1. Week 2 Homework
1. State the administrative agency which controls the regulation. Explain why this agency and your proposed
regulation interests you (briefly). Will this proposed regulation affect you or the business in which you are
working? If so, how?(10 points)
I have three boys 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 controls 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. (10 points)
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. If the proposed regulation deadline has
already passed, write the comment you would have submitted. Explain briefly what you wish to accomplish
with your comment. (10 points)
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. (If the date has already passed, please
provide when the deadline was). (5 points)
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.

2. 5. a. Once you have submitted your comment, what will you be legally entitled to do later in the promulgation
process (if you should choose to do so)? (See the textbook's discussion of the Administrative Procedure
Act.)(15 points)
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, or
in 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.

3. 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.html
www.lectlaw.com/def/d080.htm