State v. Couch

• Decision Date: 29 December 2004
• Citation: 196 Or. App. 665,103 P.3d 671
• Parties: STATE of Oregon, Appellant, v. Clark Zane COUCH, Respondent.
• Court: Oregon Court of Appeals

103 P.3d 671

196 Or. App. 665

STATE of Oregon, Appellant, v. Clark Zane COUCH, Respondent.

MI01-0414; A119570.

Court of Appeals of Oregon.

Argued and Submitted May 12, 2004.

Decided December 29, 2004.

Denise G. Fjordbeck, Assistant Attorney General, argued the cause for appellant. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Marc T. Andersen, Bend, argued the cause for respondent. On the brief was Foster A. Glass.

Before LANDAU, Presiding Judge, BREWER, Chief Judge, and ARMSTRONG, Judge.

LANDAU, P.J.

The state charged defendant by information with over four dozen violations of state wildlife laws and regulations arising out of his possession, sale, and hunting of several species of nonindigenous deer on a game farm. Defendant demurred to the information on the ground that the state lacks authority to regulate his possession, sale, or hunting of captive nonindigenous species. The trial court agreed and entered an order dismissing the charges. The state appeals, arguing that the trial court erred in concluding that the state lacks authority to regulate the possession, sale, or hunting of captive nonindigenous species of deer. We reverse and remand.

I. REGULATORY BACKGROUND

A brief summary of the regulatory context will aid in understanding our disposition of this appeal. ORS 498.002 declares:

"Wildlife is the property of the state. No person shall angle for, take, hunt, trap or possess, or assist another in angling for, taking, hunting, trapping or possessing any wildlife in violation of the wildlife laws or of any rule promulgated pursuant thereto."

ORS 498.022 similarly provides that, "[e]xcept as the State Fish and Wildlife Commission by rule may provide otherwise, no person shall purchase, sell or exchange, or offer to purchase, sell or exchange any wildlife, or any part thereof." And ORS 496.992(1) declares that it is a Class A misdemeanor to violate any provision of the state wildlife laws. None of those three statutes defines the term "wildlife." ORS 496.004(19), however, provides — albeit somewhat tautologically — that the term "wildlife" means "fish, shellfish, wild birds, amphibians and reptiles, feral swine * * * and other wild mammals."

ORS 497.228(1) provides that "[n]o person shall engage in the business of propagating game birds or game mammals for sale unless a wildlife propagation license is first obtained from the State Department of Fish and Wildlife" (department). The statute further provides that the Oregon Fish and Wildlife Commission (commission) may refuse to issue such a license "if the commission finds that the conduct of the wildlife propagation business would tend to be harmful to existing wildlife populations." ORS 497.228(2). The term "game mammal" refers to, among other things, "deer." ORS 496.004(9). The wildlife statutes also include ORS 498.052, which provides that "[n]o person shall release within this state any domestically raised wildlife or wildlife brought to this state from any place outside this state unless the person first obtains a permit."

The commission is charged with managing the state's wildlife in the following terms:

"It is the policy of the State of Oregon that wildlife shall be managed to prevent serious depletion of any indigenous species and to provide the optimum recreational and aesthetic benefits for present and future generations of the citizens of this state. In furtherance of this policy the State Fish and Wildlife Commission shall represent the public interest of the State of Oregon and implement the following coequal goals of wildlife management:

"(1) To maintain all species of wildlife at optimum levels.

"(2) To develop and manage the lands and waters of this state in a manner that will enhance the production and public enjoyment of wildlife.

"(3) To permit an orderly and equitable utilization of available wildlife.

"(4) To develop and maintain public access to the lands and waters of the state and the wildlife resources thereon.

"(5) To regulate wildlife populations and the public enjoyment of wildlife in a manner that is compatible with primary uses of the lands and waters of the state.

"(6) To provide optimum recreational benefits.

"(7) To make decisions that affect wildlife resources of the state for the benefit of the wildlife resources and to make decisions that allow for the best social, economic and recreational utilization of wildlife resources by all user groups."

ORS 496.012.

The commission has been authorized to promulgate administrative rules in accordance with the procedural requirements of the Administrative Procedures Act, ORS 183.310 to 183.750, to implement the policies and objectives stated in ORS 496.012. ORS 496.138(2). In addition, ORS 497.308 prohibits any person from removing wildlife from its natural habitat without a permit and authorizes the commission to prescribe the wildlife species for which holding or habitat removal permits are required.

