Administrative Rule Review Report #AR09-010
Legislative Service Office
04-Feb-09
AGENCY: Game and Fish Department.
DATE SUBMITTED: January 30, 2009.
SUBJECT: Chapter 21, Gray Wolves Designated As Trophy Game Animals.
NATURE OF RULES: Legislative and procedural.
STATUTORY AUTHORITY: W.S. 23-1-304.
DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO: Apparently complete to date.
SUMMARY OF RULES:
The following are the key changes being proposed by the Game and Fish Commission:
1. "Chronic wolf depredation area", with respect to the authority to issue lethal take permits, is being defined as a parcel of private land or grazing allotment within the trophy game management area where wolves have repeatedly (twice or more), and within a two month period immediately preceding the application for a lethal take permit, harassed, injured, maimed or killed livestock or domestic animals.
2. "Doing damage to private property" is being defined as "the actual biting, wounding, grasping or killing of livestock or domesticated animals, or chasing, molesting, or harassing by gray wolves that would indicate to a reasonable person that such biting, wounding, grasping or killing of domesticated animals is likely to occur at any moment."
3. Under the proposed rules a lethal take permit is limited to authorizing the taking of not more than two gray wolves.
4. Under the proposed rules, the commission commits to manage for at least 15 breeding pairs (comprising at least 150 animals) within the trophy game management area, with at least 7 pairs primarily outside the national parks.
5. The proposed rules prohibit the commission from diminishing the trophy game area unless, based on the best scientific data and information available, doing so will not prevent achievement maintaining 15 breeding pairs within the trophy game management area, with at least 7 pairs primarily outside the national parks.
6. The proposed rules provide a commitment to genetic diversity of gray wolves through potential relocation and translocation of wolves.
FINDINGS: This review takes into account an administrative agency's authority to define and interpret terms in enabling legislation as well as the limitation on that authority. "It is a basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written. The principle can at times come into some tension with another fundamental principle of the law, one requiring judicial deference to a reasonable statutory interpretation by an administering agency. A reviewing court should not defer to an agency position which is contrary to an intent of Congress expressed in unambiguous terms." Estate of Cowert v. Nicklos Drilling Co., 505 U.S. 469 (1992). At the same time, this review also considers the legislative intent of the statutes expressed in 2003 Wyoming Session Laws, Chapter 115, Section 4(a) which provides "It is the purpose of this act … to provide appropriate state management and control of gray wolves in order to facilitate the removal of the gray wolf from its listing as an experimental nonessential population, endangered species or threatened species in Wyoming and to prevent future listing of the gray wolf as an experimental nonessential population, endangered species or threatened species." The recent federal district court decision in 2008 provides further background in interpreting the federal law in determining what is required to facilitate the removal of gray wolves from the endangered species act.
With respect to the provisions listed above:
1. W.S. 23-1-304(n) provides that "The commission shall promulgate rules and regulations providing for issuance of annual permits to landowner or livestock owners for removing wolves which are harassing, injuring, maiming or killing livestock or other domesticated animals and for wolves occupying geographic areas where chronic wolf predation occurs. The permits shall be issued as long as there are seven breeding pairs within the state and outside the [National Parks]. The rules shall provide for suspending or canceling permits if further lethal control could cause relisting of wolves under the endangered species act."
Plain reading of the statute indicates that the commission "shall" issue the permits "as long as" there are 7 pairs outside the parks. However, it could be argued that continuing to issue the permits if there are less than 15 pairs will result in relisting under the ESA. This argument conforms with the legislative intent expressed in 2003 Wyoming Session Laws, Chapter 115, Section 4(a) discussed above.
Chronic wolf depredation is not defined in the statutes and is probably ambiguous enough to allow the commission to define it in such a way that limits the depredation to occurrences within a two month period.
