302 P.3d 341 (Idaho 2012), 38743, Idaho Wool Growers Ass'n, Inc. v. State

Docket Nº:38743.
Citation:302 P.3d 341, 154 Idaho 716
Opinion Judge:J. JONES, Justice.
Party Name:IDAHO WOOL GROWERS ASSOCIATION, INC., an Idaho corporation, individually and on behalf of its members; Frank Shirts, Jr., individually and as a member of the Idaho Wool Growers Association; Ronald W. Shirts; Leslie Shirts; John T. Shirts, individually and dba Shirts Brothers Sheep and as members of the Idaho Wool Growers Association, Plaintiffs-App
Attorney:Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for appellants. Samuel A. Diddle argued. Lawrence G. Wasden, Attorney General, Boise, for respondents. Steven W. Strack argued.
Judge Panel:Chief Justice BURDICK, and Justices EISMANN and HORTON and Justice Pro Tem. KIDWELL concur.
Case Date:September 14, 2012
Court:Supreme Court of Idaho
 
FREE EXCERPT

Page 341

302 P.3d 341 (Idaho 2012)

154 Idaho 716

IDAHO WOOL GROWERS ASSOCIATION, INC., an Idaho corporation, individually and on behalf of its members; Frank Shirts, Jr., individually and as a member of the Idaho Wool Growers Association; Ronald W. Shirts; Leslie Shirts; John T. Shirts, individually and dba Shirts Brothers Sheep and as members of the Idaho Wool Growers Association, Plaintiffs-Appellants,

v.

STATE of Idaho; Idaho Fish & Game Commission; Idaho Department of Fish & Game; Cal Groen, Director of the Idaho Department of Fish & Game, Defendants-Respondents.

No. 38743.

Supreme Court of Idaho, Boise

September 14, 2012

Page 342

[Copyrighted Material Omitted]

Page 343

Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, for appellants. Samuel A. Diddle argued.

Lawrence G. Wasden, Attorney General, Boise, for respondents. Steven W. Strack argued.

J. JONES, Justice.

The Idaho Wool Growers Association (IWGA) and several of its members brought suit against the State of Idaho, claiming that the State failed to protect domestic sheep operators from curtailment of their grazing allotments by the United States Forest Service. The curtailment of the allotments was designed to accommodate the reintroduction of bighorn sheep in the Hells Canyon area. In their complaint, the Wool Growers alleged that the State was obligated to redress damage caused to domestic sheep operations by virtue of the reintroduction. The district court dismissed the Wool Growers' complaint for failure to state a claim upon which relief can be granted. The Wool Growers have appealed that dismissal, which we affirm.

I.

FACTUAL AND PROCEDURAL HISTORY

Frank Shirts, Jr. (Shirts) and Ronald, Leslie and John Shirts, who do business as Shirts Brothers Sheep (Shirts Brothers), are holders of federal grazing permits allowing them to graze allotments in the Payette National Forest and the Hells Canyon area. Shirts and Shirts Brothers are members of the IWGA, an association of sheep ranch operators.1 The Hells Canyon Bighorn Sheep Restoration Committee (the Committee)— made up of various federal and state agencies, including the Idaho Department of Fish and Game (IDFG)— began an effort in 1996 to reintroduce bighorn sheep in the Hells Canyon area.2

Allegedly in response to threats by IWGA members to oppose and lobby against the reintroduction, the Committee sent the following letter to IWGA Executive Director Stan Boyd:

Dear Mr. Boyd:

The effort to transplant bighorn sheep into historic habitat in Hells Canyon is a cooperative project involving the States of Idaho, Oregon, and Washington, The Foundation for North American Wild Sheep, the Forest Service, and the Bureau of Land Management. The Hells Canyon Bighorn Sheep Restoration Committee (the committee) is interested in having the support of the woolgrowers industry for this effort to repopulate parts of Hells Canyon with bighorn sheep.

The Committee understands that bighorns may occasionally migrate outside of their designated range and come into contact with domestic sheep. These bighorns will be considered " at risk" for potential disease transmission and death. There is also the potential for an exposed bighorn to leave the area and spread disease to other bighorn sheep. Under these conditions, the Idaho Department of Fish and Game, the Oregon Department of Fish and Wildlife, and the Washington Department of Wildlife will assume the responsibility for bighorn losses and further disease transmission in their respective states. The three Departments will also take whatever action is necessary to reduce further losses of bighorn sheep without adversely impacting existing domestic sheep operators. The enclosed map clearly delineates the project area within the Hells Canyon complex. Bighorns straying into currently active sheep allotments will be considered " at risk" by all of the Committee entities. This means that the Committee recognizes the existing domestic sheep

Page 344

operations in or adjacent to the Hells Canyon complex, on both National Forest and private lands, and accepts the potential risk of disease transmission and loss of bighorn sheep when bighorns invade domestic sheep operations.

The Committee will make every effort to keep interested parties informed about actions being considered by the Committee in its effort to repopulate Hells Canyon with bighorn sheep. We will provide all health information gathered on bighorn sheep to the woolgrowers industry and other interested parties.

The letter was signed by representatives of IDFG and other members of the Committee. The letter is dated January 16, 1997, and was received by the Wool Growers on March 11, 1997.

Shortly after the 1997 letter was executed, the Idaho Legislature amended I.C. § 36-106(e)(5) to include a new subsection (D), providing that the director of IDFG shall not " undertake actual transplants of bighorn sheep into areas they do not now inhabit or to augment the number of bighorn sheep in existing herds" until notice is given to affected boards of county commissioners, land owners, and grazing permit holders. 1997 Idaho Sess. Laws 863, 864-65. The new subsection also required the director to grant a hearing to " any affected individual or entity [who] expresses written concern." Id. Further, it provided:

Upon any transplant of bighorn sheep into areas they do not now inhabit or a transplant to augment existing populations, the department shall provide for any affected federal or state land grazing permittees or owners or leaseholders of private land a written letter signed by all federal, state and private entities responsible for the transplant stating that the existing sheep or livestock operations in the area of any such bighorn sheep transplant are recognized and that the potential risk, if any, of disease transmission and loss of bighorn sheep when the same invade domestic livestock or sheep operations is accepted.

Id. at 865.

Bighorn sheep were subsequently reintroduced into Hells Canyon. Years later, beginning in April 2007, the U.S. Forest Service began to modify various grazing permits, including those of Shirts and Shirts Brothers. The permit modifications were the result of an administrative appeal, in which the Western Watersheds Project sought to enjoin sheep grazing on six allotments held by Shirts and Shirts Brothers based on a high risk of disease transmission from domestic sheep to bighorns. Watersheds Project v. U.S. Forest Serv., No. CV-07-151-E-BLW, 2007 WL...

To continue reading

FREE SIGN UP