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 could mislead voters. At the time of review, gray wolves were federally listed under the Endangered Species Act. The U.S. Fish and Wildlife Service had reintroduced 35 wolves from Canada into central Idaho in 1995-1996, and Idaho's wildlife agency estimated 500-600 animals in 61 packs. The certificate said rescinding Idaho's wolf plan would prevent delisting under the framework then in place and restore the more restrictive 1994 federal rule. It would increase federal control, not remove wolves. The review said state law could not remove protected wolves absent a change in federal statute or implementing regulations.

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%).

One-subject question. Idaho Constitution art. III, § 16 requires an act to embrace one subject and connected matters. The certificate said a "quite substantial issue" existed because the wolf provisions and the elimination of OSC could be distinct subjects. It recommended deleting the OSC-related sections or pursuing them in a separate petition; it did not report a court judgment on the proposal.

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 sponsor's attorney also proposed replacing the second "to" with "and" in the sixth Whereas clause. The certificate was sent to petitioner Ron Gillett.

What this means for you

If you are drafting a wolf initiative: This review says to describe only the effect state law can achieve while federal protection applies. Its suggested changes include reconsidering a caption promising removal, separating the OSC provisions, and publishing the full text of amended sections.

If you work on species conservation: The certificate treats OSC's work as broader than wolves. It lists the agency's work on fish, plants, and other species to explain why abolishing OSC raised a separate constitutional question.

If you are reading the proposed measure: The certificate's conclusions concern a 2006 proposal and the federal listing framework then in force. It gives advisory comments, not a result from a ballot election or lawsuit over the proposal.

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 certificate describes federal listings and management rules as they stood in 2006. Check current federal and Idaho law before applying that framework today.

Common questions

Q: Does the certificate say whether voters saw this measure? A: No. It records the Attorney General's advisory review of the proposal and transmission of comments to the petitioner. It does not report whether signatures were gathered or whether the measure qualified for a ballot.

Q: Why couldn't Idaho just declare wolves "unprotected predators"? A: The certificate says wolves protected under the federal Endangered Species Act were not subject to "take," a term that includes harassment, hunting, killing, trapping, and capture. Changing Idaho's classification of wolves or rescinding its plan could not itself remove that federal protection.

Q: What is a Section 10(j) "experimental population"? A: The certificate says Section 10(j), added in 1982, lets federal officials establish reintroduced "nonessential experimental populations" under rules tailored to recovery. It describes the central Idaho wolves as part of such a population and explains why the applicable federal rule mattered to Idaho's management authority.

Q: What does the single-subject rule require?
A: Idaho Constitution art. III, § 16 requires each act to embrace one subject and connected matters. The certificate quotes an Idaho court rule allowing provisions with a natural connection to the same subject to appear in one act. It says the proposed OSC abolition might fail that test because OSC handled much more than wolves.

Q: What change did the Attorney General recommend for the OSC sections? A: The certificate recommended that sponsors consider deleting sections 6 through 8, which addressed OSC, or pursue wolf removal and OSC elimination in separate petitions. It did not predict how a court would rule on the combined measure.

Background and statutory framework

The certificate explains that the U.S. Fish and Wildlife Service reintroduced Canadian wolves into central Idaho in 1995-1996 under ESA Section 10(j), which authorizes "nonessential experimental populations" under federal 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)
• 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)
• 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
ldaho Secretary of State
STATEHOUSE

Re: Certificate of Review
Proposed Initiative Relatincl to the Removal of Wolves from ldaho

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on February 9, 2006 Pursuant to ldaho Code fj 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

BALLOT TITLE

Following the filing of the proposed initiative, this office will prepare short and long ballot titles The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure, While this office prepares the titles, if petitioners would like to propose language with these standards in mind, they are encouraged to do s o Any proposed language will be considered carefully,

PO. Box 83720, Boise, ldaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 334-2530 Located at 700 W Jefferson Street, Suite 210

