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.
Brand Memo Prohibits DOJ Uses of Federal Agency Guidance Documents in Affirmative Civil Enforcement Cases
March 8, 2018 — On January 28, 2018, U.S. Associate Attorney General Rachel Brand issued a memo on behalf of the Department of Justice (DOJ) expanding on Attorney General Sessions’ November 2017 memo, Prohibition on Improper Guidance Documents, which prevents the department issuing guidance documents binding upon the regulated community without undergoing established notice-and-comment rulemaking.
The “Brand Memo” says that the earlier prohibition extends beyond prohibiting the use of such guidance by the Department of Justice, and that the principles of the Sessions memo extend to DOJ litigators who represent the United States in affirmative civil enforcement (ACE) cases on behalf of other agencies. These are cases brought by the department on behalf of the U.S. government to recover money lost to misconduct or for the purpose of imposing penalties for violations of federal environmental, health, safety, or civil rights laws.
Specifically, AAG Brand’s memo states:
- “Guidance documents cannot create binding requirements that do not already exist by statute or regulation”
- “. . . effective immediately for ACE cases, the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.”
- “Department litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in ACE cases.”
- “. . . the Department should not treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.”
The memo does say that DOJ litigators can continue to use agency guidance documents for “proper purposes.” For instance, where a guidance document explains or paraphrases legal mandates, and there is evidence that the regulated party read the guidance, DOJ can use that knowledge to help demonstrate the party’s knowledge of the mandate.