For more info, call David K. Langford @ 800/839-9453.

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David K. Langford, Executive Vice President

Texas Wildlife Association

The Carrot or the Stick?
By Jaimie Hayne and Paul Hobby

The carrot or the stick? That is the question facing members of the Texas Legislature as they consider Senate Bill 472, a measure designed to protect Native American burial sites in Texas by making it a state jail felony to discover, but fail to report, a site.

The bill's goal is worthwhile, after all, our shared Western heritage draws from these proud people who inhabited Texas before the Hispanics, Anglos and other groups called this land home. But, what we, as a society must decide, is how we can best achieve this noble purpose.

Unfortunately, we often tend to rely on the bluntest, heaviest tool in the public policy tool chest -- criminal law. On the surface, criminal penalties appear to be the most direct, effective method to stop unwanted behavior, but they carry with them hidden costs and, in pursuit of social change, questionable results. Each time we create a new criminal law, the cost of government goes up because the actual enforcement of the law requires additional investigators, prosecutors, courts, judges and prisons that cost taxpayer dollars.

Another added cost is social rather than financial. When we create a new criminal law, such as SB 472, we necessarily restrict some existing liberty. Although the bill currently provides an exemption from prosecution for landowners who disturb such sites inadvertently in the pursuit of "legitimate activities," it begs the question - and places it before the courts and juries - of what constitutes a legitimate activity on private property.

Is grazing livestock on a ranch legitimate? Most people would say "yes," but there are those who believe that all livestock grazing should be banned. Is hunting a legitimate activity? Some would say "yes," others would stridently argue "no." The fact that landowners might have to go to court to determine whether or not these practices are legitimate in the eyes of society is an infringement on their rights to enjoy and use their property as they see fit. We have learned through experience that a law that restricts the responsible use of private property too much creates a backlash against government.

What will be the effect of SB 472? Unfortunately, we won't know until it is implemented. But before we employ the stick, it is imperative that we consider less intrusive, burdensome alternatives that might have a more positive impact with fewer liabilities. Could we raise or appropriate funds to educate and sensitize landowners and the public to the sacred nature of these historic sites?

This strategy is not far-fetched and has a strong track record. One example pioneered by the Texas Department of Transportation, and lauded as a national model, involved the problem of highway litter. "Don't Mess With Texas" has been a spectacularly successful program not for more prosecution, but for peer pressure among motorists, and basic appreciation for the beauty of our roadsides.

We find another example in the Texas Wildlife Association's approach to protecting wildlife habitat that houses game, non-game and rare species habitat on private land. This group, which is headquartered in San Antonio and is dedicated to responsible, active management of wildlife habitat on private lands, has had great success by taking a balanced, non-compulsory approach to their goals. They have invested in landowner education, developed and helped pass financial incentives in the form of ad valorem tax advantages for wildlife conservation activities on private lands. The organization has taken this approach because it knows that well-educated private land managers voluntarily take on the responsibility and expense of caring for wildlife and its habitat for the benefit of all Texas residents.

The Coastal Conservation Association (CCA) provides yet another example of a group that has successfully pursued a balanced approach to their public policy goals, investing heavily in their "catch and release" message as a way of preventing depletion of coastal game-fish populations. The CCA has also raised money to build fish hatcheries for the state, and assisted state authorities in the enforcement of existing laws.

While we are confident that the State Legislature will reach a just conclusion for SB 472, we simply want to ensure that reaching for the heaviest, bluntest tool in the public policy tool chest is a last resort. Creating a new criminal law should only be considered after all other possibilities are exhausted. The more we work to educate and persuade each other before we imprison each other, the more civility and mutual respect will reign in the Lone Star State - now and in the future.

San Antonio businessman Jaimie Hayne is a member of the family who owns the Catto-Gage Ranch near Marathon, Texas, and he is President of the Texas Wildlife Association. Paul Hobby is a Houston businessman and a Patron Member of the Texas Wildlife Association.