2. W.S. 23-3-115(a) provides: "Any black bear, mountain lion, bobcat, weasel, badger, gray, red and fox squirrels or muskrat doing damage to private property may be immediately taken and killed by the owner of the property, employee of the owner or lessee of the property." W.S. 23-3-115(c) applies the provisions of this subsection to taking of gray wolves, with an added notification requirement. In defining "doing damage to private property" so narrowly, the commission is treating the definition differently for gray wolves than for the other species listed. In addition, the plain meaning of private property is not limited to livestock and domestic animals, and the plain meaning of "doing damage" would include a much broader application than the immediate threat of biting, wounding, grasping or killing. However, given the intent of the legislation noted in 2003 Wyoming Session Laws, Chapter 115, Section 4(a), deference might be accorded to the agency in defining when wolves are doing damage to private property. It could be argued that the agency has the expertise to determine that wolves damage private property differently than the other species in the statute and should therefore be treated differently in the rules.
3. The lethal take provision should not be a problem as there is no statutory or rule prohibition on the application for more than one permit, i.e. each permit allows the taking of only two wolves but there is no limit on the number of permits which may be issued.
4. W.S. 23-1-304(a) provides that "The commission shall by rule and regulation establish areas within the state where gray wolves are classified as trophy game animals and set seasons and bag limits within those areas. The areas designated, seasons and bag limits shall be set annually in a manner the commission determines, through rule and regulation, only as necessary to reasonably ensure at least seven (7) breeding pairs of gray wolves are located in this state and primarily outside of [the parks] at the end of the current calendar year."
The statutory language is potentially ambiguous as to how many wolves the commission should be managing for. It provides that the area should set "only as necessary" but then couches the limitation with the goal of ensuring of "at least" 7 pairs outside the parks. A reasonable reading of the statute is that the commission will always manage for at least seven pairs, but that number may be higher if it is reasonably necessary to ensure that wolves will not be relisted under the ESA. Given the legislative intent discussed above regarding the purpose of the statutes to ensure wolves are delisted and to avoid relisting, the statute is likely somewhat ambiguous, leaving a court to accord deference to the agency's interpretation of what level of protection is necessary to ensure those goals.
More concerning is the additional language defining the fifteen breeding pairs as comprising 150 animals. W.S. 23-1-304(c) defines "breeding pair" as an adult male and an adult female gray wolf raising at least two (2) pups of the year until December 31. A strict reading of this language would indicate that the commission may only manage as reasonably necessary to maintain thirty adults and thirty pups, for a total of sixty animals each year. However, again given the legislative intent regarding the purpose of the statutes to ensure wolves are delisted and to avoid relisting, the statute could be construed as ambiguous, leaving a court to accord deference to the agency's interpretation of what level of protection is necessary to ensure those goals
5. This provision brings up the same distinction of managing for 7 pairs or 15 pairs discussed in paragraph 4 of this review.
W.S. 23-1-304(a) requires the commission annually define the trophy game area. It is unclear from the rule whether the commission intends to annually set the area through rule and regulation even though it is committing itself not to diminish the area except under these specified terms. While the rules do not need to reflect the requirement of annual promulgation, the commission should commit to annually review and reissue these rules in order to conform with the requirements of W.S. 23-1-304(a).
6. Nothing in the statutes appears to prohibit this policy of assuring genetic diversity.
Conclusion
The rules are certainly pushing the envelope of interpretation of statutory authority. The rules are probably only supportable if deference is accorded to the agency to reach the clearly stated legislative purpose of achieving and maintaining delisting of gray wolves. Under a Chevron analysis, a court would need to decide that the clearly stated legislative intent renders much of the statutes ambiguous and therefore the agency should be accorded deference in interpreting those statutes through rule and regulation to properly achieve those goals using its expertise in the field.
STAFF RECOMMENDATION: That the rules be placed on the Consent List and be approved by the Council as submitted by the Agency.
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Lynda Cook
Staff Attorney
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David K. Gruver
Assistant Director
LGC/