December 5, 2017

Director Jim Unsworth

Office of the Director
Washington Department of Fish and Wildlife
P.O. Box 43200
Olympia, WA 98504-3200
director@dfw.wa.gov

Via electronic and U.S. mail

RE: The Washington Department of Fish and Wildlife Must

Discontinue Its Unlawful Timber Damage Black Bear Removal Program

Dear Director Unsworth:

The Humane Society of the United States (HSUS) is gravely concerned

that the Washington Department of Fish and Wildlife (WDFW or Department)
is authorizing the killing of dozens of black bears through its unlawful and
inhumane timber damage bear removal program (Program). The citizens of
Washington State have adopted two ballot initiatives to protect black bears from
the cruel and unsporting hunting practices of baiting, hounding, and trapping, but
the Departments administration of the Program undermines these statutory
protections and violates the Washington Administrative Procedure Act (APA).
HSUS is prepared to seek judicial review of this matter, but we are hopeful that
the Department will immediately halt the Program and utilize a collaborative
effort involving input from stakeholders and the public to develop a sound process
for addressing any timber damage caused by bears.

I. Background

The prevalence of majestic wildlife such as black bears is part of what

makes the State of Washington so special to those who live in and visit the State,
and the people of Washington, and indeed most Americans, care deeply about the
protection and humane treatment of black bears and other wildlife, including

native carnivores.1 As a reflection of these values, in 1996 and 2000, the people of Washington
passed two ballot initiatives that together criminalized the cruel and unsporting practices of
using bait, hounds, or body-gripping traps to kill black bears, with narrowly prescribed
exceptions (Initiatives 655 and 713).2 Further, a 2014 General Public Opinion Survey
revealed that 70% of the public is opposed to killing bears that are damaging commercial
timberland.3 However, through the Program, WDFW has stretched those narrowly
prescribed exemptions in the law far past their intended reach.

When black bears come out of hibernation, individuals sometimes peel tree bark to
eat the calorie-dense sap. Although bears are not the only species that peel, they have been
targeted by the operators of commercial tree farms, who have expressed desire to aggressively
reduce the black bear population in a misguided attempt to thwart damage to commercial
timber stands.4 As evidenced in more than 1,000 pages of WDFW documents released
through a public records request, as currently implemented, the Program unlawfully permits
the indiscriminate baiting, hounding, and trapping of scores of black bears each year under
the guise of property protection.

In addition to substantive limitations on bear baiting, hounding, and trapping,

Washington statutory law contains procedural requirements that the Department must
follow when creating a regulation that applies equally to all users of a program, and is legally
enforceable or alters requirements for the enjoyment of privileged conferred by law.5 These
requirements include soliciting and responding to input from the general public.6

Effective in early 2016, the Department revised its hunting regulations, including
adding a regulation on black bear timber damage depredation permits.7 Then, in the spring
of that year, the Department adopted additional generally applicable black bear baiting,
hounding, and trapping conditions without undertaking the required rulemaking process.
This major policy change in 2016, which took the form of several documents, represented a

1Kelly A. George et al., "Changes in Attitudes toward Animals in the United States from 1978 to
2014," Biological Conservation 201 (9// 2016), http://dx.doi.org/10.1016/j.biocon.2016.07.013.
2 See RCW 77.15.194, 77.15.245.
3Public Records Request. HSUS submitted a Public Records Act request to WDFW on May 19. 2017.
Records and information obtained through that request will generally be cited to herein as Public
Records Request.
4 Public Records Request.
5 See RCW 34.05.010(16), 34.05.375.
6 See id. 34.05.325.
7 See WAC 220-440-070, 220-440-210.

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significant departure from previous years depredation-removal policies and was continued
through the 2017 timber depredation season and are still in place.8

When the spring 2016 changes to the Program were made, the Department sought
direct input from only select stakeholdersnamely, the timber industry and huntersbut
did not seek input from other interested stakeholders, such as the conservation and animal
protection community, nor the proponents of the two ballot initiatives, let alone the public at
large.9

Pursuant to the Program, hundreds of bears have been killed through these inhumane
methods over the last decade, in violation of state law.10

II. Legal Violations

A. The Program Violates Initiatives 655 and 713.

Pursuant to Initiative 655 (1996), it is a gross misdemeanor to take, hunt, or attract

a bear with the aid of bait, with a narrow exception for employees or agents of county, state,
or federal agencies while acting in their official capacities for the purpose of protecting . . .
private property . . . .11 Under this same initiative, it is a gross misdemeanor to hunt or
pursue black bear . . . with the aid of a dog or dogs, with a narrow exception for employees
or agents of county, state, or federal agencies while acting in their official capacities for the
purpose of protecting . . . private property . . . .12 Similarly, per Initiative 713 (2000) it a gross
misdemeanor to use or authorize the use of any . . . body-gripping trap to capture any
mammal for recreation or commerce in fur. The Director may grant a special permit for
trapping only to a person who establishes that there exists on a property an animal problem
that has not been and cannot be reasonably abated by the use of nonlethal control tools . . . or
if such nonlethal means cannot be reasonably applied.13 The Program exceeds the
Departments statutory authority by allowing inhumane bear removal by unauthorized

