Full Title Name:  Detailed Discussion of Wildlife Services

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Rachel Pemberton Place of Publication:  Michigan State University College of Law Publish Year:  2020 Primary Citation:  Animal Legal & Historical Center Jurisdiction Level:  Federal 1 Country of Origin:  United States
Summary: This detailed discussion examines the history and philosophy of the USDA's "Wildlife Services." This agency has a mission "to provide Federal leadership in managing conflicts with wildlife.” However, animal advocates have criticized the lack of science backing up the antiquated approach in managing wildlife and human economic conflicts. This paper explores the legal authorities and internal philosophies that guide WS’ activities; how WS selects and implements a variety of nonlethal and lethal methods for controlling wildlife; and contemporary challenges to WS’ practices.

I. Introduction

In the United States, a little-known federal agency inaptly named Wildlife Services (WS) kills millions of native predator and “nuisance” animals every year, including a variety of mammal, bird, and rodent species. In particular, WS has a long history of controlling wildlife species like wolves and coyotes that are predators to livestock at the behest of the livestock industry. Tiffany Bacon, The Implementation of the Animal Damage Control Act: A Comment on Wildlife Services’s Methods of Predatory Animal Control, 32 J. Nat’l Ass’n Admin. L. Judiciary 361, 362-63 (2012). Among those who have criticized Wildlife Services, public lands journalist Christopher Ketcham has described WS as an agency that “kills anything under the sun perceived as a threat to stockmen, deploying an arsenal of poisons, traps and aerial gunships at a cost of tens of millions of dollars” in taxpayer money every year. Jimmy Tobias, The Government Agency in Charge of Killing Wild Animals is Facing Backlash, Pacific Standard (June 24, 2019), available at https://psmag.com/environment/the-government-agency-in-charge-of-killing-wild-animals-is-finally-facing-backlash.

In fact, nearly fifty years ago a special advisory committee issued a predator control report (referred to as “the Cain report”) to the Council on Environmental Quality (CEQ) and the Department of the Interior (DOI), wherein the committee identified Wildlife Services as an institution with “a high degree of built-in resistance to change” and “a continuity of purpose in promoting the private interest of livestock growers, especially in the western rangeland states.” Although the Cain report called for a fundamental restructuring of what it considered to be a failing program in 1971, little has changed over the past five decades. Stanley A. Cain et al., Advisory Committee on Predator Control, Predator Control-1971: Report to the Council on Environmental Quality and the Department of the Interior 2-3 (1972).

In 2018 alone, nearly 43 million animals were subject to management by Wildlife Services, with over 2.6 million animals killed as a result of the agency’s control activities. Included in the number of animals killed are 2,630 deaths that have been identified by the agency as unintentional, although relaxed administrative reporting requirements mean that the actual number is likely higher. Among these unintentional deaths, a reported 23 black bears, 12 bobcats, 106 coyotes, 156 gray foxes, 72 red foxes, and 9 cougars (also known as mountain lions) were killed due to improper conduct and/or negligence on the part of WS and its employees. Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Program Data Report G 2018 (last visited Aug. 28, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs.

Over the past decade, Wildlife Services has continuously come under fire for its practices, with animal and conservation groups, local and state governments, and even other federal agencies criticizing the assumptions underlying WS’ philosophy of wildlife “control.” This paper explores the legal authorities and internal philosophies that guide WS’ activities; how WS selects and implements a variety of nonlethal and lethal methods for controlling wildlife; and contemporary challenges to WS’ practices.

II. Background Information

A. History and Inception of Wildlife Services

What is known today as the animal damage control program essentially began in 1885, when the United States Department of Agriculture (USDA) began surveying crop damage caused by birds. Only one year later, the USDA created the Division of Economic Ornithology and Mammalogy to continue and expand upon this effort. One of the new division’s primary missions was to “educate farmers about birds and mammals […] so that the destruction of useful species might be prevented.” In 1896, the division was renamed the Division of Biological Survey. Under its new name, in 1905 the division began collaborating with the United States Forest Service (USFS) in response to complaints from ranchers whose cattle and sheep were being killed by predatory animals as they grazed on USFS land. The collaboration was designed to identify methods for controlling predators, namely wolves and coyotes. Bacon, supra at 365.

In 1915, the Division of Biological Survey received congressional authorization to establish a new Branch of Predator and Rodent Control. This new branch, whose mission was to “destroy injurious animals, primarily those injuring property,” faced opposition from the American Society of Mammalogists. In turn, this opposition sparked renewed concern from ranchers, which ultimately prompted Congress to pass the Animal Damage Control Act of 1931 (ADC) to accommodate the interests of the agriculture and animal husbandry industries. Today, the ADC is administered by the Wildlife Services (WS) agency, which is held under the USDA’s Animal and Plant Health Inspection Service (APHIS). The ADC primarily authorizes WS to conduct investigations and experiments into the best methods and practices to eradicate, suppress, and control a variety of wildlife species on state, federal, public, and private lands. In addition to species that injure property, the ADC refers relatively broadly to species that may injure industries such as agriculture, horticulture, forestry, and animal husbandry. Bacon, supra at 365-68.

Thus, the legacy of animal damage control in the United States was born out of an effort to aid farmers specifically struggling with crop damage caused by birds and to educate those farmers about ecologically important bird species. However, what began as a program with relatively narrow scope has since morphed and expanded into a general wildlife control program with broad ambitions of controlling, and perhaps even conquering, a major piece of the natural world.

