KNRC’s Forecast for 2018: Positive Improvement in Policy Relationships With Federal Agencies –
Tuesday, March 12, 2018 – In December, 2017 KNRC published its “KNRC: 2013 to 2017….and Beyond” bulletin, highlighting initiatives that have contributed to reform of federal agencies and programs. Particularly well received was KNRC’s Recommendations for Reforming the Federal Government submitted to the Office of Management and Budget in June, 2017.
Looking ahead, in 2018 KNRC will be formalizing its statewide Rails-to-Trails audit program that will aid members in tracking compliance with Interim Trail Use (NITU) permits issued by the Federal Surface Transportation Board under section 8(d) of the National Trails System (NTS) Act, [16 U.S.C. 1247(d)].
The first-of-its-kind, KNRC audit program will assist members as they inspect Rails-to-Trails (R2T) projects in their counties, and document tax requirements for lands enrolled in NITU programs.
Turning to ESA issues, KNRC has requested pre-publication notice from the Department of Interior (DOI) for any actions surrounding the Lesser prairie-chicken (LPC), noting that the DOI’s Unified Agenda includes an intent to publish a notice of proposed rule-making for the LPC.
KNRC has requested US Fish and Wildlife Service (FWS) to audit the troubled Black-footed ferret program in Logan County, Kansas and to initiate the a species status-assessment for the Arkansas river shiner, specifically pointing out the shiner’s critical habitat contains stream segments that are dry or too intermittent to support the fish.
KNRC Sets its Agenda with the Department of the Interior
Thursday, March 8, 2017 — In a recent letter to the Department of the Interior (DOI), KNRC President Shawn Tasset, in response to overtures from the United States Fish and Wildlife Service (FWS), shared KNRC’s 2018 regulatory agenda with the department.
With regard to the NEPA process, President Tasset reminded the DOI of KNRC’s longstanding position that all Endangered Species Act (ESA) listings must include either an Environmental Assessment (EA) or Environmental Impact Statement. He also informed DOI that KNRC intends to petition the White House Council on Environmental Quality (CEQ) to restore a NEPA process that appropriately balances both the human and natural environments.
Commissioner Tasset then noted Attorney General Sessions’ November 2017 directive prohibiting agency use of internal policy and guidance documents to coerce compliance with what otherwise are optional approaches to acheive compliance with federal rules and statutes. A prolific problem across federal and state agencies, KNRC has offered its support – as local a coalition of governments – to distinguish binding statutes from optional, agency policies.
Arizona Passes the First State Law Prohibiting Agency Use of ‘Chevron’ Deference
Wednesday, April 11, 2018 — On Thursday, April 5, 2018, the Arizona Senate passed a bill prohibiting the use of ‘Chevron’ deference by state agencies. This form of judicial deference, which allows agencies to interpret the statutes that govern their administrative rulemaking and enforcement actions, placing businesses, local government, and other regulated entities at a distinct disadvantage during legal battles with an agency action.
Under this doctrine, which has been adopted by many courts around the nation, judges must defer to an agency’s “reasonable” interpretation of a statute that agency officials find ambiguous. The doctrine arose from the 1984 U.S. Supreme Court decision in Chevron USA, Inc. v. NRDC.
The Arizona Senate voted 18-10 in favor of House Bill 2238, which amends the state’s administrative procedure statute by directing courts to no longer defer to an agency’s interpretations in litigation over administrative decisions. The House had previously passed the legislation on a 38-21 vote.
Governor Doug Ducey signed the bill on April 11, 2018, and it is now the first state law of its kind. We hope that other state legislatures and Congress take notice and pass similar legislation to curtail the abuse that ‘Chevron’ deference and its cousins, the ‘Auer’ and ‘Baltimore Gas’ deferences have caused the regulated community over the past several decades through executive branch actions at all levels of government.