DAMIEN M. SCHIFF, No. 235101 - Courthouse News Service · 2017-02-03 · is a true and correct copy...

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DAMIEN M. SCHIFF, No. 235101E-mail: [email protected] L. FRANÇOIS, No. 184100E-mail: [email protected] Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747

Attorneys for Petitioners and Plaintiffs

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO

CALIFORNIA CATTLEMEN’S ASSOCIATIONand CALIFORNIA FARM BUREAUFEDERATION,

Petitioners and Plaintiffs,

v.

CALIFORNIA FISH AND GAMECOMMISSION,

Respondent and Defendant.

)))))))))))))

No. _____________________

VERIFIED PETITIONFOR PEREMPTORYWRIT OF MANDATE

AND COMPLAINT FORDECLARATORY RELIEF

(CODE CIV. PROC.§§ 1060, 1085, 1094.5;

GOV’T CODE § 11350(a))

Verified Petition for Peremptory Writ of Mandate& Complaint for Declaratory Relief

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INTRODUCTION

Petitioners and Plaintiffs California Cattlemen’s Association and California

Farm Bureau Federation bring this action to challenge the listing of the gray wolf as

an endangered species under the California Endangered Species Act, Fish & Game

Code §§ 2050-2115.5. Against the recommendation of the California Department of

Fish and Wildlife—the principal state agency charged with enforcing the state’s

wildlife laws—Respondent and Defendant California Fish and Game Commission

determined that the wolf merits protection under the Act. That determination is

illegal in three significant ways. First, the Commission’s listing of the entire gray

wolf species is illegal because the administrative record on which it is based

demonstrates that the wolf’s species classification includes many subspecies of wolf

that are not native to the state. That is contrary to the Act’s express limitation to

native species and subspecies. Id. §§ 2062, 2067. Second, the listing is illegal because

it is based on a truncated analysis of the wolf’s condition in this state only. The Act,

however, requires an analysis of the wolf’s condition throughout its natural range.

See id. 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.

Thus, in listing the wolf, the Commission exceeded its statutory authority. Yet

just as important, the listing upends a multi-year, collaborative process among

government and private parties to develop a reasonable wolf management plan. Prior

to the listing, it was possible to envision a plan that would adequately protect

livestock and other private property from wolf depredation. But the wolf’s listing

triggers the Act’s generally unbending and substantial protections for listed wildlife.

These regulatory burdens will make a balanced and flexible approach to wolf

management exceedingly difficult to achieve. The listing therefore threatens the

livelihoods and safety of the members of the Cattlemen and Farm Bureau.

Accordingly, the Cattlemen and Farm Bureau bring this action and allege as follows.

- 1 -Verified Petition for Peremptory Writ of Mandate& Complaint for Declaratory Relief

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PARTIES

Petitioners & Plaintiffs

1. Petitioner and Plaintiff California Cattlemen’s Association is a non-profit

trade organization representing California’s ranchers and beef producers in

legislative, regulatory, and judicial matters. The Association has 34 county affiliates

and approximately 2,400 members, including more than 1,700 cattle producers. The

Association’s mission is to support and protect ranching throughout the state from a

variety of threats, including overreaching environmental regulation.

2. Petitioner and Plaintiff California Farm Bureau Federation is a

non-governmental, non-profit, voluntary membership California corporation. Its

principal mission is to protect and promote agricultural interests, including those of

ranchers and others in the livestock industry, throughout California. Its mission also

includes the search for solutions to the problems of the farm, the farm home, and the

rural community. The Farm Bureau is California’s largest farm organization,

comprised of 53 county Farm Bureaus currently representing more than 48,000

agricultural, associate, and collegiate members in 56 counties. The Farm Bureau

strives to protect and improve the ability of farmers and ranchers engaged in

production agriculture to provide a reliable supply of food and fiber through

responsible stewardship of California’s resources.

3. The Cattlemen and the Farm Bureau participated in all stages of the

administrative process leading up to the gray wolf’s listing, submitting several

comments. See Exhibit 1, which is a true and correct copy of the Letter of Margo

Parks, Associate Director of Government Relations, California Cattlemen’s

Association, to Jim Kellog, President, California Fish and Game Commission (not

dated), and which is hereby incorporated fully herein by reference; Exhibit 2, which

is a true and correct copy of the Letter of Jack L. Rice, Office of the General Counsel,

California Farm Bureau Federation, to Jim Kellogg, President, California Fish and

Game Commission (Sept. 21, 2012), and which is hereby incorporated fully herein by


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reference; Exhibit 3, which is a true and correct copy of the Letter of Noelle G.

Cremers, Director, Natural Resources and Commodities, California Farm Bureau

Federation, et al., to Eric Loft, Department of Fish and Wildlife (May 6, 2013), and

which is hereby incorporated fully herein by reference; Exhibit 4, which is a true and

correct copy of the Letter of Noelle G. Cremers, Director, Natural Resources and

Commodities, California Farm Bureau Federation, to Michael Sutton, President,

California Fish and Game Commission (Apr. 15, 2014), and which is hereby

incorporated fully herein by reference; Exhibit 5, which is a true and correct copy of

the Letter of Kirk Wilbur, Director of Government Relations, California Cattlemen’s

Association, to Michael Sutton, President, California Fish and Game Commission

(Apr. 16, 2014), and which is hereby incorporated fully herein by reference; Exhibit 6,

which is a true and correct copy of the Letter of Kirk Wilbur, Director of Government

Relations, California Cattlemen’s Association, to Michael Sutton, President,

California Fish and Game Commission (June 4, 2014), and which is hereby

incorporated fully herein by reference; Exhibit 7, which is a true and correct copy of

the Letter of Kirk Wilbur, Director of Government Relations, California Cattlemen’s

Association, et al., to Michael Sutton, President, California Fish and Game

Commission (Oct. 6, 2014), and which is hereby incorporated fully herein by

reference; Exhibit 8, which is a true and correct copy of the Letter of Kirk Wilbur,

Director of Government Relations, California Cattlemen’s Association, et al., to Jack

Baylis, President, California Fish and Game Commission (Nov. 24, 2015), and which

is hereby incorporated fully herein by reference; and Exhibit 9, which is a true and

correct copy of the Letter of Kirk Wilbur, Director of Government Relations,

California Cattlemen’s Association, et al., to Jack Baylis, President, California Fish

and Game Commission (Dec. 8, 2015), and which is hereby incorporated fully herein

by reference.

4. The Cattlemen, the Farm Bureau, and their members are concerned

about the impact that the gray wolf’s presence in this state, coupled with its listing,


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will have on members’ livestock. The impact to livestock encompasses the direct

effects of inadequately managed wolves eating bulls, cows, calves, and other

domesticated animals. The impact also includes the indirect effects attributable to

the mere presence of wolves. Such presence creates chronic stress in livestock, which

increases their susceptibility to disease and reduces the quality of their meat. See

Exh. 1 at 1; Exh. 5 at 3. See also Cal. Dep’t of Fish & Wildlife, Conservation Plan for

Gray Wolves in California, Part I, at 11 (Dec. 2016) (Wolf Conservation Plan)

(“[T]here is a reasonable concern over predictable depredation of domestic animals,

primarily livestock, by wolves as the population expands.”); id. Part II, at 106 (“[T]he

economic impacts of gray wolves to individual [livestock] producers could be

significant.”).

5. The Cattlemen and the Farm Bureau contend that there are better ways

than through the gray wolf’s listing to protect the wolf while preserving the

livelihoods of California ranchers. The Cattlemen and the Farm Bureau have been

active participants in the Stakeholder Working Group, established by the California

Department of Fish and Wildlife to produce a California Wolf Management Plan. See

Exh. 4 at 3; Exh. 5 at 1-2. But the wolf’s listing will undercut any value such a plan

might otherwise have by substantially limiting the Department’s management

discretion and foreclosing various livestock protection measures that the Association’s

and the Farm Bureau’s members might otherwise pursue. See Exh. 4 at 3; Exh. 5 at

2; Exh. 7 at 7. For example, prior to the listing, the wolf was considered a nongame

mammal, such that it could be managed in a way that minimizes injury to livestock

and other property. See generally Fish & Game Code §§ 4150, 4152. In contrast, after

the listing, such action is generally prohibited, see id. § 2080, and it is not clear

whether any meaningful depredation protection ever will be available, see Wolf

Conservation Plan, Part I, supra, at 25 (“Additional statutory authority will likely be

necessary to provide mechanisms for resolving depredation by wolves on livestock.”);

Cal. Dep’t of Fish & Wildlife, Meeting Report, Stakeholder Working Group, Meeting


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on Wolves in California 7 (Sept. 9, 2014) (“We do not have experience with taking

a . . . listed species for public safety or for private property damage . . . .”).

Exacerbating these management difficulties is the fact that “recommended” non-

lethal management techniques generally are ineffective over the long term. See Cal.

Dep’t of Fish & Wildlife, Meeting Report, Stakeholder Working Group, Meeting on

Wolves in California 23 (Dec. 18, 2014) (observing that fladry, i.e., “a line of rope from

which is suspended strips of fabric or colored flags that will flap in a breeze,” is “not

intended for use over long periods of time in the same location because wolves may

become habituated, which will reduce its effectiveness”). And some management

measures are flatly prohibited. See Cal. Dep’t of Fish & Wildlife, Meeting Report,

Stakeholder Working Group, Meeting on Wolves in California 9 (June 25, 2014)

(noting that a listing makes “chasing down a wolf or interfering with a

den . . . definitely problematic”).

6. Thus, the members of the Cattlemen and the Farm Bureau are

beneficially interested in the gray wolf listing’s legality. The Cattlemen and the Farm

Bureau are well positioned to represent these members’ interests, in light of the

organizations’ missions to protect and enhance the California livestock industry.

Because of the organizations’ close involvement in the administrative process leading

up to the wolf’s listing, and given the equitable relief that they seek, the direct

participation of the organizations’ members in this lawsuit is unnecessary.

7. As set forth herein, the Commission has violated its important public

duty to list only those species legally eligible for listing under the California

Endangered Species Act. Without this action of the Cattlemen and the Farm Bureau,

other persons beneficially interested in the legality of the gray wolf’s listing would be

unable to vindicate that interest, because of their inability to comment adequately on

the listing, as well as the burden of litigation’s time and cost. The Cattlemen and the

Farm Bureau are ably positioned to represent the public interest in this action, given

their long-standing objections to the listing and its development. Finally, the


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organizations’ lawsuit will confer a broad and important benefit on the public and will

inure to the public interest by establishing important limitations on the Commission’s

listing power that in turn safeguard the public from regulatory overreach. For the

same reasons, the Cattlemen and the Farm Bureau are ably positioned to represent

the public interest in ensuring that the Commission discharge its responsibilities

under the Act in a legal manner.

Respondent and Defendant

8. The California Fish and Game Commission is an agency of the state

established by the California Constitution. See Cal. Const. art. IV, § 20(b). The

Legislature has delegated to the Commission the power, among other things, to

determine whether a species merits protection under the California Endangered

Species Act. See Fish & Game Code § 2070. The Commission is responsible for the

listing of the gray wolf as an endangered species under that Act.

JURISDICTION AND VENUE

9. The Court has jurisdiction of this petition for writ of mandate and

complaint for declaratory relief pursuant to Sections 1060, 1085, and 1094.5 of the

Code of Civil Procedure, and Section 11350(a) of the Government Code.

10. The Cattlemen and the Farm Bureau are non-profit corporations. Their

principal places of business are within the County of Sacramento. Therefore, the

direct and associational injuries to the Cattlemen and the Farm Bureau that flow

from the Commission’s listing of the gray wolf will be felt in the County of

Sacramento. Consequently, the cause of action arises in the County of Sacramento

and may be brought there. See Code Civ. Proc. § 393(b). An action against the State

or its agencies may be brought in any county where the Attorney General maintains

an office, if the matter also could be brought in the County of Sacramento. See id.

§ 401(1). The Attorney General maintains an office in the County of San Diego.

Therefore, venue is proper in the Superior Court for the County of San Diego. For the

///


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same reason, this action is properly filed in the Central Division of this Court. See

L.R. 1.2.2.

GENERAL ALLEGATIONS

11. The gray wolf (canis lupus) is the largest member of the dog family.

Depending on the subspecies and the sex, the gray wolf varies from 40 to 175 pounds

in weight, from 4.5 to 6.5 feet in length, and from 27 to 32 inches in height. The gray

wolf is an “apex carnivore” that preys on elk, moose, bison, and deer. See Cal. Dep’t of

Fish & Wildlife, A Status Review of the Gray Wolf (Canis lupus) in California 7

(Feb.5, 2014) (Status Review). The gray wolf also consumes livestock and family pets.

Cal. Dep’t of Fish & Game, Gray Wolves in California 13 (Dec. 2011) (“[W]olves kill

livestock, including sheep, cattle, goats, horses, llamas, livestock guard dogs, and

domestic pets.”).

12. The gray wolf species can be found throughout North America and

Eurasia. On a range-wide basis, the gray wolf is not in danger of extinction. See U.S.

Fish & Wildlife Serv., Removing the Gray Wolf (Canis lupus) From the List of

Endangered and Threatened Wildlife, 78 Fed. Reg. 35,664, 35,678 (June 13, 2013)

(“We have found no substantial evidence to suggest that gray wolves are at risk of

extinction throughout their global range now or are likely to become so in the

foreseeable future.”).

13. It is commonly accepted that the gray wolf species comprises many

subspecies. See id. at 35,669. Although there is debate over the precise contours of

the wolf’s taxonomy, the administrative record for the wolf’s listing demonstrates the

existence of three still-extant subspecies in the United States: the Northwestern wolf

(canis lupus occidentalis), the Great Plains wolf (canis lupus nubilus), and the

Mexican wolf (canis lupus baileyi). See Status Review at 7-8.

14. Some evidence exists that what are commonly denominated the Great

Plains wolf and the Mexican wolf once were present in California. See Status Review

at 8. There is no evidence, however, that what is commonly denominated the


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Northwestern wolf ever dwelt in the state. See id. at 8-10. In any event, by the late

1920s, all gray wolf individuals (of whatever arguable subspecies) had been extirpated

from California. Cal. Fish & Game Comm’n, Notice of Findings & Notice of Proposed

Rulemaking 5 (Oct. 2015) (Notice of Findings).

15. In the mid-1990s, the United States Fish and Wildlife Service introduced

gray wolves into Idaho. U.S. Fish & Wildlife Serv., Establishment of a Nonessential

Experimental Population of Gray Wolves in Central Idaho and Southwestern

Montana, 59 Fed. Reg. 60,266 (Nov. 22, 1994). That wolf population ultimately

expanded into Oregon. Notice of Findings at 5. The administrative record for the

wolf’s listing demonstrates that these wolves are a part of the Northwestern wolf

subspecies. See Status Review at 8.

