“Something is rotten in the state of Denmark.” And possibly, in Iowa.
The Shakespearean quote was a reference to the political hierarchy in Denmark. Not all was well there, as Marcellus notes in Hamlet. There is something strange going on with the political hierarchy in Iowa, as well.
Why is it that a simple issue of protecting the health, safety, and welfare of the state’s citizens has taken a back seat to a group of special interests who claim to want nothing more than to save a couple of dollars?
Lead shot has been banned as a means of take for waterfowl by the federal government since 1991. Iowa had the foresight to make that ban in 1987.
As we’ve stated before, lead is poison! It has been banned in gasoline, pipes for plumbing, paint, wheel weights, and several other items. Yet, a small vocal group of hunters claim that alternative shot will be costly and hard to find. That isn’t the case. But they seem to be controlling the discussion, and that isn’t right.
Once again, Iowa’s NRC took a courageous step to implement a sensible measure before it is enacted by the federal government. After the Iowa General Assembly passed a bill (Senate File 464) that added the species “mourning doves” to a law setting the season dates, bag and possession limits, shooting hours, and areas open to hunting of certain game birds, the NRC did its job as directed. The NRC was expected to pass regulations pertaining to the management of that season. This is where things get messy.
Part of Senate File 464 (SF 464) directs the Commission to establish certain criteria to comply with the law through the rulemaking process. The NRC proceeded to set the bag and possession limits, shooting hours, and areas open to hunting doves. It also added the Eurasian collared-dove to the list of species that can be taken and added a requirement that nontoxic shot must be used. The NRC performed this task according to “its authority in Iowa Code section 481A.38 (1) to regulate the method and means of hunting and in response to public comment.”
The minutes of the July 14, 2011 meeting in which the NRC unanimously approved the addition of prohibiting lead shot has mysteriously disappeared from its website. Clicking on the link for the minutes will give you a “404 – Missing Page” error. If you would like to have a copy you may contact us and we’ll email a copy to you.
Section 1 of Article III of Iowa’s Constitution states: “The powers of the government of Iowa shall be divided into three separate departments – the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.”
Section 40 of that same Article states: “The general assembly may nullify an adopted administrative rule of a state agency by the passage of a resolution by a majority of all of the members of each house of the general assembly.”
Somewhere in between those two constitutional provisions there is a minor little detail that appears to be unnoticed or ignored. An executive branch agency cannot make a rule that goes beyond the authority it was granted in an enabling statute. There are several references in the Iowa Code that grant the NRC the authority to determine the means of take, which would comply with the enabling act. But there is no authority to add a new species to the list of game birds because the Legislature specifically passed a law allowing for the hunting of “mourning doves.” Which of these measures do you suppose the Legislature wants to attack?
In September of 2011, the Legislative Administrative Rules Review Committee [ARRC] moved to strike the final sentence in a Natural Resources Commission intended action (administrative rule), which stated that “No person shall take a mourning dove or Eurasian collared-dove on any land or water of the state of Iowa while having in one’s possession any shot other than nontoxic approved by the United States Fish and Wildlife Service.” The reason for this action was “based on procedural/process grounds.” Senator Merlin Bartz, a member of the ARRC, “expressed concern that the change from the notice of intended action [adding the prohibition on the use of lead shot] may be outside the scope of the original rule making and may therefore be a violation of Iowa Code chapter 17A.” But there was little attention to the fact that the Eurasian collared-dove was also a change from the original intended action. Rep. Dawn Pettengill, the ARRC vice-chair, shared Sen. Bartz’s concern about going beyond the scope of the Commission’s authority, but also brought attention to the problem of including the Eurasian collared-dove as a bird that was not a part of the legislative bill. Her concerns were not considered in the eventual motion and vote of the ARRC.
In order to get the dove hunting bill enacted, the legislative process had to be circumvented (that story is archived here) Now, here comes a committee of the Legislature scolding an agency for circumventing the rules process, when the agency was doing what it believed was the responsibility and authority of the agency. During the recent January ARRC meeting, Senator Jack Kibbie made the point that the original bill shunned the system, and now the resolution will not go through the subcommittee or the committee process; it goes directly to the floor of each chamber. He also iterated that the Committee should stop introducing resolutions to nullify actions of agencies. But he voted to approve the resolution.
The Iowa Supreme Court has said that the “rules would be beyond the scope of the delegation if they are at variance with the enabling act or if they amend or nullify legislative intent. Hiserote Homes, Inc., 277 N.W.2d at 913; Schmitt v. Iowa Department of Social Services, 263 N.W.2d 739, 745 (Iowa 1978); Iowa Department of Revenue v. Iowa Merit Employment Commission, 243 N.W.2d 610, 616 (Iowa 1976) .” Sommers v. Iowa Civil Rights Com’n, 337 NW 2d 470 – Iowa: Supreme Court 1983[1]. Allowing the continuation of Eurasian collared-doves to be included in the agency’s rule is a direct contradiction to the rule of law. Removing the sentence that prohibits the use of lead shot is within the agency’s delegation of powers.
The Legislative Administrative Rules Review Committee is a standing committee of the Iowa Legislature that reviews executive branch rules. It has limited power. The committee is created by statute, but has a constitutional ability to nullify rules of an agency. At least two unanswered question remain: 1) May the ARRC remove one portion of a rule that was adopted by an agency under the exact circumstances as another portion of the same rule, without objecting to or removing the remaining portion? 2) Article IV, section 40 of the Iowa Constitution states: “The general assembly may nullify an adopted administrative rule of a state agency by the passage of a resolution by a majority of all of the members of each house of the general assembly.” Does this authority require the entire rule to be nullified, or may the Legislature pick and choose the parts of a rule that it deems objectionable?
The political philosopher John Locke, who had influenced the framers of our Constitution, said that the “legislative cannot transfer delegated power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.” In allowing the rule to go forward with the addition of the Eurasian collared-dove, but not the prohibition of lead shot, the Iowa Legislature will have transferred its power to an executive branch agency. In the process, it will have neglected to protect the health, safety and welfare of its citizens for the sake of saving a small vocal group of hunters a possible dollar or two. This resolution needs to be defeated.
[1] These cases make reference to Iowa Code Section 17A.19 (8) (b). This provision has since been moved to Iowa Code Section 17A.19(10)(b), which reads:
10. The court may affirm the agency action or remand to the agency for further proceedings. The court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
a. Unconstitutional on its face or as applied or is based upon a provision of law that is unconstitutional on its face or as applied.
b. Beyond the authority delegated to the agency by any provision of law or in violation of any provision of law.