B. Mission and Philosophy of Wildlife Services

The mission of Wildlife Services “is to provide Federal leadership in managing conflicts with wildlife.” Specifically, “WS conducts programs of research, technical assistance, and applied management to resolve problems that occur when human activity and wildlife conflict with one another.” Under its general management philosophy, WS lists a variety of socioeconomic justifications for its wildlife management activities. In particular, while WS acknowledges that government agencies “are required by law and regulation to conserve and manage wildlife resources,” their philosophy goes on to stress that this conservation and management must be “responsive to public desires, views and attitudes.” Wildlife Services Directive 1.201, Mission and Philosophy of the WS Program (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/1.201.pdf.

According to WS, the impetus for its management activities is the “significant damage” that wildlife sometimes causes “to agricultural crops and livestock, forests, pastures, property and infrastructure;” “threatened and endangered species and their habitats;” and “human health and safety through animal-borne diseases and hazards to aircraft.” Thus, WS’ management activities are clearly designed to minimize the level of damage to human activities that may be caused by wildlife. Yet, in seemingly contradictory language, WS also maintains that it’s vision “is to improve the coexistence of people and wildlife,” stating that “a responsive and effective WS program addresses the wildlife damage management problem, promotes more tolerance toward wildlife, and avoids the likelihood of management actions by an unqualified or untrained public.” Wildlife Services Directive 1.201, Mission and Philosophy of the WS Program (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/1.201.pdf.

WS’ philosophy also contains broad language regarding the need for “careful assessments” prior to undertaking wildlife damage management activities. When assessing the wildlife issue at hand and the available “options for resolving or mitigating the problem,” WS employees are instructed to consider management strategies that are “biologically sound, environmentally safe, scientifically valid, and socially acceptable.” Id. It should be noted that although similar language referring to considerations of the environment, best available science, and so on appears in many places throughout WS’ program directives, the use of this language is inconsistent and none of the terms or principles are defined. For example, how the agency internally defines the phrase “environmentally safe,” as well as what practices it considers to fit within this definition, are unknown.

The philosophy of Wildlife Services attempts to balance several competing interests; namely, the interest in human tolerance and coexistence with wildlife versus the interest in minimizing damage—especially property damage—that may be caused by wildlife. Although WS recognizes its legal duty to conserve wildlife resources, its philosophy focuses heavily on human-centric justifications for conducting activities to control, and indeed suppress, wildlife species that may pose a threat to property and human activities.

III. Legal Authority of Wildlife Services

Section 426 of the ADC, as amended, provides in relevant part that “the Secretary of Agriculture may conduct a program of wildlife services with respect to injurious animal species and take any action the Secretary considers necessary in conducting the program.” Pursuant to this broad authority, which the Secretary has delegated to Wildlife Services, WS has discretion to act as it deems appropriate in response to conflicts with wildlife. Animal Damage Control Act, 7 U.S.C. § 426-426b (1985). These actions are guided in part by the Rural Development, Agriculture, and Related Agencies Appropriations Act of 1988 (hereinafter “Rural Development act”). Section 426c of that act provides in relevant part that “the Secretary of Agriculture is authorized, except for urban rodent control, to conduct activities and to enter into agreement with States, local jurisdictions, individuals, and public and private agencies, organizations, and institutions in the control of nuisance mammals and birds and those mammal and bird species that are reservoirs for zoonotic diseases.”

Thus, if requested, WS may enter into an agreement with any entity or individual in the United States to control injurious and/or nuisance mammals and birds. Where private property is at issue, WS may even contract directly with landowners—often ranchers and farmers—who request direct control assistance from the agency to remove wildlife on their property. Rural Development, Agriculture, and Related Agencies Appropriations Act, 7 U.S.C. § 426c (1988).

A. Broad Collaborative Authority of Wildlife Services

Wildlife Services currently has signed memoranda of understanding with several federal agencies, including the USFS, the United States Fish and Wildlife Service (FWS), the Bureau of Land Management (BLM), the Federal Aviation Administration (FAA), and the Department of Defense (DOD). WS also has signed memoranda of understanding with many state agencies regulating wildlife, agriculture, natural resources, and public health and safety. Aside from these formal agreements, WS also “provides technical assistance to the general public in the form of advice, recommendations, information, or materials for use in managing wildlife conflicts.” It should be noted, however, that elsewhere in the agency’s program directives, WS cautions against allowing wildlife management actions to be taken “by an unqualified or untrained public.” This contradiction casts uncertainty on the scope and relevance of the potential advice and recommendations that WS may issue to the general public. Wildlife Services Directive 1.201, Mission and Philosophy of the WS Program (U.S.D.A. 2009) available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/1.201.pdf.

In addition to the ADC and the Rural Development act, there is a multitude of other federal legislation relevant to Wildlife Services’ activities; some of this legislation imposes limits on WS’ authority, while some expands WS’ authority. Given the range of federal statutes that impact WS’ powers and abilities, the agency may be able to execute certain activities that would appear to be excluded from one statute by relying on powers granted to it by another. For example, the Rural Development act explicitly excludes “urban rodent control” from the scope of management activities that WS may undertake. However, under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended, Wildlife Services still possesses authority to manage rodents in rural areas. Under FIFRA, WS is broadly authorized to “promulgate a policy addressing fumigants or pesticide use” outside of urban areas, which allows WS to determine when and how those types of substances may be applied to control potentially harmful rodent species in rural areas. Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seq. (2012).

