US Fish & Wildlife Rule Making Authority: A Moral Dilemma

By Andrew Wyatt– CEO of the US Herpetoculture Alliance, Inc

        “Working for the Future of Herpetoculture”

The US Herpetoculture Alliance is calling for closer scrutiny for an already broken and out of control bureaucratic process in our federal government.

Senate EPWYesterday, Senator David Vitter Ranking Member of the Environment and Public Works Committee, along with 23 additional Senators from both parties, sent a letter to the Obama administration questioning the administration on how proposed changes to economic impact analyses required by the Endangered Species Act (ESA) could potentially hide the true impact of a species listing on jobs and private property rights across the nation.

In their letter to Dan Ashe, Director of US Fish & Wildlife Service (FWS), they expressed concerns about FWS attempting to change the rules required for reporting economic impact to bury reality by statistical manipulation in an attempt to hide the ball on the actual impact to business and agriculture. There has been a disturbing trend of late in the lengths to which FWS is willing to go to avoid accounting for the economic impact of their rule making process, especially in regards to the ESA and the Injurious Wildlife list under the Lacey Act. This trend has become more pronounced under the direction of Dan Ashe.

FWS has systematically avoided having to make economic justifications for its actions. In a calculated strategy of using rule making to avoid the legislative process, Ashe and the Obama Administration have pushed for an aggressive, yet critically incomplete, rule making process. With the support of radical environmental and animal rights advocates, Ashe has shortcutted the rule making process, seemingly ignoring the Administrative Procedures Act (APA), the Information Quality Act (IQA), and more to the point, ignoring the required economic impact analyses.

FWS Director Dan Ashe with Senator Bill Nelson and DOI Secretary Ken Salazar
FWS Director Dan Ashe with Senator Bill Nelson and DOI Secretary Ken Salazar

By-passing these important institutional checks and balances is having a dire negative impact on agriculture and small business. Billions of dollars of economic impact and tens of thousands of jobs are at stake while FWS tries to play a bureaucratic shell game with the American public. Special interests such as the Defenders of Wildlife pressure their friends at FWS to expedite rule makings as a moral imperative.

There is no doubt that Director Ashe and the NGO’s that support him feel that they hold the moral high ground on these issues. Protecting the nation’s wildlife and environment are indeed noble causes. However, corrupt means do not lead to a noble end. Circumventing legal and administrative processes designed to protect the integrity of rule making is not noble. Decisions cannot be arbitrarily made based on the ideals of a government agency or a powerful lobbying group seeking to bypass reasonable and established mandates for process, procedure and information quality standards in order to appease special interest groups.

us-district-court1On December 14, 2010, in a decision by US District Court Judge Oliver Wanger regarding an FWS rule to cut water off from the Central Valley of California to protect the Delta Smelt under the ESA, Judge Wanger ruled against FWS calling the sloppy science and fudged process, “arbitrary, capricious and unlawful”.

The rule cut off billions of gallons of water from human and agricultural use without scientific and procedural justification. It devastated the family owned agricultural businesses that relied on water to irrigate their crops in the Central Valley of California. What was left of these family farms in the wake of the FWS action was characterized as “dust bowl” like conditions. Government ideals cannot be permitted to take precedent over facts and science in order to expedite action that hurts jobs and the economy, all under the ruse of a moral imperative to protect endangered species and the rule making process.

In 2011 Congressman Darryl Issa held a hearing before his Government Oversight & Reform Committee to investigate a “broken government” rule making process. During this hearing he points out that, “it appears the FWS violated the administrative process in a number of ways” in regards to the Constrictor rule making, a proposed rule to add 9 constricting snakes to the Injurious Wildlife list of the Lacey Act. Under questioning of committee members, then Director of the White House Office of Management & Budget, Cass Sunstein, was asked about the trend in rule making where agencies were systematically avoiding economic impact analysis. Sunstein assured the committee that economic impact analysis would be done for all outstanding rules.

The Small Business Administration’s Office of the Advocate, also commenting on the sbaproposed Constrictor rule, informed the FWS that its Initial Regulatory Flexibility Act Analysis (IRFA) was sorely lacking. Scientists from around the world questioned the highly controversial science used to substantiate the rule. When the science was further questioned under the Information Quality Act (IQA), agency officials replied that they weren’t held to the mandates for information quality required by IQA. On January 17, 2012 the Constrictor rule was partially enacted without an economic impact analysis having been done. Again FWS justifies rule making actions circumventing due process with the moral authority of expediting the protection of the environment.

The continued and relentless attempt by FWS to expedite their rule making process at the expense of jobs and the economy, while justifying their actions by claiming the moral high ground, is irresponsible and reckless.

The US Herpetoculture Alliance is urging better scrutiny and oversight for a bureaucratic process gone amok. If facts and science are going to be held hostage to ideology, then expect the Herp Alliance to be shining a bright light for a growing audience of concerned Americans to be able to clearly see where government actions appear to have no regard for jobs, private property or due process. Unbridled government has become one of the biggest obstacles to economic growth and jobs. It is time that agency staff be held to account for their actions.

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