DEPT. OF JUSTICE NEWS RELEASE
Opinion finds program gives outfitters exclusive access to public wildlife for little more than a registration fee; 90 percent of set-aside elk tags went to nonresidents
Attorney General Raúl Torrez issued a formal legal opinion, requested by members of the New Mexico Legislature, concluding that the state’s “outfitter set-aside” violates the anti-donation clause of the New Mexico Constitution. In the 2022-23 season, more than 90 percent of set-aside elk licenses went to out-of-state hunters, while New Mexico families competed for what was left in an oversubscribed public draw.
“For generations, hunting elk on our public lands hasn’t just been a sport in New Mexico. It’s been a way of life. It’s how families put meat on the table, how kids learn the land from their parents and grandparents, and how rural communities stay connected to the ground beneath them,” said Attorney General Raúl Torrez. “That tradition is being sold out from under working New Mexicans. Right now, a broken system lets wealthy out-of-state hunters buy their way to the front of the line while our own families wait year after year for a tag. Our Constitution is clear: New Mexico’s wildlife belongs to the people of this state, not to whoever can afford an outfitter’s fee.”
About the Opinion:
The outfitter set-aside reserves 10 percent of New Mexico’s big game draw licenses for hunters who contract with a registered outfitter. The opinion concludes that the program gives outfitters exclusive commercial access to a valuable part of the state’s license pool without the consideration the Constitution requires.
When the Legislature adopted the current program in 2011, it attached significant conditions. Outfitters had to invest in New Mexico property, employ New Mexico workers, and pay state taxes, reflecting a legislative judgment that exclusive access to public tags should be matched by real commitments to the people of New Mexico.
A 2012 federal injunction eliminated those requirements for individual outfitters while leaving the set-aside itself intact. As a result, many outfitters now receive access to a valuable portion of New Mexico’s publicly owned wildlife without providing anything beyond the standard registration fee every outfitter pays simply to operate. The opinion explains that this arrangement is a donation in substance and violates the anti-donation clause, which prohibits the State from transferring something of value to private parties without genuine, proportionate consideration.
The opinion further finds that, even if the $500 fee counted as payment, it is far too little for what outfitters get. The set-aside works like an exclusive franchise, giving outfitters something no one else has: the right to sell clients a better shot at a hard-to-get tag. That advantage helps outfitters charge $10,000 or more for an elk hunt. The State gets nothing extra for it. Every outfitter pays the same $500 fee, whether it uses the set-aside or not.
The opinion also identifies constitutional concerns with the Department of Wildlife’s practice of aggregating bighorn sheep tags across multiple hunt units. If the Department’s only documented reason for combining these tags is to generate set-aside allocations that would not otherwise exist, that practice independently violates the anti-donation clause by expanding the value conferred on outfitters without any corresponding public benefit.
Finally, the opinion notes that New Mexico’s Public Trust Doctrine, the constitutional basis for the State’s duty to manage natural resources for the benefit of all residents, assigns responsibility for implementing resource management policy to the Legislature.
New Mexico Is a Western Outlier:
New Mexico residents receive only about 65 percent of their state’s elk licenses. In neighboring elk states, residents receive roughly 80 to 90 percent or more, Wyoming about 81 percent, Idaho and Montana about 87 to 89 percent, and Arizona at least 90 percent by statute. In Idaho and Wyoming, outfitter tags come out of the nonresident quota, leaving residents’ share untouched. In New Mexico, the outfitter pool is carved from the same public draw New Mexico families apply to.
“We’ve always believed the outfitter set-aside is illegal, and we’re pleased that Attorney General Torrez has concluded that in his legal opinion,” said Jesse Deubel, executive director of the New Mexico Wildlife Federation. “Now our focus should be to put more tags in the hands of New Mexico residents. We thank Chairman Small and the Legislators who requested this opinion. We look forward to working in the next legislative session to reform the system that has been rigged against resident hunters for too long.”
The opinion is a legal analysis, not a court order or a repeal of the statute. Attorney General Torrez is calling on the Legislature to take up the issue in the upcoming session, either by repealing the outfitter set-aside or rebuilding it with real, enforceable consideration that benefits New Mexico residents. If the set-aside is removed, state law directs that those licenses be returned to the resident pool wherever practicable, meaning more opportunity for New Mexico hunters.
“I’d rather see the Legislature fix this the right way, through the democratic process,” said Attorney General Torrez. “But make no mistake, my office is not going to let an unconstitutional program keep shortchanging New Mexico families indefinitely. If the Legislature doesn’t act, we will look at every tool available to this office, including going to court to stop it.”