A. The state game commission shall have general control over the collection and disbursement of all money collected or received under the state laws for the protection and propagation of game and fish, which money shall be paid over to the state treasurer to the credit of the game protection fund, unless otherwise provided by law, and the fund, including all earned income, shall not be transferred to another fund. Prior to depositing money into the game protection fund, the department of game and fish shall ensure that an amount adequate to cover the cost of refunds allowed by the provisions of Chapter 17 NMSA 1978 is held in a liability suspense account. All refunds shall be made from the liability suspense account. Money not needed to cover the cost of refunds shall be deposited in the game protection fund at the end of each month. Chapter 17 NMSA 1978 shall be guaranty to the person who pays for hunting and fishing licenses and permits that the money in that fund shall not be used for any purpose other than as provided in Chapter 17 NMSA 1978.

B. The state game commission shall have authority to:

(1) establish and, through the director of the department of game and fish, to operate fish hatcheries for the purpose of stocking public waters of the state and to furnish fish fry and fingerlings to stock private waters, receipts from such sources to go into the game protection fund;

(2) declare closed seasons in any specified locality and on any species of game or fish threatened with undue depletion from any cause;

(3) establish game refuges for the purpose of providing safe sanctuaries in which game may breed and replenish adjacent hunting ranges, it being the purpose of this provision to establish small refuges rather than large preserves or to close large areas to hunting;

(4) purchase lands for game refuges where suitable public lands do not exist, to purchase lands for fish hatcheries and to purchase lands to be maintained perpetually as public hunting grounds, particularly lands suitable for waterfowl hunting, all such lands to be paid for from the game protection fund;

(5) receive by gift or bequest, in the name and on behalf of the state, lands suitable for game refuges, hunting grounds, fish hatcheries or for any other purpose necessary to carry out the provisions of Chapter 17 NMSA 1978;

(6) apply for and accept any state, federal or private funds, grants or donations from any source for game and fish programs and projects;

(7) designate certain areas as rest grounds for migratory birds, in which hunting shall be forbidden at all times or at such times as the state game commission shall provide, it being the purpose of this provision not to interfere unduly with the hunting of waterfowl but to provide havens in which they can rest and feed without molestation;

(8) close any public stream or lake or portion thereof to fishing when such action is necessary to protect a recently stocked water, to protect spawning waters or to prevent undue depletion of the fish;

(9) propagate, capture, purchase, transport or sell any species of game or fish needed for restocking any lands or streams of the state;

(10) after reasonable notice and hearing, suspend or revoke any license or permit issued pursuant to the provisions of Chapter 17 NMSA 1978 and withhold license privileges from any person procuring a license through misrepresentation, violating any provisions of Chapter 17 NMSA 1978 or hunting without a proper license;

(11) adopt rules establishing procedures that provide reasonable notice and a hearing before the state game commission for the suspension, revocation or withholding of license privileges for a definite period of time for a person charged with violating the provisions of Chapter 17 NMSA 1978, subject to such judicial review as may be provided by law;

(12) conduct studies of programs for the management of endangered and nongame species of wildlife;

(13) establish licenses, permits and certificates not otherwise provided for in Section 17-3-13 NMSA 1978 and charge and collect just and reasonable fees for them; provided the fees shall not exceed the costs of administration associated with the licenses, permits or certificates;

(14) permit, regulate or prohibit the commercial taking or capturing of native, free-ranging amphibians or reptiles not specifically protected by law, except for rattlesnake roundups, collection of fish bait and lizard races;

(15) adopt rules to control, eradicate or prevent the spread of a contagious disease, pest or parasite, including chronic wasting disease, to or among game animals. The rules shall include provisions for:

(a) notification to the department of game and fish of the diagnosis or suspected presence of a contagious disease;

(b) examination by the state veterinarian or the state veterinarian's designee of suspected infected game animals;

(c) quarantine, treatment or destruction of an infected game animal;

(d) disinfection and isolation of a licensed private park where an infected game animal has been; and

(e) indemnification and destruction of a protected game animal;

(16) as necessary, designate areas of the state in which bear-proof garbage containers are required on public and private lands to reduce potential human-bear interactions;

(17) pursuant to appropriation by the legislature, expend money from the game protection fund and the habitat management fund for the improvement, maintenance, development and operation of property for fish and wildlife habitat management; and

(18) adopt rules to recruit, train and accept the services of volunteers for education and outreach activities, hunter and angler services and wildlife conservation activities administered by the department of game and fish; provided that a volunteer:

(a) shall comply with all policies and procedures of the director of the department of game and fish; and

(b) shall not be deemed to be a state employee and shall not be subject to the provisions of law relating to state employment, including those relating to hours of work, rates of compensation, leave, unemployment compensation and state employee benefits.

C. The director of the department of game and fish shall exercise all the powers and duties conferred upon the state game and fish warden by all previous statutes now in force not in conflict with Chapter 17 NMSA 1978.

