Wesner: How a little catfish started a public notice discussion

Dec 1, 2020

The frecklebelly madtom is a small catfish that inhabits waterways in several southern states. (Photo courtesy of U.S. Fish & Wildlife Service)

The frecklebelly madtom is a small catfish that inhabits waterways in several southern states. In November, the U.S. Fish and Wildlife Service announced that it considered the fish endangered and began a public inquiry to formalize its status.

The problem: except for the fish, which probably already knew it was endangered, few know that the little creature is in trouble. That is because the FWS notice appeared only in the obscure Federal Register. The Register is great reading for insomniac lawyers, but not many others.

The federal government has been increasingly relying upon its own little-known websites and ponderous federal tomes to let the public know what is going on. Twenty years ago, much more of the agencies’ business reached the public through newspaper public notices. Today, federal notices are as endangered as the little catfish. But the agency did hint that it still realized newspapers were valuable to the endangered species mission: it suggested that if it decided to hold a hearing on the madtom’s future, it would notify local newspapers. Presumably, it hopes to get a press release into some local newspapers — for free.

NNA’s Chair Brett Wesner, president of Wesner Publications, Cordell, Oklahoma, seized on the threatened catfish’s future to join with partners Alabama Press Association and Public Notice Resource Center to tell the FWS know how to let the public in on the secret about the endangered frecklebelly madtom.

The newspaper groups commented to FWS:

“Should you determine that a public hearing on behalf of the madtom is needed, the way to reach the public is with a paid public notice in the newspapers around the Upper Coosa river region. It is not enough to send a generalized press release to media outlets in this troubled time. The pages of newspapers are tightened by COVID-19 related losses of advertising. They may not have the space to provide the federal government to alert the public to your request for information about the madtom unless you reserve it through public notice placements.

Moreover, even in thriving times, the government should observe the tenets of sound public policy notices. Notices should be accessible, verifiable, archived for later research and published at the government’s directions in outlets independent of the government or any stakeholder in this discussion. These are time-honored principles in proper due process. No doubt, you are aware that readership by the general public of the Federal Register is extremely limited. It is no way to recruit the public input you want. There are six very good newspapers in the region that would be delighted to help you.” The groups provided contact information for Alabama Press Association’s ad placement services.

Wesner said that as newspapers are laden with immediate survival concerns, spending half a morning organizing the industry to discuss an Alabama fish might seem strange.

“But this shrinking public notice is like a creeping cancer on our democracy. The feds seem to have made up their minds that the curious public is going to spend time sifting through thousands of Federal Register notices each day to figure out what is going on. It has forgotten that the public overwhelmingly says it expects public notices to be in newspapers and on newspaper websites,” Wesner said. “It is no wonder people are distrustful of government.”

“NNA is on a mission. We are reaching out to agencies and Congress to remind them that we are here. We can carry out the four critical missions of public notice: accessibility, verification, archivability and independence. Except for finding old Federal Registers in the National Archives, should you feel like going on a fishing expedition in search of this catfish, you aren’t going to find the agency publications in compliance on the best practices of public notice. So, yes, we are focused on the little fish. We are devoted to transparency. And if the fish is saved along our journey, all the better,” he said.

Tonda Rush is the director of public policy and serves as general counsel to the National Newspaper Association. Email her at tonda@nna.org