B. Limitations in Legal Authority under Federal Laws

Furthermore, WS’ activities may also be impacted by the Endangered Species Act of 1973 (ESA), the Migratory Bird Treaty Act of 1918 (MBTA), and the National Environmental Policy Act of 1970 (NEPA). First, pursuant to the ESA, WS must conduct its activities in a way that minimizes impacts on federally listed endangered or threatened species. Wildlife Services Directive 2.310, Endangered and Threatened Species (U.S.D.A. 2003), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.310.pdf. Second, pursuant to the MBTA, all populations of a species that falls within the category of migratory birds protected by the MBTA cannot be taken or killed by a federal agency, which includes WS. Humane Society of the United States v. Glickman, 217 F.3d 882, 884-88 (D.C. Cir. 2000). Third, WS’ routine activities, “including wildlife control and removal actions with the use of ‘chemicals, pesticides, or other potentially hazardous or harmful’” substances, are categorically excluded from NEPA’s procedural requirements. Colorado Prairie Initiative v. Lowney, No. 17-cv-00321-CMA, 2018 WL 1566831, at *3 (D. Colo. Mar. 30, 2018). The above examples are not, however, intended to serve as an exhaustive list; rather, these three acts demonstrate the ways in which WS may be impacted by legislation that does not directly speak to its activities. Indeed, wildlife management involves complex processes and entails a great deal of overlapping regulation.

C. Potential Conflicts in Legal Authority under State and Local Laws

As well as complying with all federal laws, WS employees are required to comply with applicable state and local laws as long as those laws “do not directly and substantively conflict with and frustrate WS’ Federal statutory authorities.” However, even when a state or local law does not conflict with WS’ authority under federal law, WS may establish a variance from the state or local law as the situation requires. Wildlife Services Directive 2.210, Compliance with Federal, State, and Local Laws and Regulations (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.210.pdf. In other words, it appears that WS may, at least under certain circumstances, institute a variance in procedures that is not guided by state or local law even when there is no conflict between WS’ federal authority and the state or local agency’s authority. WS’ program directives do not, however, define when a situation may require WS to establish a variance, so the scope of WS’ ability to do so is unknown.

Moreover, in cases where WS has established a variance, the state or locality must agree to carry out the wildlife control action(s) itself “in cooperation” with WS employees. Id. On the other hand, where a direct, substantive conflict between WS’ federal authority and state or local law does occur, it is not clear how WS and the state or locality are meant to proceed with the wildlife control activities at issue. Namely, where a legal conflict does exist, it is unclear whether WS may require the state or locality to carry out the wildlife control action(s) “in cooperation” with WS employees (as in the case of a variance). Due to this ambiguity, it appears possible that in the case of a conflict in legal authority, WS may still be able to require the state or locality to cooperate with WS employees despite the agency’s determination that WS employees cannot simultaneously comply with all applicable federal and state or local laws.

In other words, WS’ program directives create a potential loophole for the agency to institute a variance from relevant state and/or local laws even if those laws do not conflict with the agency’s federal statutory authority. In addition, where a direct, substantive legal conflict does exist, the agency’s program directives are not clear as to how the proposed wildlife control activities are meant to be executed, if at all. This ambiguity leaves room for the possibility that WS may still require the state or locality to cooperate with WS employees even when those employees cannot comply with all applicable laws.

IV. Wildlife Services’ Management Methodology and Operations in Practice

A. Background and Agency Policy

Pursuant to the agency’s program directives, WS “may provide services via technical assistance, direct-control assistance, or both.” Each of these types of assistance “encompass the use of nonlethal and lethal management methods,” with preference given to nonlethal methods “when practical and effective.” Despite this preference, WS also states that in some situations—namely livestock protection—the availability of nonlethal methods is limited. Wildlife Services Directive 2.101, Selecting Wildlife Damage Management Methods (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.101.pdf. However, elsewhere in its program directives, WS appears to contradict this statement in two ways.

First, despite the concern expressed elsewhere that management actions should not be taken “by an unqualified or untrained public,” the agency here states that “nonlethal methods may be limited to technical assistance recommendations which are more appropriately applied by the resource owner” whose property is deemed to be in danger of damage by wildlife. Id. Most property owners are not, however, trained in wildlife management, although they undoubtedly possess greater knowledge about the specifics of their property. In other words, the agency’s position that wildlife management should not fall into the hands of “an unqualified or untrained public” contradicts its policy of giving preference to nonlethal methods, which in this context would be administered by unqualified/untrained property owners.

Second, although WS states that the availability of nonlethal methods is limited in situations involving livestock protection, it also lists a number of nonlethal methods that can be applied by the resource owner. These methods include livestock guarding animals, electronic guards or other noise-making devices, predator-proof fencing, fladry, shed lambing, herding, and night penning. Id. Thus, the types of nonlethal methods that may be applied by the resource owner appears to refer almost exclusively to methods that would be useful to ranchers. In other words, there are in fact a great deal of nonlethal methods available for livestock protection.

Essentially, WS may provide technical assistance and/or direct control assistance, which can encompass nonlethal and/or lethal management methods. Specifically, as applied to livestock protection, a number of nonlethal management methods appear to be available to resource owners despite WS’ statements to the contrary. Nonetheless, the agency maintains a policy that gives preference to nonlethal management methods “when practical and effective.” Wildlife Services Directive 2.101, Selecting Wildlife Damage Management Methods (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.101.pdf.

B. How Wildlife Services Selects Damage Management Methods

As briefly stated above, WS may provide technical assistance and/or direct control assistance when responding to requests for wildlife management. Looking first to technical assistance, the agency defines this type of assistance as “advice, recommendations, information, equipment, literature, instructions, and materials provided to others for use in managing wildlife damage problems.” Direct control assistance, on the other hand, is defined as “field activities conducted or supervised by WS personnel.” Wildlife Services Directive 2.101, Selecting Wildlife Damage Management Methods (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.101.pdf. WS outlines two specific considerations involved in undertaking direct control assistance.

