{"id":946,"date":"2012-01-05T18:43:37","date_gmt":"2012-01-06T00:43:37","guid":{"rendered":"https:\/\/iowappa.com\/?p=946"},"modified":"2012-01-05T18:43:38","modified_gmt":"2012-01-06T00:43:38","slug":"a-bloody-mess","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=946","title":{"rendered":"A Bloody Mess"},"content":{"rendered":"

\"\"<\/a>\u201cSomething is rotten in the state of Denmark.\u201d\u00a0 And possibly, in Iowa.<\/p>\n

The Shakespearean quote was a reference to the political hierarchy in Denmark.\u00a0 Not all was well there, as Marcellus notes in Hamlet<\/em>.\u00a0 There is something strange going on with the political hierarchy in Iowa, as well.<\/p>\n

Why is it that a simple issue of protecting the health, safety, and welfare of the state\u2019s 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?<\/p>\n

Lead shot has been banned as a means of take for waterfowl by the federal government since 1991.\u00a0 Iowa had the foresight to make that ban in 1987.<\/p>\n

As we\u2019ve stated before, lead is poison!\u00a0 It has been banned in gasoline, pipes for plumbing, paint, wheel weights, and several other items.\u00a0 Yet, a small vocal group of hunters claim that alternative shot will be costly and hard to find.\u00a0 That isn\u2019t the case.\u00a0 But they seem to be controlling the discussion, and that isn\u2019t right.<\/p>\n

Once again, Iowa\u2019s NRC took a courageous step to implement a sensible measure before it is enacted by the federal government.\u00a0 After the Iowa General Assembly passed a bill (Senate File 464<\/a>) that added the species \u201cmourning doves\u201d 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.\u00a0 The NRC was expected to pass regulations pertaining to the management of that season.\u00a0 This is where things get messy.<\/p>\n

Part of Senate File 464<\/a> (SF 464) directs the Commission to establish certain criteria to comply with the law through the rulemaking process. \u00a0The NRC proceeded to set the bag and possession limits, shooting hours, and areas open to hunting doves.\u00a0 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.\u00a0 The NRC performed this task according to \u201cits authority in Iowa Code section 481A.38 (1) to regulate the method and means of hunting and in response to public comment.\u201d<\/p>\n

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<\/a>.\u00a0 Clicking on the link for the minutes will give you a \u201c404 \u2013 Missing Page\u201d error.\u00a0 If you would like to have a copy you may contact us and we\u2019ll email a copy to you.<\/p>\n

Section 1 of Article III of Iowa\u2019s Constitution states:\u00a0 \u201cThe powers of the government of Iowa shall be divided into three separate departments – the legislative, the executive, and the judicial:\u00a0 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.\u201d<\/p>\n

Section 40 of that same Article states:\u00a0 \u201cThe 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.\u201d<\/p>\n

Somewhere in between those two constitutional provisions there is a minor little detail that appears to be unnoticed or ignored.\u00a0 An executive branch agency cannot make a rule that goes beyond the authority it was granted in an enabling statute.\u00a0 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.\u00a0 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 \u201cmourning doves.\u201d\u00a0 Which of these measures do you suppose the Legislature wants to attack?<\/p>\n

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 \u201cNo person shall take a mourning dove or Eurasian collared-dove on any land or water of the state of Iowa while having in one\u2019s possession any shot other than nontoxic approved by the United States Fish and Wildlife Service.\u201d\u00a0 The reason for this action was \u201cbased on procedural\/process grounds.\u201d\u00a0 Senator Merlin Bartz<\/a>, a member of the ARRC, \u201cexpressed 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.\u201d\u00a0 But there was little attention to the fact that the Eurasian collared-dove was also a change from the original intended action.\u00a0 Rep. Dawn Pettengill<\/a>, the ARRC vice-chair, shared Sen. Bartz\u2019s concern about going beyond the scope of the Commission\u2019s 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.\u00a0 Her concerns were not considered in the eventual motion and vote of the ARRC.<\/p>\n

In order to get the dove hunting bill enacted, the legislative process had to be circumvented (that story is archived here<\/a>) \u00a0Now, 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.\u00a0 During the recent January ARRC meeting, Senator Jack Kibbie<\/a> 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.\u00a0 He also iterated that the Committee should stop introducing resolutions to nullify actions of agencies. \u00a0But he voted to approve the resolution.<\/p>\n

The Iowa Supreme Court has said that the \u201crules 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.,<\/em> 277 N.W.2d at 913<\/a>; Schmitt v. Iowa Department of Social Services,<\/em> 263 N.W.2d 739, 745 (Iowa 1978)<\/a>; Iowa Department of Revenue v. Iowa Merit Employment Commission,<\/em> 243 N.W.2d 610, 616 (Iowa 1976)<\/a> .\u201d\u00a0 Sommers v. Iowa Civil Rights Com’n, 337 NW 2d 470 – Iowa: Supreme Court 1983<\/a>[1]<\/a>.\u00a0 Allowing the continuation of Eurasian collared-doves to be included in the agency\u2019s rule is a direct contradiction to the rule of law.\u00a0 Removing the sentence that prohibits the use of lead shot is within the agency\u2019s delegation of powers.<\/p>\n

The Legislative Administrative Rules Review Committee is a standing committee of the Iowa Legislature that reviews executive branch rules.\u00a0 It has limited power.\u00a0 The committee is created by statute, but has a constitutional ability to nullify rules of an agency.\u00a0 At least two unanswered question remain:\u00a0 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?\u00a0 2)\u00a0 Article IV, section 40 of the Iowa Constitution states: \u201cThe 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.\u201d\u00a0 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?<\/p>\n

The political philosopher John Locke, who had influenced the framers of our Constitution, said that the \u201clegislative 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.\u201d\u00a0 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.\u00a0 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.\u00a0 This resolution needs to be defeated.<\/p>\n


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[1]<\/a> These cases make reference to Iowa Code Section 17A.19 (8) (b).\u00a0 This provision has since been moved to Iowa Code Section 17A.19(10)(b), which reads:<\/p>\n

10.\u00a0 The court may affirm the agency action or remand to the agency for further proceedings.\u00a0 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:<\/p>\n

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.<\/p>\n

b. Beyond the authority delegated to the agency by any provision of law or in violation of any provision of law.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

\u201cSomething is rotten in the state of Denmark.\u201d And possibly, in Iowa. Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[264,17],"tags":[349,350,158,41,348,355,269,354,271,353,352,351],"class_list":["post-946","post","type-post","status-publish","format-standard","hentry","category-fairness","category-issues","tag-eurasian-collared-dove","tag-iowa-constitution","tag-iowa-general-assembly","tag-iowa-supreme-court","tag-iowas-natural-resources-commission","tag-john-locke","tag-lead-shot","tag-legislative-rules-review-committee","tag-mourning-doves","tag-representative-dawn-pettengill","tag-senator-jack-kibbie","tag-senator-merlin-bartz"],"_links":{"self":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/946","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=946"}],"version-history":[{"count":2,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/946\/revisions"}],"predecessor-version":[{"id":948,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/946\/revisions\/948"}],"wp:attachment":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=946"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=946"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=946"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}