16. In December, 2011, a gray wolf from the Oregon population—known as

OR-7—crossed the border into California. Subsequently, OR-7 re-crossed the border

repeated times over a several-month period. Notice of Findings at 5-6. (By June,

2014, however, OR-7 had mated and settled down in southwestern Oregon. Id. at 6.)

17. In March, 2012, following OR-7’s initial sortie into the state, a group of

environmental organizations petitioned to list the gray wolf as an endangered species

under the California Endangered Species Act. See Cal. Reg. Notice Register 2012,

No. 15-Z, at 494. Cf. Fish & Game Code § 2071 (authorizing interested persons to

petition the Commission to list species).

18. In August, 2012, the Department determined that the petition may be

warranted. See Cal. Dep’t of Fish & Game, Evaluation of the Petition to List the Gray

Wolf 4 (Aug. 1, 2012). Cf. Fish & Game Code § 2073.5 (requiring the Department to

recommend to the Commission, within 90 days of receipt of a petition, whether the

same presents sufficient information to indicate that the petitioned action may be

warranted).

19. At its October, 2012, meeting, the Commission agreed and designated

the gray wolf as a candidate species. See Cal. Reg. Notice Register 2012, No. 44-Z, at


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1610. Cf. Fish & Game Code § 2074.2(e) (requiring the Commission to determine

whether the petition presents sufficient information to indicate that the petitioned

action may be warranted and, if so, directing that the species be considered a

“candidate” for listing); id. § 2085 (applying the full protections of the Act to candidate

species).

20. In February, 2014, the Department completed its status review of the

gray wolf. The agency concluded that the species should not be listed under the

California Endangered Species Act. Status Review at 32. The agency explained that

“the gray wolf is not currently facing or enduring any threat in California at this

time.” Id. at 31. Cf. Fish & Game Code § 2074.6(a) (requiring the Department to

produce a full status review of the candidate species within 12 months of the

candidate species determination).

21. In June, 2014, notwithstanding the Department’s recommendation, the

Commission voted 3 to 1 to proceed with the listing of the gray wolf as an endangered

species. The Commission therefore directed the Department to produce revised

findings supporting the decision.

22. At its October, 2014, meeting, the Commission formally adopted findings

(voting 2 to 1) to support its decision to proceed with the listing of the gray wolf. The

Commission then commenced the rule-making process under the California

Administrative Procedure Act to add the gray wolf to the list of protected wildlife. See

Cal. Reg. Notice Register No. 44-Z, at 1855 Cf. Fish & Game Code § 2075.5(e)

(requiring the Commission to pursue rule-making under the Administrative

Procedure Act after having determined that listing is warranted).

23. At its December, 2015, hearing, the Commission, by a vote of 3 to 1,

formally adopted the regulation to list the gray wolf, based solely on OR-7’s

intermittent presence in the state. See Fish & Game Comm’n, Meeting Outcomes,

Item 30, at 7 (Dec. 9-10, 2015). In October, 2016, the Commission submitted the

listing regulation to the Office of Administrative Law for its review under the


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California Administrative Procedure Act. Cf. Gov’t Code § 11349.1(a) (requiring the

Office of Administrative Law to review all proposed regulations).

24. The Office having approved the listing by inaction, the regulation was

then submitted to the Secretary of State’s Office in November, 2016, and went into

effect January 1, 2017. See Cal. Reg. Notice Register No. 49-Z, at 2103. Cf. Gov’t

Code § 11343 (generally requiring all regulations to be filed with the Secretary of

State).

25. Since the Commission’s October, 2014, finding, evidence has emerged

of a breeding pair of wolves and several wolf pups having traveled to Siskiyou

County near the California-Oregon border, and another pair of wolves having traveled

to Lassen County. See Cal. Dep’t of Fish & Wildlife, Gray Wolf,

https://www.wildlife.ca.gov/conservation/mammals/gray-wolf. The Commission’s

listing decision does not take account of this evidence, which was adduced after the

Commission had closed the administrative record at its June, 2014, hearing. Cf. Fish

& Game Code § 2075.5(c) (generally forbidding the reopening of the record once the

public hearing on the proposed listing has been closed).

FIRST CAUSE OF ACTION FORPEREMPTORY WRIT OF MANDATE

(Code Civ. Proc. § 1094.5)

26. All of the preceding paragraphs are reincorporated as if set forth fully

herein.

27. The Commission’s decision that the environmental groups’ petition to list

the gray wolf is warranted is a quasi-adjudicative action, subject to judicial review.

See Fish & Game Code § 2076.

28. The Cattlemen, the Farm Bureau, and their members have no plain,

speedy, and adequate remedy, in the ordinary course of law, available to them to seek

review of the Commission’s actions challenged herein. See Code Civ. Proc. § 1086.

The only means by which review of the Commission’s decision may be had is through

writ of mandate, declaratory judgment, or other equitable relief.


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29. The Commission’s listing of the gray wolf went into effect on January 1,

2017. Therefore, this Petition and Complaint challenging the listing is timely. See

Code Civ. Proc. § 338(a) (generally requiring an action based upon a liability created

by statute to be filed within three years).

30. The Cattlemen and the Farm Bureau have exhausted their

administrative remedies by commenting at every major stage of the listing process

and objecting to the Commission’s actions that are challenged herein. See Exhs. 1-9.

A. Illegal Listing of Non-Native Subspecies

31. The California Endangered Species Act authorizes the listing and

protection of—among other things—any “endangered species,” see Fish & Game Code

§§ 2070, 2080, which is defined, in relevant part, as “a native species or subspecies

of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of

becoming extinct throughout all, or a significant portion, of its range,” id. § 2062.

32. The Commission’s listing of the gray wolf is based on the intermittent

presence in the state of a single wolf—namely, OR-7—and the Commission’s

expectation that further wolves from Oregon will travel to California. Notice of

Findings at 5-7.

33. The administrative record for the wolf’s listing, relied upon by the

Commission, demonstrates that OR-7 as well as all wolves currently in Oregon are

members of a Northwestern wolf subspecies of the gray wolf species. See Status

Review at 8.

34. The administrative record for the wolf’s listing, relied upon by the

Commission, demonstrates that the Northwestern wolf is not a subspecies native to

California. Status Review at 8.

35. The Commission’s listing of the gray wolf is based on the presence of a

non-native subspecies of gray wolf. The listing is therefore in excess of the

Commission’s listing jurisdiction under the California Endangered Species Act,

because that Act limits listing to native species and subspecies. For the same reason,


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the Commission’s listing constitutes a prejudicial abuse of discretion. See Code Civ.

Proc. § 1094.5(b).

B. Illegal Listing Based on ImproperlyConstricted “Range” Analysis

36. Under the Act, the determination of whether a species merits listing as

endangered is based on the species’ status “throughout all, or a significant portion,

of its range.” Fish & Game Code § 2062. Therefore, according to the Act’s plain

meaning, the Commission’s listing determination must be made with reference to the

species’ natural, geographic range. The Act does not allow the Commission to ignore

the portions of the species’ range outside of California.

37. The Commission’s decision to list the gray wolf was based on its

erroneous interpretation of the Act as requiring an analysis only of the California

portion of the species’ range. Notice of Findings at 3.

38. The Commission’s decision is the direct result of its policy of interpreting

the Act’s use of “range” to forbid the consideration of the species’ status outside

California. The Commission has enforced this policy for decades in many listings, but

the agency has not submitted the policy to rule-making under the California

Administrative Procedure Act, Gov’t Code §§ 11340-11361.

39. The Commission’s policy constitutes a “regulation” within the meaning

of the California Administrative Procedure Act, because the Commission routinely

applies that policy in many different cases, and because the policy makes specific the

law—namely, the meaning of “range” within the California Endangered Species

Act—that the Commission administers. See Gov’t Code § 11342.600; Tidewater

Marine Western, Inc. v. Bradshaw, 14 Cal. 4th 557, 571 (1996).

40. No exemption under the California Administrative Procedure Act applies

to the Commission’s policy. The Commission is not an agency in the judicial or

legislative branch of the state government. Cf. Gov’t Code § 11340.9(a). Moreover,

///


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the Commission’s policy is not of the character of any of the other exceptions to the

Act’s rule-making procedures. Cf. id. § 11340.9(b)-(i).

41. The California Administrative Procedure Act forbids the enforcement of

any regulation that has not been adopted pursuant to the Act’s rule-making

procedures. See Gov’t Code § 11340.5(a). Such unvetted rules, known as

“underground regulations,” are ineligible for any judicial deference. See Tidewater

Marine Western, 14 Cal. 4th at 576-77.

42. In California Forestry Association v. California Fish & Game

Commission, 156 Cal. App. 4th 1535 (2007), the Third District Court of Appeal ruled

that the California Endangered Species Act’s use of “range” is ambiguous. See id. at

1549. The court held that the Commission’s interpretation of “range” was reasonable,

and therefore merited deference. See id. at 1550-52. But the court did not address

whether the Commission’s interpretation constitutes an underground regulation, and

thus did not decide whether, without deference, the Commission’s interpretation

would prevail. Cf. People v. Knoller, 41 Cal. 4th 139, 155 (2007) (“An opinion is not

authority for propositions not considered.”) (quoting Kinsman v. Unocal Corp., 37 Cal.

4th 659, 680 (2005)).

43. The most reasonable interpretation of the California Endangered Species

Act’s use of “range” is that the Commission must look to the entire species’ range, not

just its California portion. Cf. Watts v. Oak Shores Cmty. Ass’n, 235 Cal. App. 4th

466, 476 (2015) (“The ‘golden rule’ for statutory interpretation is that where several

alternative interpretations exist, the one that appears the most reasonable prevails.”).

44. Because the Commission’s listing of the gray wolf is based on an illegally

narrow interpretation of “range,” the listing is in excess of the Commission’s

jurisdiction, and constitutes a prejudicial abuse of discretion, because the Commission

has not proceeded in the manner required by law, the listing is not supported by the

Commission’s findings, and the findings are not supported by the evidence.

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C. Illegal Listing Based on “Intermittent Presence”

45. The Commission determined that the gray wolf’s listing is warranted

based on OR-7’s “intermittent” presence in the state. Notice of Findings at 5-6.

46. The Commission acknowledges that it cannot list a species that does not

have an active range within the state. But a species cannot have an active, i.e.,

occupied, range in the state unless members of the species use that range with

sufficient regularity that members of the species are likely to be present during any

reasonable span of time. See Ariz. Cattle Growers’ Ass’n v. Salazar, 606 F.3d 1160,

1165 (9th Cir. 2010) (holding that, under the federal Endangered Species Act, 16

U.S.C. §§ 1531-1544, an area is not occupied by the species unless the species “uses

[the area] with sufficient regularity that it is likely to be present during any

reasonable span of time”); U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv.,

Implementing Changes to the Regulations for Designating Critical Habitat, 81 Fed.

Reg. 7414, 7421 (Feb. 11, 2016) (observing that the areas “occupied by the species”

which make up its range do not include areas occupied “solely by vagrant

individuals”). Cf. San Bernardino Audubon Soc’y v. City of Moreno Valley, 44 Cal.

App. 4th 593, 603 (1996) (because the California Endangered Species Act was

modeled on the federal Endangered Species Act, construction of the latter “must be

given great weight” when interpreting the former).

47. The record on which the Commission based its decision does not

substantiate anything more than an intermittent presence by one member of the

gray wolf species.

48. Because the Commission’s listing of the gray wolf is based on legally

insufficient evidence, the listing is in excess of the Commission’s jurisdiction. It also

constitutes a prejudicial abuse of discretion, because the Commission has not

proceeded in the manner required by law, the listing is not supported by the

Commission’s findings, and the findings are not supported by the evidence.

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SECOND CAUSE OF ACTION FORPEREMPTORY WRIT OF MANDATE

(Code Civ. Proc. § 1085)


herein.

50. The Commission’s adoption of a regulation, implementing its decision

that the gray wolf’s listing is warranted, is a quasi-legislative action.

51. For the reasons set forth in the First Cause of Action, the Commission’s

adoption of the regulation listing the gray wolf as an endangered species is arbitrary,

capricious, and entirely lacking in evidentiary support.

THIRD CAUSE OF ACTION FORDECLARATORY RELIEF

(Gov’t Code § 11350(a), Code Civ. Proc. § 1060)


herein.

53. The California Administrative Procedure Act provides that any

interested person may obtain a declaration as to the validity of any regulation

through an action for declaratory relief. Gov’t Code § 11350(a).

54. The Association and the Farm Bureau are interested persons for the

same reasons that its members are beneficially interested in the issuance of a writ

of mandate. Similarly, the Cattlemen and the Farm Bureau are interested persons

for the same reasons that they and their members may contest the Commission’s

actions by virtue of their interest as representatives of the public interest to ensure

that the Commission follow the law.

55. The California Administrative Procedure Act requires that every

regulation be “necessary” to effectuate the purpose of the statute that the regulation

implements, and be supported by “authority,” i.e., a provision of law which permits

or obligates the agency to adopt the regulation. See id. §§ 11349(a)-(b), 11349.1(a)(1)-

(2).

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56. For the reasons set forth in the First Cause of Action, the Commission’s

adoption of the regulation listing the gray wolf as an endangered species is contrary

to law. Therefore, the Commission’s determination that the listing of the wolf is

reasonably necessary to effectuate the purpose of the California Endangered Species

Act generally, or its listing provisions specifically, is not supported by substantial

evidence. Cf. Gov’t Code § 11350(b)(1). Similarly, because the Commission is without

authority to promulgate the illegal wolf listing regulation, the Commission has failed

to substantially comply with the Administrative Procedure Act’s rule-making

requirements. Cf. id. § 11350(a).

57. The Commission, however, contends that it has the authority to

promulgate the wolf listing regulation, that the regulation is necessary, and that the

regulation substantially complies with the California Administrative Procedure Act.

Accordingly, an actual controversy exists among the Cattlemen, the Farm Bureau,

and the Commission over the legality of the latter’s regulation. The Cattlemen and

the Farm Bureau are therefore entitled to a judicial declaration of the parties’ rights

and duties with respect to the regulation. See Code Civ. Proc. § 1060.

PRAYER FOR RELIEF

WHEREFORE, the Cattlemen and the Farm Bureau pray for relief as follows:

1. For a peremptory writ of mandate directing that the Commission rescind

its determination that the listing of the gray wolf as an endangered species is

warranted, and directing that the Commission instead determine that the listing is

not warranted as a matter of law.

2. For a declaration that the Commission’s regulation listing the gray wolf

as an endangered species is contrary to law and therefore void.

3. For an award of attorney fees and costs pursuant to Code of Civil

Procedure section 1021.5, or other authority as appropriate.

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4. For any other relief that the Court determines to be warranted.

DATED: January 31, 2017.

