Conservationists Sue to Stop Wolf and Coyote Killing Contest on Public Lands

Visit www.wildearthguardians.org to learn more. Below is a portion of their press release.

Pocatello, ID – On December 23 a coalition of conservation organizations sued the U.S. Forest Service for failure to require permits and environmental impacts analysis for the advertised “Coyote and Wolf Derby” in Salmon, Idaho, December 28 and 29. The lawsuit seeks an order requiring the agency inform the killing contest sponsors and participants that shooting wolves and coyotes on public lands as part of the contest is illegal without the required environmental analyses and permits.

“Killing contests that perpetuate false stereotypes about key species like wolves and coyotes that play essential roles in healthy ecosystems have no place on public lands.” Said Bethany Cotton, wildlife program director at WildEarth Guardians. “The Forest Service is abdicating its responsibilities as steward of our public lands. We are asking the agency to comply with the law: require a permit application and do the necessary environmental analysis, including providing a public comment process, to ensure our public lands and wildlife are protected.”

The killing contest is charging an entry fee, advertising prizes for the largest wolf and the most coyote carcasses, among other award categories, and specifically offering opportunities for children as young as 10 to kill for prizes. Commercial activities like the killing contest are prohibited on public lands without a special use permit. An application for a special use permit triggers application of the National Environmental Policy Act. Highly controversial activities are exempted from fast track permitting. In contrast to the Forest Service, the Bureau of Land Management (BLM) informed the killing contest sponsors that a special use permit is required. To date, BLM has not received an application. Hunting on BLM administered public lands as part of the killing contest is therefore illegal.

Here’s a copy of the brief.

28 Comments

  1. ‘The USFS Response states that no special use authorization was required because the Killing Contest “is not a commercial event occurring on NFS land.” The USFS goes on to say that “[t]he organized event does not consist of hunting on the National Forest . . . .” because the USFS has decided the activity of the Contest is simply “the offering of a prize for wildlife taken by recreational hunting.”’ (from Complaint pg.15)

    Sounds like a case for the IRS too.

    “Salmon-Challis National Forest supervisor Chuck Mark said Monday he remains convinced no special-use permit is required because the group won’t be erecting structures or holding commercial activities on land he oversees.”

    “Idaho for Wildlife President Steve Alder said the agency assured him the event is legal without a permit. But just to make sure, Alder said organizers no longer are asking for a $20 entry fee. They’re instead seeking donations from participating hunters.”
    http://missoulian.com/news/local/environmentalists-ask-idaho-judge-to-halt-wolf-derby/article_85ec58d2-6c34-11e3-be5c-001a4bcf887a.html

    Here’s a question posed by Steve Alder promoting the “Youth Predator Derby”:
    “Does Idaho need another elk plan? Many sportsmen believe that excess predator’s (sic) and environmentalists should go first!!”

    I recall this same agency culture tracks down photographers of public landscapes if they attempt to derive proceeds from their images of publicly-owned lands.

  2. I think plaintiffs rely too heavily on the ‘commercial’ aspect of the contest. Here is the definition:

    “Commercial use or activity—any use or activity on National Forest System lands (a) where an entry or participation fee is charged, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.”

    Without an entry fee, they have to get a little creative to fit this definition. These may still be winning arguments, but the permit requirement for ‘non commercial group use’ seems more clearly applicable. Here’s that definition:

    “Group use—an activity conducted on National Forest System lands that involves a group of 75 or more people, either as participants or spectators.”

    That’s the regulation that requires the Rainbow Family to get a permit for encouraging people to undertake activities on national forest lands, but it is not limited by its terms to concentrated uses like that (or ‘building structures’). Some examples from an agency website include “weddings, church services, endurance rides, regattas, camping trips, hikes, music festivals, rallies, graduations, and races.” (Some might even view this as a ‘rally?’)

    There may be a perception that applying for a commercial special use permit would be more burdensome for the sponsors, but here are a couple of the criteria for a non commercial group use permit:
    • The proposed activity will not pose a substantial danger to public safety.
    • The potential for physical injury to other forest users from the proposed activity.