First, direct control assistance may only be used if it has been determined that the problem (1) “cannot reasonably be resolved by technical assistance,” or (2) requires “the professional skills of WS employees […] for effective problem resolution.” Examples identified by WS when direct control assistance may be appropriate include situations involving multiple property owners, sensitive species, application of pesticides not available for public use, or “complex management problems requiring the direct supervision of a professional wildlife manager or biologist.” Second, WS may only undertake direct control assistance upon request and written authorization—such as a memorandum of understanding—from a state or local agency, landowner, or “other authorized officials.” Wildlife Services Directive 2.101, Selecting Wildlife Damage Management Methods (U.S.D.A. 2009), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.101.pdf.

WS’ program directives contain a decision model that is intended to help guide the agency in developing a management strategy tailored for the specific situation. This decision model is divided into seven broad steps: (1) receiving a request for assistance, (2) assessing the problem, (3) evaluating available management methods, (4) formulating a management strategy, (5) providing assistance, (6) monitoring and evaluating the results of the management actions, and (7) concluding the project. However, WS is not required to document its progress as it moves through each step of the decision model. Wildlife Services Directive 2.201, WS Decision Model (U.S.D.A. 2014), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.201.pdf. In addition, the decision model itself appears to be more akin to a project overview, as the steps listed therein do not contain specific requirements or substantive guidelines for employees to follow.

Thus, WS may employ technical assistance, direct control assistance, or a combination thereof when managing wildlife conflicts. Although WS’ program directives may suggest that the agency is somewhat limited in its ability to employ direct control assistance, in reality this type of assistance accounts for a substantial portion of WS’ wildlife control activities. Moreover, given the absence of clear guidelines or management criteria and the absence of any concrete reporting requirements, WS’ decision model lacks teeth and provides little to no insight into how the agency’s employees make management decisions in the field.

C. Nonlethal Wildlife Management

Most of the assistance that WS provides encompasses nonlethal management tactics, although the end results sometimes contradict the name. WS’ annual program data reports categorize nonlethal wildlife control methods into three groups: (1) removed and/or destroyed; (2) freed, released, and/or relocated; and (3) dispersed. Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Wildlife Damage Program Data Reports (last modified June 2, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs. Although these categories are featured consistently throughout WS’ reports, the above terminology does not appear in the agency’s program directives, and neither the categories nor the terms themselves are defined. Moreover, the first category—removed and/or destroyed—does not appear to fit within the scope of “nonlethal” methods. Although this category is most likely intended to refer to the removal or destruction of wildlife habitat, as opposed to the wildlife itself, these methods still prove fatal to wildlife.

Specifically, the removed and/or destroyed category encompasses a practice called “denning,” which occurs when gas cartridges are used to fumigate animals within their den or burrow, or when an animal’s den or burrow is physically excavated. Species that are targeted by denning include a range of burrowing animals, including foxes, coyotes, and various species of rodents. However, non-target burrowing species are also susceptible to unintentional fumigation or excavation. Wild Earth Guardians, Removing Tools of Cruelty: Lethal Weapons: Denning (last visited Aug. 28, 2020), available at https://wildearthguardians.org/wildlife-conservation/end-the-war-on-wildlife/tools-of-cruelty/#:~:text=Denning. Furthermore, even if the intent is to remove or destroy wildlife habitat to prevent or mitigate property damage, this practice necessarily results in the death of wildlife. If any individual animal manages to survive the initial fumigation or excavation of its den or burrow, it will be retrieved and euthanized pursuant to WS’ program directives. Wildlife Services Directive 2.425, Denning (U.S.D.A. 2013), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.425.pdf. It is not clear, however, whether the data from this category of “nonlethal” control methods is also reflected in the agency’s lethal control/euthanasia reports.

On the other hand, the second category of nonlethal methods—freed, released, and/or relocated—encompasses several methods that allow WS employees to physically move the harmful or injurious animal(s) away from the site of the conflict. These methods include the use of traps, snares, and nets; hand catching or gathering; and administration of immobilizing or anesthetic drugs such as ketamine and telazol. See Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Wildlife Damage Program Data Reports (last modified June 2, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs. Similarly, the third category of nonlethal methods—dispersal—encompasses several methods that may be deployed by WS employees to prompt the harmful or injurious animal(s) to leave the site of the conflict. These methods include the use of pyrotechnics and other explosives; firearms; dogs; corralling with vehicles; physical actions, such as shouting or waving arms; lights and spotlights; and hand tools. See id.

In 2018, under WS’ first category of “nonlethal” management methods, 51,613 animals were removed and/or destroyed. Under the second category, another 28,009 animals were freed, released, and/or relocated, while under the third category a staggering 40,229,562 animals were dispersed. Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Program Data Report G 2018 (last visited Aug. 28, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/pdr/?file=PDR-G_Report?p=2018:INDEX. During the most recent five-year period for which data is available (spanning from 2014 to 2018), a combined total of over 145 million animals were managed by Wildlife Services through the use of nonlethal methods. Interestingly, the trends in the data from this five-year period show that, in general, the number of animals removed and/or destroyed each year is decreasing; the number of animals freed, released, and/or relocated each year remains relatively constant; and the number of animals dispersed each year is increasing. See Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Wildlife Damage Program Data Reports (last modified June 2, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs.

Given WS’ policy that preference should be given to nonlethal methods “when practical and effective,” these techniques—or at least those falling into the second and third categories discussed above—should be prioritized over other methods that result in death or euthanasia.

D. Lethal Wildlife Management

WS also engages in lethal wildlife management. Based on guidelines issued by the American Veterinary Medical Association (AVMA), WS’ euthanasia policy provides that employees should “exhibit a high level of respect and professionalism when taking an animal’s life” and, “whenever practicable,” use methods described in the most current available AVMA guidelines for euthanasia. This policy provides, for example, that lethal methods should “‘be as age-, species-, or taxonomic/class-specific as possible.’” Wildlife Services Directive 2.505, Lethal Control of Animals (U.S.D.A. 2011), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.505.pdf. Nonetheless, the WS program directive containing this policy does not contain the relevant AVMA guidelines mentioned therein, does not specify how these guidelines should be applied, and provides no meaningful discussion of what does or does not constitute “respect and professionalism” on the part of the agency’s employees. In addition, pursuant to WS’ decision model, the agency and its employees are not required to document or record the decision-making process when they choose to euthanize an animal. See Wildlife Services Directive 2.201, WS Decision Model (U.S.D.A. 2014), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.201.pdf.