Respectfully submitted,

DAMIEN M. SCHIFFANTHONY L. FRANÇOIS

By s/ Damien M. Schiff DAMIEN M. SCHIFF

Attorneys for Petitioners and Plaintiffs


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VERIFICATION

I, BILLY GATLIN, am the EXECUTIVE VICE PRESIDENT of Petitioner and

Plaintiff CALIFORNIA CATTLEMEN'S ASSOCIATION, in the above-entitled

proceeding. I have the authority to sign this document on behalf of the CALIFORNIA

CATTLEMEN'S ASSOCIATION. I have read the foregoing Verified Petition for

Peremptory Writ of Mandate and Complaint for Declaratory Relief (Code Civ .

Proc. §§ 1060, 1085, 1094.5; Gov't Code§ 11350(a)) and know the contents thereof.

The same is true of my own knowledge except as to those matters which are therein

alleged on information and belief, and as to those matters I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that

the foregoing is true and correct.

DATED: January --12__, 2017.

Verified Petition for Peremptory Writ of Mandate & Complaint for Declaratory Relief

By~~ BIL EXECUTIVE VICE PRESIDENT CALIFORNIA CATTLEMEN'S ASSOCIATION

- 18 -

VERIFICATION

2 I, NOELLE CREMERS, am the DIRECTOR OF NATURAL RESOURCES AND

3 COMMODITIES of Petitioner and Plaintiff CALIFORNIA FARM BUREAU

4 FEDERATION, in the above-entitled proceeding. I have the authority to sign this

5 document on behalf of the CALIFORNIA FARM BUREAU FEDERATION. I have

6 read the foregoing Verified Petition for Peremptory Writ of Mandate and Complaint

7 for Declaratory Relief (Code Civ. Proc. §§ 1060, 1085, 1094.5; Gov't Code § 11350(a))

8 and know the contents thereof. The same is true of my own knowledge except as to

9 those matters which are therein alleged on information and belief, and as to those

10 matters I believe them to be true.

11 I declare under penalty of perjury under the laws of the State of California that

12 the foregoing is true and correct.

13 DATED: January J_CJ , 2017.

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Bya~ NOELLE CREMERS DIRECTOR OF NATURAL RESOURCES AND COMMODITIES

CALIFORNIA FARM BUREAU FEDERATION

Verified Petition for Peremptory Writ of Mandate & Complaint for Declaratory Relief - 19 -

Exhibit 1

Mr. Jim Kellogg, President

California Fish and Game Commission

P.O. Box 944209

Sacramento, CA 94244-2090

Re: Evaluation of the Petition to List the Gray Wolf as an Endangered Species under the California

Endangered Species Act

Dear President Kellogg,

The California Cattlemen’s Association (CCA) appreciates the opportunity to comment on the evaluation

of the petition to list the gray wolf as an endangered species under the California Endangered Species

Act (CESA). CCA represents 2,000 ranchers who are opposed to the potential listing of the gray wolf as

an endangered species under CESA. As residents of rural areas and proprietors of livestock operations,

our membership has the potential to be severely and negatively impacted by the listing of the wolf. CCA

hopes that the Fish and Game Commission will consider our perspective and the threats that this listing

will have to the beef industry.

The issue of greatest concern, as it relates to the listing of the wolf, is the potential to negatively

impact the development of a statewide management plan by the Department of Fish and Game.

Should the wolf be listed as endangered and granted additional protection under CESA, CCA fears

that the ability to develop protocols to protect livestock from wolves under a statewide

management plan will be unfeasible.

As a predator, wolves are extraordinarily deleterious to the health and life of cattle. Not only are

wolves known to kill bulls, cows and calves, any rancher will attest, and scientific documentation

has indicated, “The regular presence of wolves in close proximity to livestock may result in a chronic

stress situation for the domestic animals. Many infectious diseases result from a combination of

viral and bacterial infections and are brought on by stress.1 Stress can result in increased

susceptibility to disease and weight loss, reduction in the value of the meat, and interfere with

reproduction.2Stress prior to slaughter is thought to be a contributor to “dark-cutters,” meat which

is of unacceptable color not being the normal bright cherry red but rather almost purple. Dark-

cutters are discounted severely because these meat products are difficult to sell.”3 With the threat

of economic loss from killed and stressed cattle as a result of an increasing wolf population, and

1 Faries, Floron C., Jr. and L. Garry Adams, 1997.Controlling bovine tuberculosis and other infectious

diseases in cattle with total health management., Texas Agricultural Extension Service, Texas A&M University. Publication 24M-2-97 2 Fanatico, Anne, 1999. Sustainable beef production, NCAT Agricultural Specialists, ATTRA Publication

#IPO18/18,. 3 Ibid

limited means with which to deal with these realities, CCA must oppose the listing and urge the

Commissioners to do the same.

Not only does CCA oppose the listing because of the certain economic loss that will result from an

increased wolf population, but we also oppose this listing based on the merits of the petition and

the analysis done by DFG. In numerous instances throughout the analysis, DFG notes that neither the

Department, nor the petitioners have the scientific information to make appropriate determinations

about the gray wolf in California. There are repeated acknowledgements throughout the analysis that

note the lack of scientific information available to substantiate the claims made in the petition4, and yet,

DFG persists in its suggestion that there is substantial information to list the wolf as endangered.5

Despite this seemly incongruous conclusion, DFG is simultaneously developing a website to promote the

newly developed Science Institute. The front page of the website explains the purpose of the Institute is

“to ensure quality visibility and integrity of the science that is conducted and used with the Department

of Fish and Game.” The suggestion by DFG that “...based on its initial scientific evaluation that there is

sufficient information to indicate at the time that the petitioned action may be warranted,” is not

supported by science and is contradictory to the efforts being made to regain Department credibility in

the eyes of Californians, and CCA strongly opposes the move. 6

Of similar concern is the precedent being set by DFG’s acceptance of a petition that lacks all the

scientific data necessary to make an informed decision on the listing of the wolf under CESA. DFG

frequently notes in its analysis that, “the petition on its face, in this respect, does not provide sufficient

information to indicate that the petition action may be warranted.” 7 Although it is acknowledged by

DFG that the petition lacks the necessary scientific foundation, DFG’s internal research, which CCA sees

as seriously lacking, determines that, in fact, there is enough information to support the listing. By

suggesting that the petition may be warranted, DFG risks setting a precedent that petitions void of fact

and containing false statements may still be granted consideration and acceptance. As DFG points out in

its analysis of the petition, “The information provided that directly relates to California either did not

support the argument that was presented or was inaccurate.”8

While CCA certainly appreciates and applauds DFG’s diligence in reviewing the information presented,

we do not believe that DGF should indulge the petitioners’ poor science and misinformation by

suggesting that the listing may be warranted. Should the Commission choose to accept the petition, CCA

believes that it will be setting a dangerous precedent that will encourage and bolster others to submit

such flawed and unscientific petitions and rely on DFG to do the leg work necessary to determine

scientific standing. Per the California Fish and Game Code, a petition to list or delist a species under

CESA must include “information regarding the population trend, range, distribution, abundance, and life

history of a species, the factors affecting the ability of the population to survive and reproduce, the

degree and immediacy of the threat, the impact of existing management efforts, suggestions for future

and the availability and sources of information. The petition shall also include information regarding the

kind of habitat necessary for species survival, a detailed distribution map, and other factors the

Petitioner deems relevant.”9 Per DFG’s own admission, the petition lacks adequate scientific information

4 Evaluation of the Petition,3,4,6,7,9,13-24,27,29

5 Evaluation of the Petition,2,5,10

6 Memorandum, Charlton Bonham, pg 1

7 Ibid

8 Pg 25

9 California Fish and Game Code,§2072.3

for nearly all of these categories and relies purely on speculation. Even the information provided on the

history and background of the wolf is purely anecdotal and lacks scientific standing. CCA strongly urges

the Commission to reject this petition and its analysis based on a glaring lack of scientific data and

evidence.

Reflective of the petition’s inaccuracies, DFG appropriately recognizes that the petition fails to account

for the current protections afforded to the wolf under both state and federal law. The gray wolf is

currently listed as an endangered species under the federal Endangered Species Act (ESA), and thusly

given protections in all covered states, regardless of state listings. The petition too fails to acknowledge

the work DFG has done to convene stakeholders in the creation of a management plan and the

coordination that has already taken place between state and federal agencies. In addition to receiving

protection from under ESA, the wolf is additionally protected under the California Fish and Game code,

as it is not considered a game animal, thus take of the animal is prohibited. CCA firmly believes that

additional protection measures are unnecessary and discourages the Commission from supporting

them.

Due to the certain conflicts that will result in a growing wolf population, the lack of scientific evidence

provided by DFG, and the pure speculation and misinformation in the petition, CCA must recommend

that the Commission reject this listing. Not only would this listing result in a tarnished reputation for the

Commission, but it will undoubtedly complicate the creation of a wolf management plan in California

and unnecessarily overlap with existing protections. We urge the Commission to vote against this

listing.

Sincerely,

Margo Parks

Associate Director of Government Relations

Exhibit 2

CALIFORNIA FARM BUREAU FEDERATION OFFICE OF THE GENERAL COUNSEL

2300 RIVER Pt.MA DR!Vl SACRAlvHN fO CA 95833-3293 · PHONE 1916) 561- 5665 · rAX 1916) 561 .569!

September 21, 2012

Mr. Jim Kellogg, President California Fish and Game Commission 1416 Ninth Street, Room 1320 Sacramento, CA 95814 [email protected]

Re: Consideration of the Petition to List the Gray Wolf under the California Endangered Species Act

Dear President Kellogg and Commissioners:

The California Farm Bureau Federation (Farm Bureau) is a non-governmental, nonprofit, voluntary membership California corporation whose purpose is to protect and promote agricultural interests throughout the state of California and to find solutions to the problems of the farm, the farm home and the rural community. Farm Bureau is California's largest farm organization, comprised of 53 county Farm Bureaus currently representing more than 74,000 agricultural, associate and collegiate members in 56 counties. Farm Bureau strives to protect and improve the ability of farmers and ranchers engaged in production agriculture to provide a reliable supply of food and fiber through responsible stewardship of California's resources.

Farm Bureau appreciates the opportunity to provide comments on the petition to list the gray wolf as endangered under the California Endangered Species Act (CESA) and the Department of Fish & Game's (DFG) evaluation of that petition. For the reasons described below, and in the comment letter submitted by California Cattlemen's Association incorporated herein by this reference, Farm Bureau believes the Petition is inadequate and should be rejected. However, should the Commission decide to accept the petition, Farm Bureau requests the Commission to encourage the development of a management plan so that a listing ultimately is not necessary.

NANCY N. MCDONOUGH, GE~<ffUIL CHIN\fl

AS\{X:IATE COUN\fl:

CARL G. Bern.DEN • KAREN NORENE MILLS · CHRISTIAN C. SCHEURING · KARI E. flSllFR · JACK l. RICE

The Petition Presents a Policy Question

In other words, the change CESA seeks to prevent is disappearance of a The situation presented by the gray wolf is not that the wolf as a will disappear, but that it will reappear. is most assuredly not what CESA was intended to address and, as a matter of law and policy, it is not the proper tool to do so. 1

The fact that this is an issue of policy is also apparent from the face of the petition. Two things support this conclusion. First, the wolf as a species is obviously doing very well and is quite safe; otherwise, it would not have expanded its presence from Canada to California in such a short period of time. Second, the petition reveals that Petitioners are actually to use the listing of the wolf as a tool to influence other social goals related to "population growth and concurrent development." (Petition p. 11) However, CESA was intended to protect and recover not serve a tool to control the population

distribution.

to move us into a In contrast to

Risk to Gray Wolves

it must be so. The Petition strains to

falls of

risk to any single wolf and no OR7, the visitor from the north, has

California over several months without any of the state demonstrates that Petitioners claims are

Notwithstanding this evidence, the Petition repeatedly asserts that "[t]here can be no doubt that human-caused mortality in the form of killings and vehicle strikes is a primary threat to "(Petition pp. & 31) This, however, appears contradicted by in the petition that "large fines and prison sentences"

illegal killing of wolves. (Petition p. 28) In addition, the of this threat" is fatally refuted by the fact that as a

territory is rapidly expanding. 2 (Petition pp.

of the Science

Critique of Historical Values

by the little concern for, or

provide with the ecosystem. (Evaluation p. 23)

to to

current values these actions may reflect uncaring evaluation's wording a condescending critique of our ancestors. We should remember that our

values reflect our times just as their their It is not that earlier generations didn't understand the ecology of the wolf or its benefits, but that they had different and different needs. Perhaps some future generation will question our approach; we hope give us the respect to judge out actions in the context of the times in which we

Today we face almost no threat from daily of the natural world. Food is available, shelter is secure, and our connection to the natural world is largely that of a detached spectator. It was not so a century ago. Where today we are far removed from the natural world (though not really any less reliant on it), in the Nineteenth Century

Conclusion

involved with to the in which they lived. Their of \Arn<>n>

we

are contact

Exhibit 3

May 6, 2013

Eric Loft, PhD

Department of Fish and Wildlife

1812 Ninth Street

Sacramento, CA 95811

RE: Gray Wolf Status Report

Dear Dr. Loft:

The California Cattlemen’s Association, California Farm Bureau Federation, and California

Woolgrower’s Association are writing to provide information for your use in reviewing the status of

the Gray Wolf in California. Our members include a significant number of California’s sheep and

cattle ranchers who will be impacted by Gray Wolves, should they become established in the state. It

is for this reason that Farm Bureau is including information for the Department of Fish and Wildlife

(Department) to review as it develops a status review of the Gray Wolf in California.

First, we would like to be clear that our organizations do not believe that the Gray Wolf deserves

listing under the California Endangered Species Act (CESA). Gray wolves are expanding their range

significantly, since they were originally introduced into the Northern Rocky Mountains in the mid-

1990s. OR-7’s visits to California do not necessitate listing under CESA. CESA was designed to

protect a species that currently exists and is under some present threat of extinction. The presence of

the gray wolf presents exactly the opposite scenario. The wolf did not exist in California for many

decades prior to passage of CESA, and now it is expanding into the state because there are few

threats to the species’ survival.

In other words, the change CESA seeks to prevent is the disappearance of the species. The situation

presented by the gray wolf is not that the wolf as a species will disappear, but that it will come back.

This is most assuredly not what CESA was intended to address and, as a matter of law and policy, it

is not the proper tool to do so.

Recognizing the Department’s requirement under Section 2074.6 of the Fish and Game Code to

conduct a status review of a species granted candidacy by the Fish and Game Commission and that

the status review is required to include recommended management activities for the recovery of the

species, we are providing information to inform that process. Large predators can have significant

impact on the ecosystems in which they reside due to their potential impacts on prey species and the

impact prey species responses have on other species. For example, if wolves change ungulate

grazing patterns, there are potential impacts to other flora and fauna by those grazing pattern changes.

