• The role of the ODFW concerning consultation is defined in law.  It does not include doing the planning for other agencies or excluding them from the process. See Page 4.

• The wolves from the Idaho experimental population are not native in Oregon. See page 6 and 7.

• The Oregon ESA is supposed to be reviewed every 5 years.  The list has not been reviewed for over 18 years. See page 6.

• The wolf in Oregon has a dual classification. It is a listed “endangered species” and is an “exotic” species.  The Department of Agriculture regulates the “exotic” animals, and ODFW regulates the “endangered species”. See page 7 and 8.

The premise on which the process began was fatally flawed thus the Wolf Conservation and Management Plan should never have been adopted and should certainly never be implemented and no laws should be passed to accommodate administrative rules that have already been adopted without benefit of authorizing legislation which is clearly illegal.

In the cover letter that was sent from the staff of the Oregon Department of Fish and Wildlife (ODFW) to the Commission with the draft Oregon Wolf Conservation and Management Plan (Plan), is the statement that the Plan is intended to be a “conservation solution based on what is known and what is legal”. What it is vastly differs from its stated intention…it is not solution based but rather biased, divisive and punitive. As we point out herein we strongly believe it is illegal as well.

The Oregon ESA was enacted to protect wildlife species that were native to Oregon.1 ORS 496.172(1). An endangered species was defined to be “any native wildlife species determined by the [Oregon Fish and Wildlife Commission] to be in danger of extinction throughout any significant portion of its range within this state”. ORS 496.009(6). A threatened species was defined as “any native wildlife species the commission determines is likely to become an endangered species within the foreseeable future throughout any significant portion of its range within this state”. ORS 496.009(16).

Oregon Revised Statute 496.172 sets forth the powers of the Commission under the Oregon ESA with regards to native endangered/threatened species. According to the statute, the Commission shall:

(2) Establish, publish, and revise the state’s threatened and endangered species list, and protect species as required by ORS 496.182 (survival guidelines and consultation on state agencies’ endangered species management plans);

(3) Work cooperatively w/state agencies that have land management authority or regulatory authority to determine their roles, within their statutory obligations, in the conservation of endangered species as described in ORS 496.182(8);

(4) Establish a take permit system for threatened and endangered species NOT federally listed as endangered or threatened species; (5) Cooperate with the Oregon Department of Agriculture to protect native plants (carry out provisions of ORS 564.105); and

(6) Adopt administrative rules to carry out the provisions of ORS 496.171-.182 (Oregon ESA) and ORS 498.026 (take prohibitions).

These powers are to be exercised in such a way that private landowners are not required to protect threatened/endangered species on their land, and so that uses of private land are not further restricted within the state. ORS 496.192(1).

In 1995, when wolf introduction began in the Western states, the Oregon legislature had the foresight to amend Oregon’s ESA to protect the state against the significant cost of recovering wildlife already being addressed by the federal ESA. ORS 496.182(1). The legislature was willing to be involved in cooperative state or federal programs for listed species, but only if they did not significantly impact the primary uses of state land. Id.

1 “Native means indigenous to Oregon, not introduced”. ORS 496.171(2). According to the legislative history, the drafter intended that the ESA would not apply to species that had been extirpated from the state. The Oregon Fish and Wildlife Commission (Commission) ignored this legislative history in adopting its administrative rules. OAR 635-100-0110(5) (a). As such, there is question regarding the legality of the Commission’s administrative rules on this point.

In a January 31, 2003, memorandum to the Commission, Assistant Attorney General William Cook (Mr. Cook) addressed conservation of gray wolves in Oregon. He stated that the Commission had the authority to develop a plan for wolves in Oregon within the context of the “conservation mandate” of the Oregon ESA. See January 31, 2003 William J. Cook Memorandum, page 2. He also stated that “[t]he law provides an array of management options from which the Commission may choose when determining how to conserve the species”. The opinion failed, however, to address the limited role the legislature has created for the Commission in conservation actions. It also failed to address important limitations of the management options available to the Commission.