D. The state game commission shall have authority to prohibit all hunting in periods of extreme forest fire danger, at such times and places as may be necessary to reduce the danger of destructive forest fires.

E. The hunting, pursuing, capturing, killing or wounding of any game animals, birds or fish in or upon any game refuge, rest ground or closed water or closed area or during any closed season established or proclaimed by the state game commission in accordance with the authority conferred in Chapter 17 NMSA 1978 constitutes a misdemeanor and shall be punishable as prescribed in Chapter 17 NMSA 1978.

History: Laws 1921, ch. 35, § 7; C.S. 1929, § 57-107; 1941 Comp., § 43-108; 1953 Comp., § 53-1-8; Laws 1973, ch. 278, § 1; 1977, ch. 290, § 1; 1983, ch. 155, § 1; 1992, ch. 29, § 1; 1993, ch. 331, § 1; 2001, ch. 66, § 1; 2002, ch. 70, § 1; 2003, ch. 124, § 1; 2005, ch. 38, § 1; 2005, ch. 177, § 1; 2013, ch. 135, § 1; 2015, ch. 35, § 1.

Cross references. — For transfer of duties of state game warden to director, see 17-1-6 NMSA 1978.

For lieutenant governor's deer enhancement permit, see 17-3-16.3 NMSA 1978.

For artificial wildlife being used and defined as game animals or birds for the purpose of prosecution, see 17-2-2.1 NMSA 1978.

For disposition of proceeds from sale of seized game or fish, see 17-2-21 to 17-2-23 NMSA 1978.

For conducting hunter training program, see 17-2-34 NMSA 1978.

For depositing license fees in game protection fund, see 17-3-7, 17-3-20 and 17-5-7 NMSA 1978.

For depositing federal funds in game protection fund, see 17-4-31 NMSA 1978.

For destroying commission's boundary markers, see 17-4-32 NMSA 1978.

For duty to administer laws regulating trappers and fur traders, see 17-5-4 NMSA 1978.

For revocation of trappers' and fur dealers' licenses, see 17-5-9 NMSA 1978.

For expenditure of funds to carry out Habitat Protection Act, see 17-6-7 NMSA 1978.

For shooting range fund and administration thereof, see 17-7-1 to 17-7-3 NMSA 1978.

For present penalty for violation of this chapter or regulations of the commission, see 17-2-10 NMSA 1978.

The 2015 amendment, effective June 19, 2015, provided the authority for the state game commission to adopt rules regarding the services of recreation and wildlife volunteers; and added Paragraph (18) of Subsection B.

The 2013 amendment, effective June 14, 2013, provided for a definite period of revocation of license privileges; in the title, added "liability suspense account"; in Subsection A, added the second and third sentences; in Paragraph (10) of Subsection B, after "withhold license privileges", deleted "for a definite period not to exceed three years"; and in Paragraph (11) of Subsection B, after "withholding of license privileges", deleted "of" and added "for a definite period of time for".

The 2005 amendment, effective June 17, 2005, provided in Subsection A that money collected by the commission shall be paid to the state treasurer to the credit of the game protection fund unless otherwise provided by law; and added Subsection B(17) to provide that the commission, pursuant to appropriation by the legislature, shall have authority to expend money from the game protection fund and the habitat management fund for fish and wildlife habitat management.

The 2003 amendment, effective June 20, 2003, redesignated the former last sentence of Subsection A and former Paragraphs A(1) through A(15) as present Subsections B and Paragraphs B(1) through B(15); added Paragraph B(16); and redesignated former Subsections B, C and D as present Subsections C, D and E.

The 2002 amendment, effective May 15, 2002, added Paragraph A(15).

The 2001 amendment, effective June 15, 2001, substituted "rules" for "regulations" in Paragraph A(11) and added Paragraph A(14).

Allocation of licenses based on residency, impermissible discrimination. — The allocation of licenses for bighorn, oryx and ibex by the state game commission on the basis of residency discriminates impermissibly against nonresidents under the federal constitution. Terk v. Gordon, No. 74-387-M (D.N.M., filed Aug. 25, 1977), aff'd, 436 U.S. 850, 98 S. Ct. 3063, 56 L. Ed. 2d 751 (1978).

Fee structure, although discriminatory, is not offensive. — The present fee structure in 17-3-13 NMSA 1978, which discriminates against nonresidents, is not offensive to either the privileges and immunities clause, U.S. Const., art. IV, § 2, or the U.S. Const., amend. XIV. Terk v. Gordon, No. 74-387-M (D.N.M., filed Aug. 25, 1977), aff'd, 436 U.S. 850, 98 S. Ct. 3063, 56 L. Ed. 2d 751 (1978).

Money in the game protection fund may be used only for the purposes provided in the game and fish laws. 1975 Op. Att'y Gen. No. 75-38.

Game and fish department funds may not be legally spent for out-of-state travel by state game and fish department personnel for purposes of advertising New Mexico's game and fish resources. 1958 Op. Att'y Gen. No. 58-216.

