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AGO Opinion 98022

Constitutionality of LB 1126, the Buffer Strip Act; Unconstitutional Delegation of Legislative Authority to the Nebraska Pesticide Board
Opinion 98022


DATE: April 8, 1998

SUBJECT: Constitutionality of LB 1126, the Buffer Strip Act; Unconstitutional Delegation of Legislative Authority to the Nebraska Pesticide Board




REQUESTED BY: Senator John A. Hilgert, Nebraska State Legislature




WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General






You presented your opinion request regarding the

constitutionality of LB 1126 to us late in the day on April 7,

1998, and it is our understanding that the bill will be considered

by the Legislature on Final Reading sometime during the day on

April 8, 1998. Obviously, the short time frame surrounding your

opinion request provides us with little opportunity for detailed

research regarding the question you presented and little time for

consideration of the issues involved. Therefore, while we will

accommodate your late request, our opinion must necessarily be

brief.




LB 1126 creates the Buffer Strip Act. The bill pertains to

the creation of buffer strips around cultivated land for the

purpose of reducing the levels of pesticides and other materials

introduced into surface water resources so as to improve water

quality. The bill provides for the establishment of a Buffer Strip

Incentive Fund and for various procedures whereby persons who wish

to create a buffer strip around their property may apply to a

natural resources district and the Department of Agriculture (the

"Department") to do so. Persons establishing buffer strips under

this procedure can be eligible for payments from the Buffer Strip

Incentive Fund. The Department is specifically required to

promulgate rules and regulations for the "enforcement and

administration" of the Buffer Strip Act by Section 11 of the bill.




Section 4 of LB 1126 also creates the Nebraska Pesticide Board

"to advise and provide recommendations to the department [of

Agriculture] regarding the administration of the Buffer Strip Act,

the use of proceeds from the Buffer Strip Incentive Fund, and the

approval or disapproval of the buffer strip plan required in

section 5 of this act." Section 5 of the bill then provides, in

its entirety:




The department shall devise a statewide buffer strip plan

with its priority being the improvement of the quality of

the domestic and public water supply. Upon the approval

of the board, the department shall submit the plan to the

Legislature by December 1, 1998.




Apart from a definition of the Nebraska Pesticide Board in Section

3 of LB 1126, there is no mention of that Board other than the

provisions pertaining to the Board found in Sections 4 and 5 of the

bill.




In your opinion request letter, you state that LB 1126 appears

to delegate authority to the Nebraska Pesticide Board to adopt the

statewide buffer strip plan without limitations and standards

reasonably adequate, sufficient, and definite to guide the Board in

exercising its authority. You then ask, "[p]lease advise at your

earliest convenience whether such delegation to the board runs

afoul of Nebraska's separation of powers provision, or any other

provision which may be applicable due to a study of this topic

being done." For the reasons discussed below, we do not believe

that the provisions of LB 1126 unconstitutionally delegate

legislative authority to the Nebraska Pesticide Board.




The Legislature may not delegate its legislative authority,

power, or functions to an administrative or executive authority or

to private individuals. Bosselman, Inc. v. State, 230 Neb. 471,

432 N.W.2d 226 (1988); Neb. Const. art. III, ยง 1 (the Legislative

authority of the state shall be vested in the Legislature).

However, the Legislature may authorize an administrative or

executive department to make rules and regulations to carry out an

express legislative purpose, or to completely operate and enforce

a law within designated limitations. Bosselman, Inc. v. State,

supra. Those designated limitations and the standards by which the

powers granted are to be administered must be clearly and

definitely stated in the authorizing act. Id. Those standards

must be reasonably adequate, sufficient, and definite to guide the

agency in exercising the power conferred upon it and must enable

those affected to know their rights and obligations. Id. If the

Legislature provides reasonable limitations and standards for

carrying out delegated duties, there is not an unconstitutional

delegation of legislative authority. Id. The Nebraska Supreme

Court has also indicated that the modern tendency is to be more

liberal in permitting grants of discretion to an administrative

agency in order to facilitate the administration of laws as the

complexity of administration and governmental conditions increases.

State ex rel. Douglas v. Nebraska Mortgage Finance Fund, 204 Neb.

445, 283 N.W.2d 12 (1979).




Under the standards set out above, we cannot say that the

provisions of LB 1126 unconstitutionally delegate legislative

authority to the Nebraska Pesticide Board. For one thing, Section

11 of the bill provides directions as to the nature of the rules

and regulations which must be promulgated by the Department for

administration of the Buffer Strip Act, and presumably those

considerations would govern the nature of the statewide buffer

strip plan which must be devised by the Department and approved by

the Nebraska Pesticide Board. More importantly, however, it is not

clear that any act of the Pesticide Board in approving a statewide

buffer strip plan under Section 5 of the bill will have any

ultimate independent effect. Section 5 of the bill requires that

the Nebraska Pesticide Board must approve a buffer strip plan

devised by the Department, and upon such approval, "the department

shall submit the plan to the Legislature by December 1, 1998."

While Section 5 does not state the purpose of that submission, the

Legislature is presumably free to take further action with respect

to the plan, and the remaining provisions of LB 1126 are silent as

to any effect of the statewide plan on the other administrative

provisions of the bill. Therefore, we do not believe that LB 1126

involves an unconstitutional delegation of legislative authority in

this area since it is not clear that there has even been any

delegation of authority to the Nebraska Pesticide Board with

respect to the statewide buffer strip plan at issue.




Sincerely yours,




DON STENBERG

Attorney General






Dale A. Comer

Assistant Attorney General

Attorney General