Rock The Boat

webeagleSometimes you win; sometimes you lose; and sometimes you win losing. The latter is what happened to Lead Is Poison Coalition (LIP-C) on Tuesday morning, September 8, 2015.

ARC 2087C is a proposed rule (Intended Action) that amends “the season dates, bag limits, possession limits, shooting hours and areas open to hunting for” snipe, woodcock, mourning doves, and a few other avian species. Last month, LIP-C submitted testimony to the Natural Resources Commission (NRC) requesting that it remove “Eurasian collared-dove” from the list. In 2011, the Iowa Legislature passed, and governor enacted Senate File 464, “An Act allowing the establishment of an open season for hunting Mourning Doves.” 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”.

Since the NRC has incorporated Mourning Doves into the rules defining bag limits, shooting hours, etc., it has 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. LIP-C has been struggling for years 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.

On Tuesday, September 8, the Iowa Legislative Rules Review Committee met, and one of the rules reviewed was the controversial ARC 2087C. You know it’s controversial when people entering the room in early September find standing room only and the Department of Natural Resources’ director is in attendance.

The NRC attorney claims 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.

  1. The Anatidae:  such as swans, geese, brant, and ducks.
  2. The Rallidae:  such as rails, coots, mudhens, and gallinules.
  3. The Limicolae:  such as shorebirds, plovers, surfbirds, snipe, woodcock, sandpipers, tattlers, godwits, and curlews.
  4. The Gallinae:  such as wild turkeys, grouse, pheasants, partridges, and quail.
  5. 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”.

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 indentified 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.

Nevertheless, Senator Courtney pushed on: “I want you to understand, I am not opposed to dove hunting, but I am opposed to not following legislation.” Sen. Courtney made our point! But no one seemed to listen.

There was considerable banter between Rep. Rick Olson and the Commission’s attorney about the wild rock dove. Neither the attorney nor Rep. Olson knew what a wild rock dove looked like. A wild Rock Dove is a common pigeon. 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.

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.

So, the Commission and all of its supporters won. Or did they? In the end, the non-protected invasive species (the Eurasian collared-dove) is protected. It’s like having the Iowa Dept. of Agriculture and Land Stewardship adopting a rule to protect the Canadian thistle.

The sad end to this story is the fact that bureaucracy won, and legislators lost authority.

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1 Response to Rock The Boat

  1. Jorgen Rasmussen says:

    And there are people who complain that courts don’t apply the wording of statutes. Does anyone in the Legislature, however, care? Will any of them point out a desire to have the law applied as it was passed? And what is the legislative history? Why is “only” include for just one category of birds? Presumably somebody added that for some reason. Who are they and what are they thinking?

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