Secretary of State Ysursa
March 3, 2006
Page 2 of 6

MATTERS OF SUBSTANTIVE IMPORT

I. ESA Backqround. Before discussing the text of the proposed initiative and the substantive issues attendant to its provisions, a brief summary of the status of the gray wolf (Canus lupus) under the Endangered Species Act (ESA), 16 U S C §§ 1531-1544, within ldaho helps place the proposal in legal context The gray wolf is listed currently as endangered under the ESA in the contiguous 48 States except Minnesota, where it is listed as threatened 43 Fed. R e g 9607 (1978); see also Defenders of Wildlife v. Secretary, 354 F . Supp 2d 1156 ( D Or. 2005) (invalidating rule, 68 F e d R e g 15,804 (2003), reclassifying entire species to threatened status) In 1994, however, the Secretary of the Department of the Interior, through the United States Fish and Wildlife Service (FWS), exercised his authority under ESA Section 10(j), 16 U S C . § 1539(j), to establish a "nonessential experimental population" (NEP) in portions of three States- Idaho, Montana and Wyoming-by the reintroduction of gray wolves imported from Canada 59 F e d R e g 60,252 (1994).' The principal NEP locus in ldaho is referred to commonly as the central ldaho area and is bounded on the north by lnterstate Highway 90, on the east by lnterstate Highway 15, and on the west and south by the state line. Another portion of the State east of lnterstate Highway 15 is located in the "Greater Yellowstone" NEP area that also encompasses portions of Montana and Wyoming,.

The FWS introduced 35 wolves from Canada into the central ldaho area during 1995 and 1996 70 F e d R e g 1286, 1287 (2006) Over the intervening period, the wolf population has increased significantly in the region and is estimated now by IDFG at 500-600 animals in 61 packs with 36 verified breeding pairs IDFG, ldaho Wolf Manaqement, available at httu://fishandqame.idaho.aov/cms/wildlife/wolves (last visited February 14, 2006); see also 71 F e d R e g 6634, 6636 (2005) (FWS estimate of 422 animals and 27 breeding pairs as of 2004) The ldaho population and those populations in the two other NEP areas have exceeded since 2002 the recovery goal set by FWS of at least 30 breeding pairs distributed among the areas-ie, at least ten pairs per State-over a consecutive three-year period 70 Fed. R e g at 1288,

Aside from satisfying this recovery metric, the 1994 experimental population rule also included as a condition for delisting the existence of adequate state "protective legal mechanisms" to maintain the wolf populations in the three States after loss of ESA protection In response to that requirement, the 2002 ldaho Legislature approved by

' Section 10(j) was added to the ESA in 1982 It authorizes the Secretary to establish NEPs that expand the range of listed species, thereby promoting recovery objectives, but to do so pursuant to rules designed to "'mitigate industry's fears [that] experimental populations would halt development projects, and, with the clarification of the legal responsibilities incumbent with experimental populations, actually encourage private parties to host such populations on their lands "' Wvominq Farm Bureau Fed'n v. Babbitt, 199 F 3 d 1224, 1232 (10th Cir. 2000) (quoting H R Rep. N o 97-567, at 8 (1982)); see also McKittrick v. United States, 142 F 3d 1170, 1174 (9th Cir 1998) ("[Elach experimental population has its own set of special rules so that the Secretary has more managerial discretion This flexibility allows the Secretary to better conserve and recover endangered species")

Secretary of State Ysursa
March 3, 2006
Page 3 of 6

concurrent resolution the ldaho Wolf Conservation and Management Plan (Wolf Plan), Although the Wolf Plan reiterated the State's formal position that all wolves should be removed from ldaho by the Federal Government, it also recognized the need "to use every available option to mitigate the severe impacts on the residents of the State of Idaho" from the wolves' presence and thus provided that "the state will seek delisting and manage wolves at recovery levels that will ensure viable, self-sustaining populations" ldaho Wolf Manaaement and Conservation Plan 4 (2002) The FWS approved the ldaho Wolf Plan in 2004 Montana also has an approved plan, but Wyoming does not,. 71 F e d Reg. at 6652-55; see also Wyomina v. USDOI, 360 F,, Supp 2d 1214 ( D W y o 2005) (rejecting challenge to FWS refusal to approve Wyoming wolf management plan),,

In January 2005, the Department of the Interior issued a revised Section 106) rule for the NEP populations that, in part, loosened "take" restrictions and authorized transfer of regulatory responsibility to ldaho, Montana and Wyoming conditioned upon federal approval of the particular State's wolf management plan and entry into a memorandum of agreement (MOA) 70 F e d Reg 1286, 1299-80 (2005) The requisite MOA between ldaho and the Department was executed in January 2006 The revised Section 106) rule therefore applies to the central ldaho NEP region,,

