OLYMPIA, Wash. (CN) – Washington state’s rules allowing corporate timberlands to use traps, bait and dogs to kill bears are legal, a judge ruled Friday, even though voters banned those exact methods decades ago.
In the early spring, black bears emerge from hibernation, ravenous. Most of the plants they eat are still in their own winter sleep. At that time of year, the sap of young trees is one of the most nutritious foods available. They strip the bark and feast.
But those meals cause millions in damage, according to Washington’s commercial tree farmers. So the Washington Department of Fish and Wildlife lets landowners hire hunters to kill bears on their property. And the permits the department issues specifically allow hunters to use methods voters banned 20 years ago based on their cruelty.
The Center for Biological Diversity sued the department over that apparent discrepancy in May 2018, claiming the policy had killed an estimated 2,000 bears and orphaned numerous bear cubs.
Attorney Claire Loebs Davis argued on behalf of the center at a hearing on Friday.
“This case is not about a dispute over wildlife policy,” Loebs Davis said. “It’s about whether state agencies must stay within the law. You may think the indiscriminate killing of bears is cruel. But we are not attempting to legislate through litigation. Here, legislating was done by the voters, the chief sovereigns of the state. The agency believes voters made a mistake and that it can elevate its judgment above theirs. They are allowing trapping, baiting and hunting by private owners just as if the voters had never spoken at all.”
Loebs Davis also said the department ignored its own science and the opinions of the experts it employs and didn’t even consider whether future tree damage would actually be prevented by killing bears randomly caught in traps – arguments the department’s attorney appeared to concede at Friday’s hearing.
Thurston County Superior Court Judge Carol Murphy questioned Assistant Attorney General Amy Dona about Loebs Davis’ claim.
“Is there some documentation in the record that shows we considered this, we waived these things, this is a higher priority than this other thing?” Judge Murphy asked.
“Insofar as counsel is saying the agency did not consider the impact of the removal of a certain number of bears, the agency did not think about that,” Dona said. “They were thinking about issuing permits.”
“What about the effectiveness of this rule?” Murphy asked.
“That was not the central consideration,” Dona said. “They were not engaging in substantive review of the program at that stage, they were thinking, ‘what will we need to have in place for people to get permits?’ They said we know there will be issues but we are going to brainstorm and think about those further down the road.”
Loebs Davis said leaving out such critical information rendered the rule “arbitrary and capricious” – basically, that it was made on the basis of a random whim.
“The law does not say that the rule can be arbitrary and capricious as long as you do the real work later,” Loebs Davis said. “It doesn’t say you can ignore the science and review it at a later time and it does not provide an exception when an agency says it would just be too difficult for us to go through the normal rule making process.”
But Judge Murphy ruled that the policy can continue.
“After reviewing the entire record, there may be additional input that would have been helpful, including data and opinions, but that is not the test in this court,” Murphy said in her ruling from the bench. “The court does not determine the best policy or reweigh the interests. The court considered whether the rules complied with and did not go beyond the agency’s statutory authority. They did not.”