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FILED: April 20, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STEVE SIMPSON,
KATHY SIMPSON, SHELDON KIRK, CAROL KIRK,
MIKE KILPATRICK, CINDY KILPATRICK,
WILLIAM MCCAMMAN, MARY MCCAMMAN,
ALAN ROSS, BRENDA ROSS,
LONNIE WOOSLEY, LOUISE WOOSLEY,
STEVE PEDERSON, CLAY WOODWARD, KIM WOODWARD,
and CLARK COUCH,

Petitioners,

and

DONALD KELLY
and MARINA KELLY,

Petitioners below,

v.

DEPARTMENT OF FISH AND WILDLIFE,

Respondent.

Department of Fish and Wildlife
A141561

Argued and submitted on August 25, 2010.

Geordie Duckler argued the cause and filed the briefs for petitioners.

Stephanie Striffler argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Denise G. Fjordbeck, Attorney-in-Charge, Civil/Administrative Appeals.

Sarah Uhlemann filed the brief amicus curiae for The Humane Society of the United States.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

ROSENBLUM, J.

Declaratory ruling modified to declare that petitioners' animals are the "property of the state" for purposes of ORS 498.002(1); otherwise affirmed.

ROSENBLUM, J.

ORS 498.002(1) provides, in part, that "[w]ildlife is the property of the state." Petitioners own game ranches in Oregon. Most of their animals are defined by administrative rule as "wildlife."(1) Petitioners sought a declaratory ruling from the Department of Fish and Wildlife (ODFW) as to whether their animals are the "property of the state" under ORS 498.002(1). ODFW ruled that the state does not own or have any proprietary or possessory interest in petitioners' animals. Petitioners seek judicial review, arguing that ODFW erred in failing to declare that their animals are the property of the state and that the agency's ruling as to the state's interest in their animals is not supported by ORS 498.002(1). On review for errors of law, ORS 183.480, 183.482, we modify the ruling to declare expressly that petitioners' animals are the "property of the state," as that phrase is used in ORS 498.002(1), and otherwise affirm.

This case arose out of actions bearing on the meaning of "wildlife" by all three branches of the state government. In 2006, in State v. Couch, 341 Or 610, 147 P3d 322 (2006), the Supreme Court construed that term as it was then defined in ORS 496.004(19) (2005): "'Wildlife' means fish, shellfish, wild birds, amphibians and reptiles, feral swine as defined by State Department of Agriculture rule and other wild mammals." The question before the court was whether nonindigenous species of deer owned and held in captivity constituted "wildlife." The court concluded that mammals constitute wildlife only if they are "wild"--that is, if they "exist untamed and undomesticated in a state of nature * * *." Couch, 341 Or at 620.

In 2007, the Legislative Assembly, in response to Couch, amended ORS 496.004(19), granting the State Fish and Wildlife Commission authority to define "wild birds" and "wild mammals": "'Wildlife' means fish, shellfish, amphibians and reptiles, feral swine as defined by State Department of Agriculture rule, wild birds as defined by commission rule and other wild mammals as defined by commission rule." Or Laws 2007, ch 523,