There are no provisions for reimbursement of license fees in any circumstances; therefore, persons who have purchased a second license illegally are not entitled to reimbursement for the second license. 1975 Op. Att'y Gen. No. 75-38.

Interest credited to game protection fund, not general fund. — Any interest earned on the investment of money in the game protection fund must be credited to that fund, not the state general fund. 1982 Op. Att'y Gen. No. 82-01.

Use of fire suppression fund appropriated to game and fish department. — A fire suppression fund appropriated to the department of game and fish was not to actually be transferred to the forest conservation commission (now abolished). The department of game and fish was simply authorized to contract with the forest conservation commission to perform fire suppression activities reasonably necessary for the protection of game and fish. The formula to be utilized in providing and paying for such services was a contractual matter between these two agencies. 1961 Op. Att'y Gen. No. 61-54.

"Public waters" are all unappropriated waters from natural streams. — The term "public waters" as used in this section is synonymous with the definition of public waters given by the New Mexico supreme court in the case of State ex rel. State Game Comm'n v. Red River Valley Co., 1945-NMSC-034, 51 N.M. 207, 182 P.2d 421 where the court stated: "All of our unappropriated waters from 'every natural stream, perennial or torrential, within the state of New Mexico,' Article 16, Section 2, New Mexico Constitution, are public waters. These waters belong to the public until beneficially appropriated. And since the right to fish in public waters, by the test of any rule, is universally recognized, it cannot be said that the right to fish and to use the unappropriated public waters in question is less secure in the public because we determine their character as public by immemorial custom, and Spanish or Mexican law which we have adopted and follow in this respect. . . ." 1959 Op. Att'y Gen. No. 59-57.

Public waters may be stocked. — The waters of our streams, whether perennial or torrential in nature, are public waters such as may be stocked by the fish and game commission. 1961 Op. Att'y Gen. No. 61-38.

Municipal reservoirs and waters on Indian and military reservations where fishing fee is charged may not be stocked. — It is not legally proper for the department of game and fish to consider as public waters within the meaning of this section municipal reservoirs and waters on Indian and military reservations where public fishing is permitted, but only on condition of payment of a fee(s) in addition to possession of a valid fishing license. 1957 Op. Att'y Gen. No. 57-319.

Indian and military reservations are not instrumentalities of the state of New Mexico, and the lands adjacent thereto are not subject to state control as are the lands of the municipalities. This is true even though the waters running through such property are "public waters" as declared in State ex rel. State Game Comm'n v. Red River Valley Co., 1945-NMSC-034, 51 N.M. 207, 182 P.2d 421. In such instance, the general public would be trespassing upon land not open to the free access of the public. 1959 Op. Att'y Gen. No. 59-57.

Small municipal charge for use of lake does not prevent stocking. — A small charge by a municipality sufficient to cover sanitation and maintenance expense for recreational purposes does not change the character of a lake from that of "public waters," and it may be stocked by the state game commission at state expense. 1959 Op. Att'y Gen. No. 59-57.

Private waters may be stocked. — If stocking in private, lawfully posted water would not be to such an extent as to deprive the citizenry of a source of public recreation, it may be done. 1957 Op. Att'y Gen. No. 57-246.

Private waters may be stocked only with fry and fingerlings and for consideration. — By use of the terms "fry" and "fingerlings," the legislature thereby excluded the stocking of any fish larger than fry or fingerlings in private waters. Hence, the authorization to stock fish in private waters is limited to fry or fingerlings, and then for a consideration. 1957 Op. Att'y Gen. No. 57-246.

Section lists purposes for which waters may be closed to fishing. — The three purposes for which a public stream or lake or portion thereof may be closed to fishing are set forth in Subsection G (now Subsection B(8)) of this section. These purposes are when it is necessary to protect recently stocked water, to protect spawning waters or to prevent undue depletion of fish. 1958 Op. Att'y Gen. No. 58-119.

Purpose for which waters may be closed are exclusive. — The state game commission is not authorized under this section to close any public stream or lake or portion thereof to fishing, when such action is not for the purpose of protecting a recently stocked water or to protect spawning waters, or to prevent undue depletion of the fish in such waters. 1958 Op. Att'y Gen. No. 58-119.

Dictates of experience and local regulations govern handling of explosives. — The department of game and fish in transporting and storing explosives about the state and through cities and towns must adopt precautionary measures following the dictates of good judgment, based on experience in handling explosives, and local regulations. 1957 Op. Att'y Gen. No. 57-42.

Law reviews. — For student article, "Preventing the Extinction of Candidate Species: The Lesser Prairie-Chicken in New Mexico", see 49 Nat. Resources J. 525 (2009).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 35 Am. Jur. 2d Fish and Game §§ 29, 31.

Power of game or fish commission to open or close season, 34 A.L.R. 832.

36A C.J.S. Fish §§ 26, 37; 38 C.J.S. Game § 50.