Committee Meeting Information

November 20, 2008

Oil & Gas Commission

Casper, Wyoming

 

Committee Members Present

Senator Bruce Burns, Co-Chairman

Representative Pat Childers, Co-Chairman

Senator Pat Aullman

Senator Hank Coe

Senator Marty Martin

Representative Kermit Brown

Representative Bernadine Craft

Representative Kathy Davison

Representative Patrick Goggles

Representative Jerry Iekel

Representative Allen Jaggi

Representative Jim Slater

 

Committee Members Absent

 

Senator Jayne Mockler

Representative Bill Thompson

 

Legislative Service Office Staff

Lynda Cook, Staff Attorney

 

 

Others Present at Meeting

Senator John Schiffer

 

Please refer to Appendix 1 to review the Committee Sign-in Sheet
for a list of other individuals who attended the meeting.

 

Joint Travel, Recreation, Wildlife and Cultural Resources Interim Committee Meeting Summary (November 20, 2008)

 

The Joint Travel, Recreation, Wildlife and Cultural Resources Interim Committee met in Casper to considerer issues related to management of wolves in Wyoming.

 

Call To Order

Co-Chairman Pat Childers called the meeting to order at 8:00 am.  The following sections summarize the Committee proceedings by topic.  Please refer to Appendix 2 to review the Committee Meeting Agenda.

 

Game and Fish Department – Wolf Management

 

Attorney General Bruce Salzburg and Jay Jerde, Deputy Attorney General testified before the committee regarding wolf management.  Mr. Salzburg stated that the committee can do anything from doing everything requested by the fish and wildlife service to doing nothing.  He noted that the only real difference between 09 LSO 0136.L1 (the Gingery bill) (Appendix 3) and 09 LSO 0221.W1 (the Burns bill) (Appendix 4) is that the Burns bill does not take care of the dual classification issue.  Mr. Salzburg stated that dual classification should not be an impediment to delisting.  He stated that it is not based on sound science, supported by evidence in the record, to require trophy game status throughout the state.  Eleven of twelve scientists who peer reviewed the management plan found that the dual classification would not be a problem with adequate regulatory mechanisms.

 

Mr. Salzburg noted the MOU requirement with the park service in 09 LSO 0256.L2 (the Davison bill) (Appendix 5).  He expressed concern that there is no way the state could require the park service to enter into an MOU and the park service's management practices are to not manage animals outside of leaving them to their natural condition.  Steve Farrell, Director of Game and Fish testified that there is no current MOU in place with the park service on management, only regarding the sharing of information.  He also noted that there have been many instances where the state and park service have not been able to come to agreement with respect to management concepts.

 

Mr. Salzburg expressed concern regarding 09 LSO 0268.W1 (the Jaggi bill) (Appendix 6) because of issues of preemption.  He stated that the chances of his office successfully defending such a declaration in that bill are miniscule.  While states have the legal fiction of plenary authority over wildlife, the endangered species act preempts state authority under the supremacy clause. 

 

Mr. Salzberg noted that questions have been raised as to what the status of the wolves in Wyoming will be if the FWS delists the segment in Idaho and Montana.  He stated that there is a possibility that wolves in Wyoming will be uplisted from experimental to threatened or endangered.  If they are relisted as threatened Mr. Salzburg believes the state will lose the 2007 10j rule which allows the service to address ungulate depredation.  If they become uplisted to endangered the state would not be able to address wolf livestock depredation.  In other words, he argued, if the wolf becomes endangered in Wyoming, livestock producers will either have to watch their livestock be eaten or become a federal felon if they kill the wolf.  Mr. Salzburg's concern is that wolves naturally existed in Montana prior to the reintroduction.  In order to maintain the nonessential status they have to be geographically distinct from the natural population.  Rep. Brown noted that the court opinion stated that there is no connectivity with the rest of the population.

 

Chairman Childers stated that NEPA requires congress to work with the states.  With respect to 09 LSO 0269.W1 (the Childers bill) (Appendix 7), General Salzburg stated that the office of Attorney General currently has the authority to bring the claims described in the bill.  However, to the extent the bill directs the attorney general to bring specific claims Mr. Salzburg  believes there is a problem.  Rule 11 of the Federal Rules of Civil Procedure prohibits attorneys from bringing claims unless they are based on an assertion that is creditable or legally arguable.  Mr. Salzburg stated that if the bill directs him to bring claims that have already been decided, it will be problematic.  He expressed respect for Childers’ interpretation of NEPA but stated that the expectation that the Supreme Court would consider claims based on that assertion is not well founded.

 

Mr. Salzburg explained how the park service is attempting to solve the issues raised in the Great Lakes decision by discussing in the reopener the issues of what authority the service has to simultaneously designate the Idaho and Montana populations as distinct population segments and delist those populations.