However, the reintroduction of wolves in the Rocky Mountains is a relatively recent phenomenon in

terms of ecological responses and it is important to recognize how little is known about all of the

potential impacts of wolves on the landscape. This is illustrated by a recent peer reviewed article, A

May 6, 2013

2

Perspective on Livestock-Wolf Interactions on Western Rangelands published in Rangelands, which

is attached. We would recommend both, that this document be included in the Department’s review

of Gray Wolves, and the documents included in the references of this article also be evaluated as part

of the status review.

According to the US Department of Fish and Wildlife Service1, recovery goals, which were set to at

least 300 wolves and 30 breeding pairs in 3 recovery areas within Montana, Idaho, and Wyoming for

at least 3 consecutive years were reached in 2002. By 2012, the entire Northern Rocky Mountain

Distinct Population Segment was delisted and wolves were managed under State authority in

Montana, Idaho, Wyoming, the eastern one-third of Washington and Oregon, and a small part of

north central Utah. The distinct population segment has now reached 1,674 wolves in at least 321

packs with 103 breeding pairs, and the USFWS is moving towards delisting the Gray Wolf

throughout its range in the lower 48 states.

Based on recent media reports2, it is understood that the U.S. Fish and Wildlife Service (Service) will

be proposing the delisting of the Gray Wolf throughout its range. When the delisting proposal is

made public we would suggest that the information used by the Service to support its delisting

decision be included in the Department’s status review. The reintroduction of wolves seems to have

succeeded as evidenced by the significant expansion of both population size and range of the

reintroduced population. While we support the development of a California management plan for the

Gray Wolf, we do not support the listing of the Gray Wolf under CESA and believe that listing will

present management challenges for the species if and when it becomes established in California.

We appreciate the opportunity to comment on this important issue. Should you have any questions or

need further information, please do not hesitate to contact Noelle Cremers, California Farm Bureau

Federation (916/446-4647), Margo Parks, California Cattlemen’s Association (916/444-0845), or

Lesa Eidman, California Woolgrower’s Association (916/444-8122).

Sincerely,

Noelle G. Cremers Margo Parks

California Farm Bureau Federation California Cattlemen’s Association

Lesa Eidman

California Woolgrower’s Association

1 http://www.fws.gov/mountain-prairie/species/mammals/wolf/

2 http://www.latimes.com/news/local/la-me-wolves-20130426,0,280341.story

http://www.fws.gov/mountain-prairie/species/mammals/wolf/

http://www.latimes.com/news/local/la-me-wolves-20130426,0,280341.story

Exhibit 4

April 15, 2014 Mr. Michael Sutton, President California Fish and Game Commission 1416 9th Street, Room 1320 Sacramento, CA 95814 RE: Fish and Game Commission Agenda Item #2 – Decision on Whether or Not to List Gray Wolf as

a Threatened or Endangered Species Dear Mr. Sutton: The California Farm Bureau Federation (Farm Bureau) is writing to express our opposition to the proposed listing of the Gray wolf under the California Endangered Species Act (CESA). Farm Bureau represents more than 77,000 members as it strives to protect and improve the ability of farmers and ranchers engaged in production agriculture to provide a reliable supply of food and fiber through responsible stewardship of California’s resources. Having read the Department of Fish and Wildlife’s (Department) Status Review, Farm Bureau generally agrees with the statements made in the document and urges the Fish and Game Commission (Commission) to accept its recommendation that listing of the Gray wolf under CESA is not warranted. Key Points

Gray wolves do not meet the legal criteria for listing under CESA.

California likely won’t be able to support a large population of wolves, leading to a scenario of listing without any possibility of delisting. This will create significant conflict between livestock producers trying to protect their livestock and wildlife managers.

The Department and stakeholders have invested significant effort towards creating a California Wolf Management Plan. That document should guide how California manages wolves, not CESA.

The Legislature recognized the challenges and disincentives CESA creates for farmers and ranchers and authorized programs allowing incidental and accidental take; take of wolves will not fit under these scenarios.

CESA Listing Criteria Under CESA the Commission must consider if a species is at risk of extinction due to one or more of the following factors, (1) present or threatened modification or destruction of its habitat, (2) overexploitation, (3) predation, (4) competition, (5) disease, or (6) other natural occurrences or human-related activities. With no Gray wolves present in California, making this determination is near impossible. The Department included its analysis of present threats in its Status Review and I will not repeat them here. CESA was designed to protect a species that currently exists and is under some present threat of extinction. The presence of the Gray wolf presents exactly the opposite scenario. Gray wolves did not

April 15, 2014 Page 2

exist in California for many decades prior to passage of CESA, and now the species appears to be expanding into the state, due to the visit of a lone dispersing wolf (OR7) from Oregon. In other words, the change CESA seeks to prevent is the disappearance of the species. The situation presented by the Gray wolf is not that the wolf as a species will disappear, but that it will become reestablished in California. This is most assuredly not what CESA was intended to address and, as a matter of law and policy, it is not the proper tool to use for protecting Gray wolves as they become reestablished in California. Limited Wolf Habitat and Prey The fact that wolves may be reestablishing a population in California demands consideration of uncommon scenarios under CESA. The first consideration is that with no individuals present, it is impossible for the Commission to accurately determine whether the species is at risk of extinction from any of the six factors. It is also not possible to accurately evaluate population trend, range, distribution, or abundance. Given that it has been nearly a century since the last Gray wolf of California’s historic population was present in California, it is also challenging to evaluate, with any degree of certainty, the habitat that California could provide for a reestablishing population of Gray wolves. In other western states, wolves’ major prey has been elk. However, California does not have elk populations anywhere near the levels found in other western states. The Department estimates California’s elk population is between 11,500 and 12,000. In contrast Idaho has an estimated 107,000 elk1, while Oregon has an estimated population of 124,000 elk split almost evenly between Rocky Mountain elk and Roosevelt elk (68,000 Rocky Mountain elk and 56,000 Roosevelt elk)2. The disparity between these figures illustrates the limited potential prey base California provides. Interestingly, Smith et al. (2010) found that wolf survival was lower in the Northwest Montana recovery area and this lower survival rate was linked to Mule deer being the primary prey, as well as high numbers of sheep and cattle and low forest cover. It was hypothesized that Northwest Montana provides more fragmented habitat for wolves, leading to lower survival rates. These factors are important to recognize because of the greater likelihood that wolves would depend on Mule deer as a food source in California and the similarly fragmented habitat areas. With no current population of Gray wolves in California, an unfortunate scenario presents itself. Farm Bureau believes the Commission should also consider the fact that if Gray wolves are listed under CESA, there is a possibility that they may never be able to meet a level of recovery to allow for delisting. The quality of wolf habitat, including an available prey base, in California is currently unknown. There are multiple habitat models that project potential Gray wolf habitat, but estimates of the numbers of wolves that California could support are highly variable. One of the peer reviewers of the Department’s status review stated his expectation that, “The habitat model seemed as good as you could do, but from it I would doubt CA could support a self-sustaining wolf population… The blocks of theoretical suitable habitat in N. CA are so small and fragmented; many contiguous pack territories are unlikely.”3 Another peer reviewer stated, “Any wolves becoming established in California will initially constitute a small population. Lacking a well-developed source population for dispersal, they may likely struggle to become self-sustaining, as has been the case with the Mexican gray wolf (Boyd and Pletscher 1999).”4

1 Idaho Elk Management Plan 2014-2024, January 2014, Idaho Department of Fish and Game

2 Oregon Department of Fish and Wildlife, personal conversation with Don Whittaker

3 Ed Bangs, U.S. Fish and Wildlife Service (ret.), page 75

4 Christina Eisenberg, PhD, Oregon State University, page 129


Listing Gray wolves under CESA creates unnecessary conflict by limiting management options available. To create wolf recovery, it is necessary to have a public that is accepting of wolves. Removing management tools takes away individuals sense of control and makes them much less willing to cooperate with wildlife managers trying to protect wolves. Creating a system that allows livestock producers the ability to take meaningful actions to protect their livestock will help to improve people’s acceptance of wolves on the landscape. This is why Farm Bureau supports the Department’s efforts to create a Wolf Management Plan. CESA is a rather blunt tool to use for wildlife management. It works primarily by prohibiting take, rather than setting population objectives and using a wide range of tools to achieve those objectives. CESA also does not recognize social concerns present for listed predator species. Gray wolves present a very real risk to livestock when their presence overlaps. California’s livestock producers are concerned about the impacts a reestablished population of wolves would have on their livelihoods. If and when wolves become reestablished in California, Farm Bureau wants wolves to inhabit wilderness areas where humans and livestock aren’t present. However, based on experiences from other states this seems unlikely to occur. That being said, livestock producers would like to have a wide variety of tools available to both deter wolves from depredating livestock and control wolves that prey on livestock. Farm Bureau believes it is in both livestock producers’ and wolves’ best interests to allow many deterrence options to limit situations where wolves depredate livestock. If wolves are listed under CESA, livestock producers will likely be limited to very few options to deter wolves; these options have been described as yelling and throwing rocks in the air. Livestock producers would like the ability to take a more active approach to deterrence, including chasing wolves away from livestock. Under Fish and Game Code Section 86, take is defined as “hunt, pursue, catch, capture, or kill” and CESA prohibits the take of any listed species. Therefore, if wolves are listed under CESA livestock producers may be prohibited from chasing wolves away from their livestock and could only yell or throw rocks in the air if they saw wolves attacking their animals. This is likely to create significant conflict between wolves and livestock producers. Wolf Management Plan Instead of listing, Farm Bureau recommends addressing wolf management through the Department’s Wolf Management Plan. Recognizing the challenges that wolves present, the Department embarked on an ambitious process to create a Wolf Management Plan for California. The Department established a Stakeholder Working Group (SWG) to make recommendations on how the state should approach wolf management. Farm Bureau has participated in the SWG since its inception and believes that the planning process will present a much better outcome for wolves and stakeholders than a CESA listing would. The SWG has put significant effort into the planning process, having met as the larger SWG group six times since the process began in February 2013. Additionally, subcommittees have been formed to focus on specific areas to be addressed in the Plan, including a Wolf-Livestock Subgroup, a Conservation Objectives Subgroup, and a Wolf-Ungulate Subgroup. The Wolf-Livestock Subgroup has met an additional seven times since September 2013 and the Conservation Subgroup has met three times since February 2014. Farm Bureau is a member of both of these subgroups. All told, members of the SWG have invested more than 1,000 hours in the development of the Management Plan. There have been significant discussions on many topics relating to wolf management, but there are many more that need


to take place before final recommendations can be made. Farm Bureau strongly recommends that the Management Plan be allowed to develop without the limitations a CESA listing would create. Agricultural Provisions of CESA In 1997, the California Legislature passed, and the Governor signed, SB 231 (Costa), which recognized the challenges CESA created for agricultural landowners. California’s farms and ranches provide significant habitat for wildlife throughout the state, but by creating criminal penalties for taking a species listed under CESA, significant disincentives were created for providing wildlife habitat. In response, the Legislature adopted SB 231, which created both an incidental take program and allowed accidental take in the course of ongoing and routine agricultural activities. This action recognized the challenges CESA created for farmers and ranchers and worked to ensure that agricultural activities could continue without risk of inadvertently taking a listed species. These provisions5 help to remove the disincentives for providing wildlife habitat created by CESA’s take prohibitions. Unfortunately when it comes to Gray wolves, it is hard to conceive a scenario that would provide landowners protection for take under CESA. Putting livestock producers in areas where wolves may become reestablished at a significant disadvantage. Farm Bureau appreciates the opportunity to provide comments on this important decision. For all of the reasons previously stated, Farm Bureau respectfully requests you accept the Department’s recommendation and determine that listing the Gray wolf is not warranted under CESA. Sincerely,

Noelle G. Cremers Director, Natural Resources and Commodities CC: Members, Fish and Game Commission Sonke Mastrup, Executive Director, Fish and Game Commission Charlton H. Bonham, Director, Department of Fish and Wildlife Smith, D.W., E.E. Bangs, J.K. Oakleaf, C. Mack, J. Fontaine, D. Boyd, M. Jimenez, D.H. Pletscher, C.C. Niemeyer, T.J. Meier, D.R. Stahler, J. Holyan, V.J. Asher, D. Murray. 2010. Survival of colonizing wolves in the Northern Rocky Mountains of the United States, 1982-2004. Journal of Wildlife Management 74:620-634.

5 Fish and Game Code Sections 2086 and 2087

Exhibit 5

CALIFORNIA CATTLEMEN’S ASSOCIATION

1221 H STREET - SACRAMENTO, CALIFORNIA - 95814-1910 SERVING THE CATTLE PHONE: (916) 444-0845 COMMUNITY SINCE 1917 FAX: (916) 444-2194

www.calcattlemen.org

TIM KOOPMANN JACK HANSON FRED CHAMBERLIN DAVE DALEY PRESIDENT TREASURER SECOND VICE PRESIDENT SECOND VICE PRESIDENT SUNOL SUSANVILLE BILLY GATLIN LOS OLIVOS CHICO EXECUTIVE VICE PRESIDENT BILLY FLOURNOY BILL BRANDENBERG HERALD RICH ROSS MIKE SMITH FIRST VICE PRESIDENT FEEDER COUNCIL CHAIR SECOND VICE PRESIDENT FEEDER COUNCIL VICECHAIR LIKELY EL CENTRO LINCOLN SELMA

April 16, 2014

Michael Sutton, President


1416 9th

Street, Room 1320


Re: Decision on Whether or Not to List Gray Wolf (Canis lupus) as a Threatened or Endangered

Species

Dear Mr. Sutton:

The California Cattlemen's Association (CCA) welcomes the opportunity to comment on the

proposed listing of the gray wolf as an endangered species under the California Endangered

Species Act (CESA). CCA directly represents over 3,400 members, including more than 1,700

cattle producers in the state of California. CCA and its members are strongly opposed to the

listing of the gray wolf as an endangered species under CESA.

CCA urges the Commission to adopt the California Department of Fish and Wildlife's (CDFW)

February 5, 2014 recommendation that the gray wolf not be listed under CESA. CCA believes

that the California Wolf Management Plan currently in development by CDFW is the best tool to

address wolf recovery and respond to the concerns of cattle ranchers and other livestock owners.

Moreover, CCA believes that the gray wolf does not meet the legal requirements for CESA

listing and that the statutory requirements of CESA do not provide a proper balance for

protecting wolves while addressing the interests of other stakeholders, including livestock

producers.

CDFW's Wolf Management Plan provides the best tool for wolf management

As CDFW Director Charlton Bonham noted in his February 5th

transmittal memorandum to the

Fish and Game Commission, CDFW is currently working on a California Wolf Management

Plan. CDFW has brought together a wide range of interested stakeholders representing a number

of viewpoints regarding the gray wolf, including environmental groups, conservationists,

agricultural interests, sports-hunters, and others. It is CDFW's hope that the Stakeholder Working

Group (SWG) and its various sub-groups can help CDFW develop a Wolf Management Plan that

is responsive to the interests and concerns of all of these stakeholders. While it is unlikely that all

stakeholders will be pleased with all elements of the final Wolf Management Plan, CDFW has

stated numerous times that it hopes to develop a Wolf Management Plan that, taken as a whole, is

substantially acceptable to all of the stakeholders.