    That brought to mind this recent story from just over the hill in Montana. Not the same situation, but some similarities (and possibly some of the same people).
    http://missoulian.com/news/local/at-least-elk-shot-in-minutes-near-sula-young-hunters/article_1e7000d2-62ca-11e3-9ba0-001a4bcf887a.html

  3. Handicapping lawsuits is fun, especially when the result will be known soon; in this case, by 12/27. So, here’s my prediction. The TRO will be denied on the merits because there is no agency action to challenge. The problem plaintiffs face is highlighted by their complaint, which seeks an order from the court prohibiting the Forest Service from not granting a permit. Double-negatives are frowned upon in law, no less than in grammar.

    Without agency action to review, the court has no jurisdiction under the Administrative Procedures Act. And, of course, without action there can be no “major federal action,” a prerequisite for NEPA.

    If only people could sue the government every time it did nothing . . .

  4. The government does like to take a ‘you can’t sue us’ approach, and that may work here. However, ‘action’ under the APA is defined to include ‘failure to act’ where such action is ‘unlawfully withheld.’ That can occur where an agency has a ‘discrete’ action that it is required to take. Here regulations require the Forest Service to issue permits (that’s pretty discrete) for certain kinds of activities. The Forest Service would have to argue that the special use permitting process is discretionary – that it could choose to allow a ski area for example without a permit. That doesn’t sound like a winner to me (but I’m not great at picking winners).

    • thanks Jon, that was my take on it also (“failure to act”, which really is also a basis for many or even most NEPA and ESA suits: failure to do an EIS, failure to consult, etc. etc.) The TRO might be denied, since like Andy said you can’t always pick the winners, but I don’t think it will be on the merits. I’m a little biased because one of the plaintiffs’ attorneys is a colleague whose cases I know well, and she doesn’t do sloppy or frivolous work. -Guy

      • I misspoke, not enough coffee yet… I think it probably will be decided on the merits, i.e. on the facts of the case and the applicable law. What should not apply is a defense of “failure to state a claim for which relief can be granted,” which is maybe what Andy was alluding to… of course, I’m not the judge.

  5. For those keeping score, the Forest Service’s brief is now available. The FS makes the “no agency action” to review argument starting on page 13. The TRO hearing occurred this morning, so a decision likely will issue later today.

    PS: The brief’s best line comes near the end: “Frankly, it seems that both sides are using the Derby for publicity more than anything else.”

    PPS: I enjoy good writing, including good legal writing. The quality evident in the FS’s opposition brief is not surprising as its author was a Stanford undergrad and Harvard law school alum. Nice to see that DOJ can still attract good talent. Our government deserves no less.

  6. Score: Forest Service 1, Anti-Hunting ActivistsPro-Suing-the-FS-to-Compel-a-Permit-and-EIS-for-Wolf-Killing-Derby Activists 0. The district court denied plaintiffs’ motion for a TRO. The court didn’t address the final agency action prong of the government’s defense (and the one I thought was the most straightforward), but instead went right to the merits of the special use permit claims. Magistrate Judge Dale noted that hunting on national forest lands does not require a FS permit and the commercial activities rule does not apply because “none of the judging, awarding of prizes, or viewing of the animals will be on USFS lands.” She ruled the group use rule inapplicable because “hunters will be dispersed throughout the forest, hunting at their own pace and in their own preferred territory, and not in a prescribed location within a designated perimeter.”

    With only several hours to throw together her opinion, it is not the most polished product. And although she denied plaintiffs’ TRO motion, she stopped short of granting the FS’s motion to dismiss, likely choosing instead to allow the case to die on mootness grounds after this weekend’s Killing Derby is over.

    • Many ethical hunters are opposed to Salmon, Idaho’s wolf and coyote killing contest on public lands, so I’m not sure you can call the “team” “anti-hunting activists.” Perhaps it should be called “Ethical hunting activists.”

        • Guy: I’m with you on the killing and eating thing, too, for the most part — or at least using the hide and feeding the meat to other animals (a bloodshot hindquarter my Dad gave me comes to mind). I even ate the only rattlesnake I ever killed, and the same with a possum and a graydigger. But pests and predators are in their own class. I’ve killed hundreds of rats, packrats, mice, boomers, and even a skunk w/o the slightest thought of eating any of them. I’ve never killed a wolf, a coyote, a cougar, or a bobcat, but I am hoping that the derby can use the hides and the meat for something. Certainly their reduction or elimination on the landscape can be shown to reduce the cost of meat on the open market, as well as increasing hunter success with more edible species.

