Cascadia Wildlands v. Department of Fish and Wildlife

300 Or.App. 648

455 P.3d 950

CASCADIA WILDLANDS, an Oregon non-profit corporation; Center For Biological Diversity, a California non-profit corporation; and Oregon Wild, an Oregon non-profit corporation, Petitioners,

v. DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon; and Fish and Wildlife Commission, an agency of the State of Oregon, Respondents,andOregon Cattlemen's Association, and Oregon Farm Bureau Federation, Intervenor-Respondents,andWallowa County, a political subdivision of the State of Oregon, Intervenor-Respondent.

A161077

Court of Appeals of Oregon.

Argued and submitted January 31, 2018.

November 27, 2019

Daniel R. Kruse, Eugene, argued the cause for petitioners. Also on the briefs was Nicholas Cady.

Carson L. Whitehead argued the cause for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Caleb R. Trotter argued the cause for Intervenor-Respondents Oregon Cattlemen's Association and Oregon Farm Bureau Federation. Also on the brief were Damien M. Schiff, Pacific Legal Foundation; Caroline Lobdell, Scott W. Horngren, and Western Resources Legal Center.

Dominic M. Carollo argued the cause for Intervenor-Respondent Wallowa County. Also on the brief were Christopher T. Griffith and Yockim Carollo LLP.

Julie A. Weis and Haglund Kelley LLP filed the brief amicus curiae for Rocky Mountain Elk Foundation.

Before Armstrong, Presiding Judge, and Shorr, Judge, and James, Judge.

ARMSTRONG, P. J.

Respondent Oregon Fish and Wildlife Commission (the commission) removed the species Canis lupus , commonly known as the gray wolf, from the list of species protected under the Oregon Endangered Species Act (OESA). As allowed by ORS 183.400(1),¹ petitioners Cascadia Wildlands, Center for Biological Diversity, and Oregon Wild seek judicial review of the amendment to OAR 635-100-0125, the rule in which the gray wolf was delisted as an endangered species under the OESA (the delisting), asserting that that decision exceeded the commission's statutory authority and did not comply with applicable rulemaking procedures.² In particular, petitioners contend that the gray wolf remains an endangered species in Oregon, and that the commission's conclusion to the contrary was flawed because the gray wolf is nonexistent in the vast majority of its suitable range in Oregon and the decision was not based on scientifically reliable information or the best available scientific data.

Respondents (and intervenors Wallowa County, Oregon Cattlemen's Association, and the Oregon Farm Bureau Federation), in addition to disputing the merits of petitioners' rule challenge, assert that the petition for judicial review is moot because, after petitioners filed their petition for judicial review, the legislature enacted Oregon Laws 2016, chapter 36, which "ratified as satisfying the elements of ORS 496.176 and approved" the delisting. In respondents' view, because Oregon Laws 2016, chapter 36, precludes judicial review, we cannot grant the relief that petitioners seek, and the petition is therefore moot. Petitioners respond, highlighting comments made by the proponents of Oregon Laws 2016, chapter 36, that the law was merely an "expression of legislative agreement" that does not have legal effect. Alternatively, petitioners contend that, if we construe Oregon Laws 2016, chapter 36, as having the legal effect of rendering judicial review moot, the law offends the principle of separation of powers required by Article III, section 1, of the Oregon Constitution.³ For the reasons we explain below, we agree with respondents and conclude that petitioners' rule challenge is moot. We also conclude that Oregon Laws 2016, chapter 36, does not violate Article III, section 1. We therefore dismiss the petition for judicial review.

Before we address the effect and constitutionality of Oregon Laws 2016, chapter 36, we briefly summarize the OESA, the status of the gray wolf in Oregon, and the circumstances of the legislature's enactment of Oregon Laws 2016, chapter 36. The OESA directs the commission to "conduct investigations of wildlife species native to this state and shall determine whether any such species is a threatened or an endangered species" and to "establish and publish, and from time to time revise" by rule "a list of wildlife species that are threatened species or endangered species." ORS 496.172(1), (2). As noted, the applicable OESA rule is OAR 635-100-0125 (the Oregon list). "The Commission, by rule, may add or remove from either list, or change the status of any species on the lists, upon a determination that the species is or is not a threatened or endangered species." ORS 496.762(2). Among other requirements, ORS 496.176(3) provides that the commission's decision about the biological status of a species must be "based on documented and verifiable scientific information." Further, ORS 496.004(6), (17), and OAR 635-100-0112(1) impose a requirement that a species not be endangered or threatened in "any significant portion of its range."

