PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
CHAPTER 65. WILDLIFE
SUBCHAPTER X. MOUNTAIN LIONS
The Texas Parks and Wildlife Commission in a duly noticed meeting on May 23, 2024, adopted new 31 TAC §65.950, concerning Mountain Lions, with changes to the proposed text as published in the April 19, 2024, issue of the Texas Register (49 TexReg 2438). The rule will be republished.
The change replaces the proposed provision for traps to be equipped with "break-away" gear that cause the trap to cease functionality upon the exertion of more than 285 pounds of force with an exemption from the applicability of the rules to all vertically set cable snares fabricated or modified to limit loop or opening size to 10 inches in diameter or less, and harmonizes that provision with other provisions of the section to prevent conflicts.
In 2022, the department received a petition for rulemaking concerning mountain lion monitoring and management. In response, the chairman of the commission directed the formation of a Mountain Lion Stakeholder Working Group consisting of landowners, livestock producers, private land managers, trappers, and natural resource professionals. The group was charged with making recommendations on the abundance, status, distribution, and persistence of mountain lions in Texas; development of a mountain lion management plan for Texas; harvest reporting; trap/snare check standards; harvest/bag limits; and "canned" hunts.
Following a number of meetings throughout 2023, the Working Group's initial report recommended that the commission initiate rulemaking to prohibit "canned" hunting. "Canned" hunting is regulated or prohibited in many states and countries, including Texas, where it is unlawful to conduct canned hunts for certain species (African or Asiatic lion, tiger, leopard, cheetah, hyena, bear, elephant, wolf, or rhinoceros, or any subspecies or hybrid of these animals), but not mountain lions.
In general, new §65.950, concerning Mountain Lions, prohibits "canned" hunting and establishes trapping standards.
New subsection (a) defines "captivity" as "the state of being held under control, or kept caged, penned, or trapped," which is necessary to establish the conditions under which "canned" hunting may be presumed to be occurring.
New subsections (b)(1) and (2) prohibit the hunting of mountain lions in captivity as well as the release of captive mountain lions for purposes of being hunted or training dogs. The provisions effectively prohibit "canned" hunting of mountain lions, which is necessary to protect the species.
New subsection (b)(3) creates an offense for a person to allow a live mountain lion to be captured in a trap or snare for more than 36 hours. The department has determined that allowing a trapped or snared mountain lion to remain in that state for longer than 36 hours is inhumane and if the practice is allowed to be indiscriminately employed, it could negatively affect the ability of mountain lion populations to successfully perpetuate themselves.
New subsection (b)(4) creates an offense for the act of conducting, promoting, assisting, or advertising an activity prohibited by the section. The department believes that persons who aid, assist, encourage, or otherwise act as a party to the commission of an offense should be held accountable in addition to the person who commits the offense.
New subsection (c) expressly states that the section does not apply to the humane dispatch of lawfully trapped mountain lions or apply to the use of snares set vertically and fabricated or modified to limit loop or opening size to a maximum diameter of 10 inches or less.
New subsection (d) provides that the exception created in subsection (c)(2) for certain snares does not exempt any person from provisions of subsection (b)(2) that prohibit canned hunts. The intent of the provision is to ensure that the rule does not unintentionally create an avenue for mountain lions to be subjected to canned hunting.
The department received 561 comments opposing adoption of all or part of the rule as proposed. Of those comments, 145 provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow. The department notes that because many of the comments identified more than one specific rationale for opposition, the number of responses is greater than the number of comments.
Seventeen commenters opposed adoption and stated that the rules will harm or destroy the livelihoods of ranchers and trappers. The department disagrees with the comments and responds that it is difficult to conceive of a scenario in which the rule as adopted will cause any ranch or trapper to cease operations or activities. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the department's claim of no economic impact is false. The department disagrees that any statement in the preamble of the proposed rule regarding economic impacts is not compliant with the applicable provisions of Government Code, Chapters 2001 or 2006, and notes that the rules do not directly regulate any commercial activity or rural community, and apply only to persons who take wildlife resources under the privilege of recreational licenses issued by the department.
Twenty-two commenters opposed adoption and stated in some form or fashion that the rules are unnecessary because mountain lion populations are numerous, growing, large, not in need of protection, not in need of management, or not in decline. The department disagrees with the comments and responds that in the absence of systematic data regarding mountain lion populations, such as that produced by scientific research, mandatory harvest reporting requirements, and survey efforts on private lands, the unrestricted harvest of mountain lions can reasonably and scientifically be expected to eventually result in the inability of the species to perpetuate itself. The rules as adopted are intended to minimize, in the absence of credible biological data, the rate at which that is occurring. No changes were made as a result of the comments.