8The documents WDFW issued as part of this new policy are the Request to Remove Black Bear
Causing Timber Damage, the Baiting Conditions Protocol, the Bait Site Registration Form, the
Permittee Affidavit, and the Depredation Permit.
9Public Records Request (chart on Perspectives for Topics Related to Bear Timber Damage Permit
Process including views from Small Forest Landowners, the Washington Forest Protection
Association, the WDFW Bear Depredation Subcommittee, and WDFW Senior Staff); Public Records
Request (engaged only USDA, the Washington Trappers Association, the Washington Forest
Protection Association, and the Washington Farm Forestry Association in creating the new Baiting
Protocol).
10 Public Records Request.
11 RCW 77.15.245(1)(a), (4) (emphasis added).
12 Id. 77.15.245(2)(a) (emphasis added).
13 Id. 77.15.194(1), (4)(b), (6).

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persons and for population control rather than to address actual property damage in a
targeted fashion.

1. Baiting and Hounding Are Only Allowed by Agents of the State.

Under Initiative 655, one must be an employee or agent of the state in order to kill a
black bear using bait or hounds, and such practices can only be conducted in that official
capacity (meaning that the Department is liable for all baiting and hounding it authorizes).14
Hunters and hounders hired by landowners to kill bears on their property (often using bait)
are neither employed by the state, nor are they agents acting in an official capacity.

Indeed, in its 2016 amendments to the Program (applied to the 2017 season as well),
the Department intentionally took steps to ensure that the people hired by timber companies
to kill bears would not be considered agents, instead designating the baiters and hounders
as independent contractors.15 The permits issued pursuant to the Program contain
additional language inconsistent with an agency relationship, stating that [a]ny permittee
listed below shall be deemed an independent contractor who shall be solely liable for any and
all damage arising out of any activities connected with this permit, and that the permit does
not constitute authority to bind the state to contracts or other obligations in any respect.16
Department records make clear that it sought to create an escape clause that dissolves
WDFW from responsibility for unlawful actions under the permit conditions, seeking to
dodge liability while ignoring the requirements of the statute that baiting and hounding only
be conducted under narrow circumstances by agents of the state.17

Regardless of the terminology used by the Department, it is clear that there is no

agency relationship between the Department and the people hired by timber companies to
kill bears. If there were an agency relationship, the agent acting in his official capacity would
be under the complete control of the Department, and the Department would need to
assumerather than attempt to avoidliability for the agents actions.18 While the

14 Id. 77.15.245(1)(a), (2)(a).

15See Request to Remove Black Bear Causing Timber Damage; Permittee Affidavit; Depredation
Permit; RE: Bear damage permits, E-mail from WDFW to Dan Paul (HSUS) (Oct. 25, 2017) (We
made no changes [to the timber depredation forms] for the 2017 season.).
16Depredation Permit; see also Public Records Request (e-mail between WDFW employees, we are
calling the hunters contractors now instead of agents of the state.).
17Public Records Request ([a]ll participants in the Black Bear Timber Damage Depredation Permit
Program are responsible and liable for their own acts, and [e]nsure the trappers understand they
do not speak on behalf of WDFW).
18See Moss v. Vadman, 463 P.2d 159, 163 (Wash. 1969); Kelsey Lane Homeowners Ass'n v. Kelsey
Lane Co., 103 P.3d 1256, 1260-61 (Wash. Ct. App. 2005); Bloedel Timberlands Development, Inc. v.
Timber Industries, Inc., 626 P.2d 30, 34 (Wash. Ct. App. 1981).

4
depredation permit and hunter affidavit forms provide some direction as to the manner of
taking black bears, the Department has made clear that its instructions are limited, by
stating on the permit, the State has not in any way directed, advised or otherwise indicated
how the hunt allowed by this permit is to be carried out except as stated within this permit.19
Control is not established if the alleged principal retains the right to supervise the asserted
agent merely to determine if the agent performs in conformity with the contract.20 The only
oversight or control that the Department provides of the activities are to ensure compliance
with the terms of the permit, and it is the landowner who both selects and compensates the
hunternot the Department.

The same principles of control hold true whether or not the purported principal is the
state; indeed, agents of the state take on additional constraints, such as carrying out a
constitutionally-mandated governmental function, and being restricted from taking on other
clients without the governments consent, from acquiring property without the governments
approval, and from setting aside profits for future growth and expansion.21 In contrast, the
hunters hired by timber companies to kill bears do not carry out a constitutionally (or even
statutorily) mandated function of the state, they are allowed to hunt privately and at the
request of others, the state has no control over what property they acquire, and the state has
no interest in what compensation they obtain from the landowners and what they do with
those profits.

