Application, Administration and Enforcement of Wildlife Laws
Protection and conservation programs
- mitigation of adverse impact on local economies
- compliance by state agencies
(1)The burden of protecting and recovering threatened species or endangered species can be a significant cost to the citizens of this state and it is therefore the policy of this state to minimize duplication and overlap between state and federal laws dealing with threatened species or endangered species. To this end, nothing in this section is intended to prevent the adoption of cooperative state or federal programs when such programs provide protection for listed species without significant impact on the primary uses of state lands.
(2)(a) At the time the State Fish and Wildlife Commission adds a species to the list of threatened species or endangered species under ORS 496.172 (Commission management authority for threatened or endangered species), the commission shall establish by rule quantifiable and measurable guidelines that it considers necessary to ensure the survival of individual members of the species. These guidelines may include take avoidance and protecting resource sites such as spawning beds, nest sites, nesting colonies or other sites critical to the survival of individual members of the species.
(b)The commission shall work with private landowners, affected cities, affected counties and affected local service districts, as defined in ORS 174.116 (“Local government” and “local service district” defined), to mitigate the adverse impact on local economies when the commission adds a species to the list of threatened species or endangered species pursuant to ORS 496.172 (Commission management authority for threatened or endangered species).
(3)For threatened species listed under ORS 496.172 (Commission management authority for threatened or endangered species) and in the absence of an approved endangered species management plan described in subsection (8) of this section for an endangered species, if a state agency determines that a proposed action on land it owns or leases, or for which it holds a recorded easement, has the potential to violate the guidelines established under subsection (2) of this section, it shall notify the State Department of Fish and Wildlife. Within 90 days of such notice, the department shall recommend reasonable and prudent alternatives, if any, to the proposed action which are consistent with the guidelines.
(4)If a state agency fails to adopt the recommendations made under subsection (3) of this section, it shall, after consultation with the department, demonstrate that:
(a)The potential public benefits of the proposed action outweigh the potential harm from failure to adopt the recommendations; and
(b)Reasonable mitigation and enhancement measures shall be taken, to the extent practicable, to minimize the adverse impact of the action on the affected species.
(5)When an action under this section is initiated by a person other than a state agency, the agency shall provide final approval or denial of the proposed action within 120 days of receipt of a written request for final determination.
(6)The provisions of this section do not apply to lands acquired through foreclosures of loans made pursuant to programs of the Department of Veterans’ Affairs.
(7)State land owning or managing agencies shall set priorities for establishing endangered species management plans required by subsection (8) of this section after consultation with the commission on the level of biological threat and, in consideration of available funds, the immediacy and seriousness of the threat to any listed species.
(8)(a)(A) Within four months of the listing of an endangered species, the commission, in consultation and cooperation with the state land owning or managing agency, shall determine if state land can play a role in the conservation of endangered species. The commission and the land owning or managing agency shall consider species biology and geography of the land base to determine if the species or its habitat is found on state land. If the species or its habitat is not found on state land, the commission shall determine that state land has no role to play in the conservation of the species.
(B)If the species or its habitat is found on state land, the land owning or managing agency, in consultation with the State Department of Fish and Wildlife, shall determine the role its state land shall serve in the conservation of the endangered species. This role may include, but is not limited to conservation, contribution toward conservation or take avoidance. To carry out its consulting role under this subsection, the department shall provide state agencies with an assessment of the conservation needs of the endangered species. In making this determination, the land owning or managing agency shall balance the statutory requirements, rules and policies applicable to the agency’s programs, the social and economic impacts that conservation would have on the state, the conservation needs of the species, the purpose of the land and the roles of other ownership categories. The agency shall balance these factors consistent with the commission’s rules related to the biological aspects of species management and the statutory obligations of the land owning or managing agency, including the statutory purpose of the land.
(C)After determining the role its state land shall serve in conservation of the species, the land owning or managing agency, in consultation with the State Department of Fish and Wildlife and consistent with the commission’s rules related to endangered species management plans, shall develop and approve an endangered species management plan within 18 months from the date the species is first listed as endangered. Endangered species management plans shall be based on the statutes, rules and policies applicable to the agency’s programs and shall take into account any social or economic impacts that the plan may have on the state. The land owning or managing agency shall submit the plan to the commission for review and approval as provided in subparagraph (D) of this paragraph.
(D)The commission shall review the endangered species management plan approved by the land owning or managing agency under subparagraph (C) of this paragraph to determine whether the plan achieves the role defined for the land under subparagraph (B) of this paragraph. Based on the biology of the endangered species the commission may modify the endangered species management plan if necessary to be consistent with the role the land owning or managing agency has defined for the land under subparagraph (B) of this paragraph and shall approve the plan as submitted or modified within 24 months from the date the species is listed as endangered.
