Attorney General Raúl Torrez says the state's hunting license system improperly benefits private outfitters. Las Cruces Rep. Nathan Small and hunting advocates are pushing for legislative changes.

Damien Willis, Organ Mountain News

SANTA FE - New Mexico Attorney General Raúl Torrez has concluded that the state's system of reserving coveted big-game hunting licenses for clients of private outfitters violates the New Mexico Constitution, setting the stage for potential legislative reforms that could give resident hunters greater access to public wildlife.

The formal legal opinion, issued Oct. 9 and announced Tuesday, Oct. 13, finds that New Mexico's 10% outfitter set-aside violates the state Constitution's anti-donation clause by granting private businesses valuable commercial access to public hunting opportunities without adequate compensation or other benefits to the state.

The finding follows an April request from 18 state legislators, including Rep. Nathan Small of Las Cruces, who questioned whether the state's hunting license system improperly favors wealthy out-of-state hunters over New Mexico residents.

The stakes are significant for resident hunters competing for a limited number of elk licenses. During the 2022-23 hunting season, 1,429 of the 1,584 elk licenses allocated through the outfitter set-aside — more than 90% — went to nonresidents, according to licensing data cited in the attorney general's opinion.

Torrez is urging lawmakers to repeal or restructure the system during the upcoming legislative session, warning that his office could pursue legal action if the Legislature fails to address the constitutional problems.

"For generations, hunting elk on our public lands hasn't just been a sport in New Mexico. It's been a way of life," Torrez said in a statement Tuesday.

"That tradition is being sold out from under working New Mexicans," he said. "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."

The attorney general's opinion does not automatically invalidate the law or halt the program. It establishes the Justice Department's legal position and could provide a basis for legislative action or future litigation.

How the outfitter set-aside works

New Mexico distributes many big-game hunting licenses through a competitive public drawing, with the number of available licenses determined by wildlife populations, habitat conditions and other management considerations.

Under state law, at least 84% of licenses in the public draw are reserved for New Mexico residents. Another 6% are allocated to nonresidents who do not need to hire an outfitter.

The remaining 10% are reserved for applicants who contract with a registered outfitter before applying.

Both residents and nonresidents may participate in that special drawing pool, but it overwhelmingly benefits out-of-state hunters.

According to the attorney general's opinion, 90.2% of outfitter set-aside elk licenses went to nonresidents during the 2022-23 season. New Mexico residents received just 155 licenses, or 9.8%, from that pool.

The preferential drawing also has significant commercial value.

Hunters who contract with an outfitter can obtain better odds of drawing a coveted license than applicants competing in the regular nonresident drawing. Outfitters charge thousands of dollars for guided elk hunts, with some hunting opportunities costing $10,000 or more.

Yet the state does not collect a separate fee from outfitters for access to the reserved license pool.

Instead, outfitters pay a standard annual registration fee of $500, whether or not their clients participate in the set-aside.

Torrez argues that the arrangement effectively gives private businesses an exclusive commercial advantage involving a public resource without requiring a corresponding benefit to New Mexico.

The opinion also notes that only about 65% of all elk licenses issued statewide went to New Mexico residents in the 2022-23 season, substantially below the resident share in several neighboring Western states.

That statewide figure includes licenses issued outside the public drawing through New Mexico's separate landowner authorization system, known as EPLUS. The attorney general's opinion does not evaluate the constitutionality of that program.

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A federal court ruling changed the original arrangement

The legal questions surrounding the outfitter set-aside stem partly from a federal court decision more than a decade ago.

When lawmakers adopted the current allocation system in 2011, they required qualifying outfitters to make substantial commitments to New Mexico, including employing state residents, paying state taxes and investing in property.

Those requirements were intended to ensure that businesses receiving exclusive access to a portion of the state's hunting licenses provided economic benefits in return.

But in 2012, a federal judge blocked the state from enforcing several of those requirements against individual outfitters and sole proprietorships after they challenged the restrictions as unconstitutional discrimination against nonresidents.

The injunction left the set-aside intact while removing important conditions that had tied access to investments in New Mexico. Those conditions remain applicable to corporate outfitters.

In his new opinion, Torrez concludes that the resulting arrangement violates the state Constitution's anti-donation clause on two independent grounds.

First, individual outfitters can participate in the set-aside without providing the additional economic commitments originally required by law.

Second, even if their $500 registration fee were considered compensation, Torrez argues that it is grossly disproportionate to the commercial value of the exclusive access they receive.

The opinion estimates that the combined market value of the licenses in the outfitter pool could approach $15 million, compared with approximately $150,000 in annual registration fees collected from roughly 300 outfitters statewide.

That comparison is based on a hypothetical $10,000-per-license valuation using reported prices for transferable landowner tags. It is not a calculation of actual outfitter revenue.

