The lawsuit over “the stupidest decision” the California Fish and Game Commission ever made—listing the gray wolf as endangered—has moved forward after more than a year-and-a-half delay. The case has the potential to set wide-reaching precedent for ranchers in the state.
On Aug. 6, The Pacific Legal Foundation, representing the California Cattlemen’s Association and the California Farm Bureau, submitted its opening brief for a lawsuit first filed on Jan. 31, 2017. The plaintiffs assert California’s 2014 listing of the gray wolf as endangered under the state’s endangered species act (ESA) was illegal, having ignored the rules of the act itself.
“…[T]he Commission’s decision to list the gray wolf is illegal for three reasons,” the brief summarized.
“First, the Commission’s listing is illegal because it is based on the presence with the state of a non-native species of gray wolf, and thereby exceeds the [ESA’s] express limitation to native species and subspecies.
“Second, the listing is illegal because it is based on the wolf’s condition in California alone, whereas the Act requires an analysis of the wolf’s condition based on it’s natural ‘range.’
“Third, the listing is illegal because it is based on the intermittent presence of a single wolf. Such evidence is insufficient as a matter of law to establish that the wolf’s range extends to this state.” (In-line citations omitted.)
“This is probably the stupidest decision that this Commission has ever made all the time I’ve been here.” — Jim Kellogg, former California Fish and Game Commissioner
Despite submitting the brief recently, the case’s first hearing will occur on Jan. 18, 2019, almost two years after the case was first filed.
Damien Schiff, senior attorney with Pacific Legal Foundation, explained to WLJ that the long delay was principally due to disputes over the administrative record that the Commission put together for the case. Kirk Wilbur, director of government affairs at the California Cattlemen’s Association, called the administrative record “pretty much the sole body of evidence for this particular trial.”
Non-native wolves
Though the briefing presents three main arguments, the non-native claim was highlighted by both men.
“As far as California goes, there is an express limitation to native populations,” Schiff pointed out.
“We think that’s been violated here because, really, no one disputes that the listing was based on OR-7 and OR-7 is derived—ultimately—from a Canadian population and thus is non-native to California.”
He added that the distinction of native versus non-native subspecies is particularly important in the case of wolves in California.
“In our view, there is likely a significant biological difference between the northwestern wolf on which the listing is based and any subspecies of wolf that may have been present in California historically. This is principally because the northwestern wolf that was brought into this country in the 1990s from Canada is substantially larger and would have a substantially greater impact on the California ecosystem than a comparably smaller wolf such as the Mexican gray wolf or the Great Plains wolf that may have been here historically.”
The northwestern subspecies of gray wolf—also sometimes called the timber wolf—are variously described as the largest of the gray wolf subspecies, with adult males weighing well over 100 lbs. By comparison, Mexican wolves usually range from 50-80 lbs. in adults. Descriptions vary on the size of the extinct Great Plains wolf, ranging anywhere from 50-150 lbs. in adult males. However, the lines between different gray wolf subspecies is still a heavily debated topic.
Precedent problems
Should the listing decision stand to become precedent, Schiff predicted potential problems in future state listing decisions.
“It would certainly leave the door open for the establishment of populations within the state that arguably are introduced species or invasive species or otherwise would not have been here historically,” he said.
“There’s a couple potential next steps depending upon what happens in January because we have three claims in this suit,” Wilbur predicted. He suspected that—without a ruling that agrees to the non-native claim—the Commission would attempt to relist the wolf even if ordered to set aside the 2014 listing. If the court does rule favorably on the non-native claim however, he predicted it would result in “enduring relief” for California’s ranchers.
“I don’t know which way the court’s going to come out in Jan. 18, but if it comes out in our favor on that third claim, I think we’re in good shape for the foreseeable future.”
Wilbur was referring specifically to the management flexibility that is possible on non-listed species. According to the plaintiff brief, the listing “triggers the Act’s generally unbending provisions protections on listed wildlife.”
“Obviously the wolf would still be protected in some sense as a non-game mammal,” Wilbur said, speaking of a potential future where the listing is set aside.
“You couldn’t go out and hunt it, you couldn’t necessarily shoot it, but it would provide for some possible management. One way or another, we need to get more responsible management for wolves in California. … We need something better than what we have now, which is zero management permitted under the law.” — Kerry Halladay, WLJ editor