Ten commenters opposed adoption and stated that the rule is unnecessary because canned hunting is already illegal under state and federal law. The department disagrees with the comments and responds that the commenters are misinformed. No changes were made as a result of the comments.
Seven commenters opposed adoption and stated that the 285-lb limit for breakaway devices will eliminate the effectiveness of feral-hog trapping. The department agrees with the comment and responds that the rule as adopted replaces the 285-lb limit provision with an exemption from applicability for snares set vertically with a maximum opening of 10 inches or less.
Eight commenters opposed adoption and stated that mountain lions are a threat to human health and safety, property, and livestock. The department disagrees that mountain lions are an appreciable threat to human beings, as there have been fewer than five documented attacks on humans in Texas in the last 40 years. Similarly, documented livestock losses to mountain lion predation are very low. No changes were made as a result of the comments.
Six commenters opposed adoption and stated that the rules will result in the elimination of deer and antelope populations or should not be adopted because landowners use trapping to protect wildlife populations. The department disagrees with the comments and responds that predator/prey relationships are inherent in evolutionary history, that it is impossible for the rules to result in the extirpation of any species, and that wildlife do not belong to landowners, but the people of the state. No changes were made as a result of the comments.
Twenty-one commenters opposed adoption on the basis that the 36-hour time limit for allowing live lions to remain in a trap presents an impossible burden because it isn't possible to check every trap every 36 hours. The department disagrees with the comments and responds that the department evaluated the timing of trapping standards for other species such as furbearing animals and determined the rule is reasonable. Trapping standards are commonplace throughout North America and well understood by hunters and trappers as a best management practice for the use of those devices. No changes were made as a result of the comments.
Twenty-six commenters opposed adoption and stated that more data is needed before regulations are promulgated. The department disagrees with the comments and responds that the rules as adopted are based on the best available data and the acquisition of additional data would necessitate measures such as mandatory harvest reporting and survey efforts on private property. Therefore, in the absence of conclusive, definitive data, the rules as adopted are intended to act as a buffer on indiscriminate harvest until such time as greater understanding of population dynamics becomes available. No changes were made as a result of the comments.
Fourteen commenters opposed adoption and stated that the rules are unenforceable. The department disagrees with the comments and responds that the department is confident that enforcement of the rules is within the department's ability. No changes were made as a result of the comments.
Eleven commenters opposed adoption and stated that the rules are unnecessary because canned hunting either doesn't exist or doesn't occur at a level significant enough to warrant rules to prohibit it. The department disagrees with the comments and responds that the department is aware of the occurrence of canned hunting of mountain lions in Texas and the rule is necessary to protect the species. No changes were made as a result of the comments.
Eleven commenters opposed adoption and stated that the rule will prevent landowners from protecting livestock and property. The department disagrees with the comments and responds that the rules do not prevent, prohibit, or criminalize the conduct of effective predator control to defend livestock or other property. No changes were made as a result of the comments.
Twelve commenters opposed adoption on the basis that the department's estimated cost of compliance with the rule is inaccurate and did not address livestock loss or additional costs to the Texas Wildlife Services Program. The department disagrees with the comments and responds that the rule as adopted no longer includes the breakaway mechanism in question, and in any case applies only to trapping efforts for mountain lions and the direct cost of compliance to persons who conduct such activities. The department also notes that definitive data regarding the economics of trapping activities for mountain lions is not readily available or verifiable and members of the regulated community were participants in the development of the rule. No changes were made as a result of the comments.
Five commenters opposed adoption and stated that more rules/more government are not needed. The department disagrees that the rules are onerous. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the rules are an infringement on hunter's rights. The department disagrees with the comments and responds that the rules as adopted are necessary to protect a species and, in any case, do not prevent, impinge upon, or interfere with the right of any person to engage in lawful hunting for mountain lions. No changes were made as a result of the comments.
Eighteen commenters opposed adoption and stated in some form or fashion that the rules will make predator control impossible or difficult. The department disagrees with the comments and responds that the rules were specifically designed to apply strictly to mountain lions and are not expected to appreciably affect any other aspect of predator control. No changes were made as a result of the comments.
