What did Idaho's AG say about Ron Gillett's 2006 ballot initiative to 'remove' gray wolves from Idaho?

Plain-English summary

Ron Gillett filed a ballot initiative on February 9, 2006, captioned "An Initiative Relating to the Removal of Wolves From Idaho." It proposed to amend several Idaho Code sections (§§ 36-103, 36-201, 36-712), repeal others (§§ 36-714(2), 36-715), substantially revise the species-conservation chapter (Title 36, Chapter 24), repeal the Office of Species Conservation (§§ 67-818 and 67-819), and rescind the legislative resolution approving the Idaho Wolf Conservation and Management Plan.

Wasden's Certificate of Review made three substantive points:

The caption is misleading. Federal law, not state law, controls whether wolves can be "removed" from Idaho. The gray wolf was listed as endangered under the federal Endangered Species Act in the contiguous 48 states (except Minnesota, where it was threatened). The U.S. Fish and Wildlife Service had reintroduced 35 wolves from Canada into central Idaho in 1995-1996 under ESA Section 10(j), and by 2006 the population had grown to an estimated 500-600 animals in 61 packs. Rescinding Idaho's wolf management plan would actually reverse the State's progress toward delisting and would put the central Idaho population back under the more restrictive 1994 Section 10(j) rule. The result is greater federal control, not removal. Wolves cannot be "removed" by state-law action absent federal delisting or a change in federal statute.

The caption is also confusing because the initiative does much more than wolf removal. It would also abolish the Office of Species Conservation (OSC), which is responsible for matters affecting all 23 ESA-listed species in Idaho (springsnails, bull trout, slickspot peppergrass, sage grouse, and salmon, among others). In FY 2005 OSC's wolf-related funding was only $2.4 million out of $17.67 million total (13.6%).

Single-subject problem. Idaho Const. art. III, § 16 requires every act to embrace one subject and matters properly connected. Wolf removal and the elimination of OSC are arguably separate subjects. A voter who wants wolf removal might or might not want to abolish the agency responsible for all species conservation. The AG recommended the sponsor either delete the OSC-related sections or pursue them as a separate initiative.

Full-text drafting. Art. III, § 18 prohibits amending a statute by mere reference to its title. The full text of amended sections must be reproduced. The AG also recommended (but did not require) underlining additions and striking through deletions, to help signers understand the proposal.

The certificate notes one minor textual fix the sponsor's attorney requested ("and" replacing the second "to" in the sixth Whereas clause). The certificate was issued to petitioner Ron Gillett.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The federal regulatory landscape for the gray wolf has shifted multiple times since 2006. The U.S. Fish and Wildlife Service delisted the Northern Rocky Mountain population repeatedly (notably in 2009 and 2011), with intervening court decisions vacating delisting rules. Congress permanently delisted the Northern Rocky Mountain population in 2011 by appropriations rider. Idaho has since exercised primary management authority over the wolf population. Anyone analyzing wolf-related Idaho law today should check the current state of federal listing, current Idaho Department of Fish and Game wolf management rules, and the current Idaho Wolf Conservation and Management Plan rather than rely on the 2006 framework described here.

Common questions

Q: Did this initiative make the ballot?
A: This initiative did not gather enough signatures to qualify for the November 2006 ballot. The same sponsor (Ron Gillett) refiled a revised version on March 7, 2006 (subject of a separate Certificate of Review dated March 9, 2006), and a third version on November 6, 2006 for the November 2008 ballot.

Q: Why couldn't Idaho just declare wolves "unprotected predators"?
A: Because federal law preempts state law on Endangered Species Act-listed species. Under the ESA, "take" of a listed species (including harassment, harm, hunting, capture) is prohibited, and the prohibition runs against state actors as well as private parties. State law that purports to authorize take of a federally protected species is preempted.

