March 22, 2012

Wolves return to California

By Damien M. Schiff Senior Attorney
USFWS

Late last month, the Center for Biological Diversity and others petitioned the California Fish and Game Commission to list the gray wolf as endangered under the California Endangered Species Act.  The impetus for the petition is a recent siting of an Oregon wolf that occasionally wanders into Northern California.  CBD et al. acknowledge that this is the first wolf siting in 80 years in California, but note that both Washington and Oregon listed the wolf under their wildlife protection laws even before the wolf reappeared in those states.

CBD’s petition may raise in my view another opportunity to challenge the Commission’s authority to list “distinct population segments” under the state’s ESA.  The federal ESA provides that the Fish and Wildlife Service may list species, subspecies, and distinct population segments of species.  The California ESA, however, provides only that the Commission may list species or subspecies.  No mention is made in the statue of distinct population segments.

No matter, though, at least for the Third District Court of Appeal, which ruled, in California Forestry Association v. Fish & Game Commission, that the Commission did indeed have the authority to list distinct population segments, notwithstanding that the federal provision preceded the state provision by several years and thus that the Legislature was likely very aware of what it was doing.

CBD’s wolf petition does not specify how the wolf should be listed, but the distinct population segment route seems to be the only way that the wolf could be listed under the state Act.  I think it fair to say that if one had to base a listing decision on either (1) the status of the wolf throughout the lower 48, or (2) the importance of the wolf’s alleged California range to its survival throughout the lower 48, one could not list the wolf, because it won’t go extinct anytime soon in the lower 48 and because the wolf’s California range is marginal at best.  Thus, only by recognizing the wolf in California as part of a distinct population segment is listing likely.  And that would squarely raise the CFA issue, which ought to be litigated again.

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