Maine’s Fish and Wildlife Department has the most complex and rigorous rule-making system of all state agencies. I tried to simplify the process this year, with the help of Senator Anne Haskell, and we had a lot of momentum and support initially, but at the end of the session, our proposal failed. The final votes, in my mind, indicate a serious lack of confidence in the department. Here’s the whole story.
LD 128, An Act to Abolish the Inland Fisheries and Wildlife Committee, sponsored by Senator Haskell at my request, was opposed by the Council chair, the Sportsman’s Alliance of Maine, the Maine Professional Guides Association, and the Department of Inland Fisheries and Wildlife.
While I know department staff would love to be rid of the burden of the Advisory Council, which eats up a lot of the staff’s time and resources, I understand that they felt obligated to support the Council. SAM’s opposition surprised me, because the SAM Board at one time told me to stop attending the Council’s meetings, considering them a waste of time, and also submitted a bill one year to abolish the Council.
The example SAM’s Dave Trahan used to oppose the bill was telling. He noted that the Council had helped him fix DIF&W’s proposed deer feeding rules last year – rules that SAM strongly opposed when they were first proposed by the department.
Don Kleiner of the Maine Professional Guides Association, while opposing the bill, did testify that a restructuring of the Council’s duties made sense.
I was pretty discouraged at the end of the public hearing on the bill, but Senator Haskell refused to give up. At one point in the process, she won a unanimous committee vote to remove the Advisory Council’s rule making authority, while beefing up their advisory role. The Council’s chair, Cathy DeMerchant, actually testified that the “Commissioner doesn’t ask us for advice. Our role is limited to rule-making.”
Given that testimony, and the strong opposition to abolishing the Council, Senator Haskell came up with a very good proposal to strengthen the Council’s advisory role and strengthen the Council’s relationship with the legislature, while ending the Council’s rule-making authority.
This was an attempt to actually make the Council the department’s primary advisory group. Currently, when the department seeks advice, it forms a new advisory group, ignoring its existing Advisory Council. There are many recent examples, from deer to turkeys.
Although he initially supported Senator Haskell’s proposal, the IFW Committee’s Republican lead, Representative Paul Davis, a SAM Board member, changed his mind and opposed the bill when it was reconsidered by the IFW Committee. The bill actually came up in several work sessions, frustrating committee members and ending with a vote against Senator Haskell’s proposal. I think SAM had a lot of influence in the final action on the bill.
That final action left intact the Council’s rule-making authority, while adding the new duties proposed by Senator Haskell. So here’s where the Council now stands.
The Commissioner shares rule-making authority with the Council. Both have to agree on a rule before it can be enacted. Either can veto a proposed rule.
The Council also has these new responsibilities:
1) Convene stakeholder groups in their respective geographic or management expertise areas to gather information and recommendations on fish and wildlife resource;
2) Convene stakeholder group meetings in strategic areas of the State where the deer populations needs to be enhanced at least annually;
3) Attend public hearings on rules proposed under the Administrative Procedures Act;
4) Based on public and stakeholder input, make recommendations to the Commissioner regarding proposed rules;
5) Regularly communicate with the Commissioner and/or Deputy Commissioner providing information and/or advice on enhancing fisheries and wildlife resource management;
6) Report annually in person to the Joint Standing Committee on Inland Fisheries and Wildlife on its duties and observations.
Clearly, the legislature did not feel confident that the department could enact its rules without the oversight and approval of a group of 10 Advisory Council members. That in itself indicates a lack of confidence in this agency. No other agency is burdened with this approach to rule-making.
But things are actually a lot worse than this, because in the last session, the legislature inserted itself into the rule-making process of each agency. A new law gives each legislative committee the opportunity to participate in the rule-making process for the agency that committee oversees.
Let’s use the legislature’s Committee on Inland Fisheries and Wildlife as our example. On February 1 of each year, that committee will be provided with all the rules enacted by the Fish and Wildlife Commissioner and Advisory Council the previous year, with information about those rules. The Committee then reviews and discusses those rules, and can create and vote on legislation that changes or negates those rules – or directs the department to change the rules. If they choose the latter, the agency is compelled to make those changes.
Legislative committees also retain their authority to designate rules as major substantive – when the committees enact legislation that requires rules to be enacted by state agencies – meaning those rules are not in force until they come back to the legislature and win the approval of the appropriate committee.
So here’s what we’ve got. DIF&W can propose rules. Those rules require the approval of both DIF&W’s Commissioner and the department’s Advisory Council. If those rules have been designated as major substantive rules by the legislature’s IFW Committee, then they must win the approval of that committee before taking effect.
All other new rules must be presented to the IFW Committee in February of each year, at which time that committee can act on the rules, direct the department to change the rules, or repeal the rules through legislative action.
And you were wondering why our hunting and fishing rules are so complex?!!