§ 17-2-40 — Biennial review; investigations; recommendations of the

director; procedures. A. The director shall conduct a biennial review of all species of wildlife named on the list required by Section 17-2-41 NMSA 1978. The director may conduct investigations at any time of those other species of wildlife indigenous to the state that are suspected of being threatened or endangered in order to develop information relating to population, distribution, habitat needs, limiting factors and other biological and ecological data to determine his recommendations for listing or not listing a species and management measures and requirements necessary for their survival. The director shall also conduct, within a reasonable time, an investigation to support listing or delisting of a species based upon new evidence or, with the advice and consent of the commission, based upon substantial public interest. Upon completion of an investigation or investigations, he shall make written recommendations to the commission to list or not list any unlisted species or to delist any listed species investigated. In conducting any investigation for new listing or delisting required or undertaken pursuant to this subsection, the director shall comply with the procedures established in Subsections B through L of this section. Species listed as threatened or endangered on the state list through adoption of the United States list pursuant to Subsections D and M of Section 17-2-38 NMSA 1978 shall not be subject at the time of adoption to the listing procedures established in Subsections B through K of this section. B. The director shall select a researcher to conduct an investigation pursuant to Subsection A of this section and request the appointment of a peer review panel composed of one qualified individual from each of the four-year state universities to be appointed by the presidents of the respective universities. The peer review panel shall be requested to submit comments according to a schedule determined by the director. The researcher shall submit his research design to the peer review panel. C. When additional field research is undertaken as part of an investigation, the peer review panel shall examine the proposed research design for methodology for collection and analysis of data. Upon receipt of the peer review panel's submitted comments, the researcher shall initiate the field research regarding the designated species. D. To the extent practicable, as part of his investigation the researcher shall meet and consult with private landowners, lessees and land and resource managers who are or may be affected by or have information pertinent to the investigation. E. When the researcher initiates his investigation, the director shall: (1) create a public repository file in which copies of all documents filed with the director pertaining to the investigation or a potential recovery plan, to be developed pursuant to Section 17-2-40.1 NMSA 1978, including all peer review comments, shall be maintained; (2) mail a notice of the initiation of the investigation to federal and state agencies, local and tribal governments that are or may be affected by the results of the investigation and individuals and organizations that have requested notification of department actions regarding threatened or endangered species; (3) notify the general public of the initiation of the investigation by information releases to the media in the area of the state affected; (4) indicate, in all notices and information releases, where and until what date information may be submitted for inclusion in the public repository file; (5) accept data, views or information about the biological or ecological status of the species for use in both the investigation and the development of the potential recovery plan; and (6) accept data, views and information on the potential economic or social impacts or opportunities of a change in the legal status of the species for inclusion in the recovery plan. F. The director shall file all written comments, data, views and information furnished pursuant to Subsection D of this section in the public repository file and shall preserve that file for use in connection with the listing process and development of any recovery plan developed pursuant to the provisions of Section 17-2-40.1 NMSA 1978. The director shall file in the public repository file all records indicating contact by the director, the researcher, employees or contractors with land owners or public or private resource managers affected by the potential action. G. Information from the public repository file relating to social and economic impacts shall not be considered by the director in making his recommendation or the commission in making its decision to list, delist, not list, continue to list, upgrade or downgrade a species, but shall be considered only in the development of any recovery plan for the species. H. The commission shall adopt, notwithstanding the provisions of Section 14-2-1 NMSA 1978, regulations by January 1, 1996 governing the confidentiality of data from an investigation. I. The researcher shall prepare and submit draft reports to the peer review panel and to the public repository file. The peer review panel will be requested to examine and comment on the draft report in a timely manner. J. After consideration of the peer review panel's submitted comments on the draft reports, the researcher shall prepare final reports and file them and all peer review panel comments with the director and in the public repository file. The peer review panel shall not be compelled to attend any hearing before the commission. K. Upon receipt of the researcher's final reports, the director shall make recommendations to the commission to list, not list or delist the species based upon criteria listed in Subsection L of this section. The commission shall establish dates and locations for public hearings on the recommended actions and give notice of the public hearings in the same manner and to the same persons as notice was given of the initiation of the investigation and, in addition, publish legal notice in a newspaper of general circulation in the area affected at least ninety days before the date set for the hearing. Public hearings shall be held at a place within any quadrant of the state affected by the recommended actions when the director determines that there is substantial public interest indicated in holding a hearing in that quadrant. All hearings on the recommended actions shall be held within six months of the date the director makes his recommendations. The notice shall: (1) include the date, time and location of all hearings on the matter; (2) include a statement of the recommended action; (3) include an indication of the location and availability of the public repository file; (4) indicate where and by what date written comments and testimony to be included in the hearing record may be filed; (5) indicate that views, data and comments pertaining to the final report may be presented orally at or in writing to the hearing; (6) specify that notice of intent to present technical and scientific testimony and a written copy of the testimony to be presented shall be submitted to the commission not less than thirty days prior to the initial hearing; and (7) specify that the public record shall remain open for comments for thirty days after the date of the final hearing. L. The commission shall make its decisions and take action based upon relevant and reliable evidence to list, not list or delist a species at its next regularly scheduled meeting within no more than thirty days after the close of the hearing record. The commission shall: (1) list or maintain a species as endangered and shall not delist a species if it finds that the species' prospects for survival or recruitment within the state are in jeopardy based upon the biological and ecological evidence in the public repository file and based upon biological and ecological evidence received in the public hearings; and (2) list or maintain a species as threatened and shall not delist a species if it finds that the species' prospects for survival or recruitment within the state are likely within the foreseeable future to be in jeopardy based upon the biological and ecological evidence in the public repository file and biological and ecological evidence received in public hearings. M. Whenever the director finds that there is an emergency posing a significant risk to the well-being of any species and that risk is likely to jeopardize the continued survival or recruitment of the species within the state, the director shall recommend to the commission that the species should be listed as endangered. The commission shall act upon the director's recommendation immediately and shall either list or not list the species by regulation based upon the evidence supporting the recommendation if it finds that the continued survival of the species is in jeopardy. If the commission lists the species as endangered, it shall waive the requirements of Subsections A through L of this section. Whenever the commission adopts a regulation listing a species as endangered pursuant to this subsection, it shall give notice of the listing in the same manner and to the same persons as notice is given in the initiation of investigations and in addition shall publish legal notice in a newspaper of general circulation in the area affected. The emergency listing shall cease to have force and effect at the close of a three-year period following the date of the finding unless, during the three year period, the procedures for listing pursuant to Subsections B through L of this section or continuing to list pursuant to commission regulations for the biennial review are completed.

Legislative History

1953 Comp., § 53-2-53, enacted by Laws 1974, ch. 83, § 4; 1995, ch. 145, § 4.