{"id":1581,"date":"2019-03-13T15:09:12","date_gmt":"2019-03-13T20:09:12","guid":{"rendered":"https:\/\/iowappa.com\/?p=1581"},"modified":"2019-03-13T15:10:00","modified_gmt":"2019-03-13T20:10:00","slug":"flaws-in-the-laws-part-ii-mourning-dove-hunting","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=1581","title":{"rendered":"Flaws in the Laws: Part II – Mourning Dove Hunting"},"content":{"rendered":"

This is the second in the series: Flaws in the Laws<\/em>.<\/p>\n

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.<\/p>\n

The Eurasian-collared dove<\/a> is similar to the mourning dove. Both doves are members of the family Columbidae: \u201ca family of game birds comprising of doves and pigeons.\u201d The small distinct difference appears to be the black ring around the neck of the Eurasian-collared dove, which the mourning dove lacks.<\/p>\n

In 2011, the Iowa Legislature passed, and the governor enacted Senate File 464<\/a>, \u201cAn Act allowing the establishment of an open season for hunting mourning doves<\/strong>.\u201d (Emphasis supplied.) The law does not say \u201cdoves\u201d; it does not say \u201cEurasian collared-doves\u201d; it does not say \u201crock dove\u201d; it does not say \u201cturtle dove\u201d; it specifically and unequivocally says \u201cmourning dove\u201d.<\/p>\n

The Iowa Natural Resources Commission was charged with incorporating the mourning dove into a rule that defines \u201cthe season dates, bag limits, possession limits, shooting hours and areas open to hunting for\u201d snipe, woodcock, and a few other avian species.<\/p>\n

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 \u2013 the NRC does not have authority to add anything beyond the statutory authority given it by the law that was enacted. \u201c\u2018An agency shall have only that authority or discretion delegated to or conferred upon the agency by law<\/strong> and shall not expand or enlarge its authority or discretion beyond the powers delegated to or conferred upon the agency<\/strong>.\u2019 Iowa Code \u00a7 17A.23<\/a>(3).\u201d Auen v. Alcoholic Beverages Div.<\/a>, 679 NW2d 586, 590 (Iowa 2004)(Emphasis added).<\/p>\n

\u201cAn 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<\/strong>, 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<\/strong>, or a federal waiver. Iowa Code \u00a7 17A.23<\/a>(4).\u201d No federal funding, waiver, court ruling, or other action is associated with this rule.<\/p>\n

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 \u201cCommission has the authority to include Eurasian collared-doves because the definition of \u201cColumbidae\u201d in section 481A broadens the scope of game birds with the definition\u2019s introduction of \u2018such as\u2019.\u201d \u201c\u2018Such as\u2019 is legally considered to be an expander\u201d, she said. What she failed to mention is that the definition ends with the word \u201conly\u201d.<\/p>\n

\u201cGame\u201d<\/em> means all of the animals specified in this subsection except those designated as not protected<\/strong>, and includes the heads, skins, and any other parts, and the nests and eggs of birds and their plumage.<\/p>\n

a.\u00a0 The Anatidae:\u00a0\u00a0such as swans, geese, brant, and ducks<\/p>\n

b.\u00a0 The Rallidae:\u00a0\u00a0such as rails, coots, mudhens, and gallinules.<\/p>\n

c.\u00a0 The Limicolae:\u00a0\u00a0such as shorebirds, plovers, surfbirds, snipe, woodcock, sandpipers, tattlers, godwits, and curlews<\/p>\n

d.\u00a0 The Gallinae:\u00a0\u00a0such as wild turkeys, grouse, pheasants, partridges, and quail.<\/p>\n

e.\u00a0 The Columbidae:\u00a0\u00a0such as<\/strong> mourning doves and wild rock doves only<\/strong>.<\/p>\n

Iowa Code \u00a7 481A.1(21)(<\/a>2015)(Emphasis added). Notice that the Columbidae is the only species that ends with the qualifier \u201conly\u201d. Does \u201cexpander\u201d negate \u201conly\u201d?<\/p>\n

The Eurasian collared dove is not a protected bird. The only members of the Columbidae family that are protected species are:<\/p>\n

DOVE, Inca, Columbina inca<\/em>
\nMourning, Zenaida<\/em> macroura<\/em>
\nWhite-tipped, Leptotila verreauxi<\/em>
\nWhite-winged, Zenaida asiatica<\/em>
\nZenaida, Zenaida<\/em> aurita<\/em><\/p>\n

Title 50, section 10.13, Code of Federal Regulations (50 CFR 10.13<\/a>).<\/p>\n

The Eurasian collared-dove, Streptopelia decaocto, falls into a category of non-protected \u201cFamily Columbidae\u201d, which includes the Rock Pigeon, the Island collared-dove, and many more.<\/p>\n

The Commission\u2019s 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\u2019t mean that the Commission can include what it wants to include when the law is narrowly tailored to one specifically identified bird \u2013 the mourning dove.<\/p>\n

Now here\u2019s the crazy part. \u201cThere is justifiable concern, that over time,\u201d the Commission\u2019s lawyer said, \u201cthere 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\u201d. We don\u2019t 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.<\/p>\n

At the hearing, there was considerable banter between Rep. Rick Olsen<\/a> (D-Des Moines) and the Commission\u2019s attorney about the wild rock dove. Neither the attorney nor Rep. Olson knew what a wild rock dove<\/a> 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 \u2013 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<\/a> is a common pigeon.<\/p>\n

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\u2019t answer the question of why the bureaucrats cannot see beyond the very narrowly-tailored law that establishes a hunting season for mourning doves only<\/strong>.<\/p>\n

Let\u2019s 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.<\/p>\n

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\u2019t get it.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[606,582,349,487,271,585,605],"class_list":["post-1581","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-chuck-gipp","tag-columbidae","tag-eurasian-collared-dove","tag-iowa-natural-resource-commission","tag-mourning-doves","tag-rep-rick-olson","tag-rock-dove"],"_links":{"self":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1581","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1581"}],"version-history":[{"count":2,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1581\/revisions"}],"predecessor-version":[{"id":1583,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1581\/revisions\/1583"}],"wp:attachment":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1581"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1581"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1581"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}