that purpose in the big game depredation damage fund. If the value of approved claims exceeds the amount appropriated from the big game depredation damage fund, the department shall request from the state board of finance a grant sufficient to pay any outstanding claims for the balance of the fiscal year. Such payments will be subject to approval by the state board of finance. Acceptance of that payment by the landowner or the lessee shall release the department, the commission and the state from any further liability for the claimed loss. Payments pursuant to this section shall be reduced by an amount equal to ten percent of the total payable damages.

          G. If the department does not accept the claim by disagreeing with either or both the claimed cause or the amount of the estimated damages, the claim shall be forwarded within ten days of the department's refusal for determination to a committee composed of the county extension agent of the agricultural extension service for the county in which the damage or a majority of the damage occurred; the county assessor for the county in which the damage or a majority of the damage occurred; one public member who is familiar with the kind of damage involved appointed by the board of county commissioners for the county in which the damage or a majority of the damage occurred; and an appropriate and qualified claims adjustment service provider contracted by the department from the farm service agency of the United States department of agriculture, the federal land bank, the production credit association or an equally qualified entity. The determination by that committee shall be final and binding on both the claimant and the department. No member of the committee shall be entitled to compensation for serving on the committee, but may be reimbursed by the department in accordance with the provisions of the Per Diem and Mileage Act. The costs of services provided by the private claims adjustment service provider contracted by the department shall be borne equally by the department and the claimant unless the damages established equal or exceed those estimated by the claimant in its claim, in which event the costs shall be the sole obligation of the department. The landowner or lessee shall have the burden of providing to the committee sufficient credible evidence to substantiate the cause and extent of the damage claimed. Payment to the landowner or lessee of a claim shall be made pursuant to this section.

          H. No claim shall be made under this section for damages occurring more than three months prior to the effective date of this section or more than three months after the occurrence of the damage or time of harvest for growing cultivated crops.

          I. Neither the department nor any other instrumentality of the state shall be obligated to compensate for depredation damages in any cumulative amount exceeding the funds available and appropriated for such payments and the costs of providing interventions annually available in the big game depredation damage fund pursuant to the provisions of Subsection F of this section.

          J. As an intervention, the department may enter into leases of forage with requestors for the reasonable value of growing and harvested crops consumed by covered species. A forage lease payment shall be reduced by the amount of insurance proceeds received by the claimant for loss or damage to growing or harvested crops, which loss occurred during the forage lease term. Leases shall not be entered into if the landowner or lessee has received state or federal habitat improvement funds solely intended to benefit wildlife pursuant to this section. The terms of a forage lease shall include an obligation by the lessee to continue agricultural activity on the leased land at least equivalent to the activities and husbandry prior to the date of the lease.

          K. The commission shall establish rules to implement the provisions of this section.

          L. As used in this section:

                (1) "commission" means the state game commission;

                (2) "claimant" means a landowner or lessee who files a claim with the department for damages arising out of wildlife depredation;

                (3) "covered species" means elk, deer, antelope, cranes and geese;

                (4) "damage" means actual damage to land, growing cultivated crops, harvested and stored crops, seed crops, fences, irrigation and water supply systems or physical trauma inflicted by a predator resulting in incapacitating injury or death to livestock and sworn to by the claimant with evidence collected within such time of the occurrence to clearly substantiate the cause of injury or death;

                (5) "department" means the department of game and fish;

                (6) "good cause" means that either the landowner or lessee can document to the satisfaction of the department that:

                     (a) the intervention offered would cause physical damage to persons or property; or

                     (b) the intervention offered will not result in a substantial lessening of the depredation it is intended to affect. In either instance the claim of good cause shall be made in good faith and supported with facts reasonably sufficient to meet either or both of the above criteria;

                (7) "immediate" means an emergency situation where imminent harm to human life, livestock or family pets is perceived to exist;

                (8) "landowner" means an individual or entity that holds a verifiable fee interest or interest under a land sale contract in real property in New Mexico;

                (9) "lessee" means an individual or entity that is in possession of private land under the terms of a lease, occupancy agreement or other documentation between the lessee and the owner of the land;

                (10) "livestock" means livestock as defined in Section 77-2-1.1 NMSA 1978;

                (11) "predator" means bears, cougars or bobcats;

                (12) "property" means:

                     (a) private or leased state or public land on which cultivated crops are growing;

                     (b) harvested and stored crops;

                     (c) seed crops;

                     (d) livestock;

                     (e) fences; and

                     (f) irrigation and water supply systems; and

                (13) "requestor" means a landowner, lessee or the employee or agent of either, who requests the department to provide technical advise or interventions to resolve a depredation problem."

     Section 2. Section 17-3-13.3 NMSA 1978 (being Laws 2001, Chapter 213, Section 1) is amended to read:

     "17-3-13.3. BIG GAME DEPREDATION DAMAGE STAMP REQUIRED--DISPOSITION OF RECEIPTS.--

          A. Each license to hunt big game shall include a big game depredation damage stamp. The [department of] state game [and fish] commission shall, by rule, set the fee for the stamp; provided that the fee shall not exceed [five dollars ($5.00)] six dollars ($6.00) for each resident license or [ten dollars ($10.00)] twenty dollars ($20.00) for each nonresident license.

          B. No license to hunt big game shall be considered to be a proper and valid license unless it indicates, by a stamp, check off or other official mark, that the fee for the big game depredation damage stamp has been paid.

          C. Revenues received by the department of game and fish from the sale of big game depredation damage stamps shall be deposited to the credit of the big game depredation damage fund."

     Section 3. EFFECTIVE DATES.--

          A. The effective date of the provisions of Section 1 of this act is July 1, 2010.

          B. The effective date of the provisions of Section 2 of this act is April 1, 2010.

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