An Undeclared War on Wolves? Wildlife Services’ NEPA Debts Coming Due

For an agency that kills millions of animals annually and has for decades, Wildlife Services knows surprisingly little about the value of its own programs.

Wildlife Services (WS)—the current name for a bureau within the Department of Agriculture (USDA)—annually kills between 1 and 5 million animals, all in the name of “wildlife control.”  It has done so in one form or another since 1915.  The agency points to the European starlings, airport hazard species, feral swine, nutria and other “invasives,” and the many “varmints” it targets annually when called to account for its actions.

But lots of other species round out the ranks of those that WS persecutes every year.  Lately, that has included Gray wolves.  The agency has been a perennial target of environmental and animal welfare nonprofits alike, but this latest turn has made the fight a bigger deal politically.  Species like coyotes, eagles and Red-tailed hawks, and bears routinely suffer gruesome deaths at its hands, whether from aerial gunning, trapping, poisoning or other lethal means.  But lots of ordinary Americans idolize wolves and associate them (rightly so) with the protections of the Endangered Species Act (ESA).

In 2011, however, Gray wolves were delisted from the ESA outside a designated space where the Department of Interior and USDA decided they would seek to manage wolf reintroduction rather than fight it.  Beyond that space, wolves are welcome—it seems—only where they don’t cause any problems.

Thus, WS’s annual report for 2014 recorded 3,800+ red-crested cardinals, 15,000+ prairie dogs, 16,000+ mourning doves, 22,000+ beavers, and 61,000+ coyotes among the casualties.  To reach the 2014 total—2.7 million—the list goes on and on and on.  But it also included 322 wolves.

For an institution so deeply entrenched in efforts to reengineer the ecosystems its farmers, ranchers, and other clients operate within, though, WS seems to have done everything in its power to avoid the NEPA responsibilities its actions should entail.

Enter a pair of lawsuits challenging WS’s undeclared war on wolves unless and until it takes a “hard look” at those lethal actions and their environmental effects.

A Pair of Lawsuits Challenging a (NEPA) Status Quo

At least one way WS has tried to avoid its NEPA duties is to claim it lacks discretion in carrying out particular wildlife kills.  You see, WS routinely executes “cooperative agreements” with state wildlife agencies and cost-shares its programs, including the lethal ones.  Once engaged, WS and the state agency work cooperatively to “remove” the wildlife they target by various means.  This often means that who does the actual removing is a bit fungible, at the state agency’s election, and not entirely a matter of WS’s choosing.  Thus, they argue, the discretionary actions they take are not, in themselves, causing “major” or “significant” disturbances in the environment and, hence, do not cross the effects threshold that NEPA § 102(2)(C) sets on the duty to prepare an EIS.  Indeed, they argue (with some justification), if they weren’t killing many of these animals, the state agencies or private parties would be doing so.

A federal judge in the Western District of Washington rejected the argument in December 2015, ruling that WS had plenty of discretion over its actions and owed the public a NEPA “hard look” at its undeclared war on wolves.  See Cascadia Wildlands v. Woodruff, ___F.Supp.3d ___(W.D. Wash. 2015).  The court was careful to cut through WS’s arguments about discretion:

[I]t is apparent from the record that Wildlife Services failed to take a hard look at the effects of lethal removal on gray wolf populations. The lack of consideration is deliberate; Wildlife Services does not analyze the effects on gray wolves because “WDFW [and others] are responsible for determining the number of wolves to remove and would respond if [WS] could not.” This is a problematic response, because it deflects from the fact that [WS] has discretion to decide whether and under what circumstances to engage in wolf removal, including lethal and non-lethal removal, discretion [WS] apparently would not hesitate to exercise under some circumstances . . . . The response also ignores the fact that without [WS], [the state] acknowledges at least a short term effect on the number of removals, and the longer term attainability of the plan without [WS]’s assistance is predicated on speculation of legislative intervention to increase funding.

Cascadia Wildlands, Slip Opinion at *5.

In other words, although wolf reintroduction has been planned and debated and wolf control is a business shared by multiple agencies, the WS agency—long in the business of “removing” problematic wildlife for ranchers and farmers—ought to have taken a focused look at the environmental effects of doing so to these animals in this context. So the court vacated WS’s finding of no significant impact (FONSI), leaving the decision of how to proceed with WS.

WS, for its part, has adopted the same legal strategy in Oregon.  Rather than prepare a NEPA analysis of its wolf kill program there, it argued it doesn’t exercise sufficient discretion.  And that’s now provoked a follow-up lawsuit modeled after the Cascadia Wildlands victory.

Wolf_or_zones

Oregon Wolf Management Zones

As Oregon Wild argued, the population of wolves in Oregon is concentrated for the time being in a remote corner of the state.  However, if not “removed” or otherwise exterminated they will naturally disperse to reclaim more of their traditional territory.  West of the Interstate 95 corridor, the federal ESA doesn’t protect wolves and, as of November 2015, neither does the state’s endangered species protections.  As of July 2015, the Oregon Dept. of Fish and Wildlife (ODFW) was “tracking” 16 known packs (13 of which reared pups that summer), a number that is sure to push dispersers to other, adjacent habitat.

So now the Center for Biological Diversity and others are suing WS in Oregon with precisely the same claims as what succeeded in Washington.  Shouldn’t the agency have to prepare a proper NEPA analysis of its lethal wolf control programs, even if they are implemented cooperatively with ODFW?  A federal district court in Portland will now hear that case.

Time to take a Hard Look at Wildlife “Services”

The impassioned and carefully argued pleas have been written before targeting USDA and WS.  Michael J. Robinson’s masterful polemic, Predatory Bureaucracy comes to mind.  But even the Washington Post took the opportunity in 2014 to ask the obvious: where is the proof that all of this killing is having its intended—or, indeed, any ameliorative—effect?

When scientists studied several coyote extermination programs across the U.S., for example, they found that the programs have had virtually no effect—or even the opposite effect—on coyote abundance.  Yet the gunning, poisoning and trapping continue.  Why?  The agency itself has said—and will continue to say—that it is merely providing a service to the nation’s farmers and ranchers:

Wildlife Services says that it responds to requests by government agencies nationwide and works to “resolve human/wildlife conflicts” in a strategic way. “As wildlife damage increases, requests for assistance also increase,” said spokeswoman Carol Bannerman. Ranchers and farmers pay half the agency’s costs of killing animals that they view as a threat.

Darryl Fears, USDA’s Wildlife Services Killed 4 Million Animals in 2013, Wash. Post (June 7, 2014). wolf

So why isn’t this shared expense (in the case of wolves and other predators) a kind of corporate welfare?  Supposing it is, does the wider public benefit from it in any way?  These are the questions sustained attention to the programs’ value—like that a careful EIS could force—might answer.  Until WS undertakes an earnest, in-depth look, though, it won’t have to rethink whether its “services” are really a public service at all.

{Image: © 2016 NEPALab}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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