Finally, FWS published an advanced notice of proposed rulemaking in February 2006, announcing its intention to delist wolves in the Northern Rocky Mountain area, which includes the entirety of the three States and portions of Oregon, Washington and Utah, 71 F e d R e g at 6639 (Fig 2 ) Delisting is conditioned upon Wyoming's adoption of a wolf management plan consistent with FWS requirements id.at 6658 ("on the basis of the best scientific and commercial information available, we believe that the gray wolf in the NRM DPS would no longer qualify for protection under the ESA, if Wyoming modified its State wolf law and State wolf management plan in a manner that the Service would approve as an adequate regulatory mechanism"),,

11.. The Proposed Initiative.. The proposal is captioned "An Initiative Relating to the Removal of Wolves From Idaho" and, in addition to prefatory "Whereas" clauses, contains nine sections Sections 1 through 3 amend, respectively, ldaho Code
§§ 36-103, 36-201 and 36-712(a) Sections 4 and 5 repeal, respectively, ldaho Code
§§ 36-714(2) and 36-715 Section 6 substantially revises through amendment Chapter 24 of Title 36 Sections 7 and 8 repeal, respectively, ldaho Code §§ 67-818 and 67-819, while Section 9 rescinds the concurrent resolution approving the Wolf Plan Our review indicates that (1) the proposal's caption is potentially misleading and (2) there are significant constitutional questions raised by the initiative under Article Ill, Sections 16 and 18 This office also recommends the inclusion of underscoring and strikeouts to indicate new and repealed language that are not required as a matter of law but may be helpful to the public in determining whether to support the initiative

Secretary of State Ysursa
March 3,2006
Page 4 of 6

A. The Petition's Caption. The caption suggests that the initiative, if adopted, will "remove" wolves from ldaho As discussed above, however, rescission of the Wolf Plan will place ldaho in the same position as Wyoming now occupies and not only will preclude delisting but also will reinstate the 1994 Section 10(j) rule with its more stringent "take" limitations Neither of those outcomes will effect removal of reintroduced or any other wolves from this State Rescission of the Wolf Plan instead will result in greater federal control over the species in ldaho In this regard, it must be emphasized that, by virtue of actions taken pursuant to Section 10(j), wolves exist here and that, insofar as they are listed as threatened or endangered under the ESA, are not subject to a "takew-a term which includes any form of harassment or capture See 16 U S C 3 1532(19) ("[tlhe term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct"), Wolves, in short, cannot be "removed" from ldaho by actions taken pursuant to state law. Absent a change in federal statute or implementing regulations, the wolf populations will remain, with the only questions being which governmental entity is responsible for their management and what regulatory measures will be employed to ensure their continued recovery See, e.q., 70 Fed. Reg. at 1289 ("[blecause the [wolfl population inhabits parts of Montana, Idaho, and Wyoming, all three States must have adequate regulatory mechanisms to reasonably ensure their share of the population will remain recovered before the Service can propose it be delisted"),

The caption is additionally confusing to the extent that it suggests the petition is limited to wolf removal As discussed below, the initiative also would abolish the Office of Species Conservation (OSC).

This office offers no view on how those questions should be answered as a policy matter The initiative sponsors nonetheless may wish to consider rephrasing the caption

B. Unity of Subject. It is settled that the "power of legislation, reclaimed by the people through the medium of [Article Ill, Section I ] , did not give any more force or effect to initiative legislation than to legislative acts but placed them on an equal footing " Luker v. Curtis, 64 ldaho 703, 706, 36 P 2d 978, 979 (1943); accord State v. Finch,79 ldaho 275, 280, 315 P 2d 529, 530 (1957) Consequently, the constitutionality of voter-approved initiatives is determined "by the same standards as
if the legislature had enacted it " Simpson v. Cenarrusa, 130 ldaho 609, 61 1, 944 P 2d 1372, 1374 (1997)

Article Ill, Section 16 of the ldaho Constitution contains one of those "standards" and provides in part that "[elvery act shall embrace but one subject and matters properly connected therewith" The 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 Citv v. Baxter, 41 ldaho 368, 376, 238 P 1029, 1032 (1925); accord Cole v.

