The federal government is often viewed, rightly or wrongly, as having an endless appetite for issuing rules and regulations. Ambitious politicians routinely promise that if we elect them they will put a stop to it, “cut through the red tape,” and perhaps even roll back regulations that are already on the books.
Not everyone is aware that the purpose of regulations is to interpret and provide guidelines for how the laws passed by these same politicians are to be carried out. The absence of regulations could be compared to a chef lacking recipes for the meals he’s expected to create. The chef may know what an entrée is supposed to look and taste like, but without knowing the ingredients—and how and when they should be assembled—the odds of having a great meal are poor. When all is said and done, some regulations are needed to carry out the intent of our laws.
There’s also a common belief that regulations are only about telling us what we can’t do. Don’t pour that used motor oil or paint thinner down your garage drain. Farmer, don’t locate a cattle feed lot where spring flooding can wash fish-killing nutrients into a nearby river. Fishermen, don’t catch and keep more than 10 crappies in a day’s fishing.
Some regulations, however, expand boundaries and make possible things that would otherwise be prohibited. A recent example is an “advance notice of proposed rulemaking”—the first step in proposing new regulations—in this case, for the management of a familiar Minnesota bird, the double-crested cormorant.
The U.S. Fish & Wildlife Service (USFWS) is considering whether to give state natural resource agencies more authority to control the population of these waterfowl that prey on small fish, including those prized by anglers, as well as fish raised in commercial aquaculture—fish farming—done primarily in the South. Minnesota’s Leech Lake and Lake of the Woods, to name just two state waters, have seen spikes in the number of double-crested cormorants. Not so long ago, a downturn in walleye numbers on Leech Lake was attributed—at least by some—to a growing population of nesting cormorants there.
Larger than a duck, but somewhat smaller than a common loon, cormorants nest in high-density colonies. Their “guano” is highly acidic, and the concentration found in these colonies can kill ground vegetation, and even the trees in which the birds nest. Cormorants can denude entire small islands, leaving them looking like they were chemically defoliated.
It is a human prejudice to describe a cormorant as unhandsome, but there is something almost vulture-like in their appearance, with large broad wings, a snake-like neck and hooked beak. A duck, goose, swan or loon is graceful by comparison. It may be a further irony that Minnesotans revere the common loon, even though it earns its living chiefly as cormorants do, by eating fish. The loon’s strikingly beautiful plumage, and its distinctive and haunting call, contribute to this prejudice in its favor. This, and the lore and legend that have linked the loon to wilderness.
Cormorants were at a population low point nationally in the 1970s, according to the U.S. Department of Agriculture. But by the late 1990s, natural resource agencies in more than half the states were reporting declines in popular and valued fish in their waters. Agencies in 10 states were on record as considering the cormorant a major threat to their fisheries management programs.
One of the most important federal conservation laws ever enacted is the Migratory Bird Treaty Act of 1918, an agreement initially between the U.S. and Great Britain—acting then on behalf of Canada—with Mexico later added to the agreement. This Act “makes it illegal to take, possess, import, export, transport, sell, purchase, barter … any migratory bird … except under the terms of a valid federal permit.” The waterfowl hunting license we purchase for the privilege of hunting migratory ducks, geese, woodcock or snipe, is an example of such a “valid federal permit.”
Because cormorants are a migratory bird, they are protected under this Act. But from 2003 to 2016, in light of their depredations on wild fish stocks and fish farms, wildlife agencies in 24 states had broad authority to control cormorant populations that were considered a threat. In thirteen states, fish farmers had the right to control cormorants preying on their fish stocks without the need for individual permits.
This changed in 2016. A federal judge in U.S. District Court for the District of Columbia (Washington, D.C.) ruled for plaintiffs who had objected to the “culling”—the killing—of cormorants under these broad permits during the 2003 to 2016 period. The judge found that the governing agency—the USFWS—had not sufficiently made the case for broad authority to kill cormorants, versus permits that would be sought on a case-by-case basis.
Since 2016, those “case-by-case” rules have been in place while the USFWS did its homework, and—it now appears—will try to make a better case to again give state agencies discretion to determine “whether, when, where and for what purpose, to control cormorants.” A similar proposal is being made by USFWS to allow the taking of cormorants without individual permits where they’re found to be causing fish farming losses.
For now, we’re in a 45-day public comment, which began on January 22nd, when this proposal was published. Comments received by USFWS may shape its decision on the degree of freedom the states should have in decisions to control—or not control--their cormorant populations. Also shaping these regulations—we can safely assume—will be a USFWS judgment on whether they would be likely to withstand another challenge in court.
Anglers and fish farmers will be eagerly awaiting the outcome.