1. State the administrative agency which controls the regulation. Explain why this agency and your proposed regulation interest you (briefly). I have three kids and for better or worse we have become a family of reptile owners. I find the plight of any reptile an interesting matter. I found this U.S. Fish and Wildlife act about Gopher tortoises. The U.S. Fish and Wildlife Service felt the Gopher tortoise needed federal protection. The U.S. Fish and Wildlife Service control the regulation that would allow the Gopher tortoise to receive protection under the Endangered Species Act. If the Gopher tortoise is added to the endangered species list a lot of farmers and land developers would be limited on improving their property if the Gopher tortoise is a resident on their land. Florida Fish and Wildlife has already listed the Gopher tortoise as a threatened species on the Endangered Species list.
The proposed regulation is not harmful, but if the guidelines for relocating the Gopher tortoise to a protected area is not a well thought out process, farmers can be subject to loss of their land to the Gopher tortoise.
2.Describe the proposal/change.
The proposal is to change the Gopher Tortoise from the threatened species list to the endangered species list. This would put more laws and restrictions on how these animals are treated and fines associated with mistreatment of these animals.
3. Write the public comment which you would submit to this proposal. I am in favor of the proposed regulation, with one condition to consider. The Gopher tortoise is an amazing creature that is native to the eastern part of the United States (Florida, Georgia, Alabama and South Carolina). The Gopher tortoise is a gentle animal that lives in burrows, eats vegetation, reaches sexual maturity between the ages of 12 – 15 and can live to be 100. The decline in the Gopher tortoise population is due to the reduction of their natural habitat. I support the Gopher tortoise being protected under the Endangered Species Act with certain limitations. I propose that each state designates land that will be used as a refuge for the Gopher tortoise.
When land owners encounter the Gopher tortoise on their property that would prohibit development, the agency would relocate the Gopher tortoise to a designated Gopher refuge without fee to the land owner. (http://www.gophertortoise.org/tortoise/facts.htm) 4.Provide the “deadline” by which the public comment must be made. The U.S. Fish and Wildlife Service requested a 90-day finding to obtain information to determine if the Gopher tortoise in the Eastern region of the United States should be added to the endangered species list. The initial deadline for submitting comments was November 9, 2009. Due to receiving “substantial scientific or commercial information indicating that listing the eastern population of the Gopher tortoise may be warranted” the deadline was extended to March 15, 2010.
5.A. Once you have submitted your comment, what will you are legally entitled to do later in the promulgation process (if you should choose to do so)? (See the textbooks discussion of the Administrative Procedure Act. Department of Interior policy is, whenever practicable, to afford the public a meaningful opportunity to participate in the rulemaking process. The process of opening refuges is done in stages, with the fundamental work being performed on the ground at the refuge and in the community where the program is administered. In these stages, the public is given other opportunities to comment. Once the deadline date for comments has expired, the document will be published in the Federal Register for additional comment, commonly for a 30-day comment period. Those parties who made comments on the rule(s) during the proposal stage can challenge the validity of the rules in court. An administrative rule can be challenged on several different grounds. The first ground on which to challenge an agency rule is to determine if that rule is arbitrary, capricious, an abuse of discretion, Orin violation of some other law. This standard is generally applied to formal rulemaking and simply requires the agency to show evidence to support the proposed rule.
After the comment period is over, the agency has three choices about what to do with the proposed rule(s). The first choice is simply to adopt the rules. The second choice is to modify the proposed rules and go through the process of public comment again. If the modification is minor, however, the APA (Administrative Procedure Act) allows the agency to adopt a modified version of the rule without going through the public comment period again. The final choice of the proposing agency is to withdraw the rule.
B. If the proposal passes, identify and explain the five legal theories you could use in an attempt to have the regulation declared invalid and overturned in court. 1. The first ground on which to challenge an agency rule is that it is arbitrary, capricious, an abuse of discretion, or in violation of some other law. This standard is generally applied to informal rulemaking and simply requires the agency to show evidence to support the proposed rule. Without such evidence, the rule can be held arbitrary and capricious.2. A second theory for challenging an agency’s regulation is that the regulation is unsupported by substantial evidence. This substantial evidence test is applied in the review of formal and hybrid rulemaking. Where the arbitrary and capricious standard simply requires some proof or basis for the regulation, substantial evidence requires that more convincing evidence exist in support of the regulation than against it. 3. A third ground on which to challenge an agency’s regulation involves the rule that a regulation can be set aside if the agency did not apply with the APA requirements of notice, publication, and public comment or input.
The procedures for rulemaking must be followed in order for the regulatory process and resulting rules to be valid. An agency that seeks public comment for the purposes of drafting legislation cannot then turn the legislation into rules after the comment period.4. Another basis for challenging a regulation is that the regulation is unconstitutional. Many challenges based on constitutional grounds deal with regulations that give an agency authority to search records or that impose discriminatory requirements for licensed professionals.5. Another theory for challenging a regulation in court is ultra vires, a Latin term meaning “beyond its powers.” An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act. Although t most agencies stay clearly within their authority, if an agency tries to change the substance and purpose of the enabling through regulation, the regulations would be ultra vires.
C. Which of these challenges would be the best way to challenge the regulation you selected for this assignment if you wanted to have the regulation overturned and why? The best way to challenge the regulation would be the second theory stating that the regulation is unsupported by substantial evidence. This is the only possible challenge. The regulation certainly does not meet any criteria of the remaining legal theories. The challenge would be quickly shot down due to the evidence to the contrary to support the fact the Gopher tortoise is close to being endangered. www.usconstitution.net/consttop_duep.htmlwww.lectlaw.com/def/d080.htm