Secretary of State Ysursa
March 3,2006
Page 5 of 6

Fruitland Cannina Ass'n, 64 ldaho 505, 51 1, 134 P 2 d 603, 605 (1945) Inherent in this requirement is the need for the statute to "disclose, either by express declaration or by clear intendment, or at least portend the common object in order that it may be determined whether all parts are congruous and mutually supporting, and reasonably designed to accomplish the common aim" AFL v. Lanqley, 66 ldaho 763, 768, 168 P 2 d 831, 833 (1946),

Here, the proposed initiative's subject matter is wolf removal This purpose is disclosed perhaps most plainly in the initiative's caption and its "Whereas" clauses that focus exclusively on the reintroduction of wolves by the FWS, the negative effect of such action, and need for wolf recovery efforts to be terminated Sections 1 through 5 of the initiative respond specifically to the removal issue insofar as they (1) direct the ldaho Department of Fish and Game (IDFG) to remove reintroduced wolves "at such time and to the extent allowed by law" from ldaho and treat all other wolves as "unprotected predatory wildlife[;]" (2) add wolves generally to the list of unprotected wildlife; (3) make a technical change to a provision that requires reporting wolves born or held in captivity; (4) repeal exceptions from the obligation to compensate for damage done by wolves escaping from captivity; and (5) repeal a provision related to the duties of OSC and IDFG with respect to the transition of wolf management from federal to state control Section 9 rescinds legislative approval of the Wolf Plan Sections 6 through 8, however, address issues related generally to species conservation by substantially amending Chapter 24 of Title 36 and repealing statutes creating OSC and specifying its authority

A quite substantial issue exists over whether the proposed initiative violates the unity of subject mandate in Article Ill, Section 1 6 The OSC's responsibilities extend to all matters of species conservation, and not simply conservation activities related to wolves. Twenty-three species of mammals, birds, fish, invertebrates and plants listed under the ESA exist in ldaho, and during fiscal year 2005 OSC received $17.67 million in funds for its conservation-related activities, with only $2.4 million-or 1 3 6 percent- for wolf matters,. During 2005, for example, the agency petitioned FWS to delist the ldaho springsnail; provided data to FWS to support delisting bull trout in ldaho; developed candidate conservation plans for slickspot peppergrass and sage grouse; assisted in completion of the Clearwater-Salmon forestry agreement; and administered Pacific Coastal Salmon Recovery Funds through project solicitation, review and funding; and prepared to take a lead role in administering the Northwest Power and Conservation Council's 2006-09 Fish and Wildlife Mitigation Program in this State The provisions related to OSC's elimination could well be determined in a judicial challenge to be unrelated to whether wolves should be removed from ldaho Moreover, a voter's support of wolf removal entails consideration of factors quite arguably distinct from those that inform a decision concerning whether an agency generally responsible for species conservation matters should be abolished Cf. Keenan v. Price, 68 ldaho 423, 451, 195 P 2 d 662, 679(1948) ("if the thing or things proposed can be divided into questions distinct and independent so that any one of them can be adopted without in any way being controlled, modified, or qualified by the other, then there are as many

Secretary of State Ysursa
March 3,2006
Page 6 of 6

[constitutional] amendments [requiring separate ballot measures] as there are distinct and independent questions or subjects") (emphasis and some parenthetical marks deleted) This office recommends that the proposed initiative's sponsors consider either deleting Sections 6 through 8 or pursuing the wolf-removal and OSC-elimination issues through separate petitions,

C. Full Text of Sections Amended.. Article Ill, Section 18 prohibits any act for being "revised or amended by mere reference to its title, but the section as amended shall be set forth and published at full length" See Golconda Lead Mines v. Neill, 82 ldaho 96, 99-101, 350 P 2 d 221, 222-23 (1960) We therefore recommend that the full text of ldaho Code §§ 36-103, 36-201, 36-712 and Title 36, Chapter 24 be reproduced in the proposed initiative, with amendments indicated appropriately by underscoring for additions and strikeouts for deletions These underscoring and strikeouts, while not required constitutionally, may facilitate informed decision-making with respect to whether to sign the petition,,

D. Miscellaneous. The sponsor's attorney has suggested a change to the proposed initiative as filed: The word "and" should replace the second "to" in the sixth "Whereas" clause This review has been conducted with that modification considered,, He suggested two other modifications, but they had been made in the proposed petition as filed and thus were considered

CONCLUSION

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