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DNR's Shadow Rulemaking: Game-and-Fish Rulemaking

With much discussion about the need to reform the Supreme Court's so-called shadow docket, one can add the need to at least discussnot to mention reformthe broad rulemaking authority enjoyed by the Minnesota Department of Natural Resources. Like all state agencies that have been delegated rulemaking authority under the state's Administrative Procedure Act, the DNR must go through the APA's rulemaking process when it wants to adopt a new rule. The Minnesota APA, while frequently maligned as cumbersome and confusing, serves a critical purpose in forcing agencies to notify and involve the public when adopting new rules. Yet the DNR possesses an additional rulemaking tool that skirts the traditional APA process, a tool that one could equate to the Supreme Court's shadow docket.

DNR's shadow rulemaking

Minnesota's commitment to natural resources is easy to see through initialisms: the SHT, the BWCA, the CRP, etc. And this commitment has been backed by legislative efforts to protect and enhance natural resources, starting with the Environment and Natural Resources Trust Fund, which was approved in 1988 by Minnesota voters in a constitutional amendment. Twenty years later, the Legacy Amendment again showed Minnesotans' commitment to natural resources. Given this state support, the DNR has a broad, public-backed remit to protect the state's natural resources.

With this remit comes DNR's expedited emergency game-and-fish rulemaking authority. This authoritythe envy of other state agenciesallows the DNR to adopt rules through a unique process. Unlike traditional rules that are reviewed by the Office of Administrative Hearings, the DNR's expedited-emergency rules are reviewed by the state's Attorney General's Office. While the attorney general used to review all agency rules until 1995, it now solely reviews these DNR rules. Problematic, however, is that the attorney general does not publish a report on the rules, and there is no criteria in statute guiding the DNR other than for it to claim that it can't comply with its emergency rulemaking authority, another authority the DNR alone possesses. Are the rules reasonable, based on science and data, or are they arbitrary and capricious? The public can't know.

While the DNR adopts these rules in the shadows, it must still publish them in the State Register, and the rules are only effective for up to 18 months. Still, public involvement is minimized, and accountability is missing. More concerning, the DNR's authority for adopting expedited-emergency rules relies on it saying it can't comply with its emergency rulemaking authority. As with the attorney general having the authority to review its expedited-emergency rules, the DNR benefits from the remnants of rulemaking requirements that used to apply to all state agencies, such as the ability to adopt emergency rules (sometimes labeled temporary rules).

The process for adopting emergency rules provides a shortcut through the APA's labyrinth requirements, yet it is a step up from the scant requirements for adopting expedited-emergency rules. For example, emergency rules must allow for a 25-day comment period, after which a rule can be modified. This process mimics the traditional APA rulemaking process. Again, the attorney general must approve the rules, but the rules are deemed approved if the attorney general does not approve them within 10 days. And the rules are only effective for 180 days, but can be extended for another 180 days, not to exceed 361 days.

Shining light into the shadows

Admittedly, most of the DNR's game-and-fish rules update hunting and fishing quotas, which are rather innocuous regulations. But sometimes the DNR uses its authority to adopt rules on chronic wasting disease or other emergencies. The DNR and the public certainly benefit from the DNR's quick regulatory tool when threats to the state's natural resources emerge. Yet should the DNR benefit from an unique regulatory scheme that excludes public comment and involves the attorney general, not the rule specialists of the Office of Administrative Hearings?

One easy fix would be to have the Office of Administrative Hearings review the DNR's expedited emergency rules. This fix would ensure consistency with all other agency rules and remove an obsolete remnant of prior APA iterations. As part of this change, the DNR's emergency authority would be repealed, as it is no longer used and serves no purpose. Another easy fix would be to mandate a comment period similar to the good-cause-exempt process. For example, a 5-day comment period would allow public comment but would not be so burdensome as to prevent the DNR from quickly acting when emergencies arise.

More controversial would be having the legislature articulate standards for the DNR to follow when using the expedited-emergency process. A good place to start would be the standards the Office of Administrative Hearings uses to evaluate rules, including whether (1) the rule is rationally related to the agency's objective and demonstrates the need for or reasonableness of the rule, or (2) the rule is unconstitutional or illegal.

Minnesotans commitment to natural resources should require the DNR to exhibit an equal commitment to more closely hewing to the Minnesota APA requirements necessary to ensure agency accountability and transparency.

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