Hello FMLers and CA UPDATE folks,
 
Last week Jan Goldsmith faxed me a letter he sent to the Fish and Game
Commission supporting their authority, better yet, their responsibility, to
review the ferret's place in the list of prohibited wildlife.  "Under Fish
and Game Code section 2116, the Legislature has authorized the commission to
determine whether an animal is a "wild animal".  That section defines "wild
animal" to include "any animal of (designated classes) which is not normally
domesticated in this state as determined by the commission." He went on to
say that if a determination has not been made that the ferret is wild, then
"the Commission has violated its obligation to make such a determination.."
Jan also sent a letter to the Attorney General's office asking if, in the
absence of such a determination, are ferrets actually legal?  Great
question, in my opinion, but keep your little guys under wraps for now.
 
Delivering another opinion on the question of authority are two partners
from a very large law firm, McDermott, Will and Emery.  This law firm has
branches in LA, Washington, D.C., Boston, Chicago, Miami, New York.." The
L.A.  branch has a large environmental law practice and Chris Amantea is the
partner that will be on hand to monitor the delivery of the Deputy
Attorney's opinion.  He is unsure if he will be allowed to present Mary
Ellen Hogan's (the named partner on the opinion delivered to the Commission)
beautifully constructed arguments for Commission authority to list and
delist animals from 2116.
 
Mary Ellen sent me her opinion, complete with 10 exhibits, and a letter
strongly objecting to the Deputy Attorney General's limitations on public
input.  Deputy Attorney General for the Commission Randy Christison's
position of not allowing public commentary is contrary to well established
case law for that requires a public hearing before a state agency may render
it's "quasi-legislative" decision and was objected to by McDermott, Wills
and Emery as an "arbitrary and unauthorized limitation on the public's right
to provide input to an important Commission decision."
 
Briefly, Mary Ellen Hogan argues that a plain reading of the statue makes
the intent clear.  Remember the language, "as determined by the Commission?"
Chris Amantea ran legislative intent histories on sections three sections of
the Fish and Game Statute regulating ferrets and wild animals to ensure he
was up to date and found that the 1974 amendments that gave the Commission
authority to list and delist animals, were actually sponsored by a
legislator at the request of the Commission.  Mary Ellen Hogan argues that
"the plain language of the authorizing statute (Section 2116 et seq.  of the
Fish and Game Code) and its legislative history leave no doubt that the
Commission has the power to add or delete species from the list of
restricted species.  Further, removing the domestic ferret from Department
of Fish and Game management and administration is both consistent with the
statute and is reasonably necessary to effectuate the purpose of the
statute." I particularly love this last part because the purpose of the
statute, the list of prohibited species, indeed of Fish and Game itself was
never intended to regulate, let alonne ban, a domesticated species!
 
I don't know what will happen on Friday.  And, I won't be there to find out
because public input may very well not be part of the agenda.  But I can
tell you this, the issue has the best representation it has ever had.  A
very large law firm that has a specialty in environmental law brings a big
gun to the table.  Should the Commission still abdicate its responsibility
and appeal will be filed immediately.
 
Another piece of interesting news is that ferret foe Marjorie Phares was not
confirmed to the Fish and Game Commission!  At present, there are only three
Commissioners, the three that supported going to notice back in November.
Commissioner Dutton who voted against this issue was not confirmed by the
Senate several months ago and Ms Phares lost her bid at confirmation within
the last few months.  Does anyone remember that the only two Republicans
voting against the ferret legalization bill in 1994, Paul Horcher and Doris
Allen, were both recalled by voters?  I'm no naive enough to say that ferret
fans had anything to do with this but maybe there is such a thing as bad
ferret karma.
 
Will let you know what happened after I speak with Chris Amantea and Mary
Ellen Hogan on Monday or Tuesday.  Keep your fingers crossed.
 
Jeanne Carley
Coordinator
Californians For Ferret Legalization
P.S. HOPE YOU ALL VOTED
[Posted in FML issue 1744]