NM AG Finds 10% Outfitter Set-Aside Unconstitutional — Urge Your Legislator to Act
The New Mexico Attorney General’s office has issued a legal opinion (No. 2026-12, dated October 9, 2026) concluding that the outfitter set-aside in the state’s public draw violates the Anti-Donation Clause of the New Mexico Constitution. Click here to read the opinion and see the infographic comparing New Mexico’s tag distribution to other Western states.
What The Opinion Says
State law reserves 10 percent of big game licenses in the public draw for hunters who contract with a licensed New Mexico outfitter. The opinion finds this unconstitutional on two independent grounds:
The opinion also addresses lawmaker concerns about how the Department of Wildlife combines bighorn sheep tags across hunt units in a way that can artificially push licenses into the set-aside pool stating, “Based on the information provided to this office, it appears that although each game unit might typically have one to two tags, a number too small to trigger an outfitter allocation, the Department combines Bighorn Sheep tags across units to increase the total tags under a hunt code. This practice could increase the number of licenses counted for purposes of determining whether any are designated for the pool of the outfitter set-aside, and thereby increase the number of outfitter set-aside tags.”
What It Doesn't Do
An Attorney General opinion is legal analysis. It doesn’t change the quota law or how tags are allocated. Changing the law that governs the quota portion of tag allocation relies on the Legislature. The opinion addresses the outfitter set-aside only. It does not address landowner tags distributed via the EPLUS (Elk Private Land Use System). While the EPLUS system must operate in accordance with state laws, it operates beyond the constraints of the quota law that dictates 84% of tags go to residents, 6% to non-residents and 10% to the outfitter pool. While the state wildlife commission and Department of Wildlife have the authority and ability to administer the EPLUS program in a more equitable and transparent way, so far there has been major resistance to making any substantive changes or even sharing basic data with public shareholders.
BHA’s Take
The opinion cites data from the Take Back Your Elk Report distributed by the New Mexico Chapter of BHA and the New Mexico Wildlife Federation stating that in the 2022-23 season, about 90 percent of outfitter set aside licenses for elk went to non-resident hunters. BHA has a long history of engagement on this issue that includes game commission participation, advocacy efforts and public education. We are encouraged by the groundswell of support from public land hunters and prominent lawmakers whose shared interest in this issue is building momentum for change ahead of the 2027 legislative session. That groundswell of public support is bolstered by the clear direction of the Attorney General’s legal opinion.
“Every year, hunters across New Mexico open their draw results to bad news, knowing a significant share of our elk licenses are set aside for those who can afford to contract with an outfitter and often benefit from increased draw odds,” said Kyle Klain, Policy Chair of the New Mexico Chapter of Backcountry Hunters & Anglers. “We appreciate the Attorney General’s office analyzing the legality of the outfitter set aside pool and upholding the anti-donation clause and constitutional rule of law. The opinion confirms what many of us have long believed: a specific industry is benefiting greatly from New Mexico’s elk at the expense of the residents this resource belongs to. It is now time for the Legislature to act and correct this.”
Urge Your Legislator to Act
Wildlife belongs to all New Mexicans. Tell your legislators you want the tag allocation system and outfitter set-aside addressed in the next legislative session.
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