(b)For state agencies other than land owning or managing agencies, the commission, in consultation and cooperation with the agency, shall determine whether the agency can serve a role in the conservation of endangered species. If the commission determines that the agency has a role to play in conservation of the endangered species, the agency shall determine what role it shall serve in conservation of the endangered species. The agency shall make this determination as provided in the commission’s rules related to the biological aspects of species management and in a manner consistent with the agency’s statutory obligations. [1987 c.686 §5; 1995 c.590 §5; 2012 c.40 §2]
(a)Listed by the federal government or by the State Fish and Wildlife Commission as a threatened species or an endangered species;
(b)Under consideration by the commission for listing as a threatened species or an endangered species; or
(c)A sensitive species as defined by the department by rule.
(2)The department may refuse to disclose data described in subsection (3) of this section if:
(a)The species has value as a commercial species or game species, or has black market value;
(b)There exists a history of harm to a local population of the species from malicious or unlawful behavior, accidental taking, disturbance or harassment and the behavior or ecology of the species makes the species especially vulnerable to that harm;
(c)There is a known demand for illegally taking or harassing the species; or
(d)The species has limited distribution and concentration or is an endemic species.
(3)The department may refuse to disclose telemetry, radio frequency or other locational data about a species, an individual member of a species or the habitat of a species or individual member of a species, that are described in subsection (1) or (2) of this section if the data concern:
(a)Present, projected or recent past locations of individual members or populations of the species;
(b)Present, projected or recent past habitat used by the species, including but not limited to habitat used for breeding, nesting, denning, migration, dispersal or other sensitive or vulnerable life stages, if disclosure of the habitat could be expected to lead to discovery of the location of the species or of an individual member of the species;
(c)Results or other specific information from the unpublished data and findings of research, monitoring or evaluation efforts conducted by the state or by an entity acting jointly with the state; or
(d)Confidential information provided on a voluntary basis by private landowners or representatives of private landowners.
(4)(a) The department may disclose data withheld under subsections (1) to (3) of this section to a requester that is one or more of the following:
(A)The federal government, a tribal government, a public body as defined in ORS 174.109 (“Public body” defined), a public utility or an accredited college or university;
(B)Owners of, lessees of rights-of-way in or holders of easements on private land to which the data pertain;
(C)Holders of public grazing permits for the land to which the data pertain;
(D)Owners of agricultural land or forestland, if the disclosure might prevent loss to an agricultural or forest operation; and
(E)Resource management partners and stakeholders.
(b)If the department refuses disclosure because disclosure could harm a species or member of a species, the department shall issue a proposed order refusing the disclosure request and provide the requester with notice of rights and remedies as provided in ORS 183.415 (Notice of right to hearing).
(5)The department shall require a recipient of information disclosed under subsection (4) of this section to sign an agreement to maintain the confidentiality of the information. The agreement may include, but need not be limited to, a proposed protective order for use, if necessary, in a legal proceeding to maintain confidentiality of the information. If the department is prohibited under subsection (8) of this section from withholding the information, the agreement may prohibit the recipient from disclosing the information, except to further the protection or conservation of a species in a manner described in subsection (8) of this section.
(6)A disclosure of information under subsection (4) of this section does not require that the department disclose the information to any other party.
(7)Subsections (1) to (3) of this section may not be used to withhold data, studies or other information about the total numbers or health of a species in this state or in a region of this state.
(8)The department may not withhold information under subsection (3) of this section if the information is relevant to:
(a)An ongoing petition, litigation or other administrative or legal action in furtherance of the protection or conservation of a species; or
(b)The preparation of a petition, or for a litigation or other administrative or legal action, in furtherance of the protection or conservation of a species.
(9)If the department provides data described in this section, to the extent practicable the department shall aggregate the data to a scale that does not create a risk to the fish or wildlife species or members of the species. [2019 c.532 §2]
(2)Section 2 of this 2019 Act does not allow the department to refuse information in violation of a data sharing commitment or obligation, including but not limited to a commitment under a management plan, entered into by the department prior to the effective date of this 2019 Act. However, section 2 (9) of this 2019 Act applies to any such data sharing. [2019 c.532 §7]
Atty. Gen. Opinions
Responsibility of Fish and Wildlife Commission under Endangered Species Act when declaring fishing season, (1995) Vol 47, p 232
Notes of Decisions
Fish and Wildlife Commission has statutory authority to provide by rule for is suance of special ceremonial hunting permits for specific tribes that are not otherwise allowed under hunting and fishing agreement between federal and state governments and that tribe. Confederated Tribes of Siletz Indians of Oregon v. Department of Fish and Wildlife, 244 Or App 535, 260 P3d 705 (2011)
Atty. Gen. Opinions
Commission authority to restrict use of boat ramp it locates on state land, (1971) Vol 35, p 900