ENV-50-13-00004-A Taking of Free-Ranging Eurasian Boars and Interference with Department Authorized Eradication Efforts

4/23/14 N.Y. St. Reg. ENV-50-13-00004-A

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 16

April 23, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-50-13-00004-A

Filing No. 271

Filing Date. Apr. 03, 2014

Effective Date. Apr. 23, 2014

Taking of Free-Ranging Eurasian Boars and Interference with Department Authorized Eradication Efforts

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of section 180.12 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0514 and 11-0303

Subject:

Taking of Free-Ranging Eurasian Boars and interference with department authorized eradication efforts.

Purpose:

Prohibit the taking of Eurasian boars by hunting or trapping in order to support eradication efforts of USDA and DEC.

Text or summary was published

in the December 11, 2013 issue of the Register, I.D. No. ENV-50-13-00004-P.

Final rule as compared with last published rule:

No changes.

Text of rule and any required statements and analyses may be obtained from:

Kelly Stang, NYS Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-4754, [phone], email: [e-mail]

Initial Review of Rule

As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 5th year after the year in which this rule is being adopted.

Assessment of Public Comment

The Department of Environmental Conservation (DEC or department) received comments from approximately 50 individuals on the proposed Eurasian boar regulation during the 45-day public comment period (December 11, 2013 – January 27, 2014). The proposed regulation would prohibit the taking of Eurasian boars by hunting or trapping in order to support eradication efforts of the DEC and the United States Department of Agriculture Wildlife Services (USDA). Some of the comments simply offered support or opposition to the proposed regulation, while others offered more detailed arguments for or against the proposal. A summary of the comments received during the comment period, along with the Department’s response, follows.

Most of the individuals submitting comments agreed that Eurasian boar are a harmful and destructive invasive species and support the DEC’s objective of not letting these animals get established in New York. However, many do not believe that the method of control proposed in the regulation is the best way to eradicate Eurasian boars.

Comment: Many of those opposed to the proposed regulation believe that public hunting is the best way to eradicate boars or public hunting used in conjunction with DEC/USDA shooting and trapping. Some stated that Eurasian boars are a cheap source of food for hunters and their families. A few do not believe that public hunting disrupts DEC/USDA eradication efforts or they suggested that simply marking the location of traps would prevent hunters from disrupting eradication efforts.

Response: While the DEC does recognize that many hunters enjoy the challenge of hunting Eurasian boar and some families rely on wild game to feed their families, the following are reasons why the DEC has adopted the proposed regulation to prohibit the hunting of Eurasian boars:

1. DEC wants to eradicate all Eurasian boars in the wild. The most efficient way to eradicate them is by trapping the whole sounder (the name for a group of pigs) at one time. Trapping takes a lot of time, effort and money because boars are very wary and need to be slowly baited in and accustomed to the trap. When a hunter shoots at a boar, the animals in the sounder run off in all directions and rarely come back together again. So the hunter prevented us from trapping all those animals, made the boars harder to trap the next time (they learn to avoid traps if they are shot at around a trap), and instead of one large sounder we must now locate and eradicate two or more smaller sounders.

2. Hunting is an inefficient and ineffective way to control or eradicate a population of Eurasian boars. Because of the boar’s high survival and reproductive rate, hunters must take at least 67% of the population just to stabilize the population. That is nearly impossible to do. Even in Texas where wild boar hunting is big business, hunters take less than 40% of the population each year.

3. The leading contributing factor in the spread of wild boars in the U.S. is the illegal release of these animals by those who want to establish a boar population in areas where wild boars previously did not exist. In other words, they want their own local boar population so they can hunt them closer to home. If hunting is banned in New York it greatly decreases the incentive to illegally release boars into the state.

Prior to proposing this regulation DEC staff consulted biologists in a number of other states to help determine the most effective ways to eradicate free roaming Eurasian boars from New York. Biologists in Tennessee informed us that from 1949-1999, hunting of wild hogs was only allowed in the two areas of the state known to have wild hogs. In 1999, the Tennessee Wildlife Resources Agency made an attempt to control the wild hog population by opening a statewide wild hog season with no bag limit. During this period of unlimited hunting disjointed populations of hogs began to appear in areas of Tennessee where they had never existed before as the result of illegal stocking by individuals whose goal was to establish local hunting opportunities. Prior to the statewide open season wild hogs were present in 15 counties in Tennessee. Wild hogs are now present in nearly 80 of their 95 counties. In order to remove the incentive to relocate wild hogs, Tennessee enacted new regulations in 2011 that changed the classification of wild hogs from big game animal to a destructive species to be controlled by methods other than sport hunting.

In his letter of support for the proposed regulation, a biologist from the Kentucky Department of Fish and Wildlife Resources Captive Wildlife and Wild Pig Program stated: “I am providing comments in support of NYDEC’s proposed rule regarding Eurasian boar. This foundation of effective regulation to eliminate incentive for the presence of free-ranging swine on New York’s landscape follows in the footsteps of Kansas, Nebraska, and Tennessee implementing similar laws in recent years, and will provide further supporting precedence for the many states yet contending with controlling free-ranging swine in the presence of swine hunting. The sporting take of free-ranging swine is certainly an undermining force in the presence of coordinated eradication efforts, and may entrench the desire to maintain this invasive species on the landscape by those who come to enjoy pursuing them. I have read the proposed regulations pertaining to the ban on taking and hunting wild boar and support the regulation in its entirety as written. The regulation will have the effect of eliminating any incentive for someone to illegally import and release wild boar for the purpose of hunting.”

