Does a government agency have the ability to make a rule that conflicts with what the legislature writes in its laws?
That question was at the foundation of a provocative hearing in the Committee on Legal Services, the General Assembly’s panel to review executive branch rules.
And at the center was livestock.
It all began when the State Board of Stock Inspection Commissioners, responding to state statute, authored a rule setting a transportation permit fee for bovine livestock — i.e. cattle .
And yet, “bovine livestock and alternative livestock shall be eligible to receive an annual transportation permit,” said Yelana Love of the Office of Legislative Legal Services, quoting from the law. “By limiting these fees to cattle in rule 2.1, the Board has made alternative livestock ineligible, which conflicts with state statute.”
Alternative livestock in Colorado means elk and fallow deer.
Love concluded that the committee should refuse to extend the rule.
Defending the bovine rule was the state’s brand commissioner, Chris Whitney.
“This rule addresses only the cattle,” he said. “That isn’t to say there couldn’t be a rule that addresses alternative livestock as well. It’s not inconsistent with the statute and it remains to be seen whether the Board, in the exercise of its discretion, will pass a rule having to do with permit fees with alternative livestock.”
Sen. Pete Lee, D-Lee, queried Whitney about what would happen if someone wanted to transport elk or deer in the absence of a rule.
“As a practical matter,” Whitney responded, “there has never been an application for a transportation permit for alternative livestock.”
He disclosed that susceptibility to chronic wasting disease — a degenerative neurological disease among deer, elk and moose — means that moving livestock throughout the state could endanger the wild herd.
“Suppose somebody comes forward tomorrow,” said Rep. Mike Weissman, D-Aurora. “They want to move deer and elk around. What happens?”
“They may not move freely,” Whitney asserted. “They’re subject to federal regulation. This is well-understood by the industry. That’s why there’s never been an application for a transportation permit.”
He conceded there was one legal option available: take the animals directly to the slaughterhouse.
Lee was puzzled at why the statute required permit fees for alternative livestock if the Board’s hands were tied.
“I’m guessing the statute predated the discovery of chronic wasting disease and all the implications that flow from that,” Whitney allowed.
Taking back the microphone, Love said that if the legislature wanted to honor the Board’s interpretation, they should change the law.
“I’m not sure if I’m bothered by that. Should I be?” Lee responded. “Without being flippant, so what?”
If the General Assembly enacts laws, Love said, it isn’t the agency’s place to undo them.
“If there is a broad statute that says you are allowed to do A and B, and an agency says, ‘actually you can only do A,’ there is a conflict there,” she replied. “As a legislator, I believe it’s important to be sure when you are passing a law and giving an agency rulemaking authority, that you know they're not going to exceed that authority.”
Sen. Bob Gardner, R-Colorado Springs, attempted to sum up the Board’s position.
“The rule itself that is promulgated does not violate the statute, it simply does not do one more thing that the statute says you’re supposed to do. And the reason you’ve done that thing is because federal law doesn’t allow you to do that thing?”
That is essentially correct, said Whitney.
Gardner said that he had never seen an instance of an agency not completely making a rule that it was empowered to write. He supported a rewrite of the statute.
On the vote to kill the rule, Sens. Lee and Robert Rodriguez, both Democrats; and Reps. Weissman, Julie McCluskie, and Leslie Herod, all Democrats; and Rep. Matt Soper, a Republican, voted yes.
Sens. Gardner and John Cooke and Rep. Kevin Van Winkle, all Republicans, voted against.
The committee's second rule to consider was whether the Division of Oil and Public Safety could require a party to request a hearing if their explosives permit was revoked or suspended.
“In every instance the agency has to set a hearing, provide notice of the hearing to the parties, and if the party decides not to contest it by not responding, the agency doesn't actually have to hold the hearing. That is how the statute is set up,” said Thomas Morris of the Office of Legislative Legal Services, referring to the state’s Administrative Procedures Act.
“Under these rules, the Division does not need to set a hearing. Doesn’t notify the permittee of the date of the hearing. It says, ‘here are the grounds for why we’ll summarily suspend, but we’ll only hold a hearing if you ask for one,’” Morris explained. “That is contrary to the APA.”
Katie Allison from the attorney general’s office advanced the argument that the rule didn’t need to say that the hearing was required because the APA already stated it. The division was merely providing a “reminder.”
“The APA says the division will hold a hearing. The division’s rules give this extra way to remind people that they can also ask for a hearing,” she said. “The rules don’t have to restate everything that is in the APA.”
Committee members, though, was not convinced. They unanimously voted to end the rule.
Finally, the committee heard about a rule from the Mined Land Reclamation Board that allowed it to authorize mining permits for one-time excavation projects. Colorado law, Morris said, does not allow such permits for “material processing activities typically associated with mining operations.”
However, the board’s rule allowed for an exception, in contravention of the statute.
The attorney general’s office did not contest that the rule represented a conflict, and the committee unanimously voted to end it.