CCA has been actively involved in the SWG since its inception, and has also participated in the

wolf-livestock subgroup which meets separately from the broader SWG. CCA alone has spent

many hundreds of man-hours in development of the Wolf Management Plan; the various

members of the SWG have easily spent many thousands of hours in developing an appropriate

plan. The result has been real progress in development of the Wolf Management Plan. Though

progress has been slow and incremental, it has addressed the varied concerns of many of the

stakeholders involved.

There are two qualities of the Wolf Management Plan in development which make it preferable

to CESA listing: (1) it strives to strike a balance between protecting any gray wolf population

that may establish in California and the interests of those who would be impacted by their

presence, and (2) the Wolf Management Plan can be amended and revised in the future to

appropriately respond to the realities of the gray wolf in California. This latter point is of

particular significance because there is scant scientific evidence available regarding whether or

not a sustainable population of gray wolves will ever establish in California. If the facts on the

ground demonstrate that a sustainable population isn't feasible, the Wolf Management Plan could

be adapted to respond to that reality. If, on the other hand, the Commission decides to list the

gray wolf under CESA and no sustainable population can be established in California, then it

may prove exceedingly difficult to delist the species.

Additionally, there is no threat to the gray wolf while the Wolf Management Plan is in

development. Firstly, there is not currently a wolf population within California. Secondly, the

gray wolf is currently listed under the Federal Endangered Species Act. Though federal delisting

has been proposed, it is unlikely to happen in the immediate future in part because of the heavy

volume of comments the U.S. Fish and Wildlife Service has received regarding the proposed

delisting. CDFW is committed to finishing the Wolf Management Plan by the end of 2014, so it

will likely be in place before federal delisting occurs. Finally, as CDFW Director Bonham has

noted, the Fish and Game Commission can take measures to protect OR7 or gray wolves

generally without resorting to listing the species under CESA.

The Commission should permit the important work of the SWG to play out, and should evaluate the

Wolf Management Plan upon its completion. Listing the wolf under CESA prior to the completion of

that work is premature, and risks hindering or reversing the significant progress already being made on

this issue.

Effect of CESA listing on livestock protection measures

The listing of the gray wolf under CESA is of particular concern to CCA members because the

effect of the CESA listing would be to foreclose the possibility of certain livestock protection

measures. This is particularly concerning because, as addressed above, it is possible that a

sustainable gray wolf population will never establish in California, which would reduce the

likelihood of eventual delisting of the wolf, thereby foreclosing these livestock protection

measures for an indefinite period of time in the future.

CESA prohibits the “take” of a listed species, meaning that it is illegal to “hunt, pursue, catch,

capture, or kill, or attempt to hunt, pursue, catch, capture, or kill”1 an animal of that species. If

the gray wolf is listed under CESA, then, a cattle rancher routinely monitoring his ranch or

grazing allotment on horseback or on an ATV who sees a gray wolf on his or her pasture would

be precluded from chasing that wolf to the border of his or her property, as this would be pursuit,

deemed a “take” under CESA.

The above example is merely used to demonstrate the rigid restrictions of CESA. CCA is not

1 California Fish & Game Code § 86.

prepared at this time to state what livestock protection measures ought to be available for

livestock producers. Rather, CCA prefers to work collaboratively with conservationists,

environmental groups, other agricultural interests, and other interested stakeholders in the SWG

and wolf-livestock subgroup to determine what livestock protection measures best strike a

balance between protecting livestock and the gray wolf.

Effects of gray wolves on livestock and livestock producers

As a predator, wolves are extraordinarily detrimental to the health and life of cattle, and consequently to

the livelihood of cattle producers. Not only are gray wolves known to directly kill bulls, cows, and

calves, but scientific study has shown that “[t]he regular presence of wolves in close proximity to

livestock may result in a chronic stress situation for the domestic animals” and that “[m]any infectious

diseases result from a combination of viral and bacterial infections and are brought on by stress.”2 Stress

can result in increased susceptibility to disease and weight loss, reduction in the value of meat, and can

interfere with reproduction.3 A recent study showed that where wolf-pack territories overlapped cattle

grazing areas on ranches where there was at least one confirmed prior depredation, the average calf had

an average end-of-season weight 3.5% lower than average.4 In the study, this reduction in weight meant

a total loss of $6,679 for an average affected livestock producer.5

Because of the devastating direct and indirect effects of gray wolves upon livestock, and due to

the limited effectiveness of livestock protection measures such as fladry, RAG boxes, and other

measures, it is important that ranchers have available to them as many options as possible to

protect their livestock and their livelihood. As discussed above, the statutory restrictions

attending CESA listing would foreclose many of these protection measures for an indefinite

period. Deciding not to list the gray wolf under CESA at this time, deferring instead to CDFW's

development of a Wolf Management Plan, will best ensure that wolf recovery goals also permit

adequate livestock protection.

Listing the gray wolf as threatened or endangered is not appropriate under CESA

The California Endangered Species Act defines an endangered species as a species “which is in

serious danger of becoming extinct throughout all, or a significant portion, of its range due to one

or more causes, including loss of habitat, change in habitat, over exploitation, predation,

competition, or disease.”6 A threatened species is defined as one that “although not presently

threatened with extinction, is likely to become an endangered species in the foreseeable future in

the absence of special protection and management efforts required by [CESA].”7

Simply put, the gray wolf does not qualify as an endangered or threatened species under CESA.

The gray wolf is not at risk of becoming extinct throughout its range, as populations of gray

wolves throughout the west have increased, and the species' range has also increased. Nor is

there a threat of the species becoming extinct throughout its range within California. Not only is

there not currently a wolf population in California, but if and when such a population is

established, it will necessarily represent an increase in both the number of wolves in California

2 Faries, Floron C., Jr. and L. Garry Adamn, 1997. Controlling bovine tuberculosis and other infectious diseases in cattle with total

health management. Texas Agricultural Extension Service, Texas A&M University. Publication 24M-2-97.

3 Fanatico, Anne, 1999. Sustainable beef production, NCAT Agriculture Specialists, ATTRA Publication #IPO18/18.

4 Kellenberg, Derek et al., 2014. Crying wolf? A Spatial analysis of wolf location and depredations on calf weight. Journal of

Agricultrual Economics.

5 Id.

6 Fish & Game Code § 2062.

7 Id. at § 2067.

and their range—precisely the opposite scenario with which CESA is concerned. Thus, listing of

the gray wolf is contrary to the purpose of CESA.

Conclusion

Listing the gray wolf under CESA is not appropriate. Not only is there no gray wolf population

within the state of California at this time, but listing the gray wolf would not comply with the

definitions of endangered or threatened species under CESA given that wolf populations and

range are actually increasing. Furthermore, the gray wolf is adequately protected under current

federal and state laws, and the Wolf Management Plan in development is the best tool for

protecting the wolf while addressing the concerns of a wide array of California stakeholders who

stand to be impacted by the establishment of a wolf population within the state. To list the wolf

under CESA would hinder the important progress made by those stakeholders and CDFW.

CCA appreciates the opportunity to be heard on this important matter, and urges the Commission

to adopt CDFW's recommendation and determination that listing of the gray wolf under CESA is

not warranted.

Sincerely,

Kirk Wilbur

Director of Government Relations

California Cattlemen’s Association

CC: Members, Fish and Game Commission

Sonke Mastrup, Executive Director, Fish and Game Commission

Charlton H. Bonham, Director, Department of Fish and Wildlife

Exhibit 6

CALIFORNIA CATTLEMEN’S ASSOCIATION 1221 H STREET - SACRAMENTO, CALIFORNIA - 95814-1910

SERVING THE CATTLE PHONE: (916) 444-0845 COMMUNITY SINCE 1917 FAX: (916) 444-2194

www.calcattlemen.org

TIM KOOPMANN JACK HANSON FRED CHAMBERLIN DAVE DALEY PRESIDENT TREASURER SECOND VICE PRESIDENT SECOND VICE PRESIDENT SUNOL SUSANVILLE BILLY GATLIN LOS OLIVOS CHICO EXECUTIVE VICE PRESIDENT BILLY FLOURNOY BILL BRANDENBERG HERALD RICH ROSS MIKE SMITH FIRST VICE PRESIDENT FEEDER COUNCIL CHAIR SECOND VICE PRESIDENT FEEDER COUNCIL VICECHAIR LIKELY EL CENTRO LINCOLN SELMA

June 4, 2014



1416 9th

Street, Room 1320


Re: Discussion and Possible Action Concerning Gray Wolf: Possible Decision on Whether

or Not to List Gray Wolf (Canis lupus) as a Threatened or Endangered Species

The California Cattlemen's Association (CCA) welcomes the opportunity to comment on the

proposed listing of the gray wolf as an endangered species under the California Endangered

Species Act (CESA). We especially appreciate the California Fish and Game Commission

(Commission)’s decision to delay their determination about CESA listing until after the Fortuna

meeting, permitting those ranchers and other members of the public most likely to be impacted

by the gray wolf to directly address the Commission.

CCA directly represents over 3,400 members, including more than 1,700 cattle producers in the

state of California. CCA and its members are strongly opposed to the listing of the gray wolf

as an endangered species under CESA.

CCA, its members, and other interested parties have spoken at length about the policy

considerations which should lead the Commission to voting against CESA listing. CCA remains

resolved that these policy considerations (including the development of a Wolf Management

Plan by the Department of Fish and Wildlife (CDFW) and the devastating effects of wolves on

livestock) are conclusive evidence that the gray wolf should not be listed as endangered under

CESA. However, as we have spoken at length about these policy considerations in the past (see,

for instance, CCA’s written comments to the Commission of April 16, 2014), these comments

will address CESA’s listing criteria and demonstrate that there is no legal basis for listing the

gray wolf as endangered under the California Endangered Species Act.

I. Petitioners have presented insufficient proof to satisfy CESA’s listing requirement that a

species be native to the state of California

Under CESA, “it is the policy of the state to conserve, protect, restore, and enhance any

endangered species or any threatened species.”1 CESA defines an endangered species as “a

native species or subspecies . . . which is in serious danger of becoming extinct throughout all, or

a significant portion, of its range.”2 Likewise, a threatened species is defined as “a native species

or subspecies . . . that, although not presently threatened with extinction, is likely to become an

1 CAL. FISH & GAME CODE § 2052.

2 Id. at § 2062 (emphasis added).

endangered species in the foreseeable future in the absence of the special protection and

management efforts required by this chapter.”3

Thus, whether or not a species is “native” to the state of California is a prerequisite to CESA

listing, and is a threshold determination that must be made before a species may be listed as

either threatened or endangered under CESA.

Petitioners did not sufficiently prove this threshold requirement in their petition, nor has

additional information subsequently provided by CDFW provided sufficient evidence to prove

that the gray wolf is native to California. CDFW’s initial evaluation of the petition to list

included a detailed map plot and supporting chart detailing every known report of the gray wolf

in California.4 Over the entire modern history of the state, only 48 such reports exist. Of these,

20 CDFW admits it has “low” confidence in the accuracy of 20, and only “moderate” confidence

in the accuracy of 24. In its status review of the gray wolf, CDFW admits that “[s]ome of the

anecdotal observations are ambiguous as to whether the observer was reporting a wolf or a

coyote.”5

These anecdotal reports have widely been advanced as evidence of a native population of gray

wolves in California. However, this may not be the case. When Commissioner [now President]

Michael Sutton on October 3, 2012 suggested that “the population used to be very large prior to

the 1920s,” CDFW Wildlife Programs Branch Chief Eric Loft responded that “we do not know

that. . . . historically we do not have much more than anecdotal information on the history of gray

wolves.”6 It would be a mistake, then, to assume that these anecdotal reports add up to

knowledge of a native population of gray wolves in California. As Mr. Loft stated, “we do not

know that,” and CESA requires just such knowledge as a precondition of listing. Therefore, the

gray wolf is not eligible for CESA listing.

CDFW is only highly confident of the accuracy of 3 reports7 of gray wolf presence in

California—one of which is OR-7 himself. The remaining three records are anecdotal evidence

at best—three specimens are necessarily insufficient to demonstrate that there was an

established, native population of gray wolves historically present within California. Indeed, it is

entirely possible that these exceedingly few specimens arrived in California not as the result of a

native population, but instead in the same manner as OR-7: a brief foray into the state.

Prior to genetic testing, it was thought that there were four specimens of gray wolves in

California. Even this number would be insufficient to demonstrate that the population was native

to California, but it turns out that half of these specimens were in fact not gray wolves at all: one

was a domestic dog, another a species native to Alaska thought to have been brought into the


4 California Wolf Distribution: Based on Known Wolf Records, CAL. DEPT. FISH & GAME, EVALUATION OF THE PETITION at 37-40

(Aug. 1, 2012). 5 CAL. DEPT. FISH & GAME, A STATUS REVIEW OF THE GRAY WOLF (CANIS LUPUS) IN CALIFORNIA at 9 (Feb. 5, 2014).

6 Video recording: Meeting of October 3, 2012, held by the California Fish & Game Commission, at 3:58:21 (Oct. 3, 2012) (available

at http://www.cal-span.org/cgi-bin/media.pl?folder=CFG). 7 Though 48 reports of gray wolves are listed in the document, the map appears to only show 47 locations for such reports. The map

appears to show only three confirmed records (unless there is 100% overlap of two records which render them indistinguishable). It is

unclear, then, whether the Department has high, moderate, or low confidence of the accuracy of the one report not plotted on the map.

state by humans.8 Not only are these two specimens insufficient to demonstrate that the species

was native to California, their misidentification casts suspicion upon the exceedingly few (48)

reports of gray wolves in the historical record.

CDFW’s status report makes reference to the “hypothesis that wolves were widely distributed in

California”9 and concludes that though “the majority of historical records are not verifiable, for

the purposes of this status review, the Department concludes that the gray wolf likely occurred in

much of the areas depicted.”10

While such anecdotal evidence was sufficient for the purposes of

CDFW’s review, perhaps, it is not sufficient for CESA listing, which requires as a legal

prerequisite that a species be proven to be native to California. The burden of establishing this

threshold fact ought to rest with the Petitioners or CDFW. Hypotheses and mere likelihood

should not suffice—proof that the gray wolf is a native species must be provided, and here it has

not been.

CCA has been willing to come to the table for CDFW’s Stakeholder Working Group for a wolf

management plan, and it should be noted that one of the principles of that Working Group is that

the gray wolf was likely to have had a native population in California. Our position today is not

inconsistent with that principle. As discussed above, we believe the finding of likelihood to be

sufficient for CDFW’s purposes, and CDFW is the entity working toward a Wolf Management

Plan. However, CESA requires a greater threshold of proof than mere likelihood. Thus, while we

continue to adhere to the principles of the Wolf Management Plan Stakeholder Working Group,

we do not feel that CESA listing is appropriate, and the Commission should instead defer to the

plan being developed by CDFW.