WS’ annual program data reports categorize lethal wildlife control methods into one large group that encompasses all animals “killed” and “euthanized.” Within this group, however, a number of techniques are distinguished from one another, including traps, snares, and nets; firearms; M-44 cyanide capsules; aerial shooting via helicopter; chemical avicides, such as DRC-1339; pneumatics; hand catching or gathering; calling devices; and various other techniques. See Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Wildlife Damage Program Data Reports (last modified June 2, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs. Although all of these techniques ultimately result in the same outcome, some appear to be far more problematic, and indeed troubling, than others.

In 2018, a total of 2,652,405 animals were killed/euthanized by Wildlife Services. Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Program Data Report G 2018 (last visited Aug. 28, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/pdr/?file=PDR-G_Report?p=2018:INDEX. This number has generally remained constant over the most recent five year period for which data is available (spanning from 2014 to 2018), with a high in 2015 of 3,206,238 animals killed/euthanized and a low in 2017 of 2,307,122 animals killed/euthanized. See Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Wildlife Damage Program Data Reports (last modified June 2, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs. Of the over 2.6 million animals killed/euthanized by WS in 2018, this number includes 361 black bears, 22,522 beavers, 1,014 bobcats, 68,292 coyotes, 384 cougars (also known as mountain lions), 1,940 gray foxes, 1,580 red foxes, 556 great blue herons, 710 river otters, 17,232 black-tailed prairie dogs, 401 common snapping turtles, and 9,300 black vultures. Among only these dozen species, 1,341 animals were killed unintentionally. Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Program Data Report G 2018 (last visited Aug. 28, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/pdr/?file=PDR-G_Report?p=2018:INDEX.

E. M-44 Cyanide Capsules

One of the most troubling lethal control methods employed by WS when managing wildlife conflicts is the use of M-44 cyanide capsule devices. M-44 cyanide capsules are spring-activated devices that eject a lethal dose of sodium cyanide once the device has been triggered by an animal. Because these capsules are scented with bait to attract and target predators, the sodium cyanide is delivered orally and should quickly become fatal. WS maintains that M-44 cyanide devices are “effective and environmentally sound wildlife damage management tool[s].” Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Factsheet: M-44 Device for Predator Control (May 2019), available at https://www.aphis.usda.gov/publications/wildlife_damage/fs-m44-device.pdf. However, M-44 cyanide devices consistently cause dozens of unintentional animal deaths each year despite limits and controls designed to reduce the potential for unintended harms.

WS’ program directive regarding M-44 cyanide capsules contains an extensive, 27-item list of use restrictions that employees must follow. Included in this list is an Environmental Protection Agency (EPA) mandate that WS use maps prepared by the FWS “to protect areas where federally listed threatened or endangered animals may be adversely affected.” M-44 cyanide capsules also may not be placed in areas where food crops are planted; prairie dog towns; national or state parks or monuments; federally designated recreational areas; and federally designated wilderness areas. Spacing and location limits for M-44 cyanide capsules exist for sites including wildlife refuge areas; nonfrozen lakes, streams, and other bodies of water; public roads and pathways; occupied residences; and ranch units or allotments. Moreover, M-44 cyanide capsules may only be used when the targeted animal (1) is suspected of preying on livestock or poultry; (2) is suspected of preying on federally listed threatened or endangered species; or (3) is a vector of a communicable disease. Wildlife Services Directive 2.415, M-44 Use and Restrictions (U.S.D.A. 2014), Attachment (1): APHIS Wildlife Services Implementation Guidelines for the 27 Use Restrictions for M-44 Sodium Cyanide Capsules (E.P.A. 2020), available at https://www.aphis.usda.gov/wildlife_damage/directives/pdf/2.415.pdf.

Another important limitation is the range of species that WS may target using cyanide capsules. Under the agency’s program directives, WS is only authorized to use M-44 devices to control coyotes, red and gray foxes, and wild dogs. Id. Nonetheless, without careful placement and follow-up by WS personnel, M-44 capsules are sometimes triggered by species other than those targeted. Over the most recent three year period for which data is available (spanning from 2016 to 2018), a combined total of 30,238 coyotes, 1,847 gray foxes, 490 red foxes, and 26 feral dogs were intentionally targeted and killed by WS using M-44 cyanide capsules. However, during this same period, a combined total of 302 gray foxes, 93 red foxes, and 34 feral dogs were unintentional victims of M-44 cyanide capsules that had been placed to control other species or populations. Even more startling, from 2016 to 2018 a combined total of two black bears, eight domestic animals, 19 kit foxes, 14 swift foxes, one fisher, 58 Virginia opossums, 168 raccoons, four ravens, one hooded skunk, 29 striped skunks, six feral swine, and one gray wolf were also unintentionally killed by M-44 cyanide capsules. Thus, over a three-year period, Wildlife Services’ placement of lethal M-44 cyanide capsule devices unintentionally killed a combined total of 311 animals belonging to species that WS is not authorized to control through the use of such devices. See Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., Wildlife Damage Program Data Reports (last modified June 2, 2020), available at https://www.aphis.usda.gov/aphis/ourfocus/wildlifedamage/sa_reports/sa_pdrs.