 

Mr. Salzburg testified that it is very important that with whatever bill is passed needs to have a statement of legislative intent.

 

Mr. Salzburg commented on 09 LSO 0270.W1 (the Sdraft bill) (Appendix 8) that if we go back to 2003 legislation there is very little chance that the federal government will find that we have adequate regulatory mechanisms in place.  The ultimate decision is whether the state wants to manage or wants to leave it to the federal government. 

 

Rep. Jaggi expressed concern that the criteria that is considered acceptable keeps changing.  General Salzburg stated that he can only say what is most likely to get us to any particular result.  He cannot promise any result because it is dependant on too many variables and decision makers. 

 

Steve Farrell, Game and Fish Director discussed the emergency rules promulgated by the Commission.  He noted that the FWS has stated that the changes in the rules needed to be reflected in the statutes.  Dr. Bill Williams, Game and Fish Commissioner, testified that the commission would like to see the wolf delisted and the only way to do that is to move forward, and not to choose to do nothing.  He argued that statutory change is required in order to that.  The game and fish commission supports having wolves declared trophy game statewide.  Dr. Williams suggested that the statewide determination should go into affect after the rule is published and the resolution of all litigation regarding that delisting.  Dr. Williams testified that he does not feel the commission currently has the authority to expand the trophy game area outside the statutory line.

 

Public comment.

 

Jim Magagna, Wyoming Stockgrowers Association, testified in opposition to statewide trophy game status.  His concern is that when the wolf is listed as trophy game any dealings with wolves is under the purview of the game and fish commission, whose primary role is to protect wildlife, not livestock.  He noted that the commission’s action with the emergency rules exemplifies this concern.

 

Mr. Magagna testified that the Burns and Davison bills attempt to address the issue of the commitment to 15 packs.  He stated that the Davison bill makes that commitment contingent on the park service taking responsibility too.    He expressed concern that the Burns bill broadens the discretionary authority of the commission.  He also expressed concern about the definition of "area of chronic depredation".  He would rather see it defined based on the activities of the wolves rather than political boundaries of land ownership.  He agreed that the Jaggi bill is probably not a legal battle we will win, but he supports moving the message forward.  He stated that he would have no objection to the Sdraft bill that brings the state back to the 2003 plan, but he acknowledges that it would do nothing to get us closer to delisting the wolves.  Finally, he testified in support of the Childers bill.  He favors taking no action at this time.  If the committee does take action, he supports the Davison and Jaggi bills.  He supported having changes driven by the legislative process rather than rule changes proposed by the commission.

 

Mr. Magagna suggested that he does not see any authority for the FWS to upgrade the Wyoming population beyond threatened status if the Idaho and Montana populations are delisted.   There was discussion about what a MOU with the park service would entail.  Mr. Magagna expressed hope that it would entail the park service agreeing to manage the prey base to support for wolves, providing management to deal with diseases or habitat improvement.  The committee questioned how the concept of natural management used by the park service would fit with this hope.

 

Bryce Reese, Wyoming Woolgrowers Association, testified that it is important to remember that the scientific studies relied upon to do the reintroduction held that there was sufficient prey base to manage for 8  pairs within the parks.  At that time the park service was asked what it would do to maintain that prey base.  They would not commit to anything at that time.  Saying that, Mr. Reese supports little to no changes at this time.  He testified that nothing the state does is going to settle litigation so it is better to wait and see what the courts are going to do to us.  He expressed concern that we would ever win in Judge Malloy’s court.  If things are not changed, he stated that the committee can just change the date in 23-1-109 so payment of damages does not start occurring until a later date.

 

Brent Moline, Wyoming Farm Bureau, testified in support of the Sdraft bill.  He testified in opposition to the Gingery bill because he doesn't want any expansion of the trophy game area.  He feels ranchers need the tools available to them with wolves listed as predators.

 

Budd Betts, rancher, testified in support of inclusion of legislative intent language that expresses the intent to have liberal hunts and protections of ungulates and livestock.  He also suggested language that would render any new legislation moot if additional problems are raised by the service with our plan.  He also supported entering into an MOU that would protect the game herds.  He expressed concern over the affect of wolves on big game herds.

 

Chris Colligan, Greater Yellowstone Coalition, testified that his organization supports statewide trophy game management.  He testified that the Burns bill does not go far enough to address the malleable nature of the trophy game area.  He suggested that damage claims should be paid statewide as well.  He would like to see limitations on lethal take permits to two months rather than annual.  He supports the Gingery bill because the commission should manage wolves like any other wildlife.  He suggested that his organization could support the Burns bill with some modifications. 