II. The gray wolf is currently extinct within the “range” contemplated by CESA, and is

thus not eligible for listing as a threatened or endangered species

Petitioner Center for Biological Diversity has noted that California Courts have interpreted

“range” within the meaning of CESA to apply only to a species range within California.11

Petitioners are correct in this assertion.12

However, CESA is aimed at those species where a

species is “in serious danger of becoming extinct” within that range within California. Only if

this is the case may a species be listed under CESA.

“Extinct” means that a species is “no longer in existence.”13

Under CESA’s meaning of range,

then, a species is extinct when it is “no longer in existence” within the state of California.

Though OR-7 has intermittently travelled into the state, there is no credible evidence that any

8 CAL. DEPT. FISH & GAME, A STATUS REVIEW OF THE GRAY WOLF (CANIS LUPUS) IN CALIFORNIA at 9-10 (Feb. 5, 2014).

9 Id. at 9 (Feb. 5, 2014) (emphasis added).

10 CAL. FISH & GAME CODE § 2062 (emphasis added).

11 See Petitioner’s presentation, video recording: Meeting of April 16, 2014, held by the California Fish & Game Commission (April

16, 2014) (available at http://www.cal-span.org/cgi-bin/media.pl?folder=CFG). 12

See Cal. Forestry Ass’n v. Cal. Fish & Game Comm’n, 68 Cal.Rptr.3d 391, 400 (3d Dist.2007) (“it is reasonable to infer that the

CESA’s focus is protecting species within the state, which is the extent of the state’s regulatory authority. . . . the Legislature declared

that endangered and threatened species were of ‘value to the people of this state, and the conservation, protection, and enhancement of

these species and their habitat is of statewide concern.’”). 13

“Extinct,” definition available at http://dictionary.reference.com/browse/extinct.

wolf is presently within the geographic boundaries of California. Thus, under CESA as written

and interpreted by the courts, the gray wolf is currently extinct within California.

This is important because CESA is intended to protect only those species “in serious danger of

becoming extinct.” If a species is extinct within California, it cannot possibly become extinct

within California. Effect must be given to the entirety of CESA, and listing a species which is

already extinct in California would render this element of the definition of “endangered” under

the Act meaningless and without effect. Therefore, in order to give effect to the Act’s language

and thereby promote the Legislature’s intent, the Commission should not list an already-extinct

species as endangered.

Nor does the fact that OR-7 is an intermittent resident of California establish a “range” within

California within the meaning of CESA. As Eric Loft stated at the October 3, 2012 hearing of the

Commission, “we believe that it would actually be premature to say that the travels of OR-7

constitute a range. We think it’s more appropriate for a population that’s actually been successful

in establishing a range rather than, at this point, a long individual.”14

Moreover, as discussed

above, California courts have interpreted range to mean physical presence within the state, not

the totality of a species’ travels.

Though the gray wolf is already extinct within California, the analysis regarding CESA listing

eligibility will not change even if a wolf or wolves enter the state.

III. Assuming, for the sake of argument, that wolves were present within California, the

species would still not be eligible for listing, as the species would necessarily be improving

in such a scenario

Even if OR-7 or another wolf or wolves should venture into the state or even establish

themselves within the state, however, the gray wolf would still not be eligible for listing as an

endangered species under the CESA criteria.

As discussed in Section I, above, CESA defines an endangered species as one “which is in

serious danger of becoming extinct throughout all, or a significant portion, of its range.”15

However, the presence of the gray wolf in California presents exactly the opposite scenario. The

gray wolf was not present in California for many decades prior to the passage of CESA, and

indeed may never have been a well-established native species, but it is now expanding into the

state because there are no significant threats to the species’ survival.

The change CESA is meant to guard against is the disappearance of a species. CESA has

historically only been used where species are on the decline within the state because of this fear

for the disappearance of a species. However, the situation presented by the gray wolf is precisely

the opposite scenario: the wolf is appearing in California, and by definition this represents an

increase in the species. Furthermore, regardless of what happens to any individual wolf in the

state, the population’s boom throughout other western states, including those that border

14

Video recording: Meeting of October 3, 2012, held by the California Fish & Game Commission, at 3:59:05 (Oct. 3, 2012) (available

at http://www.cal-span.org/cgi-bin/media.pl?folder=CFG). 15

Id. at § 2062 (emphasis added).

California, ensures that wolves will likely continue to venture into California, if only

temporarily. Thus, there is no risk of the disappearance of the gray wolf within its “range” within

California—indeed, only the opposite scenario is present here, as any wolf presence in the state

necessarily represents an appearance or an increase in the species.

The legislature did not intend CESA to apply in instances where species were appearing in the

state or increasing in number, but was rather intended to guard against the decline of native

species within the state. As a matter of law and policy, CESA is not the proper means for

protecting the gray wolf in California. As we have mentioned in other written and oral comments

to the Commission, the Wolf Management Plan being developed by CDFW with input from a

wide array of stakeholders is a much more appropriate means of protecting wolves that might

venture into the state.

Conclusion

CCA again appreciates the opportunity to address the Commission on this important issue, and

commends the Commission for permitting impacted members of the public to address this issue

at the hearing in Fortuna. We are hopeful that the Commission will weigh all of the policy

considerations and adhere to the legal requirements of CESA and vote against listing the gray

wolf as an endangered species under CESA.

Sincerely,

Kirk Wilbur

Director of Government Relations


CC: Members, Fish and Game Commission

Sonke Mastrup, Executive Director, Fish and Game Commission

Charlton H. Bonham, Director, Department of Fish and Wildlife

Exhibit 7

1

October 6, 2014



1416 9th

Street, Room 1320


Re: Possible Ratification of Commission’s Findings to List the Gray Wolf (Canis lupus) as

an Endangered Species Under the California Endangered Species Act (Pursuant to Section

2075.5, Fish and Game Code)

Dear President Sutton:

The California Cattlemen’s Association (CCA), California Farm Bureau Federation

(CFBF), and California Wool Growers Association (CWGA) welcome the opportunity to

comment on the proposed ratification of the Fish and Game Commission’s (Commission)

findings regarding the proposal to list the gray wolf as an endangered species under the

California Endangered Species Act (CESA). Our organizations remain strongly opposed

to CESA listing of the gray wolf, and we urge the Commission not to adopt findings

which would designate the gray wolf as an endangered species in California. A number

of legal, policy, and factual considerations counsel against listing the species under

CESA.

I. THE PETITIONED ACTION FALLS OUTSIDE THE COMMISSION’S LEGAL AUTHORITY UNDER

CESA

A. The gray wolf is currently “extinct” within its range as defined by CESA, and is thus not

eligible for endangered status under Fish & Game Code § 2062

An “endangered species” within the meaning of CESA is “a native species…which is in serious

danger of becoming extinct throughout all, or a significant portion, of its range…”1 California

courts have held that the term “range” in § 2062 “refers to a species’ California range” only.2

Thus, to be deemed an endangered species under CESA, a species must be “a native

species…which is in serious danger of becoming extinct throughout all, or a significant portion,

of its [California] range.”

1 Cal. Fish & Game Code § 2062.

2 Cal. Forestry Ass’n v. Cal. Fish & Game Comm’n, 68 Cal.Rptr.3d 391, 402 (Cal. Ct. App. 3d 2007). Petitioners

Center for Biological Diversity themselves have recognized this limitation on CESA. See Petitioner’s presentation,

video recording: Meeting of April 16, 2014, held by the California Fish & Game Commission (April 16, 2014)

(available at http://www2.cal-span.org/media.php?folder[]=CFG).

October 3, 2014

Page 2

Typically, statutes are to be interpreted “according to the usual, ordinary import of the language

employed in framing them,”3 and “significance should be given to every word, phrase, sentence

and part of an act in pursuance of the legislative purpose.”4

In examining a species’ eligibility for endangered status in California, it is important to give

effect to all of the terms in § 2062, including the terms “becoming” and “extinct.” “Extinct”

means having no living members of a species5 (again, this would be within a “range” defined as

within California). It is undisputed that there are no gray wolves within the state of California

(the “range” contemplated by CESA).6 Thus, gray wolves are presently extinct within California

because there are no living members of that species within California.

To “become” means to “begin to be,”7 or “to undergo change or development.”

8 A species that is

extinct within its range cannot become extinct within its range, then, as no change in status has

occurred (rather, the species can only continue to be extinct). Thus, if effect and significance is

given to every “word, phrase, sentence and part” of CESA, a species which is presently extinct

within its range is not eligible for “endangered species” status. As it is uncontroverted that the

gray wolf is extinct within its California range, it is not eligible for listing as an endangered

species under CESA as written.

B. Petitioners have presented insufficient proof to satisfy CESA’s listing requirement that a

species be “native” to the state of California

Under CESA, “it is the policy of the state to conserve, protect, restore, and enhance any

endangered species or any threatened species.”9 CESA defines an endangered species as “a

native species or subspecies . . . which is in serious danger of becoming extinct throughout all, or

a significant portion, of its range.”10

Likewise, a threatened species is defined as “a native

species or subspecies . . . that, although not presently threatened with extinction, is likely to

become an endangered species in the foreseeable future in the absence of the special protection

and management efforts required by this chapter.”11

3 In re Alpine, 203 Cal. 731, 737 (1928).

4 Select Base Materials v. Board of Equal., 51 Cal.2d 640, 645 (1959).

5 OXFORD DICTIONARIES, “Extinct,” available online at

http://www.oxforddictionaries.com/us/definition/american_english/extinct. See also DICTIONARY.COM, “Extinct,”

available online at http://dictionary.reference.com/browse/extinct (“no longer in existence; that has ended or died

out); MERRIAM-WEBSTER, “Extinct,” available online at http://www.merriam-webster.com/dictionary/extinct (“no

longer existing”). 6 See, e.g., Transmittal memorandum from Charlton Bonham, Director, California Department of Fish and Wildlife

to Sonke Mastrup, Executive Director, California Fish and Game Commission at 2 (Feb. 5, 2014) (detailing that OR-

7 is the only known wolf to have ventured into California since the species was extirpated, and that monitoring data

demonstrated that OR-7 was in Oregon). 7 OXFORD DICTIONARIES, “Become,” available online at

http://www.oxforddictionaries.com/us/definition/american_english/become?q=become. See also 8 MERRIAM-WEBSTER, “Become,” available online at http://www.merriam-

webster.com/dictionary/become?show=0&t=1405966857. 9 CAL. FISH & GAME CODE § 2052.



October 3, 2014

Page 3

Thus, that a species be “native” to the state of California is a prerequisite to CESA listing, and is

a threshold determination that must be made before a species may be listed as either threatened

or endangered under CESA.

Petitioners did not sufficiently demonstrate this threshold requirement in their petition, nor has

additional information subsequently provided by the California Department of Fish and Wildlife

(CDFW) provided sufficient evidence to prove that the gray wolf is native to California.

CDFW’s initial evaluation of the petition to list included a detailed map plot and supporting

chart detailing every known report of the gray wolf in California.12

Over the entire modern

history of the state, only 48 such reports exist. Of these, CDFW admits it has “low” confidence

in the accuracy of 20, and only “moderate” confidence in the accuracy of 24. In its status review

of the gray wolf, CDFW admits that “[s]ome of the anecdotal observations are ambiguous as to

whether the observer was reporting a wolf or a coyote.”13

These anecdotal reports have widely been advanced as evidence of a native population of gray

wolves in California. However, this may not be the case. When Commissioner Sutton on October

3, 2012 suggested that “the population used to be very large prior to the 1920s,” CDFW Wildlife

Programs Branch Chief Eric Loft responded that “we do not know that. . . . historically we do not

have much more than anecdotal information on the history of gray wolves.”14

It would be a

mistake, then, to assume that these anecdotal reports add up to certainty of a native population of

gray wolves in California. As Mr. Loft stated, “we do not know that,” and CESA requires just

such knowledge as a precondition to listing.

CDFW is only highly confident of the accuracy of 3 reports15

of gray wolf presence in

California—one of which is OR-7 himself. The remaining two high-confidence records are

anecdotal at best. Three specimens are necessarily insufficient to demonstrate that there was an

established, native population of gray wolves historically present within California. Indeed, it is

entirely possible that these exceedingly few specimens arrived in California not as the result of a

native population, but instead in the same manner as OR-7—a brief foray into the state.

Prior to genetic testing, it was thought that there were four confirmed historic specimens of gray

wolves in California (not including OR-7). Even this number would be insufficient to

demonstrate that the population was native to California, but it turns out that half of these

specimens were in fact not gray wolves at all: one was a domestic dog, another a species native

to Alaska thought to have been brought into the state by humans.16

The misidentification of these

12

California Wolf Distribution: Based on Known Wolf Records, CAL. DEPT. FISH & GAME, EVALUATION OF THE

PETITION at 37-40 (Aug. 1, 2012). 13

CAL. DEPT. FISH & GAME, A STATUS REVIEW OF THE GRAY WOLF (CANIS LUPUS) IN CALIFORNIA at 9 (Feb. 5,

2014) [hereinafter “Status Review”]. 14

Video recording: Meeting of October 3, 2012, held by the California Fish & Game Commission, at 3:58:21 (Oct.

3, 2012) (available at http://www2.cal-span.org/media.php?folder[]=CFG). 15

Though 48 reports of gray wolves are listed in the document, the map appears to only show 47 locations for such

reports. The map appears to show only three confirmed records (unless there is 100% overlap of two records which

render them indistinguishable). It is unclear, then, whether the Department has high, moderate, or low confidence of

the accuracy of the one report not plotted on the map. 16

Status Review at 9-10.

October 3, 2014

Page 4

two physical specimens casts suspicion upon the exceedingly few (48) reports of gray wolves in

the historical record.

CDFW’s status report makes reference to the “hypothesis that wolves were widely distributed in

California”17

and concludes that though “the majority of historical records are not verifiable, for

the purposes of this status review, the Department concludes that the gray wolf likely occurred in

much of the areas depicted.”18

While such anecdotal evidence was sufficient for the purposes of

CDFW’s review, perhaps, it is not sufficient for CESA listing, which requires as a legal

prerequisite that a species be proven to be native to California. The burden of establishing this

threshold fact ought to rest with the Petitioners or CDFW. Hypotheses and mere likelihood

should not suffice—proof that the gray wolf is a native species must be provided, and here it has

not been.

