This is the second in the series: Flaws in the Laws.
Most of the articles in this series will focus on the Iowa Code. However, this particular flaw is noticeable in the Code and in the Administrative Rules.
The Eurasian-collared dove is similar to the mourning dove. Both doves are members of the family Columbidae: “a family of game birds comprising of doves and pigeons.” The small distinct difference appears to be the black ring around the neck of the Eurasian-collared dove, which the mourning dove lacks.
In 2011, the Iowa Legislature passed, and the governor enacted Senate File 464, “An Act allowing the establishment of an open season for hunting mourning doves.” (Emphasis supplied.) The law does not say “doves”; it does not say “Eurasian collared-doves”; it does not say “rock dove”; it does not say “turtle dove”; it specifically and unequivocally says “mourning dove”.
The Iowa Natural Resources Commission was charged with incorporating the mourning dove into a rule that defines “the season dates, bag limits, possession limits, shooting hours and areas open to hunting for” snipe, woodcock, and a few other avian species.
In the process of incorporating mourning doves into the rules, it included the Eurasian collared-dove as if the legislature had passed a law establishing the open season for mourning doves AND Eurasian collared-doves. It did not. For years we represented an organization that worked to have the Eurasian collared-dove removed from the rules because of one reason only – the NRC does not have authority to add anything beyond the statutory authority given it by the law that was enacted. “‘An agency shall have only that authority or discretion delegated to or conferred upon the agency by law and shall not expand or enlarge its authority or discretion beyond the powers delegated to or conferred upon the agency.’ Iowa Code § 17A.23(3).” Auen v. Alcoholic Beverages Div., 679 NW2d 586, 590 (Iowa 2004)(Emphasis added).
“An agency shall not implement or enforce any standard, requirement, or threshold, including any term or condition of a permit or license issued by the agency, unless that standard, requirement, or threshold is clearly required or clearly permitted by a state statute, rule adopted pursuant to this chapter, or a federal statute or regulation, or is required by a court ruling, a state or federal executive order, a state or federal directive that would result in the gain or loss of specific funding, or a federal waiver. Iowa Code § 17A.23(4).” No federal funding, waiver, court ruling, or other action is associated with this rule.
During the public comment section of the Administrative Rules Review Committee (the legislative oversight committee assigned to reviewing proposed rules) the NRC attorney claimed the “Commission has the authority to include Eurasian collared-doves because the definition of “Columbidae” in section 481A broadens the scope of game birds with the definition’s introduction of ‘such as’.” “‘Such as’ is legally considered to be an expander”, she said. What she failed to mention is that the definition ends with the word “only”.
“Game” means all of the animals specified in this subsection except those designated as not protected, and includes the heads, skins, and any other parts, and the nests and eggs of birds and their plumage.
a. The Anatidae: such as swans, geese, brant, and ducks
b. The Rallidae: such as rails, coots, mudhens, and gallinules.
c. The Limicolae: such as shorebirds, plovers, surfbirds, snipe, woodcock, sandpipers, tattlers, godwits, and curlews
d. The Gallinae: such as wild turkeys, grouse, pheasants, partridges, and quail.
e. The Columbidae: such as mourning doves and wild rock doves only.
Iowa Code § 481A.1(21)(2015)(Emphasis added). Notice that the Columbidae is the only species that ends with the qualifier “only”. Does “expander” negate “only”?
The Eurasian collared dove is not a protected bird. The only members of the Columbidae family that are protected species are:
DOVE, Inca, Columbina inca
Mourning, Zenaida macroura
White-tipped, Leptotila verreauxi
White-winged, Zenaida asiatica
Zenaida, Zenaida aurita
Title 50, section 10.13, Code of Federal Regulations (50 CFR 10.13).
The Eurasian collared-dove, Streptopelia decaocto, falls into a category of non-protected “Family Columbidae”, which includes the Rock Pigeon, the Island collared-dove, and many more.
The Commission’s attorney has said that, since the Commission may protect a bird that is considered protected, it may also protect a bird that is not protected. Possibly so, but that doesn’t mean that the Commission can include what it wants to include when the law is narrowly tailored to one specifically identified bird – the mourning dove.
Now here’s the crazy part. “There is justifiable concern, that over time,” the Commission’s lawyer said, “there is a possibility that the Eurasian collared-dove could push Mourning Doves and other native birds out of their native habitat, which could impact their (sic) population of birds”. We don’t disagree, if we understand her babble correctly. But then, why would you want to protect them? From that point on, the protection of Eurasian collared-doves became the theme rather than disrespect for the law.
At the hearing, there was considerable banter between Rep. Rick Olsen (D-Des Moines) and the Commission’s attorney about the wild rock dove. Neither the attorney nor Rep. Olson knew what a wild rock dove looked like. Later, during testimony, a self-described wildlife biologist, and a deputy director, claimed that there were no rock doves in Iowa; that they were very limited. Rep. Olson asked which answer was it – there are no rock doves in Iowa, or they are very limited? He received an identical response. The meeting over this rule was getting almost comical. By the way, a wild rock dove is a common pigeon.
Rep. Olson asked if there were any other doves in Iowa besides the mourning dove, the Eurasian collared-dove and the very limited non-existent rock doves. No one knew the answer. The deputy director, relying upon information from staff, claimed that the mourning dove and the Eurasian collared-dove are the only two doves hunted in Iowa. That still doesn’t answer the question of why the bureaucrats cannot see beyond the very narrowly-tailored law that establishes a hunting season for mourning doves only.
Let’s put this into simple terms. The Legislature passed a law allowing for the legal hunting of mourning doves. The NRC added the Eurasian-collared dove to the rule without authority, but only because it looks like a mourning dove from a distance. The Eurasian-collared dove is an invasive species. It could wipe out the native habitat of mourning doves. Yet, the NRC gave it protective status along with the mourning dove. A sportsman could shoot 15 Eurasian-collared doves (the bag limit is 15) and no mourning doves, and that would be all the he could get for the day. Theoretically, the sportsman should be able to continue until she shot 15 mourning doves: the Eurasian-collared doves would be bonuses.
No one seemed to understand our argument. Almost. The director of the Department of Natural Resources at that time, Chuck Gipp, understood it perfectly. He smiled as I attempted to explain the (illegal) loophole. Talking with him after the meeting, he iterated what was explained. But his boss was the governor, and like most sportsmen, the governor (Terry E. Branstad) didn’t get it.