 

Melanie Stein, Sierra Club, testified in support of moving forward with the Gingery bill.  She testified that Burns bill takes steps forward but she would support an amendment to it to make wolves trophy game statewide.  She noted that her association asked for the delay in the latest federal rule in order to give Wyoming time to catch up.  She testified that the Sierra Club believes the FWS is not acting properly by reintroducing a species and then managing to ensure a minimum population.  She could not guarantee that her association would not bring further litigation even if the committee takes the action proposed.  She stated that she does not believe wolves should be in every area of Wyoming but feels that statewide status is the best way to assure appropriate management of the species where they should be located.  Rep. Brown noted that making the wolves trophy status statewide merely shifts the decision making of where wolves are allowed from the legislature to the game and fish commission.  He expressed concern that doing so would put the burden of lawsuits when a wolf is killed on the commission rather than the fish and wildlife service.  There was discussion about just how many wolves the Sierra Club thinks is needed in the state and where exactly they don’t think they should be. 

 

Jack Baird, rancher, testified in support of leaving things alone. 

 

Walt Gasson, Wyoming Wildlife Federation, testified that his organization has supported the wolf management plan.  Their concern is that they want the state to manage wolves.  He expressed concern about conditioning management for 15 pairs on an MOU with the park service as they have not been forthcoming in the past.  He expressed concerns about the Burns bill but stated that his organization is not prepared to endorse trophy game status statewide.  They want to ensure the ability to pay damage claims and controls over impacts to ungulate populations.

 

The committee chose to go forward with consideration of the Burns bill and the Davison bill. 

 

09 LSO 0221.W1 – Gray wolf management

 

The bill was moved and seconded.

 

Rep. Brown testified that he favors the Burns bill because it maintains the predator classification.  He sees no other way to protect some areas of the state from having the wild ungulates unmolested.  He also expressed concern about documentation of losses – if they are predators in some areas of the state the rancher can take care of the problem himself without worrying about documentation.  He discussed the way livestock react just to the fear of seeing a wolf.  He also supports the bill because it addresses the distinct problems raised by the judge.

 

The bill was amended as follows:

 

Page 2-line 8  after “state” through line 13.  delete insert:  “and to ensure genetic diversity and connectivity with adjoining populations.”  (Aulmann opposed)

 

Page 3-line 4 – Strike parcel insert area

 

Page 3 line 4 after “area” delete balance of line through line 5 “permit”.

 

Page 3-line 18 after “state” delete through line 21 “Parkway”.

 

Page 4-line 6 delete “never” insert “do not”.

 

Age 3- line 7  delete “a” insert “the immediately preceding”.

 

Page 5-line 2    After “by” insert “any person authorized by”

 

Page 5-line 4    Delete “owner, employee or lessee” insert “person”

 

Page 5-line 18  delete “shall” insert “may”

 

The bill passed as amended.  (Childers, Aullman, Coe, Davison and Jaggi opposed).

 

 

09 LSO 0256.W1 – wolf management 2

 

The bill was moved and seconded.

 

The bill was amended as follows:

 

Page 7-line 1  delete “enter” insert “pursue entering”

 

Senator Schiffer testified that his discussion with the states of Idaho and Montana indicated that those states have no intention of entering into an MOU with Wyoming.

 

The bill failed (Burns, Childers, Coe, Martin, Brown, Slater opposed).

 

Representative Brown discussed a budget footnote mandating the commission go forth with rules implementing sage grouse game farming.  The attorney general has opined that it is a mandate.  Rep. Brown is promoting a bill that puts a time limit on that mandate and requires reporting to the committee. 

 

Meeting Adjournment

 

There being no further business, Co-Chairman Burns adjourned the meeting at 1:00 p.m.

 

Respectfully submitted,

 

 

 

 

Bruce Burns, Co-Chairman                                                                  Pat Childers, Co-Chairman

 

 

 

 

 

 

 

 

 

Appendix		Appendix Topic		Appendix Description		Appendix Provider
1		Committee Sign-In Sheet		Lists meeting attendees		Legislative Service Office
2		Committee Meeting Agenda		Provides an outline of the topics the Committee planned to address at meeting		Legislative Service Office
3		Wolf Management		09 LSO 0136.L1 – Gray wolf-trophy game status.		Legislative Service Office
4		Wolf Management		09 LSO 0221.W1 – Gray wolf management.		Legislative Service Office
5		Wolf Management		09 LSO 0256.L2 – Wolf management-2.		Legislative Service Office
6		Wolf Management		09 LSO 0268.L1 – Gray wolves-legislative declaration.		Legislative Service Office
7		Wolf Management		09 LSO 0269.W1 – State legal action-NEPA and ESA.		Legislative Service Office
8		Wolf Management		09 LSO 0270.W1 – Wolf management-repeal of 2007 legislation.		Legislative Service Office