C. The legislative intent behind CESA was to protect species in decline, precisely the

opposite scenario presented by the potential presence of gray wolves in California

As discussed in Section A, supra, CESA defines an endangered species as one “which is in

serious danger of becoming extinct throughout all, or a significant portion, of its range.”19

However, the presence of the gray wolf in California presents exactly the opposite scenario. The

gray wolf was not present in California for many decades prior to the passage of CESA, and

indeed may never have been a well-established native species, but it may now expand into the

state because there are no significant threats to the species’ survival.




the opposite scenario: any appearance of the gray wolf within California would necessarily be an

increase in the species. Furthermore, regardless of what happens to any individual wolf in the

state, the population’s boom throughout other western states, including those that border

California, ensures that wolves will likely continue to venture into California, if only

temporarily. Thus, there is no risk of the disappearance of the gray wolf within its “range” within

California—indeed, only the opposite scenario is possible here, as any wolf presence in the state

necessarily represents an appearance or an increase in the species.

The legislature did not intend CESA to apply in instances where species were appearing in the

state or increasing in number, but rather intended to guard against the decline of native species

within the state. As a matter of law and policy, CESA is not the proper means for protecting the

gray wolf in California.

17

Id. at 9 (emphasis added). 18

Id. at 10 (emphasis added). 19

CAL. FISH & GAME CODE § 2062.

October 3, 2014

Page 5

II. SIGNIFICANT POLICY CONSIDERATIONS WEIGH AGAINST LISTING THE GRAY WOLF UNDER

CESA

A. Listing the gray wolf would set precedent that a species not present within California

may nevertheless be listed under CESA, creating immense uncertainty for the future of

species management in the state

If the gray wolf is listed as endangered, it will be the first time that the Commission has listed a

species entirely absent from the state since the 1984 CESA was adopted. The result of such a

precedent will be to increase ambiguity in the regulatory framework and decrease certainty

regarding species management in the future.

In the wake of the gray wolf’s CESA listing, are only species present within the state eligible for

endangered species status? Is any species which has historically inhabited the state eligible for

CESA listing, regardless of that species’ current presence within the state? Is a determination by

CDFW and/or the Commission that a species is likely to be present in the state in the future

sufficient to warrant listing?20

If so, is there a temporal limit for a species’ likelihood of

appearing within the state in the future? Is a species which may arrive within the state in the

coming century, decade, or years eligible for listing under this precedent, or must it be likely that

the species will arrive within the state in a more immediate and/or definite timeframe?

This is not a mere philosophical exercise. The ambiguities established by listing a species which

is not present within the state will have definite impacts on state agencies and interested

stakeholders where future species management is concerned. The Commission can likely expect

to see petitions to list other species not present within the state, for instance. This will also

impact the allocation of CDFW and Commission time and resources, and influence how a

number of other stakeholders address species policies.

A bright line rule that a species must be present for listing (a rule already implied by statute)

would prevent such ambiguity and maintain certainty and consistency with regard to CESA

listing. To ensure such certainty and consistency, the Commission ought to refrain from setting

new precedent by voting against the adoption of findings which would justify CESA listing of

the gray wolf.

Petitioner Center for Biological Diversity argues that the Commission would not be establishing

a new precedent by listing the gray wolf, because in 1971 the Commission listed the Guadalupe

fur seal and the wolverine as endangered species.21

The Petitioner argues that the standard for

20

This appears to be the rationale established by Commissioner Rogers’ statement at the Fortuna hearing when he

stated that “[w]hile the present situation is equivocal, the future situation is more clear, if not certain. To me, it is not

a question of if, only of when. Wolves will arrive, there will be a population that fits the requirements of CESA.”

Video recording: Meeting of June 4, 2014, held by the California Fish & Game Commission, at 2:44:10 (June 4,

2014) (available at http://www2.cal-span.org/media.php?folder[]=CFG) (emphasis added). 21

Video recording: Meeting of June 4, 2014, held by the California Fish & Game Commission, at 0:45:33 (June 4,

2014) (available at http://www2.cal-span.org/media.php?folder[]=CFG) (“The Commission listed the Guadalupe fur

seal and the wolverine under standards essentially the same as those in effect today. . . . Listing the wolf as

endangered does not establish a new Commission precedent. Species that were formerly extirpated but returned as

no more than intermittent residents have been listed before.”).

October 3, 2014

Page 6

what constitutes an “endangered” species under the California Endangered Species Act of 1970

is “essentially the same” as the standard used today. However, importantly, the 1970 definition

of an endangered species lacked any reference to the species range.22

The definition of

“endangered” present in statute today does contain a range provision, and as previously

mentioned, courts have interpreted that range provision as applying to the state of California.

This is a material difference between the 1970 statutory definition of “endangered” (used to

justify the listing of the Guadalupe fur seal and wolverine) and the present definition.

The 1970 Endangered Species Act has been repealed and replaced. The statute is thus not

binding upon interpretations of the 1984 California Endangered Species Act presently in effect.

Any move to list a species currently absent from the state, such as the gray wolf, would still set

an unfortunate new precedent under the 1984 CESA.

B. Listing the gray wolf establishes inconsistent Commission policy

As Senator Ted Gaines mentioned in his July 16th

letter to the Commission,23

listing the gray

wolf as endangered while opting not to list the white shark sets contradictory and inconsistent

Commission policy for evaluating whether a species is eligible for endangered species listing

under CESA.

On June 4th

, Commissioner Sutton identified five factors that weighed against listing the white

shark as endangered: “(1) killing white sharks is already illegal, and they are a highly protected

species; (2) white sharks have never been fully extirpated from California; (3) it may be that

there have never been very large numbers of white sharks in California’s waters; (4) there is

evidence that shark populations may be on the rise; and (5) there are effective means other than

CESA listing to protect white sharks.”24

As Sen. Gaines explained in detail in his letter, examining the information presented to the

Commission by CDFW and Director Bonham in the Status Evaluation of the gray wolf and

information provided during public comment, it is abundantly clear that factors (1), (3), (4), and

(5) apply equally to the status of the gray wolf in California.

The Commission ought to strive for consistency in evaluating proposals to list or delist species as

endangered or threatened within California. Given that there is clear similarity between the status

of gray wolves and the status of white sharks based on analysis of four of the five factors

identified by President Sutton in his June 4th

comments, the Commission ought to decline to

afford endangered species protection to the gray wolf, just as it did for the white shark.

22

Former Fish & Game Code § 901(a) read, in whole: “‘Endangered animal’ is an animal of a species or sub-

species of birds, mammals, fish, amphibians, or reptiles, the prospects of survival and reproduction of which are in

immediate jeopardy from one or more causes, including loss of habitat, change in habitat, overexploitation,

predation, competition, or disease.” 23

Letter from Ted Gaines, Senator, First District of California, to Mike Sutton, President, California Fish and Game

Commission (July 16, 2014) (available at

http://www.fgc.ca.gov/meetings/2014/aug/Exhibits/2.4_LTR_SenTedGaines_GrayWolf_WhiteShark_Decision.pdf). 24

Id. at page 1.

October 3, 2014

Page 7

C. The Wolf Management Plan in development by CDFW with the collaboration of a

diverse Stakeholder Working Group is preferable to regulation of gray wolves under

CESA

CDFW continues to develop a Wolf Management Plan with the input of a diverse Stakeholder

Working Group, on which representatives of each of our organizations sit. The Stakeholder

Working Group has made significant progress in developing this wolf management plan.

Importantly, this plan has been the product of significant evaluation, consideration, and

negotiation throughout recent years. Given that the wolf management plan strives to strike a

balance between protecting any gray wolf population that may establish in California and the

interests of those who would be impacted by their presence, it is to be preferred over the one-

size-fits-all regulatory framework of CESA.

III. THE COMMISSION HAS PROVIDED INSUFFICIENT FACTUAL BASES TO JUSTIFY LISTING

Our organizations have a number of concerns with the Draft Notice of Findings and Notice of

Proposed Rulemaking.25

In its Draft Findings, the Commission has sought to portray the gray

wolf as endangered by taking the few facts that seem to support listing and entirely divorcing

them from their context, all the while failing to address the many factual and legal arguments

against listing presented throughout the administrative record.

Before addressing flaws in the specific findings of the Commission, we feel it necessary to

outline broader concerns with the document.

First, it bears noting that though the Commission references CDFW’s 2014 Status Review as a

document “in support of the Commission’s determination,”26

the conclusion of that 2014 Status

Review conducted by CDFW was that

the best scientific information available to the department does not indicate that the gray

wolf’s continued existence is in serious danger or is threatened by any one or any

combination of the following factors found in relevant regulation: present or threatened

modification or destruction of gray wolf habitat, overexploitation, predation, competition,

disease, or other natural occurrences or human-related activities.27

This determination by CDFW cleanly contradicts the findings of the Commission, and it is upon

this basis that CDFW counseled against listing the gray wolf as endangered, a recommendation

that the Commission set aside.

25

California Fish and Game Commission, Notice of Findings and Notice of Proposed Rulemaking: Gray Wolf

(Canis Lupus (Sept. 24, 2014) (available online at

http://www.fgc.ca.gov/meetings/2014/oct/exhibits/2_1_GrayWolf_DraftFindings.pdf) [hereinafter Draft Findings]. 26

Id. at 5. 27

Memorandum from Charlton H. Bonham, Director, California Department of Fish and Wildlife, to Sonke

Mastrup, Executive Director, California Fish and Game Commission, at 7 (Feb. 5, 2014) [hereinafter Memorandum

from CDFW Director Charlton Bonham”].

October 3, 2014

Page 8

Second, we object to the Commission’s repeated reference to the need to ensure the “continued

existence” of gray wolves in California.28

As detailed in Section I.A., supra, wolves do not

presently exist in California, and thus their supposed “continued existence” cannot be ensured.

A. Finding 5: Intermittent Presence and Range

Finding 5 states that “[t]he gray wolf is once again present in California, on at least an

intermittent basis,” and that “OR7 has established a range that includes portions of Northern

California.”29

Firstly, it is untrue that OR7 “is once again present” in California, as all reports

indicate that OR7 is currently in southern Oregon. Though it may be true that OR7 ‘has been

intermittently present in California,’ the wolf is not “once again present” in the state.

Most importantly, however, this finding of fact again fails to get at a threshold requirement of

CESA: the issue of range. That OR7 has briefly ventured into California during its dispersal does

not establish the state as within OR7’s “range.” A wolf’s territory or home range is distinct from

the area traveled by a wolf during its dispersal.30

As CDFW noted in its Status Report, dispersing

wolves have been documented to travel an average of 60 miles from their natal packs, and have

been documented dispersing as far as 680 or even 6,000 miles from their natal pack.31

Though

OR7 was documented in California during its dispersal, this is insufficient to establish California

as part of OR7’s “range.” Because the Commission has not clearly demonstrated that California

is within gray wolves’ range generally (or even OR7’s specifically), Finding 5 is insufficient to

demonstrate that the species is eligible for listing under CESA.32

B. Findings 8 and 9: Speculation

Finding 8 states in part that “it is likely that OR7’s mate was traveling with OR7 in California” at

the time OR7 was documented in the state on February 5, 2014.33

Finding 9 states that “[t]he

evidence in the record regarding wolf migration and dispersal behavior at a minimum indicates

that wolves other than OR7 have similarly dispersed or will disperse to California, as most

wolves from Oregon packs are not collared with radio transmitters and their presence in

California may not otherwise have been detected.”34

With regard to the first statement, there is no actual evidence which supports the notion that

OR7’s mate was ever within the state of California, and speculation that she may have been here

has no place within a statement of factual findings.

Within Finding 9, there is insufficient evidence in the record for the Commission to claim that

“at a minimum…wolves other than OR7 have similarly dispersed or will disperse to

California.”35

That many Oregon wolves are not collared and that wolves tend to disperse does

28

See, e.g., Draft Findings at 4, 5, and 9. 29

Id. at 6. 30

Status Report at 12-13. 31

Id. at 13. 32

See Section I.A., supra. 33

Draft Findings at 7. 34

Id. (emphasis added). 35

Id.

October 3, 2014

Page 9

not establish that some undetected wolves have dispersed into California as OR7 did in the past.

We cannot infer from a lack of evidence that wolves have dispersed into California—rather, the

Commission must provide affirmative evidence demonstrating this finding of “fact.”

These two statements regarding OR7’s mate and the potential presence of other wolves in

California constitute little more than speculation, and thus have no place in findings of fact. The

fact remains that only one wolf—OR7—has been confirmed to have ventured into California,

and no wolves are now known to be present within the state.

C. Finding 13: Supposed Need for CESA Protection

Finding 13 concludes that “CESA would criminalize…behavior [injurious to gray wolves] in a

more significant way than currently exists and act as a deterrent that may assist in allowing the

early members of California’s gray wolf population to persist.”36

This finding is misleading for

two reasons: the gray wolf already enjoys significant protection, and the Commission and CDFW

had ample means to ensure wolves persist without listing the species under CESA.

Director Bonham’s February 5 memorandum to the Commission detailed the extensive

protection that currently exists for the species:

The gray wolf is currently protected as an endangered species under the federal

Endangered Species Act (ESA), which prohibits any “take” of the species in California

and other areas of the western United States. If that status were to change, a possibility

currently being considered, existing laws in California would classify gray wolf as a

nongame mammal pursuant to Fish and Game Code section 4150. This section prohibits

take or possession of nongame mammals or parts thereof except as provided in the code

or regulations adopted by the Commission.37

Nor is CESA necessary for the continued protection of gray wolves. As Director Bonham

reported to the Commission, the Commission had ample ability to equally protect the species

without designating it as endangered, including: (1) listing it as a “species of special concern,”

(2) permitting CDFW and interested stakeholders to develop a plan—already underway at that

time—to protect the species, and (3) to take action under existing Commission authority to

prevent take of OR7 and other wolves that may disperse into California.38

In short, endangered species designation is not necessary or appropriate to protect gray wolves in

California.

D. Finding 16: Intent of the Legislature and the Stakeholder Process

Finding 16 states, in part, that listing the gray wolf as endangered will “further the intent of the

Legislature and be consistent with the objectives of CESA.”39

In light of the plain language of

36

Draft Findings at 9. 37

Memorandum from CDFW Director Charlton Bonham at 4. 38

Id. 39

Draft Findings at 10.

October 3, 2014

Page 10

CESA and legislative intent examined throughout Section I of these comments, supra, however,

this seems patently false.

The findings proceed to state that “Protecting the gray wolf under CESA will also strengthen the

Department’s existing stakeholder process to develop a state wolf plan, by providing clarity as to

the management tools and options that will be available to the Department and to

stakeholders.”40

All three of our organizations sit on the Stakeholder Working Group for

CDFW’s Wolf Management Plan, and we assure the commission that CESA listing has not

“strengthen[ed] the Department’s existing stakeholder process to develop a state wolf plan.”

Additionally, while it cannot be doubted that the Commission “provid[ed] clarity as to the

management tools and options that will be available to the Department,” this is not necessarily a

positive change. Rather, where once the Department and stakeholders had a robust toolbox, the

Commission has left them with an isolated few tools which may prove ill-suited for the job at

hand, forcing the Department and stakeholders to attempt to MacGyver wolf management in

California.