Under the Program, the landowner designates the hounders, trappers, and Master
Hunters22 that are to be authorized to conduct the bear removal, and it is the landowner
who applies for the permit and to whom the permit is functionally granteddespite the fact
that the Department inconsistently refers to the hunter or trapper as the permittee in some
contexts.23 While the hunter has to agree to the terms of the landowners permit (by signing

19 Depredation Permit.
20 See Bloedel Timberlands Development, Inc., 626 P.2d at 33.
21 See Dolan v. King County, 258 P.3d 20, 30, 31 (Wash. 2011).
22Master Hunters are boot hunters that have enrolled in the Departments Master Hunter Permit
Program. See http://wdfw.wa.gov/hunting/masterhunter/.
23See Request to Remove Black Bear Causing Timber Damage; Depredation Permit (stating
Permit must be signed by permittee and hunter(s) to be valid, acknowledging a distinction, and
allowing only a space for the Permittees Signature of the landowner, while asking for the name of
each Permittee/Independent Contractor); Baiting Conditions Protocol (discussing the
landowners permitted property, and Permit holders who automatically receive a permit because of
the previous seasons damage); Permit Affidavit (requesting the hunters Signature of Permittee
as independent contractor).

5
an affidavit),24 the hunter and the landowner are the ones with a concrete relationshipnot
the hunter and the state.

Department records make clear that it knew that implementing the Program in this
manner is unlawful. As one employee said, we were calling them agents of the state and now
sub-contractors. Either way it is a violation of I-655.25 Another employee, in the
Departments Law Enforcement Program, commented [t]he RCW is pretty clear that only
agents of the state can bait bear. The very beginning of the example permit clearly indicates
the permittees are independent contractors and it is the responsibility of the landowner to
pay them. If they are independent contractors and being paid by a private entity, it would
seem that they are not agents of the State.26 Even the State Attorney General apparently
opined to the Department that master hunters do not qualify as agents, yet the
Department permits Master Hunters to hunt over bait.27 The Department chose to move
forward with the illegal Program despite this knowledge, even outwardly acknowledging that
it considers certain unlawful behavior acceptable.28

Therefore, the Department must immediately cease and desist issuing permits that
allow persons who are neither agents nor employees of the state from baiting and hounding
black bears, as required by state law.

2. The Program Authorizes Baiting, Hounding, and Trapping for Unlawful

Purposes.

Initiative 655 and Initiative 713 allow otherwise proscribed hunting methods only for
very narrow purposes. Baiting and hounding are only allowed for protecting private
property29 and trapping can only be used [t]o abate damages caused to private property . . .
or timber, which cannot be reasonably abated by nonlethal control tools.30 The Program
authorizes baiting, hounding, and trapping for purposes other than property protection and
is therefore unlawful.

24 Permittee Affidavit.
25 Public Records Request.
26 Public Records Request.
27 Public Records Request.
28Public Records Request (e-mail from WDFW, while baiting is technically illegal in the state, they
allow Master Hunters to use it simply because they are held to a higher standardadmitting
that the Departments considers certain unlawful conduct to be acceptable).
29 RCW 77.15.245(1)(a), (2)(a).
30RCW 77.15.194(1), (4)(b) (trapping for recreational purposes or to acquire pelts is strictly
prohibited); WAC 220-440-070(2)(b).

6
 a. The Department is Unlawfully Utilizing Baiting, Hounding, and Trapping
for Population Control.

The Departments 2016 regulations provide that as part of its [b]lack bear removal
criteria, [t]he department will consider forest management objectives and shall ensure bear
removals are consistent with population management objectives.31 Similarly, in response to
public comments asserting that the Departments regulation on body-gripping traps32 will
result in the trapping of nontarget species, and is also cruel and inhumane,33 the
Department baldly concluded that [t]he use of the Special trapping permit allows for . . .
effective resource management.34

Further, in implementing the Program, the Department created a black bear Baiting
Protocol, which at least one timber company requested to increase baiting opportunities in
order to reach a 15% annual harvest rate to stop population growth.35 Some Department
employees expressed deep discomfort with the 2016 amendments to the Program, stating, I
have a hard time with the legality. If nothing else it completely goes against the spirit of the
initiatives.36 Another stated [f]rom what I have heard from [Weyerhaeuser, a large timber
company] they are viewing the bear damage program as a means to suppress the overall bear
population and, therefore, reduce damage. . . . but that is not the way this program was
designed.37 Ironically, a number of studies suggest that baiting bears actually grows their
populations, the opposite of Weyerhaeusers goals.38