The Oregon ESA authorized the Commission to consult with land-owning agencies who are working to determine what role, if any, they can play in the conservation of species.  ORS 496.172(3), 496.182(8). However, the determination as to what conservation actions are taken is left to the state agency, not the Commission. ORS 496.182(8)(B) (“the state land owning or managing agency, in consultation with the State Department of Fish and Wildlife, shall determine the role its state land shall serve in the conservation of the endangered species”). The only conservation activities the Commission controls are those on the Oregon Department of Fish and Wildlife’s (ODFW) land.

As set forth above, the Oregon ESA also prohibits the Commission from requiring private landowners to protect species and from restricting the use of private land as a result of Commission actions under the statute. ORS 496.192(1). If the Commission were to adopt the Plan as written, it would be contrary to this statute.  The Oregon legislature has not authorized the Commission to set out a state-wide conservation or recovery plan for species as it is attempting to do through the “Wolf Management Plan”. Nonetheless, the Plan provides for an extralegal process with the pretext of implementing “conservation”. The law requires the ODFW to fulfill a consulting function with land owning agencies to determine how they can help in conservation efforts and to determine how its own land can help with conservation efforts, but no more. The role of the ODFW concerning consultation is defined in law. It does not include doing the planning for other agencies or excluding them from the process, in effect robbing authority given by the legislature to those other agencies.

The Oregon ESA also does not support a state-wide plan that requires actions on private lands. The scope of the Commission’s authority to manage Oregon’s listed gray wolf is set forth in ORS 496.172, 496.182, 496.192. Missing from this statute is the authority to write a plan for any land except that owned by the agency itself, and missing is the authority to conserve the species on any land but it’s own. Furthermore, missing is the authority, let alone the obligation, to “conserve” the wolf. 

The Oregon ESA authorizes regulation of “take” of endangered species. ORS 498.026(2); ORS 496.172(4); ORS 498.012(1), (3). However, it is very important to note that the Commission CAN NOT establish a system of state permits for the incidental take of endangered or threatened species that are on the federal list. ORS 496.172(4).

As such, so long as the gray wolf is listed by the federal government as threatened or endangered in Oregon, the Commission is prohibited from providing incidental take permits to anyone for the take of a wolf. It is not clear why the Commission has not been advised by the Attorney General’s office of this fact. Nonetheless, the Commission would be wise to avoid placing itself in a position of requiring a permit that it cannot issue.  (Note that incidental take permits are distinct from take for purposes of protecting private property from wolf damage. ORS 498.012. Damage take actions are direct take, not incidental.)

While the Commission has taken time to consider adopting a Plan that exceeds its statutory authority, it has failed to act as required by the Oregon ESA.  The legislature directed the Commission to review and revise the list of threatened/endangered species every five years and remove those that do not meet the definition of endangered or threatened as set forth in Oregon law. ORS 496.176(8). This is something the Commission has very blatantly failed to do. If it would have acted as required by law, the Commission would have removed the wolf from the endangered species/threatened species list long ago because the gray wolf does not qualify as an endangered or threatened species under the Oregon ESA.

The definitions for endangered species and threatened species2 require that any listed species be native, not introduced. The subspecies of Canis lupus nubilus that previously 2 “Endangered species” is defined to be “(a) [a]ny native wildlife species determined by the commission to be in danger of extinction throughout any significant portion of its range within existed in Oregon was declared extinct many decades ago. As a result, any wolf species introduced elsewhere that may migrate to Oregon is a subspecies or distinct population segment of a species that is not native to this state. These non-native species cannot be treated as species that deserve listing under the Oregon ESA.

The statutory definitions for endangered and threatened species also require that a listed species be in danger of extinction. Because gray wolves are extinct in Oregon, they cannot be in danger of extinction. By definition, they are not listable species. Therefore, they must be removed from the Oregon endangered/threatened species list.3 The Oregon ESA lists the following three factors, at least one of which must be present for a species to be listed as endangered or threatened:

(c) That existing state or federal programs or regulations are inadequate to protect the species or its habitat. ORS 496.176(3).