CONCLUSION

Given that the gray wolf is not present in California and that there is scant evidence establishing

the species as native to the state, it is unlikely that the Commission would be acting within its

legal authority in listing the species under CESA. Additionally, important policy considerations

weigh against listing the species. Finally, the Commission’s own findings of fact are insufficient

to establish that the species is eligible for listing under CESA. For these reasons, our

organizations strongly urge the Commission not to ratify findings which would designate the

gray wolf an endangered species under CESA, and to reconsider the decision to list the species.

Sincerely,

Kirk Wilbur Noelle Cremers

California Cattlemen’s Association California Farm Bureau Federation

Lesa Eidman

California Wool Growers Association

40

Id.

Exhibit 8

1

November 24, 2015

Jack Baylis, President


1416 9th Street, Room 1320


Re: Adoption of proposed changes to endangered or threatened animals regulations to add

gray wolf (Canis lupus) to the list of endangered species (Section 670.5, Title 14, CCR)

Dear President Baylis:

The California Cattlemen’s Association (CCA), California Farm Bureau Federation (CFBF), and

California Wool Growers Association (CWGA) welcome the opportunity to comment on the

proposal to amend Section 670.5, Title 14 of the California Code of Regulations to list the gray

wolf as an endangered species in California. Our organizations remain strongly opposed to

listing of the gray wolf as endangered under the California Endangered Species Act (CESA), and

we urge the Commission to reject the proposed regulatory amendment which would list the gray

wolf as endangered in California. The many legal, policy, and factual considerations that our

organizations have addressed to the Commission since 2012 continue to weigh against

endangered status for the gray wolf, and we urge the Commission to halt the listing process by

not adopting the proposed regulatory amendment.

I. THE GRAY WOLF IS NOT LEGALLY ELIGIBLE FOR LISTING AS ENDANGERED UNDER § 670.5

A. The gray wolf is not “in serious danger of becoming extinct throughout…its range”

as required by CESA

The term “range” under CESA is susceptible of at least two (though likely more) interpretations.

For instance, “range” may be interpreted as “the species’ overall geographic range without

regard to physical or political geographic boundaries,” or it may be interpreted as “the species’

California range only,” as the California Third District Court of Appeals held in California

Forestry Association v. California Fish and Game Commission.1

Importantly, under either interpretation of “range,” gray wolves were likely not legally listable

within § 670.5 at the time that the Commission determined such listing was warranted.

If the former interpretation is applied (that “range” is the species overall geographic range), then

gray wolves are clearly not at danger of becoming extinct. In fact, the overall population of gray

1 No other California case appears to have considered the meaning of “range” under CESA. See Section I. B. for

further analysis of Cal. Forestry Ass’n v. Cal. Fish & Game, distinguishing that case from the present scenario under

analysis of the California Administrative Procedures Act.

November 24, 2015

Page 2

wolves is robust and increasing, especially throughout the American West, and gray wolves have

made such a great population resurgence that the US Fish and Wildlife Service is currently

considering delisting populations of the species under the federal Endangered Species Act and

the state of Oregon recently delisted the species from its list of endangered species.

If the latter interpretation of “range” is applied (that “range” means a species’ extent within the

borders of California), the same conclusion results: the species is not at risk of extinction

throughout its range. This was particularly true at the time that the Commission made its decision

to list the gray wolf, as no wolves were present within California. If a species is not present

within the state, it cannot be at risk of becoming extinct. The Commission’s Initial Statement of

Reasons for Regulatory Action (ISOR) confirms that no gray wolves were present within

California at the time the Commission determined the species warranted inclusion on the

endangered species list. As the Commission notes, “[o]n June 4, 2014 [the date the Commission

determined listing was warranted], the State of Oregon Department of Fish and Wildlife

confirmed that OR7…was denning…on public land in southwestern Oregon.”2 OR7 was the

only wolf known to the Commission to have been present (on an intermittent basis) within

California, and the Commission was aware that OR7 was not present in California on the date

that the Commission determined listing was warranted.

Nor was OR7’s prior intermittent presence in California a sufficient basis to list the gray wolf as

endangered under CESA. Not only was OR7 not present at the time of listing, but his forays into

California were relatively brief and impermanent, lacking sufficient regularity over a reasonable

span of time for the species to be deemed to occupy “range” within California.

Regardless of how one interprets “range” under CESA, it is clear that the Commission had

insufficient legal basis to determine that gray wolves warranted listing as endangered.

B. The Commission’s interpretation of “range” as meaning “California range” is an

underground regulation in violation of the California APA

As demonstrated above, the term “range” as used in CESA is ambiguous, clearly susceptible of

more than one interpretation. “Range” is not defined within CESA itself nor within any

regulation formally adopted by the Commission to implement and enforce CESA. Nevertheless,

the Commission has interpreted “range” to mean “California range.”

Importantly, however, the Commission has never engaged in the required rulemaking to establish

its standard that “range” means only range within California. The Commission’s application of

this interpretation in adopting subsequent regulations (including the regulatory amendment

currently under consideration) is a violation of the California Administrative Procedures Act

(APA). By establishing a “guideline…standard of general application, or other rule” without

engaging in the formal rulemaking required by the APA, the Commission has effectively

developed an “underground regulation” in violation of the APA.

It is not sufficient that legal precedent has on one occasion interpreted “range” to mean “range

within California,” as held in California Forestry Ass’n v. Cal. Fish & Game Comm’n and noted

2 Initial Statement of Reasons for Regulatory Action at 5.

November 24, 2015

Page 3

by Petitioners at the April 2014 and June 2014 hearings. In that case, the court was not presented

with the question of whether such an interpretation was legally defensible without formal

rulemaking under the APA, but only the question of whether the term “range” within CESA was

susceptible of such a limited definition.

To avoid running afoul of the APA, we urge the Commission to reject the proposed amendment

to the list of endangered species—rooted as it is in the legally-deficient interpretation of “range.”

C. Gray wolves are not provably “native” to the state of California as required by

CESA

CESA defines an endangered species as “a native species or subspecies . . . which is in serious

danger of becoming extinct throughout all, or a significant portion, of its range.”3

Petitioners did not sufficiently demonstrate this threshold requirement in their petition, nor has

additional information subsequently provided by the California Department of Fish and Wildlife

(CDFW) provided sufficient evidence to prove that the gray wolf is native to California.4

In fact, CDFW Wildlife Programs Branch Chief Eric Loft stated on October 3, 2012 that

“historically we do not have much more than anecdotal information on the history of gray

wolves” in California.5 It would be a mistake, then, to assume that these anecdotal reports add up

to certainty of a historic native population of gray wolves in California. As Mr. Loft stated, “we

do not know that” there was a significant native population, and CESA requires just such

knowledge as a precondition to listing.

CDFW was only highly confident of the accuracy of 3 reports of gray wolf presence in

California prior to June 4, 2014—one of which was OR7 himself. The remaining two high-

confidence records are anecdotal at best. Three specimens are necessarily insufficient to

demonstrate that there was an established, native population of gray wolves historically present

within California. Indeed, it is entirely possible that these exceedingly few specimens arrived in

California not as the result of a native population, but instead in the same manner as OR7—a

brief foray into the state.

D. The legislative intent behind CESA was to protect species in decline, precisely the

opposite scenario presented by gray wolves in California

CESA defines an endangered species as one “which is in serious danger of becoming extinct

throughout all, or a significant portion, of its range.”6 However, the presence of the gray wolf in

California presents exactly the opposite scenario. The gray wolf was not present in California for

many decades prior to the passage of CESA, and indeed may never have been a well-established

3CAL. FISH & GAME CODE § 2062 (emphasis added). 4 For a detailed discussion of the scant evidence that gray wolves are “native” to California, see Letter from the

California Cattlemen’s Association, California Farm Bureau Federation, and California Wool Growers Association

to Michael Sutton, President, California Fish and Game Commission (Oct. 6, 2014). 5 Video recording: Meeting of October 3, 2012, held by the California Fish & Game Commission, at 3:58:21 (Oct.

3, 2012) (available at http://www2.cal-span.org/media.php?folder[]=CFG). 6 CAL. FISH & GAME CODE § 2062.

November 24, 2015

Page 4

native species, but it may now expand into the state because there are no significant threats to the

species’ survival.




the opposite scenario: any appearance of the gray wolf within California would necessarily be an

increase in the species. The legislature did not intend CESA to apply in instances where species

were appearing in the state or increasing in number, but rather intended to guard against the

decline of native species within the state. As a matter of law and policy, endangered species

listing is not the proper means for protecting the gray wolf in California.

II. REJECTING THE PROPOSED AMENDMENT ALLOWS CDFW TO BETTER MANAGE THE SPECIES

AND REDUCE HARMS ASSOCIATED WITH LISTING THAT ARE OUTLINED IN THE ISOR

CDFW continues to develop a Wolf Management Plan, which has been developed with the input

of a diverse Stakeholder Working Group, upon which representatives of each of our

organizations sat. Unfortunately, many nuanced, thoughtful, and balanced management policies

being considered by CDFW throughout the development of the wolf management plan had to be

abandoned in the wake of the Commission’s decision that the species warranted listing as

endangered, as some of those management policies ran afoul of the rigid, inflexible requirements

of CESA.

In the ISOR, the Commission notes that “the amendment of this regulation may have significant,

statewide adverse economic impact directly affecting business.”7 Indeed, endangered listing of

gray wolves is likely to result in significant economic hardship for ranchers.

As predators, wolves are extraordinarily detrimental to the life and health of livestock, and

consequently to the livelihood of ranchers. Not only are gray wolves known to directly kill

livestock, but scientific study has shown that “[t]he regular presence of wolves in close

proximity to livestock may result in a chronic stress situation for the domestic animals” and that

“[m]any infectious diseases result from a combination of viral and bacterial infections and are

brought on by stress.”8 Stress can result in increased susceptibility to disease and weight loss,

reduction in the value of meat, and can interfere with reproduction.9 One study demonstrates that

where wolf-pack territories overlapped cattle grazing areas on ranches where there was at least

one confirmed prior depredation, the average calf had an average end-of-season weight 3.5%

lower than the overall average.10 In the study, this reduction in weight meant a total loss of

$6,679 for an average affected livestock producer.11

7 ISOR at 13. 8 Faries, Floron C., Jr. and L. Garry Adamn, 1997. Controlling bovine tuberculosis and other infectious diseases in

cattle with total health management. Texas Agricultural Extension Service, Texas A&M University. Publication

24M-2-97. 9 Fanatico, Anne, 1999. Sustainable beef production, NCAT Agriculture Specialists, ATTRA Publication

#IPO18/18. 10 Kellenberg, Derek et al., 2014. Crying wolf? A Spatial analysis of wolf location and depredations on calf weight.

Journal of Agricultural Economics. 11 Id.

November 24, 2015

Page 5

Because of the devastating direct and indirect effects of gray wolves upon livestock, and due to

the limited effectiveness of livestock protection measures such as fladry, RAG boxes, and other

measures, it is important that ranchers have available to them as many options as possible to

protect their livestock and their livelihoods. The statutory restrictions attending CESA listing

foreclose many of these protection measures, even some non-lethal measures.

Thus, in order to avoid the significant harm and suffering to livestock and the significant

economic damage to ranchers that will attend listing the gray wolf as endangered, our

organizations urge the Commission to reject the proposed amendment, and instead defer to

CDFW to establish nuanced policies which will better strike a balance between conserving gray

wolves and protecting livestock and ranchers.

CONCLUSION

Because the gray wolf is not legally eligible for endangered status under CESA, and because

such endangered status will result in significant harm to livestock, ranchers, and the state of

California, we urge the Commission to reject the proposed amendment which would list gray

wolves as endangered under Section 670.5.

Sincerely,

Kirk Wilbur Noelle Cremers

California Cattlemen’s Association California Farm Bureau Federation

Erica Sanko


Exhibit 9

December 8, 2015

Jack Baylis, President


1416 9th Street, Room 1320


Re: Adoption of proposed changes to endangered or threatened animals regulations to add

gray wolf (Canis lupus) to the list of endangered species (Section 670.5, Title 14, CCR)

Dear President Baylis,

The California Cattlemen’s Association (CCA) and the California Wool Growers Association

(CWGA) have repeatedly argued that the gray wolf is not legally eligible for listing as an

endangered species under regulations implementing the California Endangered Species Act

(CESA) in part because the species is not “native” to California as required by CESA.1 CCA and

CWGA have repeatedly pointed to the lack of historical evidence of wolves within the state to

underscore this point.

However, the biology of gray wolves in the Western United States also precludes their inclusion

on the list of endangered and threatened species within California. Most gray wolves in the

Western United States are of the subspecies Canis lupus occidentalis, commonly called the

Northwestern wolf, a subspecies which is not native to California.

As the California Department of Fish and Wildlife noted in its February 5, 2014 Status Review

for the gray wolf, those wolves which have entered California hail from Oregon wolf packs

“established from wolves emigrating from Idaho. The Idaho wolves originated from translocated

wolves (Canis lupus occidentalis) captured in the Rocky Mountains of British Columbia and

Alberta.”2

In fact, an earlier draft of the Status Review goes even further, concluding that “the most recent

wolf to occupy California, and the wolves most likely to colonize California in the future may be

of a different subspecies than the wolves historically inhabiting the state.”3

1 CESA defines an endangered species as “a native species or subspecies…which is in serious danger of becoming

extinct throughout all, or a significant portion, of its range.” CAL. FISH & GAME CODE § 2062 (emphasis added). 2 CAL. DEPT. FISH & WILDLIFE, A STATUS REVIEW OF THE GRAY WOLF (CANIS LUPUS) IN CALIFORNIA at 8 (Feb. 5,

2014) [hereinafter STATUS REVIEW]. 3 CAL. DEPT. FISH & WILDLIFE, A STATUS REVIEW OF THE GRAY WOLF (CANIS LUPUS) IN CALIFORNIA (October 23 –

Preliminary Draft for Review) at 5 (Oct. 2013), available online at

https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=76664&inline=1.

Indeed, if any wolves were native to California (the status evaluation is equivocal on this point,

stating that they “may” have occurred in California), CDFW states that those species were likely

three now-extinct subspecies: the Cascades wolf (Canis lupus fuscus), the Southern Rocky

Mountains wolf (Canis lupus youngi), and the Mogollon Mountain wolf (Canis lupus

mogollonensis).4 While the Status Review allows that modern taxonomies might include those

three extinct subspecies within the modern classification of the Great plains wolf (Canis lupus

nubilus) and also mentions that it is possible that the Mexican wolf (Canis lupus baileyi)

historically occurred in California,5 it is important to note that there is absolutely no suggestion

nor evidence that the subspecies Canis lupus occidentalis historically appeared in

California. Thus, the subspecies of gray wolves presently within the state, or which may

occupy the state in the future, are not a native subspecies, and legally ineligible for CESA

protection.

Sincerely,

Kirk Wilbur


Erica Sanko


4 STATUS REVIEW at 8.

5 Id.

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