31WAC 220-440-210(2)(d). The Department must clarify that, under this regulation, it can only
consider forest management and population management objectives in relation to denying take
permits, but cannot consider these factors as a reason to allow take of black bears.
32 Id. 220-417-040, 220-440-070.
33 Public Records Request.
34 Public Records Request (emphasis added).
35 Public Records Request.
36 Public Records Request.
37 Public Records Request.
38 Thomas D. Beck et al., "Sociological and Ethical Considerations of Black Bear Hunting,"
Proceedings of the Western Black Bear Workshop 5 (1995); Lynn L. Rogers, "Effects of Food Supply
and Kinship on Social Behavior, Movements, and Population Growth of Black Bears in Northeastern
Minnesota," Wildlife Monographs, The Wildlife Society 51, no. 97 (1987); Lynn L. Rogers, "The Role
of Habitat Quality in the Natural Regulation of Black Bear Populations," Technical Report, National
Park Service, no. NPS/NRWR/NRTR-93-/12 (1993); L. Dunkley and M. R. L. Cattet, " A
Comprehensive Review of the Ecological and Human Social Effects of Artificial Feeding and Baiting
of Wildlife,"
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1020&context=icwdmccwhcnews (2003).

7
 b. The Program Unlawfully Utilizes Baiting, Hounding, and Trapping for a
Recreational Hunt.

The Program effectively creates a small-scale recreational hunt by allowing hounders

to retain black bear carcasses/meat for person use, and allowing trappers, Master Hunters,
and landowners to retain all part of their first black bear, with the exception of gall
bladders, in violation of both Initiatives 655 and 713 and the Departments own regulations.39
Indeed, Department staff acknowledged that the Programs trapping framework [c]ould be
viewed as a recreational hunt if allowed to retain carcass.40

In one instance, Weyerhaeuser obtained multiple overlapping hounding permits in

order to create one large area for dogs to run beyond what would be needed for depredation
purposes. One employee spoke with the primary hound hunter, who strategically found
damage areas that overlap so it would allow him to hunt his dogs on a larger plot of land
and strategically timed the application for permits to allow him to hunt the entire season.41
The hounder and his hunt party run bears with 14 dogs and he only killed enough bears to
be compared with other hound hunters to make it look like they were effective.42

c. The Program Unlawfully Utilizes Baiting, Hounding, and Trapping

Without Targeting Problem Bears.

The Department has conceded that baiting, hounding, and trapping are ineffective at
targeting offending bears, which emphasizes that the Program is operating entirely outside
of its intended purpose. One Department biologist stated that the hunts were targeting
males, whereas most of the damage was done by females.43 He went on to state that only a
quarter of the bears killed have bark in their stomach, so we arent targeting the offending
bears and bears not doing damage are being killed unnecessarily.44

And using bait to attract bears to a trap often brings in bears from a distance away to
the site where the bait is deployeddrawing in additional targets for hunting that were not
associated with the timber damage for which the permit was issued.45 One Department
employee advised that [b]ait and/or lures may attract non-depredating bears, and another

39Depredation Permit; Public Records Request; see RCW 77.15.194, 77.15.245; WAC 220-440-
070(5) (animals taken with use of a body-gripping trap may not be retained and must be disposed).
40 Public Records Request.
41Public Records Request; see also Public Records Request (e-mail between WDFW employees, [a]ll
permits will be hunted at the same time, as we knew they would be.).
42 Public Records Request.
43 Public Records Request.
44 Public Records Request.
45 Public Records Request.

8
advised that a timber landowner should remove his bait, or else [h]e will just be bringing
more bear in with it still out there.46 A former Department employee retained to draft the
new Baiting Protocol noted, [t]he more bait that is placed at a site, the more likely it is to
attract bears from some distance, rather than target a bear that is already in the stand of
trees being peeled, and that the overuse of bait could have a higher likelihood of causing
greater damage to trees or attract bears not involved in damaging trees.47 Even timber
farmers have admitted that using bait to attract bears to a trap or snare often brings in bears
from some distance away to the site where the bait is deployed, and [h]ounding while not
attracting bears is also non-selective and results in the killing of bears regardless of damage
culpability. 48 Thus, the Program irrationally and capriciously exacerbates conflict between
bears and the timber industry.

Body-gripping traps like those permitted by the Department are by definition

indiscriminate, and will most likely end up orphaning and killing cubs, and capturing non-
target species, including threatened and endangered species.49 Nontarget species caught in
traps can die from cardiac myopathy or predation or suffer serious injuries.50

Trapping black bears, even for research purposes, can result in tremendous injury or
mortalities, and especially to younger bears, who struggle more fiercely while trapped
resulting in significant if not severe injuries.51 The public is greatly concerned about the
lack of food and water, pain, suffering and stress animals endure while in traps.52 If
improperly set and not checked frequently, bears can sustain debilitating injuries such as
broken limbs and broken teeth, cuts to mouth and gums, dislocated shoulders, lacerations,