None of these factors is present for the gray wolf. A gray wolf population’s survival is determined independently of its habitat. It has been said that the gray wolf is a habitat generalist and its habitat is anywhere it exists. Thus, the USFWS has concluded that habitat loss, deterioration, or modification is not considered to be a threat or deterrent to gray wolf recovery. Final Rule to Reclassify and Remove the Gray Wolf from the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States, 68 Fed. Reg. 15804, 15844-15845 (“Final Rule”). The federal government has found that sufficient habitat exists for wolf populations because the gray wolf has very stable populations throughout its current range (currently occupied habitat) in the Western and Eastern United States. Final Rule 15857. The gray wolf was protected by the federal ESA as a threatened species throughout these areas until recently when Judge Robert Jones ruled in favor of environmental and animal rights groups who sued to vacate the downlisting. It is further protected as an endangered species by the federal government in the Southern United States.4 In light of these factors, even if a wolf were found in this state; and (b) [a]ny native wildlife species listed as an endangered species pursuant to the federal Endangered Species Act”. ORS 496.004(6). Threatened species is defined as “[a]ny native wildlife species the commission determines is likely to become an endangered species within the foreseeable future throughout any significant portion of its range within this state; and (b) [a]ny native wildlife species listed as a threatened species pursuant to the federal Endangered Species Act”. ORS 496.009(16).

3 The federal rules adopted pursuant to the federal ESA deal with this situation explicitly by listing extinction as a basis for delisting a species. 50 C.F.R. . § 424.11(d).  4 When the USFWS evaluated the Western States for wolf habitat, it passed Oregon up as inadequate because of the lack of large blocks of public land. Cite. Plus, ODFW had established that Oregon did not have an adequate prey base for another large predator. Cite. Notably, the USFWS did not require habitat in Oregon in order to downlist the gray wolf in the West. The Oregon and even if it were determined to be native to Oregon (note that neither I or those I represent would agree with such a determination), it does not meet any of the three prerequisites for listing, and should not, therefore, remain on the Oregon endangered/threatened species list.

The Commission should do as the legislature has required and review and revise the list of threatened/endangered species. In light of the information set forth above, this should lead the Commission to remove the gray wolf from Oregon’s list for the reason that it does not meet the definition of endangered or threatened as set forth in Oregon law and for the reason that none of the listing factors set forth in ORS 496.176(3) are present for the gray wolf.

Mr. Cook advises that the most important tool the Commission has to conserve wolves is the “take” prohibition, which authorizes the Commission to regulate take of Oregon wildlife. He states that the Commission has long-standing authority to prohibit or regulate the taking of wolves. However, this advice does not account for the limitation on developing incidental take permits only for species not listed by the federal government.  ORS 496.172(4). It also is inconsistent with Oregon law, which provides that federal take permits and statements will preempt state protective measures. Id. (“An incidental take permit or statement issued by a federal agency for a species listed under the federal Endangered Species Act . . . shall be recognized by the state as a waiver of any state protection measures or requirements otherwise applicable to the actions allowed under the federal permit.”)

Furthermore, it should be noted that until the Commission goes through a public process of developing administrative rule, it may not restrict damage take activities.5 ORS 498.012(1) (“Nothing in the wildlife laws is intended to prevent . . . taking any wildlife that is damaging . . . land…livestock. . . .”); see also OCA Letter to Commission dated May 14, 2004. Plus, any action concerning damage take permits of this sort must be consistent with the 2003 Oregon legislature’s strong emphasis on an approach to wildlife management that ensures appropriate measures are taken to assist farmers, ranchers and others in resolving wildlife damage problems. ORS 610.055(1) (2003).