The attorney general acknowledges that New Mexico courts have not explicitly adopted the proportionality test underlying his second argument, although his office maintains that the interpretation is consistent with the anti-donation clause.

Las Cruces legislator helped initiate review

Small, who chairs the Legislative Finance Committee, was among the lawmakers who requested the attorney general's review in April after hearing complaints from constituents about declining hunting opportunities.

The request also included signatures from southern New Mexico lawmakers Sen. William Soules, Rep. Sarah Silva and Sen. Carrie Hamblen.

In a statement Tuesday, Small welcomed the opinion and said lawmakers would examine potential changes to the allocation system during the upcoming session.

"This opinion from Attorney General Raúl Torrez reaffirms what New Mexicans instinctively know: that we deserve fair access to hunting on our public lands," Small said.

He argued that the current structure disadvantages resident hunters who cannot afford the expense of contracting with an outfitter.

"I applaud the Attorney General for recognizing the need to reform this system, so that everyday New Mexicans can continue to honor our cherished traditions and pass them down to the next generation," Small said.

Small said legislators would consider whether additional changes are necessary to protect access to hunting opportunities on public lands.

He did not announce a specific bill or commit to eliminating the set-aside.

Hunters, outfitter and tribal leader call for change

The opinion drew support Tuesday from hunting advocates, small-business owners and tribal representatives who have criticized the allocation system as unfair to New Mexico residents.

Jesse Deubel, executive director of the New Mexico Wildlife Federation, said the finding validates concerns his organization has raised for years.

"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," Deubel said.

"Now our focus should be to put more tags in the hands of New Mexico residents," he said, adding that the organization plans to work with lawmakers during the next legislative session.

The call for reform also came from within the outfitting industry.

Ryan Gentry, owner of Black Horn Guide Service, said the current system needs to provide more opportunities for residents without undermining the outdoor recreation businesses that serve nonresident hunters.

"As a resident hunter, guide, and outfitter, I've noticed over the years that the odds don't favor New Mexico residents across all hunt codes and 'set-aside' systems," Gentry said.

He called for a system that better balances the interests of resident hunters and the outfitting industry.

"There is a better way to protect and prioritize New Mexico hunters while maintaining a healthy outdoor industry for nonresidents as well," Gentry said.

Keegan King, a member of Acoma Pueblo and executive director of the Native Lands Institute, emphasized the cultural importance of hunting to Indigenous communities and New Mexico families.

"Hunting has played an important role in indigenous history and culture for generations," King said. "It is woven into the fabric of our families and communities, and it remains a living tradition that carries knowledge, responsibility, and connection to place."

King urged legislators from both parties to work toward increasing the number of hunting licenses available to residents.

Bighorn sheep allocations also questioned

Torrez's opinion raises a separate constitutional concern involving how the New Mexico Department of Wildlife distributes bighorn sheep hunting licenses.

Because relatively few bighorn sheep licenses are available in individual hunting units, the department sometimes combines multiple units under a single hunt code when calculating license allocations.

That practice can increase the number of licenses eligible for the outfitter set-aside.

Torrez concluded that combining units solely to generate additional outfitter allocations could independently violate the anti-donation clause by expanding private access to public wildlife without a corresponding benefit to the state.

However, the opinion recognizes that the department has broad authority to establish hunting units and manage license allocations for legitimate conservation or administrative purposes.

The constitutional concern would arise if creating additional outfitter set-aside opportunities were the only documented justification for combining the units.

Legislature faces decision on future of program

Torrez is asking lawmakers to address the outfitter set-aside during the next legislative session, either by repealing the program or restructuring it to require meaningful, enforceable benefits for New Mexico residents.

His opinion notes that removing the set-aside could allow some of the affected licenses to return to the resident drawing pool, potentially increasing the resident share of available public-draw licenses to as much as 94%, where redistribution is practicable under state law.

Any change would require legislative or judicial action. The attorney general's opinion itself does not invalidate existing licenses or automatically alter future drawings.

The opinion also addresses New Mexico's public trust doctrine, which requires the state to manage natural resources for the benefit of its people. Torrez concluded that responsibility for determining how the state fulfills that obligation rests primarily with the Legislature.

The opinion leaves unresolved how the outfitting industry and the Department of Wildlife would respond to proposed changes.

Torrez said he would prefer lawmakers resolve the constitutional concerns rather than force the issue into court.

"I'd rather see the Legislature fix this the right way, through the democratic process," he said.

"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."

The complete 13-page attorney general's opinion, No. 2026-12, is available through the New Mexico Department of Justice.

Damien Willis is founder and editor of Organ Mountain News. If you have a personal story to share or a lead we should follow up on, reach out at OrganMountainNews@gmail.com or connect with him on X at @damienwillis.