Chevron to Change Fish, Wildlife Protections | The Arkansas Democrat-Gazette

Although the public has not paid much attention to it, the recent U.S. Supreme Court decision in the Chevron case will have a huge impact on Arkansas’s forestry, fisheries and duck farming industries.

In June, the Supreme Court, in Loper Bright Enterprises v. Raimondo, overturned its landmark 1984 decision in Chevron v. Natural Resources Defense Council. That decision created the “Chevron doctrine,” under which the court gave almost all regulatory authority to executive branch departments.

Under the Chevron doctrine, if Congress did not directly address the issue, the court was required to uphold the agency’s “reasonable” interpretation of the regulation. This authorized agencies such as the Environmental Protection Agency and the U.S. Fish and Wildlife Service to pass laws independently of the constitutional process.

Thus, the U.S. Army Corps of Engineers rejected the Arkansas Game and Fish Commission’s attempts to impose minimum flows on the White and North Fork rivers for 20 years. It literally took an act of Congress to change the Corps’ policy on the issue.

The Chevron reversal reset the entire system of bureaucratic governance. It imposes federal regulatory authority on Congress and restores to the judiciary the authority to apply constitutional standards to federal regulation.

This places responsibility on federal regulators.

For example, state wildlife agencies are required to establish waterfowl migration seasons under federal regulations.

After Chevron, the Arkansas Game and Fish Commission is still limited by the parameters of the federal waterfowl hunting framework. But states and private entities, including nongovernmental organizations like Ducks Unlimited, Delta Waterfowl and even the Arkansas Wildlife Federation, can challenge the Fish and Wildlife Service to justify its reasoning behind the framework. As the teachers say in school: “Show me your work.”

Congress, in turn, will be required to develop comprehensive regulations to guide the Fish and Wildlife Service’s regulatory process. If the regulations are not specific, courts will have the authority to determine the constitutionality of federal regulations and how they should be applied.

The politicization of federal rulemaking can be seen as undermining the authority of scientists and experts with academic degrees. This ethic inspired Amendment 35 to the Arkansas Constitution, which in 1944 essentially created a fourth branch of government for Arkansas to manage the state’s resources. The Game and Fish Commission makes its own laws. State courts almost always uphold AGFC regulations unless a state statute preempts them.

This is essentially the concept behind the original 1984 Chevron decision. The difference is that Arkansas voters wrote Game and Fish’s regulatory autonomy into the state constitution.

Ultimately, the Chevron reversal will strengthen the Game and Fish Commission’s ability to influence federal agencies, particularly the Corps of Engineers, in water management in the Bayou Meto Wildlife Management Area and the Dave Donaldson Black River Wildlife Management Area. It could also affect water management in the Little Red River.

We hope this will rekindle the Game and Fish Commission’s interest in mitigating the damage to fisheries caused by Corps policies. We are referring to the particularly harmful impact of wing dams on the Arkansas River. Cutting notches in wing dams has been proven to benefit fisheries and other aquatic communities by refreshing backwater habitat without adversely affecting navigation. The same is true for the Mississippi River. Ironically, two federal agencies—the Corps and the U.S. Fish and Wildlife Service—are at odds over wing dams and wildlife habitat on the Mississippi River.

Until now, the Corps had the right to simply say, “No. Case closed.”

Ultimately, with the support of Congress and the federal judiciary, reversing Chevron’s decision will enable the Game and Fisheries Commission to fulfill its constitutionally mandated mission as a partner to federal agencies, not an adversary.