Additionally, ORS 496.176 provides for the amendment of the Oregon list by petition, on the commission's own emergency action, or periodically at least every five years. ORS 496.176(5) ("Any person may petition the commission to, by rule, add, remove or change the status of a species on the list."); ORS 496.176(7)(a) (the commission must "take emergency action to add a species to the list of threatened or endangered species if it determines there is a significant threat to the continued existence of the species within the state"); ORS 496.176(8) (the commission must "periodically review the status of all threatened and endangered species" on the Oregon list "at least once every five years").

As for the gray wolf, the species was once numerous in Oregon but, with western migration of Euro-American settlers, was extirpated from the state, mostly because of cultural antipathy toward wolves and because farmers and ranchers found it necessary to kill wolves to protect their livestock.⁴ The last of those wolves native to the state was killed in 1946. When the legislature enacted the Oregon list in 1997, no wolves were known to exist in Oregon, and the gray wolf was classified as endangered. In 2005, respondent Oregon Department of Fish and Wildlife (ODFW) adopted the Oregon Wolf Conservation and Management Plan (the wolf plan) to "ensure the conservation of gray wolves as required by Oregon law while protecting the social and economic interests of all Oregonians." The plan comprises three phases: Phase 1 has the goal of achieving four breeding pairs of wolves in eastern Oregon for three consecutive years; Phase 2 has the objective of achieving seven breeding pairs in eastern Oregon for three consecutive years, which is deemed sufficient by ODFW for delisting; and Phase 3 is meant to ensure that the wolf population neither declines below Phase 2 population levels nor increases to population levels that "cause conflicts with other land uses." In the late 1990s, wolves began to arrive in the state from Idaho and, several years later, ODFW viewed the population of wolves as satisfying Phase 2 population levels and proposed to the commission that it delist the wolves.

On November 9, 2015, the commission agreed with ODFW's proposed delisting and amended the Oregon list to remove the gray wolf from it. Petitioners sought judicial review via this rule challenge on December 31, 2015.⁵ On March 2, 2016, the legislature passed House Bill (HB) 4040, which provides:

"SECTION 1. The administrative rule amendment adopted by the State Fish and Wildlife Commission on November 9, 2015, to remove Canis lupus, commonly known as the gray wolf, from the state lists of threatened species or endangered species established pursuant to ORS 496.172 (2), is ratified as satisfying the elements of ORS 496.176 and approved.

"SECTION 2. This 2016 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2016 Act takes effect on its passage."

Oregon Laws 2016, chapter 36, sections 1, 2. Oregon Laws 2016, chapter 36, includes a preamble, in which, among other declarations, the legislature declared that "a Canis lupus population has been reestablished in Oregon and has been increasing in both distribution and abundance since 2008"; "Canis lupus is not now and is not likely in the foreseeable future to be in danger of extinction in Oregon"; "Canis lupus has adequate protection under existing state programs, laws and regulations, including the Oregon Wolf Conservation and Management Plan and associated rules adopted by the State Fish and Wildlife Commission"; and "the commission developed extensive analyses and assessments that were made publicly available for review and comment through a series of public hearings." The governor signed HB 4040 into law on March 14, 2016, and HB 4040 was enacted as Oregon Laws 2016, chapter 36. Because an emergency was declared, the act took effect immediately.

Soon after, respondents filed a notice of probable mootness, asserting that the enactment of Oregon Laws 2016, chapter 36, likely rendered judicial review of the delisting moot. Petitioners did not respond to that notice, and the Appellate Commissioner dismissed the petition for judicial review as moot. However, after petitioners urged the court to reconsider the dismissal, the court determined that the validity of Oregon Laws 2016, chapter 36, was more appropriately decided by a merits panel of this court and vacated the dismissal order. Now, after full briefing and oral arguments on the issue, the parties reprise their mootness arguments.

LEGAL EFFECT OF OREGON LAWS 2016, CHAPTER 36

As noted, petitioners contend that Oregon Laws 2016, chapter 36, has no legal effect; rather, petitioners contend, the law is merely a "legislative expression of agreement." That is so, they posit, for three reasons. First, because the...