Request By:
Mr. William D. Graves
Director, Wildlife Division
Department of Fish and Wildlife Resources
#1 Game Farm Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: David W. Mossbrook, Assistant Attorney General
You have inquired of this office whether the Kentucky Nature Preserves Commission has the statutory authority to designate species of plants and animals as "endangered" , "threatened" or of "special concern" as prescribed in proposed regulations 400 KAR 2:010, Section 1 (10), (11), (12) and (13) and 400 KAR 2:030, Section 6 (1).
The proposed regulations are as follows:
400 KAR 2:010. Definitions.
Section 1. (10) "Endangered" means a species which is monitored by the commission and is in danger of extirpation and/or extinction throughout all or a significant portion of its range in Kentucky, including those species proposed or recognized as federally endangered that occur in Kentucky;
(11) "Threatened" means a species which is monitored by the commission and is likely to become endangered within the foreseeable future throughout all or a significant portion of its range in Kentucky, including those species proposed or recognized as federally threatened that occur in Kentucky;
(12) "Special concern" means a species that is monitored by the commission because it exists in a limited geographic area, it may become threatened or endangered due to modification or destruction of habitat, certain characteristics or requirements make it especially vulnerable to specific pressures, or experienced researchers have identified other factors which threaten its existence in Kentucky;
(13) "List of endangered, threatened, and special concern plants and animals" means the list of those species which have been identified by the commission;
400 KAR 2:030. Dedication of Nature Preserves and registration of natural areas.
Section 6. (1) For the purposes of identifying natural areas for potential protection as nature preserves areas, the commission may (develop, maintain, and periodically update) a state list of endangered, threatened and special concern flora and fauna, adding and deleting entries to the list based upon biological information.
The primary purpose of the Nature Preserves Commission Regulations is to provide for the dedication and management of nature preserves and natural areas, which complies with the authority granted to the Commission by KRS 146.410 to 146.990. As a means of identifying natural areas for potential protection, the Commission has proposed to "develop, maintain and periodically update a state list of endangered, threatened and special concern flora and fauna, adding and deleting entries to the list based upon biological information". The making of such a list of flora and fauna whereby the Commission would study various species of flora and fauna and designate such species as endangered or threatened, etc. is not within the current authorization of the Commission.
"The power vested in every administrative body to adopt regulations shall be uniform and shall be confined to the direct implementation of the functions and duties assigned to an administrative body by the general assembly, or by executive order." KRS 13.082(1).
The Commission has the authority pursuant to KRS 146.485 "to maintain a state registry of natural areas, an inventory of natural types flora and fauna, and other records of natural areas and nature preserves within the Commonwealth." The maintaining of an inventory of natural types flora and fauna is incidental to the primary function of the Commission: establishing and monitoring a system of nature preserves. In making such an inventory the Commission would list the types and quantity of various species but it would not make such determinations as whether the species was in danger of extinction or likely to become endangered.
The Legislature has granted the authority to make such designation concerning fauna or wildlife to the Department of Fish and Wildlife Resources. See OAG 84-214. The Kentucky Nature Preserves Commission could indicate on its inventory of fauna the fact that certain species had been designated as endangered or threatened if the Department of Fish and Wildlife had previously so determined. The Legislature has apparently not delegated the authority to make such designation concerning flora or plantlife to any government agency.
It is the opinion of this office that the proposed regulations are invalid to the extent that they purport to confer upon the Kentucky Nature Preserves Commission the power to designate certain species of flora or fauna as "endangered" , "threatened" or of "special concern" as such designation exceeds the authority conferred upon the Commission.