Six commenters opposed adoption and stated that the rules are a "money grab," "power grab," or some other form of nefarious usurpation on the part of the department. The department disagrees with the comments and responds that the rules were validly promulgated in compliance with applicable law and will not have revenue implications for the department. No changes were made as a result of the comments.
One commenter opposed adoption and stated that there is no relationship between trap monitoring requirements and population status. The department disagrees with the comment and responds that allowing a trapped or snared mountain lion to remain in a captive state for longer than 36 hours is inhumane and if the practice is allowed to be indiscriminately employed, it could negatively affect the ability of mountain lion populations to successfully perpetuate themselves. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rules are a conflict of interest because a department employee is a former employee of a petitioner. The department disagrees with the comment and responds that the prior employment status of a petitioner's employee does not create a conflict of interest and the rule was validly promulgated and adopted by vote in an open public meeting of the commission appointed by the governor with the consent of the senate. The department further responds that the commission did not adopt all requests of the petitioners and instead formed a working group consisting of landowners, livestock producers, private land managers, trappers, and natural resource professionals to make recommendations to the commission. No changes were made as a result of the comment.
Three commenters opposed adoption and stated in various ways that the commission was capitulating to special interest groups such as anti-hunters. The department disagrees with the comments and responds that the chairman of the commission formed a working group consisting of landowners, livestock producers, private land managers, trappers, and natural resource professionals to make recommendations and the commission was not influenced by any special interest group or agenda. No changes were made as a result of the comments.
Twelve commenters opposed adoption and stated that rules were but a first step onto a "slippery slope" that will result in the prohibition of predator hunting, and eventually all hunting, as in other states. The department disagrees with the comments and responds that the commission is charged by statute with providing open seasons for the hunting of game species while protecting and conserving the wildlife resources of the state, including nongame species such as mountain lions, and has determined that the rules as adopted are a rational exercise of that duty. No changes were made as a result of the comments.
One commenter opposed adoption and stated the rules are violation of the North American model of wildlife management. The department disagrees with the comment and responds that the department considers the North American Model to be an important guide with respect to wildlife management and considers the rule as adopted to be consistent with the tenets of the model. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the commission should not be influenced by organizations with deep pockets who use lawyers to change wildlife laws. The department disagrees that the adoption of the rule was influenced by unprincipled or unscrupulous efforts by any special interest group. No changes were made as a result of the comment.
One commenter opposed adoption and stated the rules are an attack on the outdoor lifestyle. The department disagrees with the comment and responds that the rule is not an attack on any person or group, but a necessary action to protect a nongame species so that it may continue to perpetuate itself. No changes were made as a result of the comment.
One commenter opposed adoption and stated that contrary to the department's assertion in the required regulatory impact statement, there will be a new rule created. The department disagrees with the comment and responds that the notice of proposed rulemaking clearly stated that the proposal would create a new regulation to prohibit "canned" hunting of mountain lions and establish trapping rules. No changes were made as a result of the comment.
One commenter opposed adoption and stated, "there is no interpretation of this proposal that will insure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully which is your only statutory mandate." The commenter also stated that the department did not identify a need for the rule "beyond a vague reference to a federal statute congress had/has no authority to have adopted under Article 1 Section 8 Powers of Congress." The department disagrees with the comment and responds that the commission has the authority to adopt any regulations limiting the taking or possession of nongame species the department considers necessary to manage the species, and the rule will, in fact, allow mountain lions to continue to perpetuate themselves by imposing standards designed to mitigate the current practice of indiscriminate trapping. The department further responds that the preamble to the proposed rule clearly articulated the need for the rule and the department has not stated this rulemaking is necessary because of a federal law requirement. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rules are a violation of property rights. The department disagrees with the comment and responds that the rule as adopted does not affect any person's real property rights as a landowner in Texas. No changes were made as a result of the comment.
Eleven commenters opposed adoption and stated that mountain lions should be designated as game animals subject to season and bag limit restrictions necessary to manage the population. The department neither agrees nor disagrees with the comments and responds that although game animal status is determined by the Texas Legislature, the commission has the authority under the Parks and Wildlife Code to impose seasons and bag limits for the take of any wildlife resource; however, during the stakeholder meetings prior to the proposal, the department determined that more study would be required to inform any decision to impose a season and/or bag limits for the take of mountain lions. No changes were made as a result of the comments.