In 1993, the commission adopted rules regulating the private holding or propagation of species of mammals in the family of Cervidae, commonly known as "cervids." The rules provide that, to protect and enhance Oregon's wildlife populations, the commission opposes:

"(1) Any commercial or private use of wildlife that threatens this natural resource. The commission specifically opposes the private ownership and commercial use of all native cervids;

"(2) The commercial use of nonindigenous cervid species if that activity poses a risk to native wildlife or wildlife habitat; and

"(3) The taking of cervid species by hunting while held under a Cervid Propagation License — Type I or a Cervid Propagation License — Type 2."

OAR 635-049-0010.

To implement that general policy, the commission's rules provide that "[i]t is prohibited to possess, purchase, sell, exchange or otherwise hold any cervid or part thereof in the state of Oregon unless specifically excepted" by rule. OAR 635-049-0020. The rules further provide that, subject to several exceptions, "[i]t is unlawful to hunt, kill, or attempt to hunt or kill, * * * game mammals * * * held or obtained by private parties." OAR 635-064-0010 (emphasis in original). The term "game mammals" refers to, among other things, "deer." OAR 635-045-0002(33).

II. FACTUAL BACKGROUND

As we have noted, the state charged defendant by information. Because the issue before us is the legal sufficiency of the information, there are no disputed facts. The charges included 22 counts of unlawful sale of wildlife, in violation of OAR 635-049-0020; 25 counts of aiding and abetting the unlawful hunting of wildlife, in violation of OAR 635-064-0010; and three counts of unlawful possession of wildlife, in violation of OAR 635-049-0020. In each of the foregoing counts, the information alleged that defendant possessed, sold, or hunted fallow deer, Axis deer, or Sika deer.¹ In the 25 counts of aiding and abetting the unlawful hunting of wildlife, the information alleges that each deer is "an exotic mammal held by a private party." The information does not specify how the animals came to be held by the private party, and it does not specify the identity of the private party who holds them.

None of the three species of deer involved in this case is indigenous to Oregon. Fallow deer (Dama dama) are a species of deer indigenous to Europe (Dama dama dama) and the Middle East (Dama dama mesopotamica).² Axis deer (Cervus axix) are native to India, where they are known as "chital." In the early twentieth century, they were introduced into Texas, where there now are sizeable free-ranging herds. Sika deer (Cervus nippon) are native to Japan, although they have been introduced into European forests and parks, into the island of Madagascar, and into the state of Maryland. All three species are considered cervids.

Defendant demurred to the information. He argued that the commission's authority is limited to the regulation of "wildlife." Building on that premise, defendant then asserted that, because the three species of deer that are involved in this case are captive and nonindigenous, they are not "wildlife" within the meaning of the statutes that define the commission's authority. Accordingly, defendant concluded, the rules prohibiting the possession, sale, or hunting of the species of deer involved in this case are ultra vires. The state responded that the legislature intended the term "wildlife" to be broad enough to include both indigenous and nonindigenous species, whether captive or free roaming.

The trial court sustained the demurrer and dismissed the charges. The court reasoned that, because the species of deer involved are nonindigenous captives, they are not "wildlife" within the meaning of the statutes that the commission administers. The court explained that, from its perspective, "wildlife is indigenous species that are running free or swimming free on the lands or the waters of this state." In this case, the court noted, the game are "being raised on a game farm within a confined setting and under the ownership of a property landowner." Those animals, the court concluded, "are not wildlife per se." As a result, the court concluded that the regulations that form the basis for each of the 50 charges against defendant are "ultra vires acts that go beyond the delegation set forward by the Oregon State Legislature. These animals are not wildlife, but privately owned, exotic species of cervids."

III. DISPOSITION OF THE MERITS

On appeal, the state argues that the trial court erred in concluding that, because the deer involved in this case are not "wildlife" within the meaning of the commission's authorizing statutes, the rules that prohibit the possession, sale, or hunting of those deer are invalid. According to the state, the statutory term "wildlife" as it is used in the relevant statutes, is not limited to indigenous, noncaptive animals. In the alternative, the state argues that, even if the...