Chevron Will Transform Fish and Wildlife Conservation | The Arkansas Democrat-Gazette

Although the public may not know it, the recent “Chevron” decision by the United States Supreme Court will have a major impact on duck farming, fishing and forest management in Arkansas.

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

Under the Chevron Doctrine, a court was required to uphold an agency’s “reasonable” interpretation of its regulations if Congress did not directly address the issue in dispute. That gave agencies like the Environmental Protection Agency and the U.S. Fish and Wildlife Service the authority to make laws independent of a constitutional process.

For example, for 20 years the U.S. Army Corps of Engineers rebuffed the Arkansas Game and Fish Commission’s efforts to establish minimum flows on the White and North Fork rivers. It literally took an act of Congress to change the Corps’ policy on that issue.

The Chevron reversal reset that entire system of bureaucratic governance. It gives federal regulatory authority to Congress, and it restores the authority of the judiciary to apply constitutional norms to federal regulations.

This places accountability before federal regulators.

For example, state wildlife agencies are required to establish seasons for migratory birds within federal frameworks.

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

Congress, in turn, will be forced to produce comprehensive legislation that directs the Fish and Wildlife Service’s rulemaking process. If the legislation is not specific, the courts will have the authority to determine the constitutionality of federal regulations and how they should be applied.

Politicizing the federal regulatory process can be seen as undermining the authority of scientists and sworn experts. That ethic inspired Amendment 35 to the Arkansas Constitution, which in 1944 effectively created a fourth branch of Arkansas government to manage the state’s resources. The Game and Fish Commission makes its own laws. State courts almost always uphold AGFC regulations, except when state law takes precedence.

That is essentially the concept behind the original Chevron decision of 1984. 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 with the Corps of Engineers regarding water management in the Bayou Meto Wildlife Management Area and Dave Donaldson Black River Wildlife Management Area. It could also influence water management in the Little Red River.

We hope it will rekindle the Game and Fish Commission’s interest in mitigating damage to fisheries resulting from Corps policies. We specifically point to the damaging impact of wing dams on the Arkansas River. Cutting notches in wing dams has been shown to benefit fisheries and other aquatic communities by improving backwater habitat without negatively impacting 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 authority to simply say, “No. Case closed.”

Ultimately, Chevron’s reversal, with the support of Congress and the federal judiciary, will allow the Game and Fish Commission to carry out its constitutionally mandated mission as partners with federal agencies rather than as adversaries.