Nine commenters opposed adoption and stated that the training of dogs by means of releasing trapped mountain lions should be permitted. Several of the commenters also mentioned that dogs could be trained without using captive mountain lions and that it is irrational to allow other species such as coyotes and raccoons to be used to train dogs, but not mountain lions. The department disagrees with the comments and responds that allowing a trapped or snared mountain lion to remain in a captive state for longer than 36 hours is inhumane and if the practice is allowed to be indiscriminately employed, it could negatively affect the ability of mountain lion populations to successfully perpetuate themselves. The department further responds that the comments about other species used to train dogs are not germane, as the subject of the rulemaking is the management of mountain lions. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the rule was promulgated outside the normal rulemaking process because stakeholders were not included in the development of the rule. The department disagrees with the comment and responds that the chairman of the commission created a working group consisting of landowners, livestock producers, private land managers, trappers, and natural resource professionals to make recommendations to the commission regarding possible regulation of the take of mountain lions, and those recommendations were reported to the commission in public meetings. The department further responds that it provided notice of the proposed rule and the opportunity to submit public comments in compliance with all applicable legal requirements. No changes were made as a result of the comments.
One commenter opposed adoption and stated the rule is vague and ambiguous. The department disagrees with the comment and responds that rule as adopted clearly articulates the circumstances and actions that violate the rule. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule is irrational because the state allows canned hunts on farmed deer. The department disagrees with the comment on the basis that it is not germane to the subject of the rule, which is mountain lions. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the breakaway device standard will effectively stop the use of snares for feral hogs and the rule should exempt lions caught in traps with less than a seven-inch inside jaw spread and any neck snare set under a fence in order to avoid interference with coyote trapping. The department disagrees with the comments and responds that the rules were designed to avoid interfering with trapping activities for target species other than mountain lions and the department believes that will be the case in practice; however, the rule has been adopted with changes and the breakaway device provision has been replaced with an exception for snares that are vertically set and have a maximum opening of ten inches or less.
Two commenters opposed adoption and stated, "the general public should not be allowed to dictate what methods landowners use to protect their livestock." The department disagrees with the comment and responds that wildlife resources are a public trust and the commission by law is delegated the authority to manage those resources on behalf of the public. No changes were made as a result of the comments.
The department received 211 comments opposing adoption on the basis that rule as adopted provided inadequate, insufficient, illusory, or otherwise ineffective protections to mountain lions. The comments specifically articulated opposition to the provision implementing a 36-hour time limit that mountain lions may be retained in a trap (i.e., stating a preference for a shorter time period), opposition to trapping, opposition to hunting of mountain lions, or opposition to the absence of measures such as mandatory harvest reporting and development of a data-driven management plan for mountain lions. The department disagrees with the comments and responds that the chairman of the commission created a working group composed of various elements of concerned communities to provide recommendations to the commission and the rule as adopted represents the commission's determination of what requirements are necessary at this time to allow mountain lion populations to successfully perpetuate themselves.
The department received 6,681 comments supporting adoption of the rule as proposed.
The department received comments in opposition to the rule from State Representative Andrew Murr, Texas Farm Bureau, Texas Sheep and Goat Raisers' Association, Sheep and Goat Predator Management Board, Susan Combs (Former Texas Agriculture Commissioner and Former Comptroller of Public Accounts), Texas and Southwestern Cattle Raisers Association,
Texas Trappers and Fur Hunters Association; Crockett County Predator Management Board, and Texas Wildlife Association.
The Coastal Conservation Association and Texas Chapter of the Wildlife Society commented in support of adoption of the rule as proposed.
The new rule is adopted under the authority of Parks and Wildlife Code, §67.004, which states the commission by regulation shall establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
§65.950.Mountain Lions (Puma concolor).
(a) In this section "captivity" means the state of being held under control, or kept caged, penned, or trapped.
(b) No person in this state may:
(1) hunt a mountain lion that is in captivity;
(2) release a mountain lion from captivity for purposes of:
(A) being hunted; or
(B) training dogs;
(3) allow a live mountain lion to be captured in a trap or snare for more than 36 hours; or
(4) conduct, promote, assist, or advertise an activity prohibited by this subsection.
(c) This section does not:
(1) prohibit a person from humanely dispatching a lawfully trapped mountain lion; or
(2) apply to the use of vertically set snares that are fabricated or modified to limit the loop or opening to a diameter of 10 inches or less.
(d) The provisions of subsection (c)(2) of this section do not exempt any person from the provisions of subsection (b)(2) of this section.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 9, 2024.
TRD-202403679
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2024
Proposal publication date: April 19, 2024
For further information, please call: (512) 389-4775