Hjb57 And Sjr42 - Amendment To The State Constitution! (Title Edited)

[Al Agnew]

Thank you for your feedback. I appreciate your point of view but feel you have probably been misinformed about the content of HJR 57 - which would place the Joint Committee on Administrative Rules in our state constitution and set up very limited circumstances for legislative review of administrative rules where there is one of the following:

1. An absence of statutory authority for a rule;

2. A rule that is in conflict with state law;

3. A rule that is so arbitrary and capricious as to create such substantial inequity as to be unreasonably burdensome on persons affected;

4. A rule that is likely to substantially endanger the public health, safety, or welfare;

5. A rule that is excessive because it exceeds the purpose, or is more restrictive than is necessary to carry out the purpose, of the statute granting rulemaking authority, or

6. A substantial change in circumstance has occurred since enactment of the law upon which the proposed rule is based as to result in a conflict between the purpose of the law and the proposed rule, or as to create a substantial danger to public health and welfare.

This legislative review is subject to two additional checks. First, a decision by JCAR to invalidate a rule must be approved by 3/5ths of both chambers of the General Assembly. Second, the decision is subject to judicial review - with a de novo standard of review for the first 3 reasons, and a rational basis review standard for reasons 4 through 6.

To my knowledge, there isn't a single rule of the Dep't of Conservation that would be in danger of being set-aside as a result of this statute. Contrary to emails you may have received, there's nothing in this provision which would prevent Conservation from regulating hunting seasons.

Sincerely,

Jay Barnes

Got this from the sponsor

Just want to point out again that it's this committee that would make the decision, and the wording is vague enough that they could decide that just about anything does not have statutory authority if you take a limited view of what a statute authorizes (as in, if it doesn't specifically say you can manage smallmouth bass for bigger fish, you can't), or that it's arbitrary and capricious, or excessive. And once they do, it must be approved by 3/5ths of the legislature...but will the rule be held up while the legislature decides (and they could take a long time deciding)? And given the present make-up of the MO legislature, 3/5ths isn't much of a burden.

[tanvat]

Hays is spot on correct. Any doubt should be resolved by the simple fact that this is an effort to amend the constitution. The constitution establishes the powers for each branch of govt. If this were not big deal, and did not represent a shift in the present powers of the executive branch vs. legislative branch, then there would be no need to amend our state's foundational legal document.

Look at point 5. It states that one of the purposes of the amendment is to allow the legislature to invalidate "A rule that is excessive because it exceeds the purpose, or is more restrictive than is necessary to carry out the purpose, of the statute granting rulemaking authority." By allowing the legislature to reverse a rule because it "is more restrictive than necessary to carry out the purpose" of a statute, the legislature is granted an unprecedented breadth of authority to simply override an executive branch determination of how to well, execute a statute in the real world. The determination of whether a rule is "more restrictive than necessary" is, in practice, nothing but a discretionary judgment call that allows the legislatuare to override any rule it wants. This is a fairly radical change in the separation of powers. And, as Hays noted, this determination is subject only "rational basis" judicial review. Rational basis review is "highly deferential," and courts do not question "the wisdom, social desirability or economic policy underlying a statute." See, eg., Comm. for Ed. Equal. v. State, 294 S.W.3d 477, 491 (Mo. banc 2009). Consequently, if the legislature wants to invalidate bait fishing restrictions in trout waters or regs. against spotlighting and baiting deer, then they could do so and the courts would almost certainly have no basis for reversal because, as noted above, the courts could not question the "wisdom" or "social desirability" of the legislature's decision. So long as there is some conceivable basis for the legislative override, it would stand. You have to look long and hard to find any case anywhere that is reversed on grounds that it is irrational. The legislature can conceive of some reason to support just about anything.

[msamatt]

Unless you're a diehard state government afficianado you're probably going to discover, as you track the progress of these two joint resolutions, some terms which do not make much sense to the layman. SJR42, for example, is on the Senate Informal Calendar for Senate Bills for Perfection. Show of hands, who knows what that means? I didn't but fond the information I found here very helpful:

http://www.senate.mo.gov/bill-law.htm

[Kathy E.]

Plus, the legislature is in session for only 6 months of the year. What if something needs a decision during the OTHER 6 months?