46 Public Records Request.

47 Public Records Request.
48 Public Records Request.
49M. Cattet et al., "An Evaluation of Long-Term Capture Effects in Ursids: Implications for Wildlife
Welfare and Research," Journal of Mammalogy 89, no. 4 (Aug 2008), http://dx.doi.org/10.1644/08-
mamm-a-095.1; R.A. Powell, "Evaluating Welfare of American Black Bears (Ursus Americanus)
Captured in Foot Snare and in Winter Dens," Journal of Mammalogy 86 (2005); W. F. Andelt et al.,
"Trapping Furbearers: An Overview of the Biological and Social Issues Surrounding a Public Policy
Controversy," Wildlife Society Bulletin 27, no. 1 (Spr 1999), <Go to ISI>://000081736800011 ; S.
Harris, C. D. Soulsbury, and G. Iossa, "Trapped by Bad Science: The Myths Behind the
International Humane Trapping Standards: A Scientific Review," International Fund for Animal
Welfare, (Nov. 2005); R. Lemieux and S. Czetwertynski, "Tube Traps and Rubber Padded Snares for
Capturing American Black Bears," Ursus 17, no. 1 (2006), http://dx.doi.org/10.2192/1537-
6176(2006)17[81:ttarps]2.0.co;2.
50 Id.
51 Cattet et al.
52 Id.; George et al.

9
fractures, amputation of digits, paws, or whole legs, physiological stress and or pain,
dehydration and exposure to weather.53 Several researchers have found that their small-
sized, study bears, which had been caught in traps (or immobilized by drugs), were
cannibalized by larger bears.54

The Program further fails to target problem bears, as the Department awards permits
based on previous years damage, yet has acknowledged, the presence of a bear in forested
habitat, such a commercial timber, does not directly equate to a bear causing timber
damage.55 As one timber farmer aptly stated, there are significant disadvantages to lethal
control including the non-selective killing of well-behaved bears that are then replaced with
damaging bears.56 Another acknowledged the downfalls of targeting the wrong bears, stating
I feel very strongly that I paid the price for the removal of 2 well behaved resident bears and
replacing them with damaging bears. Research that I found seems to suggest that peeling
trees is a learned behavior and that not all bears will peel trees.57

d. The Program Unlawfully Utilizes Supplemental Feeding as Bait.

Initiative 655, while banning baiting, does not ban [t]he establishment and operation
of feeding stations for black bear in order to prevent damage to commercial timberland.58
There are over 850 supplemental feeding stations across the state for Washington Forest
Protection Association (WFPA) members alone, who buy over a quarter million dollars of
feed a year.59 The concept behind supplemental feeding is that, when bears emerge from their
dens in the spring searching for easy calories, they will not peel trees searching for sap if
they have an alternative food source. However, while some studies have shown that this
works, manyincluding Department employeesagree that it is ineffective, and even more
problematically, serves to attract bears to the area rather than dissuade them. As a result,
there has been great confusion among landowners over what counts as baiting versus

53G. Iossa, C. D. Soulsbury, and S. Harris, "Mammal Trapping: A Review of Animal Welfare
Standards of Killing and Restraining Traps," Animal Welfare 16, no. 3 (Aug 2007), <Go to
ISI>://000248518900005; Powell.
54 Rogers (1987) (citing Jonkel and Cowan 1971, Kemp 1976, Payne 1978, Johnson and Pelton 1980).
55 Public Records Request.
56 Public Records Request.
57 Public Records Request.
58 RCW 77.15.245(1)(b).
59 Public Records Request.

10
supplemental feeding.60 The problems with bear baiting and supplemental feeding are
myriad and well-studied:

Females with cubs are particularly vulnerable to bait and feed sites, and if their
mother is killed, cubs who are orphaned are less likely to survive.61
Bait and supplemental feeding sites concentrate bears putting young bears in
harms way. Adult bears may prey upon cubs or small bears.62
Spoiled baits are also toxic and even fatal to bears and other wildlife.63
Bait and feeding sites concentrate wildlife of different species and thus increase the
potential for disease and parasite transmission between species, especially rabies.64
Baiting is considered unsporting, even among many sportsmen, because it is not fair
chase, the cornerstone of ethical hunting.65
Bears that become habituated to bait and feed become less shy and more
unpredictable.66 As a result of placing bait and feed in the woods, bears associate food
with the smells of humans, and even livestock.67 Feeding bears with bait increases the
likelihood of conflicts.