Q: What is a Section 10(j) "experimental population"?
A: An ESA mechanism (16 U.S.C. § 1539(j)) added in 1982 that lets the U.S. Fish and Wildlife Service designate reintroduced populations of endangered species as "nonessential experimental populations." Such populations get more flexible management rules, which was thought to ease the political and economic concerns of local landowners and industries about hosting reintroductions.

Q: What does the single-subject rule require?
A: Idaho Const. art. III, § 16 requires every act to embrace one subject and matters properly connected with that subject. The Idaho Supreme Court has held that "if the provisions of an act all relate directly or indirectly to the same subject, having a natural connection therewith, and are not foreign to the subject expressed in the title, they may be united in one act" (Boise City v. Baxter, 41 Idaho 368 (1925)). The court has invalidated statutes for combining unrelated subjects.

Q: Could a court strike just the OSC-elimination sections and keep the wolf-removal sections?
A: Possibly, depending on whether the sections are severable. The AG flagged the issue but did not predict an outcome; the sponsor's safer course is to split the proposal into two initiatives.

Background and statutory framework

The gray wolf had been functionally extinct in Idaho by the 1930s. The U.S. Fish and Wildlife Service began reintroducing Canadian wolves into central Idaho and Yellowstone in 1995-1996 under ESA Section 10(j) (16 U.S.C. § 1539(j)), which authorizes designation of reintroduced populations as "nonessential experimental populations" with more flexible management rules.

By 2006, Idaho's wolf population was an estimated 500-600 animals in 61 packs. The 2002 Idaho Legislature had approved the Idaho Wolf Conservation and Management Plan by concurrent resolution. FWS approved the plan in 2004, and a Memorandum of Agreement transferring some regulatory responsibility from FWS to Idaho was executed in January 2006. FWS published an advance notice of proposed rulemaking in February 2006 announcing intent to delist the wolf in the Northern Rocky Mountain area, conditioned on Wyoming adopting a satisfactory wolf management plan.

The Office of Species Conservation, created by Idaho Code §§ 67-818 and 67-819, served as Idaho's coordinator for all 23 ESA-listed species in the State, not just wolves.

Citations and references

Statutes:
- Idaho Code §§ 34-1809, 36-103, 36-201, 36-712, 36-714, 36-715, 67-818, 67-819
- Idaho Code Title 36, Chapter 24 (species conservation)
- 16 U.S.C. §§ 1531-1544 (ESA), § 1532(19) (take), § 1539(j) (experimental populations)
- Idaho Const. art. III, §§ 1, 16, 18

Cases:
- Defenders of Wildlife v. Secretary, 354 F. Supp. 2d 1156 (D. Or. 2005)
- Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224 (10th Cir. 2000)
- McKittrick v. United States, 142 F.3d 1170 (9th Cir. 1998)
- Luker v. Curtis, 64 Idaho 703 (1943)
- State v. Finch, 79 Idaho 275 (1957)
- Simpson v. Cenarrusa, 130 Idaho 609 (1997)
- Boise City v. Baxter, 41 Idaho 368 (1925)
- Keenan v. Price, 68 Idaho 423 (1948)

Federal materials:
- 43 Fed. Reg. 9607 (1978) (initial endangered listing)
- 59 Fed. Reg. 60,252 (1994) (10(j) experimental population rule)
- 70 Fed. Reg. 1286 (2005) (revised 10(j) rule)
- 71 Fed. Reg. 6634 (2006) (advance notice of delisting)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C030306.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

March 3, 2006

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE

Re: Certificate of Review
Proposed Initiative Relating to the Removal of Wolves from Idaho

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on February 9, 2006. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the following recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those which may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by this proposed initiative.

[The full certificate runs approximately 6 pages, with sections on: Ballot Title; Matters of Substantive Import (ESA Background, including detailed federal regulatory history; The Proposed Initiative; The Petition's Caption; Unity of Subject, including the AG's analysis of why wolf-removal and OSC-elimination are likely separate subjects; Full Text of Sections Amended; Miscellaneous); and Conclusion. See the linked PDF for the complete text.]

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Ron Gillett by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
Clay R. Smith
Deputy Attorney General