One of the most important things the litigation team does at the Sportsmen’s Alliance is to constantly review what government agencies at the state and federal levels are doing that impact our ability to hunt, fish and trap on public and private lands. As all of us recognize, the “business” of government is steadily churning each and every day, and what is produced from much of this activity are the rules and regulations that govern our lives.
You may have read or heard about the “notice and comment” requirements of federal law that oblige the agencies to basically tell us what they plan to do in a proposal (notice), then ask for the public’s input (comment) before finalizing such proposal. This is how they write regulations. The same is true at the state level too, with many of the same requirements to ensure transparency and the ability of the public to weigh in on proposals before they are finalized. In fact, most of the state regulations on hunting, fishing and trapping fall under the requirements of administrative law, which will provide recourse when an agency or commission acts without honoring these requirements.
Although it sounds mundane, the administrative process of federal and state agencies is extremely important. The government writes and rewrites rules by the thousands each and every year and many of these rules directly affect our outdoor traditions in substantial ways. Moreover, the animal extremists use this process to great advantage as they continue to push their radical ideology on the rest of America.
Case in Point: The Hunt-Fish Rule
Many of the dozens of lawsuits filed against hunting by animal extremist groups such as the Center for Biological Diversity begin with a rule proposal, change or update. As an example, among the major rulemakings that affect hunting annually is what is known as the “hunt-fish” rule by the U.S. Fish and Wildlife Service (FWS), where hunting and fishing regulations for National Wildlife Refuges (NWRs) are renewed during late summer and early fall. This annual rule receives tens of thousands of comments from individuals and interested organizations when it is initially proposed.
The annual hunt-fish rule is where FWS will implement system-wide changes in addition to specific rules for individual refuges. Think of the hunt-fish rule as a collection of all regulation changes, big and small, that occur in the NWR system. The recent FWS decision to ban the use of lead ammunition and fishing tackle at more than two dozen NWRs with a phase-in over several years is an example of a new system rule that was implemented at individual NWRs as a group.
This lead-ban rule changed national policy for thousands of hunters and anglers nationwide, illustrating how powerful administrative law can be. At the same time, the hunt-fish rule notice and comment process sets the stage for potential litigation down the road, with groups on both sides of any issue ready to strike if and where an agency runs afoul of administrative law and its requirements. In short, many of the most significant cases related to hunting, fishing and trapping on federal public lands start with notice and comment rulemaking.
Sportsmen’s Alliance members will remember that we are involved in a case brought against FWS for the agency’s decision to remove the Canaan Valley Refuge from the earlier proposed lead ban. Canaan Valley had originally been included in the list of NWRs that would implement the ban but in the 2022-23 hunt-fish rule, FWS proposed removing Canaan Valley from the list. As a result, several anti-hunting groups, including the Sierra Club, challenged this decision in federal court. The Sportsmen’s Alliance requested “intervenor” status in that case to assist FWS in defending its decision and to make sure that sportsmen included in the litigation. At press time, this case remains ongoing.
A Case Study: Our Conte NWR Lawsuit
My very first task at the Sportsmen’s Alliance was to review, analyze and develop our briefing materials in the case we brought against the United States Fish and Wildlife Service (FWS) for its failure to comply with federal notice and comment procedures when the agency changed the hunting rules for the Conte National Wildlife Refuge in Vermont in 2021. Throughout my career, the notice and comment process has always been a big part of my work as an attorney, and I imagine this will always be the case. Truth be told, what the executive branches can do through agency action might have more of an impact on our outdoor traditions than just about anything else, and this is why our case against FWS on the Conte rule is so important.
It really is a simple case. For many years, FWS had allowed the use of dogs while hunting on Conte National Wildlife Refuge, which is in line with Vermont state law. It is very usual that FWS follow state law when developing a hunting or fishing rules for a given refuge, because the state agencies are the primary management authority over non-federally managed species, generally speaking. While FWS develops the regulatory framework for migratory species like waterfowl, as an example, the states are primary when it comes to most big game, small game and upland bird species, such as whitetail deer, bear, squirrels, grouse and so on.
But then in 2021 things changed. When FWS proposed its annual hunt rule for Conte, there was no mention of any change regarding the use of dogs while hunting or training anywhere on the refuge. Again, this was in line with the regulations in place on the refuge for many years. However, when the 2021 rule was finalized, there were new restrictions put in place that had not been discussed previously. These restrictions were a prohibition on the training of dogs during June and July, and a prohibition on using dogs for hunting for one particular area of the refuge. This came with no warning from FWS that such restrictions were being contemplated, proposed or discussed.
The “notice and comment,” is, as discussed previously, meant to provide the public with sufficient “notice” of what the agency is contemplating so that the public can meaningfully respond with “comments” that help the agency finalize a proposal. The public isn’t supposed to guess, the public is supposed to respond to what is proposed. To put it most simply, FWS’ proposed rule for Conte in 2021 was “no changes here,” and then the final rule was “lots of changes here.” How does one imagine that “no changes” means “lots of changes”? Of course, that doesn’t work.
The courts have often said that the public must have a “meaningful” opportunity to comment, and can only do so if given a clear heads up about what the proposal is. The courts have also said that any final rule must be the “logical outgrowth” of the proposed rule, and for the same reasons. All of this collectively falls under an area of the law known as “administrative law,” with these general rules governing all agency action. Administrative law isn’t Perry Mason exciting, but it is very important for everyone in America who cherishes our outdoor traditions.
You’ll see many of these “administrative law” terms and phrases in just about every case we file to challenge agency actions. In a few cases, we may have a statute that an agency is violating directly, but in most cases, it will be these very basic protections that provide the leverage to get a bad rule vacated or changed in our favor.
But it’s not like waving a magic wand. Nothing in politics or government ever is.
After the Sportsmen’s Alliance and our state partners filed suit against FWS for its failure to actually provide notice of what it was considering at Conte, FWS next engaged in a series of new rulemakings on the Conte hunt rule in a clear attempt to “moot out” our case. We are currently involved in negotiations with FWS about the remedies available and we hope to have news on this front very soon. But in the meantime, it is a helpful case to illustrate where our focus will be in the coming months and going forward. The “notice and comment” process is one that is never failsafe, but it does exist in each and every state, along with the federal government. And this is where much of our work will likely take place against fish and wildlife commissions that slide off the rails as they attempt to restrict or curtail hunting and trapping activities in their states.
Although we cannot disclose the specifics before filing suit, we have identified several recent commission actions in states across the country where clear violations of “notice and comment” procedures are taking place as regulatory changes are proposed and finalized. And it appears that a number of commissions have fallen into a pattern of violating the rule of law in a very routine way. There is much work to be done, but we are up to the task and look forward to every minute of it.
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This article originally appeared in the Spring 2024 issue of the Sportsmen’s Alliance members-only magazine. Join the Sportsmen’s Alliance today and be the first to read articles like this with a subscription to The Sportsmen’s Advocate, The Official Publication of the Sportsmen’s Alliance.
About the Sportsmen’s Alliance: The Sportsmen’s Alliance protects and defends America’s wildlife conservation programs and the pursuits – hunting, fishing and trapping – that generate the money to pay for them. Sportsmen’s Alliance Foundation is responsible for public education, legal defense and research. Its mission is accomplished through several distinct programs coordinated to provide the most complete defense capability possible. Stay connected to Sportsmen’s Alliance: Online, Facebook, Twitter and Instagram.