60 Public Records Request.

61K. V. Noyce and D. L. Garshelis, "Influence of Natural Food Abundance on Black Bear Harvests in
Minnesota," Journal of Wildlife Management 61, no. 4 (1997); K. D. Malcolm and T. R. Van Deelen,
"Effects of Habitat and Hunting Framework on American Black Bear Harvest Structure in
Wisconsin," Ursus 21, no. 1 (2010).
62M. Elfstrom et al., "Ultimate and Proximate Mechanisms Underlying the Occurrence of Bears
Close to Human Settlements: Review and Management Implications," Mammal Review 44, no. 1
(2014).
63 Dunkley and Cattet.
64Id.; Inslerman et al., "Baiting and Supplemental Feeding of Game Wildlife Species. The Wildlife
Society.," http://wildlife.org/wp-content/uploads/2014/05/Baiting06-1.pdf, no. Technical Review. 58p.
(2006).
65J. Posewitz, Beyond Fair Chase: The Ethic and Tradition of Hunting (Helena, Montana: Falcon
Press, 1994); T. L. Teel, R. S. Krannich, and R. H. Schmidt, "Utah Stakeholders' Attitudes toward
Selected Cougar and Black Bear Management Practices," Wildlife Society Bulletin 30, no. 1 (2002);
C.W. Ryan, J.W. Edwards, and M.D. Duda, "West Virginia Residents: Attitudes and Opinions
toward American Black Bear Hunting," Ursus 2, (2009); C. A. Loker and D. J. Decker, "Colorado
Black Bear Hunting Referendum: What Was Behind the Vote?," Wildlife Society Bulletin 23, no. 3
(1995).
66 Inslerman et al.; Dunkley and Cattet.
67 Beck et al.; Inslerman et al.; Dunkley and Cattet.

11
 Baited and fed bears experience serious behavior modifications, which are sometimes
irreversible.68 Food-conditioned bears change their eating habits, home ranges, and
movement patterns.69
Bait and feed sites require ease of access and biologists have noted habitat destruction
at these places, including the spread of invasive plants.70
Bait piles are smelly and irritating to other outdoor recreationists, and if they are
near roadways, can endanger bears who travel near or on roadways to access bait
piles.71

Results from recent study in The Journal of Wildlife Management show that a well-
supplied feeding station can attract and sustain many bears, even in relatively poor bear
habitat and leads to increases conflicts.72 Department staff have acknowledged that
supplemental feeding only increases fitness of all bears, but especially females, leading to
more bears and more damage, in addition to attracting them to the very site you are trying
to protect.73 Similarly, one Department employee conceded that he had no evidence that
baiting or feeding reduced damage, adding that supplemental feeding was essentially baiting
that would greatly increase the number of bears using your property holding them for longer
periods of time resulting in greater damage to your trees.74

The Department has attempted to distinguish baiting from supplemental feeding, and
require that feeding stations be removed within one mile of the location permitted for hunting
and trapping, but landowners have been less than compliant. For example, one timber farmer
set up a bait station only a tenth of a mile miles away from the nearest feeding station without
real consequence.75 At this property, the Department found two feed barrels about 300 feet
apart, both with twine used to hang bait material not allowed for supplemental feeding
purposes.76 The Department allowed him to continue to use feed barrels until his traps were

68 Inslerman et al.
69J. P. Beckmann and J. Berger, "Rapid Ecological and Behavioural Changes in Carnivores: The
Responses of Black Bears (Ursus Americanus) to Altered Food," Journal of Zoology 261, (2003).
70Hank Hristienko and Jr. McDonald, John E., Going in the 21st Century: A Perspective on Trends
and Controversies in the Management of the Black Bear," Ursus 18, no. 1 (2007).
71 Id.
72 Public Records Request; see also Dunkley and Cattet; Inslerman et al.; Beck et al.
73 Public Records Request.
74 Public Records Request.
75 Public Records Request.
76 Public Records Request.

12
set rather than discontinuing supplemental feeding on the start date of the permit to prohibit
baiting in compliance with state law.77

In summary, the Program is facilitating recreational and population management-

oriented baiting, hounding, and trapping in violation of the prohibitions in included in the
statutes adopted by initiative.

3. The Program Unlawfully Fails to Require Reasonable Exhaustion of Nonlethal

Methods.

In order for the Department to lawfully issue a permit for use of a body-gripping trap,
it is an absolute prerequisite under Initiative 713 that the applicant establishes the timber
damage cannot be reasonably abated by nonlethal control tools, and that the Department
make such a finding in writing.78 While the Programs permit forms identify multiple non-
lethal methods to be tested, WFPA takes the unsupportable position that supplemental
feeding is the only non-lethal bear damage control tool in the world, 79 and according to
Department records, it does not appear that landowners utilize non-lethal methods other
than supplemental feeding.80 But in discussions among Department employees, many other
nonlethal methods have been suggested, such as paint for taste aversion, a propane cannon,
and even a solar powered giant inflatable waving tube man.81 Studies have also shown that
multiple silvicultural practices can be effective without needing to result to lethal removal,
such as pruning trees, selecting varieties that are less sugar-dense, or avoiding growing trees
in even-aged stands.82

In short, near total reliance on supplemental feeding does not constitute exhaustion
of reasonabl[e] attempts at nonlethal control, as required by law, but in fact has the opposite
effect of creating more bear conflicts, as discussed above. Further, the Department does not

77 Public Records Request.

78 RCW 77.15.194(4)(b).
79 Washington Forest Protection Association, Bear Feeding Program has 3 Decades of Success,
http://www.wfpa.org/news-resources/blog/bear-feeding-program-has-3-decades-of-success/ (May 23,
2017).
80 Public Records Request.
81 Public Records Request.
82United States Department of Agriculture, Timber Damage by Black Bears: Approaches to Control
the Problem (2003), available at https://www.aphis.usda.gov/wildlife_damage/pub/bbtimber.pdf; W.
H. Russell, K. Carnell, and J. R. McBride, "Black Bear (Ursus Americanus Pallas) Feeding Damage
across Timber Harvest Edges in Northern California Coast Redwood (Sequoia Sempervirens D. Don
Endl.) Forests, USA," Natural Areas Journal 21, no. 4 (Oct 2001), <Go to ISI>://000171823300005.