Lastly, the Missouri Department of Conservation has stated “When implementing feral swine management, the objective is to capture the greatest number of individuals as quickly as possible. Swine are a gregarious species and tend to form sounders or family groups. When hunters shoot at them, individual swine in sounders disperse (Missouri Dept. of Conservation 2012). Not only are these large groups of swine then scattered across the landscape, they become more elusive and associate human presence with danger making it more difficult to manage them.”

Comment: Several supported the proposed regulation in its entirety but felt it should also prohibit the harassment of Eurasian boars to further aid in eradication efforts.

Response: The proposed regulation states “No person shall hunt, trap, take or engage in any activity…that is likely to result in the taking of any free-ranging Eurasian boar…” The legal definition of “take” in ECL 11-0103 (13) includes “pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting fish, wildlife, game… and all lesser acts such as disturbing, harrying or worrying…” Therefore, it is not necessary to add harassment to the proposed regulation.

Comment: A number of individuals opposed the proposed regulation because they felt a landowner or farmer suffering damage from Eurasian boars should be able to shoot the offending animals.

Response: There are provisions in the proposed regulation that would allow the taking of Eurasian boars that are a nuisance or damaging property or crops. The proposed regulation states “Exceptions. This section shall not apply… to any other person permitted to take Eurasian boar pursuant to Environmental Conservation Law section 11-0521 or section 11-0523.” Environmental Conservation Law (ECL) 11-0521 allows the DEC to issue a permit to a landowner to take a Eurasian boar whenever it becomes a nuisance, destructive to public or private property or a threat to public health or welfare. ECL 11-0523 allows farmers to take Eurasian boars without a permit when the animals are a nuisance or injuring their property.

Comment: A few people opposed the regulation because they believe the DEC should offer a bounty on Eurasian boar to encourage and reward hunters to shoot these animals.

Response: The DEC cannot pay for hunters to take wildlife since bounties, except in cases where the Health Department recognizes an immediate health hazard, are unlawful in New York. ECL § 11-0531 (Bounties prohibited) states that it is unlawful to pay bounties on the taking of wildlife. If bounties were legal, there would be no way to prove that a Eurasian boar was taken in the wild in New York and the State could end up paying bounties on boars shot at enclosed shooting facilities or in another state. Paying bounties would also increase the incentive for someone to release boars into the wild.

Comment: Others opposed the regulation because they believed it would make it illegal to shoot boars at an enclosed shooting facility.

Response: The proposed regulation would have no impact on the shooting of Eurasian boars inside the fence of an enclosed shooting facility. The regulation only pertains to the taking of free-ranging Eurasian boar. “Free-ranging” means any Eurasian boar that is not lawfully possessed within a completely enclosed or fenced facility from which the animal cannot escape to the wild. Furthermore, ECL 11-0514 prohibits the possession of Eurasian boars on or after September 1, 2015. Shooting boars at an enclosed shooting facility will be prohibited after that date.

Comment: Some opposition was because of a concern that DEC does not have the staff or resources to support an eradication effort due to budget and staffing cuts in recent years or they do not want their state tax dollars used to eradicate Eurasian boars. At least one stated DEC should hire specialists or consultants to eradicate Eurasian boar.

Response: DEC has had budget and staff cuts in recent years. However, the Eurasian boar eradication program is a joint effort between the DEC and USDA. USDA is working under a contract with DEC funded by the Environmental Protection Fund (Invasive Species Control). DEC is also working with funds provided by the U.S. Fish and Wildlife Service (USFWS) under the Federal Aid in Wildlife Restoration Act. USFWS funds are used to eradicate Eurasian boar to minimize the impacts of these animals on native birds and mammals in New York.

Comment: Some people providing comments expressed concern that this proposed regulation was an attempt to restrict people’s rights to own/use guns or to hunt and/or there were already too many regulations and they oppose all new regulations regardless of the subject.

Response: The proposed regulation would prohibit hunting and trapping of one species, the Eurasian boar. It does not affect the hunting of any other species in New York. The regulation does not prohibit the ownership or use of guns. This regulation is necessary to ensure that Eurasian boars do not become established in the wild in New York, as a complementary measure to the recently enacted Eurasian boar law.

Some people submitted questions about the proposed regulation and did not state support or opposition to the proposed regulation.

Comment: One questioned how regulations can be proposed that could offer protection for unprotected wildlife.

Response: Under ECl 11-0103, free ranging Eurasian boars are considered “unprotected wildlife.” Unprotected wildlife can be taken at any time in any manner. However, allowing the unrestricted take of Eurasian boars is in direct conflict with eradication and prevention strategies. Therefore, the DEC is prohibiting the taking of free-ranging Eurasian boars using the “general powers” authority provided by ECL 11-0303(2).

Comment: Another asked if the proposed regulation prohibited hunting of free-ranging pigs other than Eurasian boars.

Response: This regulation only prohibits the hunting and trapping of free-ranging Eurasian boars. However, this does not mean hunters can shoot free-ranging domestic, farm pigs and pot-bellied pigs. These animals are regulated by the NYS Department of Agriculture and Markets (DAM) and there are no legal provisions that allow the hunting of them.

Three organizations provided comments on the proposed regulation. The Farm Bureau of New York, The Nature Conservancy in New York (TNC) and the New York City Department of Environmental Protection, Bureau of Water Supply (NYC DEP) all supported the proposed regulation.