V. Criticisms and Controversies

A. From General Criticisms to Building Fences

In addition to criticizing specific management techniques like denning and M-44 cyanide capsules, many organizations dedicated to wildlife conservation have voiced general concerns over Wildlife Services’ practices and the agency’s overall lack of accountability. According to the Center for Biological Diversity (“the Center”), WS’ activities have contributed to the decline of numerous imperiled species and continue to impede those species’ recovery. Because WS focuses many of its lethal control methods on livestock predators at the top of the food chain, the Center explains, WS has also created lasting impacts on the health of ecosystems across the country. Moreover, the Center has raised a number of criticisms regarding the operational nature of WS, pointing specifically to a lack of public disclosure to explain where, how, and why the agency conducts its wildlife control activities. Center for Biological Diversity, Targeting Wildlife Services (last visited Aug. 28, 2020), available at https://www.biologicaldiversity.org/campaigns/wildlife_services/.

The nonprofit advocacy organization Predator Defense has also highlighted concerns about WS’ lack of transparency, including the agency’s refusal to comply with Congressional requests for transparency and spending accounting. According to Predator Defense, WS “wastes millions of taxpayer dollars by spending far more to kill predators than the actual damage those predators cause.” Predator Defense, The USDA’s War on Wildlife (last visited Aug. 28, 2020), available at https://www.predatordefense.org/USDA.htm. These concerns have even been echoed by government agencies, including the United States Forest Service and the Bureau of Land Management (BLM).

In 2018, the BLM expressed reservations about WS’ overall approach and philosophy regarding predator control, stating that “‘there is no guarantee that predator control will have the intended impact on prey populations.’” The BLM went on to explain that scientific studies have shown how “‘mammalian predators respond to losses of individual members of populations by adjusting space use or increasing litter sizes.’” Western Watersheds Project v. USDA APHIS Wildlife Services, 320 F.Supp.3d 1137, 1141 (D. Idaho 2018). Moreover, studies have shown that even the “eradication of one predator species may have the opposite result from that intended if a smaller predator at higher density takes its place.” Adrian Treves & Lisa Naughton-Treves, Evaluating Lethal Control in the Management of Human-Wildlife Conflict, in People and Wildlife: Conflict or Coexistence? 91 (Rosie Woodroffe et al. eds., 2005), available at https://pdfs.semanticscholar.org/919e/566b307f53fda8c894a7fa4c8faf1cc6ab6c.pdf. In other words, attempting to control populations of a species without first addressing the factors that lead to increases in those populations “‘is likely to be futile over the long-term.’” Western Watersheds, 320 F.Supp.3d at 1141.

Given these challenges, in recent years the Natural Resources Defense Council (NRDC) has made progress communicating and even collaborating with WS in certain states. In 2017, NRDC reported the successful completion of over a dozen collaborative nonlethal predator control projects using electric fencing in states including Montana, North Dakota, Oregon, and Wyoming. Zack Strong, Progress—through Unlikely Partnership—with Wildlife Services, Natural Res. Def. Council (Dec. 8, 2017), available at https://www.nrdc.org/experts/zack-strong/progress-through-unlikely-partnership-wildlife-services. In 2018, NRDC collaborated with Defenders of Wildlife, Wildlife Services, and Noble Orchards—a family-owned orchard in Paradise, California—to install an electric fence following unprecedented damage to the orchard’s crop the previous summer at the hands of at least a dozen black bears. Together, these four entities worked “to devise a long-term, nonlethal strategy to permanently keep bears out of the orchard” by deterring and preventing potential conflicts before they could occur. Ultimately, NRDC hopes that the success of these projects will “continue to pave the way for additional partnerships to address human-wildlife conflicts” throughout the Western United States. Katie Umekubo, Building Fences (and Bridges) with Wildlife Services, Natural Res. Def. Council (Aug. 6, 2018), available at https://www.nrdc.org/experts/katie-umekubo/building-fences-and-bridges-wildlife-services.

B. M-44 Cyanide Capsules: The Dangers of Cyanide “Bombs”

As noted above, several organizations have also specifically criticized Wildlife Services’ use of M-44 cyanide capsules and have argued that these devices are inhumane, dangerous, and pose an unnecessary threat to people and animals, including wildlife. According to the Center for Biological Diversity, M-44 cyanide capsules are essentially cyanide “bombs” that, when triggered, can cause their victims to “suffer torturous poisoning followed by a slow, agonizing death or severe injury.” In addition to the livestock predators that WS intentionally kills, the Center points to the numerous incidences of unintentional injuries and deaths that have occurred over the past few years. In 2017, for example, M-44 cyanide capsules “temporarily blinded a child and killed three family dogs in two incidents in Idaho and Wyoming.” Later that same year, another M-44 accidentally killed a wolf in Oregon. In response to these and other incidents, in 2017 Idaho banned the use of M-44s on public lands and later extended its M-44 ban to apply statewide in 2020. In 2019, Oregon similarly banned the use of M-44s throughout the state. Center for Biological Diversity, Cyanide Bombs (last visited Aug. 28, 2020), available at https://www.biologicaldiversity.org/campaigns/cyanide-bombs/index.html.

Given this opposition at the state level, in August 2019 the EPA withdrew its support for the continued use of cyanide capsule devices. Expressing concern about the “‘off-target impacts on both humans and nonpredatory animals’” that can be caused by these devices, the EPA decided to reevaluate the practice by conducting additional analysis and initiating discussions with cyanide capsule registrants. Neil Vigdor, EPA Backtracks on Use of ‘Cyanide Bombs’ to Kill Wild Animals, The New York Times (Aug. 16, 2019), available at https://www.nytimes.com/2019/08/16/us/epa-cyanide-bombs.html. However, less than six months later in December 2019, the EPA chose to reauthorize the use of cyanide capsule “bombs” nationwide amidst pressure from the current administration. The Guardian, The Secretive Government Agency Planting ‘Cyanide Bombs’ Across the US (June 26, 2020), available at https://www.theguardian.com/environment/2020/jun/26/cyanide-bombs-wildfire-services-idaho. Nonetheless, public awareness of this troubling practice appears to be spreading, with opposition to the use of M-44 cyanide capsules remaining strong among wildlife, animal, and conservation organizations.