13
appear to be making findings in writing on the inadequacy of reasonable nonlethal control
tools prior to issuing these permits, in violation of state law.

B. The Program Violates the State APA.

In 2016, when the Department amended the Program by making substantial changes
to the bear depredation permit conditions, including creating and incorporating an entirely
new Baiting Protocol, such action should have gone through the formal rulemaking
procedure.83 Under the Washington APA, a rule is any agency order, directive, or
regulation of general applicability, the violation of which subjects a person to a penalty or
administrative sanction or which establishes, alters, or revokes any qualification or
requirement relating to the enjoyment of benefits or privileges conferred by law.84 The
Program is general applicable because it is a policy applicable to all participants in a
program, and is uniformly applied to all involved in timber depredation hunts.85 The
Program establishes new qualifications or requirements relating to the processing of an
application for a permit, and constitutes additions to and refinements of [] methodology.86
The terms of the permit are mandatory and have legal effect, as violations may result in
immediate permit revocation and termination, in addition to possible criminal charges.87
Therefore, the Department documents that implement the Program constitute a rule.

Indeed, the Department has followed proper procedure in similar contexts, such as for
[d]amage prevention permit hunts for deer, elk, and turkey, where regulations sets out the
season timeframe, kill quota, and more.88 The Department has even codified regulations for
the spring black bear special permit hunt (a hunt distinct from the lethal removals under the
Program), which establish the season dates and number of permits (varying by Game
Management Unit, and even by specific areas designated by timber companies), the bag limit,
the permitted hunting methods, and even requirements for what parts of the carcass to turn

83 See RCW 34.05.375.

84 Id. 34.05.010(16).
85See Failor's Pharmacy v. Dep't of Soc. & Health Servs., 886 P.2d 147, 151-152 (Wash. 1994);
Simpson Tacoma Kraft Co. v. Dep't of Ecology, 835 P.2d 1030, 1034-35 (Wash. 1992).
86See Budget Rent A Car Corp. v. State, Dep't of Licensing, 31 P.3d 1174, 1177, 7879 (Wash. 2001);
McGee Guest Home, Inc. v. Dep't of Soc. & Health Servs. of State, 981 P.2d 459, 46364 (Wash. Ct.
App. 1999), aff'd and remanded sub nom. McGee Guest Home, Inc. v. Dep't of Soc. & Health Servs. of
State of Wash., 12 P.3d 144 (Wash. 2000); Hillis v. State, Dep't of Ecology, 932 P.2d 139, 152-53
(Wash. 1997); Failor's Pharmacy, 886 P.2d at 152.
87See Depredation Permit; Washington Educ. Ass'n v. Washington State Pub. Disclosure Comm'n,
80 P.3d 608, 612 (Wash. 2003).
88 WAC 220-440-200.

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in.89 Undergoing formal rulemaking, as required by law, would still allow the Department
the flexibility to adjust the implementation of the Program by geographical area, and on an
annual basis to account for outcomes of the previous season.

The 2016 amendments to the Program contained several major changes from past
seasons, including: doubling the length of the permit, from 15 days to 30 days; increasing the
length of the season; changing the requirements for obtaining an initial permit, and for
obtaining additional permits relating to the need (or lack thereof) for verified fresh damage;
allowing carcass retention; allowing Master Hunters to use bait; and establishing criteria for
the use of bait for the first time. Because these amendments constitute a rule, the
Department was required to engage with the public on these changes by noticing the
proposed rule, providing opportunity for public comment, summarizing and responding to all
public comments, and explaining the differences between the text of the proposed rule and
the text of the rule as adopted in response to public comment.90

The regulations that the Department has adopted to implement the Program are on
their own insufficient to comply with the initiatives. These regulations purport to set up
[b]lack bear removal criteria, and [g]eneral requirements for timber damage removals,
but these regulations are largely nonsubstantive and impermissibly avoid defining the full
contours of the Program.91 These regulations also discuss special trapping permits required
by Initiative 713, but again only punt those conditions to the Departments later decisions.92
The only actual elaboration on what is or is not allowed under a special trapping permit is
either already set out in the statute (the permit may be for no longer than 30 days, and traps
must be checked every 24 hours), or have seemingly already been violated by the Program
(one cannot trap within 30 feet of exposed meat bait, and animals caught by body-gripping
traps may not be retained).93

Therefore, the Department must undergo a formal rulemaking and properly engage
the public for substantive requirements and qualifications that are legally binding and apply
uniformly to all applicants.

