The bare necessities of emergency rule making

Is it a black bear or a Grizzly? In January 2025, the Idaho Department of Fish and Game required Idaho black bear hunters to know the difference via an online bear identification test. A good requirement for protecting threatened Grizzly populations from the occasional misidentification.

However, did this rule need to bypass the rulemaking procedures and hearing requirements as a temporary rule? Sure - because Idaho spring bear hunts open in April. The rule needed to take effect before the season to prevent any further misidentified harvests.

The governor noted that, “This temporary rule protects public safety and welfare by promoting proper identification of grizzly and black bears during hunting activities and by aligning with the recommendation of the USFWS in a timely manner…”

It is important to note that the legislature adopted this and almost all other temporary rules of the Department of Fish and Wildlife with a voice vote in 2025, making it a permanent rule by July 1, 2025. But should the rule proposed in August of 2024 be open to the possibility of being repeatedly renewed, indefinitely avoiding a hearing, instead of adopted into official rules? Absolutely not.

If 25 people had requested a rulemaking by October 16, 2024, a hearing could have been held on the temporary rule. But this carveout preserved in Idaho Code 67-5222(2) barely acknowledges the essential role the public should play in the rulemaking procedures within our democracy.

This is not a debate over the necessity of the rule, only the method of adoption. Temporary rules need to be temporary, and Idaho’s Administrative Procedures Act needs updating. Idaho’s House Bill No. 539 in the 2026 Regular session would repair this oversight and ensure the legislature is involved. The bill reads:

“ (67-5226) The legislature finds that temporary rules do not always follow the negotiated rulemaking process. Therefore, to ensure accountability of agency rules to the legislature and to Idaho citizens, temporary rules shall be used only in emergency or other limited situations where negotiated rulemaking is not feasible. Agencies shall make every effort to promulgate rules utilizing the negotiated rulemaking process.”

In times of actual emergencies, temporary rules are a huge benefit to the speed and efficiency with which the government can respond to situations. However, every person’s definition of an emergency differs in varying degrees, and the threat of an overenthusiastic executive or bureaucratic agency liberally designating emergencies is a real danger to the separation of powers. 

State-level temporary rulemaking varies based on each state and its current administration’s directive. Idaho has already achieved major victories in regulatory reform and oversight, emergency power restrictions, and agency oversight of rulemaking. HB 539 would take the next step and adopt five much-needed reforms to rulemaking:

1.      Emphasizes the importance of negotiated rulemaking whenever available and discourages temporary rules unless under very specific circumstances.

2.      Narrows the definition of imminent threats and emergencies that may warrant the adoption of temporary rules.

3.      Requires the governor to publish a statement explaining why an earlier effective date is required.

4.      Prevents the legislature from adopting a new temporary rule that is the same or substantially similar except under specific circumstances.

5.      Allows for injured parties to challenge agency actions within the state courts as they would with other rules.

There is no harm, only benefit in ensuring hunters know how to identify black bears and Grizzlies, but how would Idahoans feel if other temporary rules were allowed to be adopted uncontested? Like rules limiting a farmer’s ability to use certain crop protection products? Or change labor laws affecting small businesses? Or banning the ability for private parties to assemble in perpetuity? These aren’t hypotheticals but real threats faced by other states.

Idaho’s regulatory stewardship is impressive, but there is always room for improvement. HB 539 offers these favorable reforms that protect the role of the legislature and limit the ability of agencies to go overboard with the definition of an ‘emergency.’