VI. California Counties Cease Contracts with Wildlife Services

Concerns about the agency’s often indiscriminate wildlife control practices have led some local governments to reconsider, and even discontinue, their contracts with Wildlife Services. Namely, in California several counties have cancelled, suspended, or modified their contracts with WS over concerns about the agency’s practices. Leading the way in 2000, Marin County ceased contracting with WS following public outcry over the agency’s use of lethal methods including poisons, snares, and denning. The Marin County Board of Supervisors responsible for the decision instead approved an alternative program utilizing non-lethal wildlife control methods, known as the Marin County Livestock and Wildlife Protection Program (LWPP). This program, designed around community collaboration and multidisciplinary stakeholder involvement, assists ranchers by addressing the same types of livestock-predator conflicts that would be addressed by WS, but without the use of lethal control methods. The assistance that LWPP provides includes a cost-sharing system “to help ranchers install or upgrade fencing and other livestock-protection infrastructure, install predator-deterrents and detectors, and purchase and sustain guard dogs and llamas.” Project Coyote, Marin County Livestock & Wildlife Protection Program (Mar. 27, 2015), available at https://www.projectcoyote.org/project/marin-county-livestock-wildlife-protection-program/. As of 2014—14 years after Marin County ceased contracting with WS—the County had seen a 62% decrease in livestock predation and a roughly 67% decrease in costs associated with addressing livestock-predator conflicts. Elly Pepper, Groups Ask California Counties to Stop Hiring Wildlife Services, Natural Res. Def. Council (June 30, 2014), available at https://www.nrdc.org/experts/elly-pepper/groups-ask-californias-mendocino-humboldt-counties-stop-hiring-wildlife-services.

Over a decade later, Sonoma County followed suit when it cancelled its predator control contract with WS in 2013. The cancellation occurred after the County received a letter from the Animal Legal Defense Fund (ALDF) warning the County that it could face legal challenges to its contracts with WS given that the agency uses methods that have been banned under California state law. Id. Specifically, ALDF stated that if the County chose to renew its agreement with WS, the County would need to undertake “appropriate environmental review and resource allocation” according to state laws. Furthermore, the County would need to eliminate the use of wildlife control methods banned under state law, including cyanide capsules and leg-hold traps. Animal Legal Def. Fund, ALDF Urges Sonoma County to Void Contract with Federal Wildlife Services (May 16, 2013), available at https://aldf.org/article/animal-legal-defense-fund-urges-sonoma-county-to-void-contract-with-federal-wildlife-services/. Instead of facing these potential legal challenges, Sonoma County cancelled its contract with WS and allocated that budget towards paying for “electric fencing and guard dogs for ranchers—two nonlethal methods of livestock-predator conflict prevention that have proven extremely effective.” Pepper, supra.

In 2014, Mendocino County suspended its contract with WS in order to settle a lawsuit filed by ALDF. In previous years, the County had “failed to review environmental impacts prior to contracting with Wildlife Services to kill coyotes, bears, bobcats, foxes, and other animals.” In addition to agreeing to review environmental impacts as required by state law (under the California Environmental Quality Act, “CEQA”), the County also agreed in its settlement “to fully evaluate non-lethal predator control alternatives.” Nonetheless, the County later reinstated its contract with WS, prompting ALDF to file a second lawsuit that was settled in 2016. As part of the second settlement, Mendocino County agreed to immediately suspend its contract with WS “pending preparation of a full Environmental Impact Report” pursuant to CEQA. Animal Legal Def. Fund, Challenge Mendocino County, CA Contract with Wildlife Services (last updated Apr. 16, 2016), available at https://aldf.org/case/challenge-mendocino-county-ca-contract-with-wildlife-services/.

In 2017, Monterey County was ordered to discontinue its contract with WS after a California court ruled that the contract had violated state environmental laws. Before resuming its contract with WS, the County would be required to analyze “the environmental impacts of the agency’s predator control methods” pursuant to CEQA. Instead of seeking an alternative solution, the County proceeded with an environmental analysis, finding that “‘all impacts [of WS’ predator control activities in Monterey County] would be less than significant, and no mitigation measures [would be] required.’” Thus, despite the ruling in 2017, the County resumed its contract with WS in March 2018 amidst renewed criticisms from the wildlife and conservation groups that originally brought the lawsuit. Asaf Shalev, After a Brief Hiatus, Monterey County has Renewed its Contract with Federal Wildlife Trappers, Monterey County Weekly (July 25, 2019), available at http://www.montereycountyweekly.com/news/local_news/after-a-brief-hiatus-monterey-county-has-renewed-its-contract-with-federal-wildlife-trappers/article_243e6480-ae6f-11e9-87a4-07f28d0a8819.html.

In 2018, both Shasta and Siskiyou Counties suspended their contracts with WS after facing legal pressure from a coalition of eight wildlife, animal-protection, and conservation groups (“the coalition”). Shasta County’s suspension came after it received a letter from the coalition warning the County that its contract with WS violated CEQA. In the same month, Siskiyou County suspended its contract with WS after it too received a letter from the coalition, which warned the County that its contract violated both CEQA and the California Endangered Species Act (CESA). In both cases, the contract between each county and WS had authorized WS “to kill hundreds of bears and coyotes, as well as thousands of birds […] every year, without assessing the ecological damage or considering alternatives.” In its letter to Siskiyou County, the coalition further warned that the County’s contract with WS had resulted in the deaths of protected bird species and had generally presented risks to many threatened and endangered species. Since receiving these warnings, Shasta and Siskiyou Counties have discontinued their contracts with WS in favor of pursuing nonlethal wildlife management models. Animal Welfare Inst., Fourth California County Suspends Contract with Federal Wildlife-Killing Agency (Aug. 21, 2018), available at https://awionline.org/press-releases/fourth-california-county-suspends-contract-federal-wildlife-killing-agency; Animal Welfare Inst., Shasta County Suspends Contract with Wildlife-Killing Agency (July 24, 2018), available at https://awionline.org/press-releases/shasta-county-suspends-contract-wildlife-killing-agency.