The Commission has adopted the Plan by administrative rule and in so doing the Commission may indeed have additional authority to control human behavior through a USFWS also will not require that the wolf occupy Oregon or that a wolf management plan to be in place in Oregon prior to delisting.  5 At this time, the wolf is classified as an endangered species in Oregon. Thus, the only requirement for a take of a wolf attacking livestock under Oregon law is to report such take to the state ORS 498.012(3); however since the federally listed wolf has been up listed to endangered again there is no provision for take by individuals suffering livestock depredation and USFWS is responsible for managing the wolves under their jurisdiction.

prohibition on damage takes (note that the general restriction on taking endangered/threatened species is already in place under ORS 498.026(1)); however, the question is whether this action was necessary in light of the fact that the federal government has determined that the gray wolf need not occupy Oregon in order for the gray wolf to be delisted in the United States.  Furthermore, was this action necessary in light of the fact that private landowners are already able, under Oregon law, to protect their private property from damage by a gray wolf? The Commission is proceeding under the false presumption that damage take can only occur if it acts. This is contrary to a plain reading of Oregon law.

Notwithstanding the provisions of this section, the Commission may decide not to list a species that otherwise qualifies as a threatened or endangered species within this state if the Commission determines that the species is secure outside this state or the species is not of cultural, scientific or commercial significance to the people of this state.  ORS 496.176 (9) (emphasis added) (note that this originally had the word “and” in the place of the underlined word “or” above, but the 1995 amendments changed the “and” to “or” to allow the Commission much more flexibility and reasons NOT to list species).

Another area of Oregon wildlife law that needs to be reconciled before implementation of any wolf management plan is the only other section in law where wolves are identified, ORS 609-305 (3) Any wolf (Canis lupus), as an “exotic animal”.  The Oregon legislature, clearly believing that there were no native wolves remaining in or near Oregon, nearly 30 years ago, reclassified “any wolf (Canis lupus)” as an exotic animal and wrote prohibitions against keeping them and other exotic or wild animals.

This statute allows a city or county to prohibit by ordinance the keeping of wildlife and exotic animals and at least one county has passed such an ordinance to prevent anyone from keeping wolves within their county.  Surely when the Oregon Statutes says: It is the policy of this state that the keeping of exotic animals be regulated so as to ensure the health, welfare and safety of those animals and to ensure the security of facilities in which they are kept, so as to avoid undue physical or financial risk to the public. (609.309) there is a clear acknowledgement that there is no such thing as a wolf native to Oregon left in existence and therefore “ any wolf” would be in the direct custody of whomever intends to bring it to Oregon as well as adhere to the following restrictions:

• No person may keep an exotic animal in this state unless, before acquiring the animal, the person possesses a valid State Department of Agriculture permit for that animal.

• Any person who keeps an exotic animal shall keep the animal under conditions of confinement or control that, given the nature of the animal, would be imposed by a reasonable and prudent keeper to avoid physical or financial risk to the public as a result of escape of the animal or otherwise. (609.325)

• The keeper of a wolf is liable for costs, injury or property damage incurred resulting from its escape from custody. (609.329)

These statutes have been revisited and amended several times even as recently as 2001 and yet the wolf remains with legal status of an exotic, not non-game wildlife, decades longer than it has been listed as endangered.  It is more than reasonable to assume that if the Fish and Wildlife Commission plans to keep wolves in Oregon and persists in declaring the entire state of Oregon as ‘wolf habitat’ they clearly must first acquire a permit pursuant to ORS 609.335 from Oregon Department of Agriculture and follow established conditions of the permit.

It would be inappropriate for the legislature to add yet another designation for any wolf that migrates to Oregon, i.e. “special status game mammal” until the other laws defining wolves can be reconciled.  We believe the legislature should amend ORS 498.166 to include “a person may take a cougar, bear or wolf that poses a threat to human safety”. The wildlife laws do not directly address take of wolves in such a scenario and if wolves are allowed to populate areas of human use potential conflict will accelerate making it necessary to inform the public of their rights to protect themselves and their families. The federal act allows for take under such circumstances.

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