Adverse decision in California gray wolf listing challenge

January 29, 2019 | By DAMIEN SCHIFF

Yesterday we received an adverse decision from the San Diego Superior Court in California Cattlemen’s Association v. California Fish & Game Commission, our challenge to the Commission’s decision to list the gray wolf under the California Endangered Species Act. Our lawsuit raised three arguments against the listing, which the Department of Fish of Wildlife, as well as the Commission’s own counsel, opposed.

First, we contended that the listing violates the state act’s limitation to “native species or subspecies.” Although the gray wolf species is (arguably) native to California, the wolf whose presence in the state triggered the listing (OR-7) is part of a non-native subspecies of wolf, descending from a population of Canadian animals brought to this country by the United States Fish and Wildlife Service in the 1990s. We contended that the Commission’s “species” listing was, de facto, a prohibited non-native subspecies listing, because the only animals protected by that listing would be descendants of the translocated Canadian population. The trial court rejected the argument, reasoning that the Commission appropriately listed at the species level, given the substantial scientific controversy over the delineation of wolf subspecies, and the evidence before the Commission that OR-7 may have native subspecies genes. The trial court’s ruling does not, however, address our points that (i) scientific uncertainty cannot be used to expand an agency’s jurisdiction, and (ii) the Commission did not make any findings regarding OR-7’s subspecies status, and thus the agency’s decision cannot be supported now based on a post-hoc finding.

Second, we argued that the listing violates the state act’s requirement that a population proposed for listing must be endangered or threatened “throughout all, or a significant portion, of its range.” We contended that “range” means a population’s full, natural range—which for the gray wolf species would span two continents. The trial court disagreed, concluding that the Commission’s interpretation of “range” to mean “California range” is reasonable. Its decision does not, however, address our points that (i) the ordinary meaning of “range,” especially in the context of wildlife conservation, is a population’s actual range, not an artificial construct delimited by political boundaries, and (ii) restricting the listing analysis to a population’s condition in California only would preclude the Commission from protecting a population that, range-wide, is imperiled, simply because its sub-populations within the state are doing okay.

Third, we argued that the listing violates the state act’s requirement that a population can be listed only if it has established a “range.” The gray wolf listing was based on the intermittent presence of a single wolf and the conjectured intermittent presence of other wolves. Such vagrant presence is not, as a matter of wildlife science, sufficient to establish a wolf “range” within the state. That was in fact the determination of the Department, which testified at the final hearing against the proposed listing, emphasizing: “There is no scientific basis for range and distribution in CA at this time.” The trial court nevertheless affirmed the Commission’s listing, explaining that the Commission could rely on outside wolf advocate evidence despite the recommendation of its sister wildlife agency. Yet the decision fails to address our points that (i) the outside evidence was itself reviewed by the Department and still found to be inadequate, and (ii) a wolf’s dispersal area does not necessarily equate to its final home “range”—indeed, even OR-7, after several California sorties, established his range in southern Oregon.

Legally flawed, the Commission’s listing decision is also bad policy, a point that the trial court’s decision does not address. Even without the listing, it would generally be illegal under California law to harm any wolf. But what the listing does is to preclude the possibility of a rancher ever obtaining a permit to respond to depredating wolves—those that menace livestock and other animals. In other words, the listing impedes the creation of a reasonable wolf management plan. (Note that, in Oregon and Washington, ranchers can obtain permits to manage depredating wolves notwithstanding the protections afforded wolves under those states’ endangered species laws).