Finally, this year Humboldt County became the latest county in California to reconsider its contracts with WS after receiving pressure from conservation advocates. In May 2020, the County approved a new contract with WS under modified terms that restrict the use of lethal control methods to situations where “‘all feasible non-lethal mitigation measures’” have been implemented and exhausted. The new terms also prohibit WS from using lethal control on beavers and generally restrict the use of certain lethal control methods such as pesticides, lead ammunition, and body-gripping traps. Center for Biological Diversity, Humboldt County Agrees to Prioritize Nonlethal Solutions to Wildlife Conflict (May 5, 2020), available at https://biologicaldiversity.org/w/news/press-releases/humboldt-county-agrees-prioritize-nonlethal-solutions-wildlife-conflict-2020-05-05/#:~:text=Humboldt%20County%20is%20the%20most,filed%20or%20threatened%20legal%20action.

The decisions made by several California counties exemplify a trend at the local level away from the often troubling practices and methods used by Wildlife Services. In many cases, legal pressure from advocacy groups has helped to initiate or speed along this process. Moreover, as Marin County has proved over the past two decades, a focus on nonlethal wildlife conflict management that is built around the interests and skills of the community can lead to substantial reductions in the occurrence of wildlife conflicts and in the cost of managing the conflicts that do occur. Thus, instead of waiting for potential legal challenges to arise, counties throughout the country have an opportunity to use Marin County’s success as a model to develop their own nonlethal wildlife conflict management programs.

VII. Growing Awareness Around Wildlife Services and Future Considerations

Wildlife and animal advocacy organizations, like those involved in the county-level movements away from Wildlife Services in California, continue to criticize WS and its activities as part of their decades-long fight against the agency. In addition to these mission-targeted organizations, journalists across the country are also consistently reporting on new controversies involving WS and its handling of wildlife “conflicts.” Three recent examples help to illustrate this phenomenon.

First, on September 6, 2020, the Albuquerque Journal reported that investigations conducted by the Western Watersheds Project over the past year reveal that the methods used by Wildlife Services to determine when Mexican gray wolves are responsible for livestock predation are questionable at best. These questionable methods implicate the Mexican gray wolf, classified as an endangered species under the ESA, in wildlife-livestock conflicts based on evidence that is “speculative” and “insufficient” to support the agency’s conclusions. As a result, WS has determined that Mexican gray wolves are the species of issue in wildlife-livestock conflicts in cases when “there is literally nothing left but a scrap of hide or a few bones, or a few bite marks whose dimensions overlap with coyotes, mountain lions and feral dogs.” Cyndi Tuell, Is US Wildlife Crying Wolf on Livestock Deaths?, Albuquerque Journal (Sept. 6, 2020), available at https://www.abqjournal.com/1493751/is-us-wildlife-crying-wolf-on-livestock-deaths.htm.

Second, on September 9, 2020, Newsday reported that, in June of this year, Wildlife Services erroneously removed and euthanized 86 Canada geese from Milburn Pond Park in Nassau County, New York, due to what the agency described as an “administrative error.” Four years earlier at the same location, WS had illegally removed and euthanized 154 Canada geese, which the agency finally acknowledged after the June incident. Scott Eidler, Advocates Condemn Feds’ Euthanizing of Baldwin Park Geese, Newsday (last updated Sept. 9, 2020), available at https://www.newsday.com/long-island/nassau/canada-geese-euthanize-jfk-1.49135798.

Finally, on September 11, 2020, Common Dreams reported that following a record-breaking year for wolf deaths in Idaho, the Trump administration has proposed rule changes to the ESA that could delist currently protected species, including wolves, nationwide. Among the 570 wolves killed in Idaho over a recent one-year period (60% of Idaho’s wolf population in 2019), “at least 35 wolf pups, some […] likely only four to six weeks old,” were killed by Wildlife Services. Some wolves “died of hypothermia in traps set by [WS], and more were gunned down in aerial control actions.” Jessica Corbett, ‘Reckless, Violent, Massacre’ of 570 Wolves and Wolf Pups in Idaho Bolsters Alarm Over Trump Attack on Species Protections, Common Dreams (Sept. 11, 2020), available at https://www.commondreams.org/news/2020/09/11/reckless-violent-massacre-570-wolves-and-wolf-pups-idaho-bolsters-alarm-over-trump.

Given the ongoing reporting even in very recent history, it is clear that national awareness of Wildlife Services and its often troubling methods for controlling and killing wildlife is growing. In particular, conservation groups and animal welfare advocates contend that the science does not support WS’ often indiscriminate killing of predators to protect livestock. In fact, the efforts made by some California counties who have discontinued their contracts with WS demonstrate that other management methods may be equally, if not more, effective. This oldest of federal wildlife agencies needs to evolve with the times and adhere to its mission to use the best available science when formulating and executing wildlife management activities. Today, WS appears to be operating in the shadows, benefitting only the private economic interests of the livestock and agricultural industries instead of wildlife resources held in the public trust. More critics are urging lawmakers to curtail this opaque agency and the millions of wildlife deaths it causes each year.

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