        • Nice work, Andy! I’m pretty sure that all hunters (including those of us who haven’t hunted in years) are “ethical” in some way — and that we all have different ethics at some level.

  7. I’m with the pro-ethical hunting crowd as well and, frankly, this kind of contest disgusts me. While I’m sympathetic with the Plaintiffs, however, I can understand the court’s decision. From a public policy standpoint, it would not not have been wise to rule otherwise. As an aside, I suspect that many of the FS involved with this decision would also count themselves within the pro-ethical hunting crowd. Local politics can be tough sometimes!

    • Mike: I also suspect that many FS personnel involved with this decision count themselves within the “ethical” pro-hunting organizers. It’s probably mostly good when USFS personnel are involved in local politics — particularly when they are part of the local population, as used to be the norm. Personally, I’m no more disgusted with the organizers of this event than with the people who eat fried chicken at Colonel Sander’s and then object to people killing doves or deer with guns. Ethics are in the eye of the beholder, and there are (at least) two sides to everything.

  8. It’s all over but the shouting, but here’s a little of that.

    The regulation states that a permit is required for “noncommercial activity conducted on National Forest System lands involving a group of 75 or more people.” This activity occurs on NFS lands and involves 75 or more people. The regulation doesn’t say anything about a “prescribed location within a designated perimeter.” This is a requirement that the judge created.

    A judge is required to give regulations their “usual and ordinary meaning” unless that is ambiguous. The judge did not find this regulation ambiguous. However, the word ‘group’ can mean either ‘together in the same place’ or ‘connected by some shared activity, interest, or quality.’ Without some showing that the agency intended otherwise, deference to the FS for applying only the former interpretation is probably reasonable. (But why was BLM’s regulation different?)

    Even if the judge had found plaintiffs likely to win on the merits, she likely would have found insufficient likelihood of harm to plaintiffs to warrant a TRO.

    “Plaintiffs have not presented specific evidence to support their fear.

    “None of the declarants indicated they were planning to alter their plans for enjoying the forest this weekend.”

    “Plaintiffs have not identified they will suffer harm other than what might ordinarily occur during a successful hunting season within lawful limits prescribed by the state of Idaho.”

    I see a bit of a warning here to the sponsors of similar events that they should not provide any evidence that could be used in future lawsuits.

  9. This just in from Steve Adler, Director for Idaho for Wildlife. There are some graphs he references that I haven’t included:

    Idaho For Wildlife Predator Derby results

    By Steve Alder, Director for Idaho for Wildlife
    December 29. 2013 5:05 PM

    ZERO wolves were harvested during this predator derby! 21 Coyotes were taken.

    We had over 200 hunters in the field for two days. Let this be an educational moment for the radical anti-hunter environmental groups. Sport hunting for wolves is not a very effective tool to manage wolves. This is why IDFG has implemented trapping and other control methods to better manage wolves. World renowned wolf expert Dr. David Mech has admitted, “That to hold a wolf population stationary it requires an annual take of 28-50% per year.” Dr. Mech also stated that “Normal regulated public harvest such as is contemplated in the NRM is usually unable to reduce wolf populations. IDFG’s own 2011 Idaho IDFG Predation management Plan for the Lolo and Selway Elk Zones that isn’t being followed claims, “Wolf removal rates of 30-35% or less typically do not cause any long-term changes in wolf abundance, while sustained removals of 40% or more may cause long-term reductions.” I can assure you that in the last two days while this derby was taking place, more wolves and wolf pups died in Idaho’s back country due to starvation and or cannibalism from other wolves due to the depleted prey base. Since the well being of wolves is predicated on the ungulate prey base, once that prey base is eliminated, the wolves will kill themselves off or starve. They do not self regulate. The urbanites and wolf advocates need to understand the ungulate prey base controls wolves. Wolves do not control the prey. This is why wolves must be controlled and yes killed!

