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Environmentalists argue Oregon wolf delisting unlawful

The Oregon Court of Appeals will decide whether state lawmakers improperly ratified the removal of wolves from the Oregon list of endangered species.
Mateusz Perkowski

Capital Press

Published on February 1, 2018 8:57AM

Last changed on February 1, 2018 10:31AM

The Oregon Court of Appeals will decide whether state lawmakers improperly ratified the removal of wolves from the Oregon list of endangered species.

Oregon Department of Fish and Wildlife

The Oregon Court of Appeals will decide whether state lawmakers improperly ratified the removal of wolves from the Oregon list of endangered species.

Environmentalists claim Oregon lawmakers wrongly pre-empted the court system by deciding that wolves were properly delisted as an endangered species.

The controversy stems from the 2015 decision by Oregon’s wildlife regulators to remove wolves from the state’s version of the Endangered Species Act list.

Under federal law, wolves were delisted in Eastern Oregon but remain protected in the rest of the state.

Three environmental groups — Cascadia Wildlands, Center for Biological Diversity and Oregon Wild — filed a lawsuit claiming the state’s delisting decision unlawfully failed to rely on the best available science.

Fearing that protracted litigation would interfere with an update of Oregon’s plan for managing wolves, lawmakers passed a bill in 2016 ratifying the Oregon Fish and Wildlife Commission’s delisting decision.

During Jan. 31 oral arguments before the Oregon Court of Appeals, the plaintiffs claimed the Oregon Legislature’s ratification was merely an advisory opinion and doesn’t have a binding legal effect.

Even if lawmakers intended to legally confirm that wolves were delisted, their bill unconstitutionally infringes on the court system’s authority, according to the plaintiffs.

Under the “separation of powers” enshrined in Oregon’s Constitution, the legislative branch of government cannot “unduly burden” the duties of the judicial branch.

In this case, Oregon lawmakers wrongly usurped the court system’s job of deciding whether wolves were delisted in compliance with the state’s Endangered Species Act, the environmentalists argue.

Similarly, the Legislature can repeal a criminal statute, or change the definition of a crime, said Daniel Kruse, the plaintiffs’ attorney. Lawmakers cannot, however, decide that an individual person hasn’t violated the terms of an existing criminal statute, he said.

“That is a judicial function,” Kruse said. “That is the role of the courts.”

Passage of the bill “blurs those boundaries,” Kruse said. “As judges, I hope you would value that distinction.”

The bill ratifying the wolf decision did not effectively create or change the law, he said. “It doesn’t create a legal standard to be reviewed or applied.”

Attorneys representing Oregon countered that lawmakers mooted any debate over the legality of the wolf delisting when they agreed the decision satisfying the state’s Endangered Species Act.

While the decision was delegated to the Oregon Fish and Wildlife Commission, that doesn’t limit the power of Oregon lawmakers to remove wolves from the list, according to the state government.

When questioning Carson Whitehead, an attorney for the state government, the Oregon Court of Appeals judges focused on conflicting testimony about the ratification bill during the 2016 legislative session.

The legislative history shows that some lawmakers were led to believe the bill would have a binding effect, while others were told it would not preclude judicial review, said Judge Rex Armstrong.

Carson replied that any ambiguity in the legislative history can be resolved by looking at the statute’s text, which clearly states the delisting decision satisfied the elements of Oregon’s Endangered Species Act.

Lawmakers did not outright remove wolves from the list, as they wanted to leave future options open, Carson said. “If the wolves need to be relisted in the future, the commission can do that.”

Apart from claiming that lawmakers have wrested control from judges, the environmental plaintiffs say the underlying delisting decision was flawed.

Wolves are still in danger of becoming extinct across much of their range in Oregon, as the species only occupies about 12 percent of its suitable habitat statewide, the plaintiffs argue.

The Oregon Fish and Wildlife Commission based the delisting on information that wasn’t properly vetted by scientists while ignoring arguments against delisting from wolf experts, according to environmentalists.

In defending the decision, the state government argued the chances of wolves becoming extinct in Oregon over the next 50 years were less than 1 percent.

Although wolves don’t inhabit the entirety of their range, their territory and population is expanding and the animals traverse large portions of the state, the state government said.

When delisting the species, the commission wasn’t required to consider only evidence that’s been peer-reviewed by scientists, according to Oregon’s government.

The Oregon Cattlemen’s Association, Oregon Farm Bureau and Wallowa County, which intervened in the case as defendants, argued that wolves were properly delisted because they’re a non-native subspecies from Canada.

“Our argument is the delisting was proper because the wolf should never have been listed in the first place,” said Caleb Trotter, attorney for the intervenors.


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