III. Opportunity for Collaborative Process to Protect Bears and Timber

While the Program has many legal, ethical, and practical faults, and the Department
alone has the obligation to right those wrongs, HSUS is hopeful that there is room for a
collaborative process that can aid the Department in better administering the Program to

89 Id. 220-415-080.
90 See RCW 34.05.325.
91 See WAC 220-440-210.
92 See id. 220-417-040(2), (9); 220-440-070.
93 See RCW 77.15.194(4); WAC 220-417-040(1)(e), (5), 220-440-070(3), (4).

15
not only be lawful and more effective, but also more humane, giving due weight to the will of
the voters in passing Initiatives 655 and 713. In both its 2015-2017 and 2017-2019 Strategic
Plans, the Department recognized that one of its six conservation principles is to
[c]ollaborate with conservation and community partners to achieve shared goals.94 HSUS
lauds this as a core principle, and applauds the steps the Department has already taken to
implement this principle. The Department has a long list of advisory groups and committees
it engages on critical management and enforcement matters, and has developed policies to
guide the advisory group process.95 In fact, HSUS and the State have together fostered such
a collaborative relationship through the Washington Wolf Advisory Group.96

In addition to the Department remedying existing violations to Initiatives 655 and

713, we would ask the Department to convene an official bear timber damage advisory group,
with diverse stakeholder representation, a facilitator skilled in Conservation Conflict
Transformation (CCT) similar to that in the Wolf Advisory Group, a set deadline for
recommendations to the agency, and meetings held on a regular basis. Ultimately, a bear
timber damage advisory group will be unable to take certain actions that the Department is
legally required to take, but nothing prevents the Department from engaging a stakeholder
group to assist the Department in making wise management and enforcement decisions that
will reduce timber depredation and lethal take of black bears.

In order for these efforts to be successful, the Department must not permit trapping
if the only nonlethal method documented is unsuccessful supplemental feeding, must not
allow a spring hunt of any kind in areas where there may be supplemental feeding, and must
utilize the collaborative stakeholder process to resolve conflicts nonlethally. The Department
must also dedicate resources to studying a broader array of nonlethal deterrence methods,
and to improving enforcement to prevent unlawful bear baiting, hounding, and trapping in
clear contravention to Initiatives 655 and 713. The HSUS will join with the Department to
advocate that funds be made available by the State Legislature to ensure proper
implementation of enforceability.

94WDFW, 2015-17 Strategic Plan, available at

http://wdfw.wa.gov/publications/01765/wdfw01765.pdf; WDFW, 2017-19 Strategic Plan, available at
http://wdfw.wa.gov/publications/01928/wdfw01928.pdf.
95See WDFW, Advisory Groups and Management Boards, http://wdfw.wa.gov/about/advisory/ (last
visited Dec. 4, 2017); WDFW, Advisory Group Handbook (2017), available at
http://wdfw.wa.gov/about/advisory/advisory_group_handbook_2017.pdf; see also WDFW, 2015 State
Wildlife Action Plan, Appendix D (2015), available at
http://wdfw.wa.gov/publications/01742/17_AppendixD.pdf.
96See WDFW, Wolf Advisory Group, http://wdfw.wa.gov/about/advisory/wag/ (last visited Dec. 4,
2017).

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 IV. Conclusion

It is clear that many within the Department are aware not only of the illegal nature
of the Program, but also of its ineffectiveness. One WDFW biologist expressed that
[u]ltimately, I dont think the solution is killing bearsits[sic] finding a way to deter them,
or a better way to do business silviculturally.97 HSUS could not agree more. We look forward
to working collaboratively to improve the Program and prevent unnecessary inhumane
killing of black bears, but are prepared to take legal action if the Department does not swiftly
remedy the legal infirmities of the Program in advance of the 2018 season. We urge the
Department to take immediate steps to come into compliance with the law. HSUS strongly
urges the Department to convene a stakeholder advisory group to develop non-lethal
management strategies to prevent and mitigate timber damage, and is glad to see that the
Department has taken first steps toward that end.

Sincerely,

Laura Friend Anna Frostic

Attorney, Wildlife Litigation Managing Attorney, Wildlife Litigation
Animal Protection Litigation Animal Protection Litigation
The Humane Society of the United States The Humane Society of the United States
1255 23rd Street NW, Suite 450 1255 23rd Street NW, Suite 450
Washington, DC 20037 Washington, DC 20037
lfriend@humanesociety.org afrostic@humanesociety.org
(202) 676-2331 (202) 676-2333

CC:

Governor Jay Inslee

Office of the Governor
P.O. Box 40002
Olympia, WA 98504-0002
governor@gov.wa.gov
jay.inslee@gov.wa.gov

97 Public Records Request (ellipses in original).

17