    Attached are elk hunter harvest graphs in the vicinity of where the Salmon wolf derby took place. These graphs contain elk harvest numbers from 1989-2012. This data reveals why Salmon Sportsmen are frustrated with the damages caused by wolves. The average Salmon medium household income is approximately $12,000 below the average Idaho income. In 2009, the income of Salmon residents was 35.5% below the national poverty level.

    Elk are very important to rural Idahoans. Sustenance hunting is still very crucial to those who are financially strapped. The Attached PDF, (Wolves) contains a 2009 study that suggests wolves are costing Idaho approximately 7-24 million per year in revenue. Idaho Fish and game revenues are down considerably for this reason. It is estimated that each elk provides an average of $750.00 in value to Idahoans.

    We want to apologize in advance to the radical anti-hunting enviro’s. We will not be publishing or flaunting any photos of dead animals so you can exploit this opportunity to play upon the emotions of the naïve for your next fund raising campaign.

    • As an avid backcountry elk and deer hunter I find these results and the ‘spin’ actually very comical.

      I mean, all we are told year-round by so many whiny hunters in the Northern Rockies is how the wolves have eaten all the elk and deer and that wolves are EVERYWHERE!

      Yet, here you have 200 mighty ‘dog hunters’ in the field for two days with a bunch of prize money and bragging rights on the line and they manage to kill zero wolves.

      And then the event organizers have the gall to tell us that “Sport hunting for wolves is not a very effective tool to manage wolves.”

      Just comical. I mean, you just can’t even make this stuff up because the reality of it is better than anything else. Looks like you “dog huntin'” boys around Salmon, ID better stick to your Duck Dynasty and the Hunting Channel…seems more your speed.

  10. Could someone reconcile these statements for me?

    “The urbanites and wolf advocates need to understand the ungulate prey base controls wolves. Wolves do not control the prey.”
    “This data reveals why Salmon Sportsmen are frustrated with the damages caused by wolves.”

  11. Beyond the public land aspect (which the Judge ruled on) I don’t think wolf management, hunting, shooting, killing what have you, predator/prey, etc, etc, is really germaine to this blog. Some of the above comments illustrate why. I’ve seen very little civil discourse about wolves/wolf management, instead it seems to bring out the worst in people, unfortunately. I’m all for “ethical” management of wolves and think the derby was a really bad publicity stunt, which obviously failed to do anything more than make folks PO’d. Perhaps that was the organizers point? There are other/better places to debate this issue though, like the Wildlife News.

    Maybe we can get back to a conversation on collaboration and timber harvest??

    • JZ: I agree that the Wildlife News is a good source. However, I disagree that a wolf-hunting contest taking place on National Forest land shouldn’t be discussed or debated here on this blog.

      • JZ and Matthew,

        I agree with both of you, JZ, you make a good point regarding the tone of this string of comments. I am guilty myself of writing in a “less than constructive” way. On the other hand, I agree with Matthew that wildlife issues and “management” are relevant to this blog.

        Happy New year to All!

        Mike

  12. Wow…a lot of agreement!!!

    To clarify, I think the question – Does the FS need to do a NEPA analysis and or require a permit for the activity is entirely relevant. The idea/ethics of killing/hunting/shoting of wolves…not so much.

    Andy seems to think the case will be die on mootless grounds since the event is over, however I heard from a pretty reliable source (his name is on the complaint) that they (FS) think the plaintiffs will continue to pursue this one. I didn’t have the time to pry as to why, but I’m guessing the “1rst annual” might imply future harm? Maybe one of the lawyers can help out????

    • Like JZ said, maybe not moot because it’s “capable of repetition” (and the “1st annual” language supports that idea). (Roe v Wade being one classic example of that exception to mootness). Jon’s analysis of Judge Dale’s apparent extemporization on the “group” standard is interesting, might provide some traction for an appeal. On Mr. Adler’s comment that wolves don’t control prey populations, I’m sure he regrets and will backpedal on that statement (seems to often happen to folks whose main rhetorical style is a rant). The idea that predators at least partially regulate prey populations doesn’t seem that outlandish to me. I also sympathize with ranchers whose livestock is attacked by wolves, but I don’t think this “derby” fiasco is helpful to their interests in the long run.

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