Why allow people who can barely figure out legislation in which they, as mostly lawyers, are supposedly well-versed the chance to decide -- or attempt to decide -- issues of vital importance concerning our fish and wildlife? We would have to be fools not to see where this is coming from: the game farmers who continue to chafe under any attempt to reform or limit their operations, even though those same operations have been deemed culpable for virtually every case of CWD that has been documented. And even where there is no direct connection of a particular case of CWD to a game farm, I cannot help but believe that when CWD of 'unknown origin' has appeared -- and there are but one or two confirmed incidences like this) that in my own mind, at least, I feel that there probably was some type of hauling accident or release involving diseased deer (perhaps a game farmer who was going out of business and simply released his animals) rather than put them down or find a new home for them. Follow the game farms, and you will find CWD in their wakes.

[Kathy E.]

I would also imagine that the legislature is more inclined to try to 'snow' the citizenry of Missouri with a vote on these two measures than to try to get them past the Governor, who is a real sportsman. They know they have no chance with the Governor; they feel that they MIGHT have a chance with the populace, which means that if and when we find out that these two items -- or even one of them -- are on the ballot, we all have to get busy immediately: raising funds, campaigning, etc. Because the game farmers have deep pockets, and they aren't afraid to throw money wherever in order to get their way. And that is probably why we find ourselves in this predicament right now; that, and the desire by the legislature to finally get their hands on the conservation sales tax revenue. And what a travesty that would be!!!

[Phil Lilley]

The Missouri senate closed today without bringing the bill to the floor. It will convene on 3/3.

That means you still have time to email your rep/senator.

[Chief Grey Bear]

Thanks for update Phil!!!

[Phil Lilley]

Mark Wittington is providing updates for me. He's pretty involved in this process.

[ness]

Story on KC Star site.

http://www.kansascity.com/2014/02/27/4853190/conservation-leaders-worry-about.html

[Chief Grey Bear]

Got this today:

More crap targeting MDC !

Subject: PRESS RELEASE - Legislation aims to change the definition of livestock to include captive cervids

Conservation Federation of Missouri

728 West Main | Jefferson City MO 65101

573-634-2322

Press Release

FOR IMMEDIATE RELEASE

Contact:

Brandon Butler

573-634-2322

bbutler@confedmo.org

Legislation aims to change the definition of livestock

to include captive cervids

Jefferson City, MO | March 6, 2014 - House Bill 2031 aims to change the definition of livestock to include elk and captive cervids. The bill was introduced by Representative Sandy Crawford of District 129 and has an initial hearing this Tuesday, March 11 at 8 a.m. in House Hearing Room 4 at the State Capital. Senator Lager District 12 introduced companion Senate Bill 964. A hearing for SB 964 has not yet been set.

The bill reads "Livestock", cattle, calves, sheep, swine, ratite birds including but not limited to ostrich and emu, aquatic products as defined in section 277.024, llamas, alpaca, buffalo, elk and captive cervids documented as obtained from a legal source and not from the wild, goats, or horses, other equines, or rabbits raised in confinement for human consumption.

The Conservation Federation of Missouri (CFM) believes it is imperative to the future health of all wildlife, especially Missouri's wild white-tailed deer population, to keep control of elk and captive cervids with the Missouri Department of Conservation. The MDC will maintain the most stringent testing and regulations on captives to minimize opportunities for spreading of disease, including Chronic Wasting Disease, from captives to wild animals.

CFM asks for your support in testifying against HB 2031 on Tuesday, March 11. If possible, please join us at the Capital at 8 a.m. and let your voice be heard. If you are unable to make the trip, please contact your representative immediately with a phone call, letter or email. To find contact information for your representative, visit http://www.house.mo.gov. Here is a draft letter for your use.

Dear Representative (blank),

I am strongly opposed to HB 2031. As you are aware, Chronic Wasting Disease has already been discovered in Missouri. In order to protect the wildlife of Missouri, especially our white-tailed deer, which over 500,000 Missourians hunt each year, we must do all we can to minimize opportunities for the spread of disease. I believe the Missouri Department of Conservation, with their excellent team of wildlife biologists, are far better qualified to manage elk and captive cervids than any other state agency.

Please do not risk the future of Missouri's rich wildlife. I ask you to please vote "NO" to HB 2031.

Your Constituent,

For further information, contact the CFM office at (573) 634-2322

Find more information at: http://www.NoMOCWD.org

________________________________________________________________________________

About the Conservation Federation of Missouri

The CFM, formed in 1935, is Missouri's largest and most representative citizen conservation group. It represents more than 80 organizations with over 1 million members. The CFM is primarily a volunteer organization - including all officers and board members - but does maintain an office with a full time professional staff in Jefferson City. Visit our website at http://www.confedmo.org

Conservation Federation of Missouri | 728 West Main Street | Jefferson City, MO 65101 | 573.634.2322 | www.confedmo.org