Endangered Species Law & Policy

In a split decision and contrary to the recommendation of the Department of Fish and Wildlife (Department), the California Fish and Game Commission (Commission) voted to list the gray wolf (Canis lupis) as endangered. The decision was lauded by representatives of environmental groups but opposed by representatives of farming and ranching interests. It affirms the willingness of the Commission, made up of political appointees, to overrule scientific staff when making critical decisions at the juncture of science and policy.

As we reported here, four environmental groups petitioned (pdf) the Commission to list the species as endangered in 2012 after a single gray wolf crossed the border from Oregon to spend several hours in California in 2011. The last gray wolf sighting in California prior to 2011 was in 1924. The petition notes that the wolf sighted in 2011 represented the first confirmed wolf within California in over 80 years.

Section 2072.3 of the Fish and Game Code provides that a petition 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 management, and the availability and sources of information. Section 2072.7 mandates that a Departmental recommendation regarding listing must include an evaluation of these same factors. The Department issued its recommendation (pdf) on February 5, 2014, as we reported here.

In a cover memo to the recommendation, the Director noted that the petition to list the gray wolf was unique because the species was extirpated from the state for many decades. The Department evaluated the petition based on a species-level review of the gray wolf, rather than a narrower taxonomic unit. It concluded that the continued existence of the gray wolf in California is not in serious danger or is threatened by any one or any combination 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.

In rejecting the Department’s recommendation, the Commission undoubtedly drew upon information beyond that recommendation. The Los Angeles Times reported that Commission President Michael Sutton said prior to the vote: There is no more iconic animal in the American West than this one. We owe it to them to do everything we can to help them recolonize their historic range in our state (Los Angeles Times, June 4, 2014, Julie Cart.) But the Department concluded that there is no reliable scientific information regarding historical wolf populations in California, a conclusion consistent with the findings of the U.S. Fish and Wildlife Service in its proposed rule (pdf) to delist the species.

The Commission’s decision – assuming it stands – represents a notable step forward for the concept of rewilding, which has to date been discussed mostly in academic circles. It entails introduction of large carnivores (and other mammals) in areas where they have been extirpated. More information about the concept can be found at the website for the Rewilding Institute.

The Commission’s decision also continues a trend toward consideration of taxonomic distinctions below the species level to justify listings. The California Court of Appeal affirmed the practice in California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal. App. 4th 1535, holding that the Commission can list subgroups of a species and opining that it is reasonable for the Commission to focus on the status of the species (or subgroup) within the state, rather than throughout its range.

A consequence of this trend is that the Commission has listed species that appear to be healthy throughout much of their range, including the longfin smelt (Spirinchus thaleichthys), which occurs from Alaska to California along the Pacific coast of North America. With respect to the wolf, the Commission’s decision to list comes at a time when the U.S. Fish and Wildlife Service has already delisted the species throughout many of the lower 48 states and has issued a proposed rule to delist it throughout the remainder of them, which we reported on here.