State v. Couch, (CC MI010414; CA A119570; SC S52288).

Decision Date09 November 2006
Docket Number(CC MI010414; CA A119570; SC S52288).
Citation341 Or. 610,147 P.3d 322
PartiesSTATE of Oregon, Petitioner on Review, v. Clark Zane COUCH, Respondent on Review.
CourtOregon Supreme Court

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

Foster A. Glass, Bend, argued the cause for respondent on review. With him on the briefs was Mark L. Pollot.

Sarah Uhlemann, Rebecca G. Judd, and Jonathan Lovvorn, Washington D.C., filed a brief on behalf of amicus curiae The Humane Society of the United States.

Before DE MUNIZ, Chief Justice, and CARSON, GILLETTE, DURHAM, BALMER and KISTLER, Justices.**


In this case, the issues before the court are (1) whether nonindigenous, exotic deer, held in private ownership, can be considered "wildlife" as that term is defined in Oregon's fish and game statutes; and (2) if not, whether the Oregon Fish and Wildlife Commission (commission) nevertheless possesses the authority to regulate such animals.

The trial court sustained defendant's demurrer to the district attorney's information that charged defendant with more than 50 violations of administrative rules related to possessing or hunting certain kinds of nonindigenous deer in Oregon. The trial court reasoned that the deer at issue did not qualify as "wildlife" under the applicable statutes and that, as a result, the commission had exceeded its delegated authority in regulating them through its administrative rules. The Court of Appeals reversed, holding that, although the animals at issue indeed did not qualify as "wildlife," the trial court had erred in sustaining the demurrer on the basis of facts not alleged in the information. State v. Couch, 196 Or.App. 665, 103 P.3d 671 (2004). On review, we affirm the Court of Appeals decision, albeit for different reasons, reverse the trial court's judgment, and remand this case to the trial court for further proceedings.

In July 2001, the state filed a district attorney's information charging defendant with more than 50 misdemeanor violations involving rules promulgated under Oregon's wildlife laws.1 The caption for each count contained in the information cited one or another of three state statutes as providing the bases for each of the charges: ORS 498.002 (1999), amended by Or. Laws 2003, ch. 656, § 10, ORS 498.022, and ORS 496.992, set out respectively. ORS 498.002(1) (1999) provided:

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

ORS 498.022 provides, in part:

"Except 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."

Finally, ORS 496.992(1) provides:

"Except as otherwise provided by ORS 153.022 and other law, violation of any provision of the wildlife laws, or any rule promulgated pursuant thereto, is a Class A misdemeanor when the offense is committed with a culpable mental state as defined in ORS 161.085."2

With regard to the specific charges set out in the information, the state alleged that defendant had violated the following Department of Fish and Wildlife rules relating to the private holding, hunting, or propagation of cervids:3 (1) selling certain cervid species without the required licenses or permits, OAR 635-049-0020 (2000); (2) possessing two particular cervid species without the required licenses, OAR 635-049-0020 (2000); and (3) unlawfully hunting, killing, or attempting to hunt or kill, exotic mammals or game mammals held by a private party, OAR 635-064-0010 (2000).4 The misconduct underlying each count at issue in this case allegedly occurred in 2000 and involved either fallow deer, Axis deer, or Sika deer.5 Fallow deer are a species indigenous to Europe and the Middle East, Axis deer are native to India, and Sika deer are native to Japan. All three species are cervids.

In his demurrer, defendant argued that, because the deer that were the subject of the state's allegations were captive and nonindigenous, they did not qualify as "wildlife" and therefore were beyond the scope of the commission's authority to regulate. In response, the state argued that the legislature intended the term "wildlife" to include both indigenous and nonindigenous species, whether captive and privately owned, or untamed and unrestrained.

The trial court sustained defendant's demurrer. It reasoned that

"wildlife [are] indigenous species that are running free or swimming free on the lands or the waters of this state. In contrast, game mammals being raised on a game farm within a confined setting and under the ownership of a property landowner, which are not indigenous and that are not running free on public and private lands in this state, are not wildlife per se."

Building on that foundation, the trial court ultimately concluded that

"[t]he regulations that have been passed by the Fish and Wildlife Commission 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, held for a substantial period of time."

The state appealed the order sustaining defendant's demurrer, and the Court of Appeals reversed. The Court of Appeals rejected the state's argument that, under the relevant statutes, "wildlife" included nonnative deer species held in captivity. The Court of Appeals examined the long history of the term's application in legal matters, as well as this court's previous decisions regarding "wildlife" regulation, and concluded that the statutory term "wildlife" referred to "animals ferae naturae[6] that have not previously been subject to lawful capture." Couch, 196 Or.App. at 678, 103 P.3d 671. Nevertheless, the Court of Appeals determined that the trial court had erred in sustaining defendant's demurrer because the allegations contained in the information did not establish the "manner in which the deer were brought into this state and whether they have been held by defendant in lawful, private captivity." Id. at 679, 103 P.3d 671.

Although the state prevailed on appeal, it nonetheless petitioned for review in this court, arguing that, while the Court of Appeals had been correct in reversing the trial court's order below, the Court of Appeals nevertheless had erred in holding that, as used in the pertinent statutes, "wildlife" "refers to animals ferae naturae that have not previously been subject to lawful capture." Id. at 678, 103 P.3d 671. The state also argued that, even if the Court of Appeals' definition of "wildlife" were consistent with the legislature's intent, the commission's authority "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" was not limited to animals that fell within the scope of that definition; rather, it included animals such as the deer identified in the state's charging information. We allowed the state's petition for review to determine (1) the intent behind the legislature's use of the term "wildlife" in the pertinent statutes; and (2) the effect of that definition on the commission's authority to regulate the animals and activities at issue here.7 See generally State v. Snyder, 337 Or. 410, 415-20, 97 P.3d 1181 (2004) (notwithstanding fact that it prevailed on merits before Court of Appeals, state permitted to petition for Supreme Court review as to statutory interpretation issue, because state qualified as aggrieved party and controversy remained justiciable).

On review, the parties take different paths to arrive at their respective definitions of "wildlife." Defendant, for example, argues that the Court of Appeals properly interpreted that term as it is used in Oregon's wildlife laws. The Court of Appeals began its analysis with ancient Roman law and the writings of Justinian, then moved through history, drawing from the sixteenth-century judicial opinions of Lord Coke, the eighteenth-century writings of William Blackstone, and this court's early wildlife-related decisions. Relying on those resources, the Court of Appeals essentially defined "wildlife" as all animals existing, uncaptured, in a state of nature, and emphasized the congruency between the term and its definition by highlighting the term's use in statutes such as ORS 498.002:

"Thus, when ORS 498.002 declares that `[w]ildlife is the property of the state,' we may understand that the reference to `wildlife' fairly clearly is to animals ferae naturae over which the state has sovereignty, subject to the traditional qualification that the wildlife be `in a state of nature and at large,' and not previously subject to lawful capture. That always has been the extent of the state's authority to regulate `wildlife,' and nothing in the text or context of the statute suggests that the legislature intended to depart from that longstanding tradition."

Couch, 196 Or.App. at 677-78, 103 P.3d 671 (internal citation omitted). That is, the Court of Appeals relied on the ownership provision set out in ORS 498.002 to conclude that all animals existing, uncaptured, in a state of nature qualified as "wildlife."

The state, on the other hand, contends that we should give the term "wildlife" its dictionary definition: "living things that are neither human nor domesticated; esp: the mammals, birds, and fishes that are hunted by man for sport or food." Webster's Third New Int'l Dictionary 2616 (unabridged ed 2002). Under that definition, the state argue...

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