LANE POWELL Claire Loebs Davis 206.223.7060 davisc@lanepowell.com February 26, 2018 VIA ELECTRONIC/REGULAR MAIL Acting Director Joe Stohr ‘Washington Department of Fish and Wildlife P.O, Box 43200 Olympia, WA 98504 director@dfw.wa,gov Re: Unlawful Black Bear Lethal Management Program Dear Joe Stohr: On behalf of the Center for Biological Diversity (the “Center”), we write to demand that the ‘Washington Department of Fish and Wildlife (the “Department”), immediately bring its black bear lethal removal program (“Program”) into compliance with the law. The Program authorizes the killing of black bears for the purported purpose of protecting commercial timber stands. In reality, it has created a private hunting season for a favored {group of hunters, allowing them to kill bears using barbaric methods outlawed by the voters of the state. The Program has thus been operating in violation of both the letter and the spirit of Initiatives 655 and 713 (codified at RCW 77.15.194 and 77.15.245), as well as the requirements of the Washington Administrative Procedure Act (“APA”). Should the Department fail to demonstrate that it has remedied these legal violations in advance of issuing additional permits this Spring, the Center is prepared to bring immediate legal action, including seeking an injunction against the exercise of any permits granted under the Program. ‘The Department has been given ample notice of the legal defects in the Program. Most disturbingly, communications within the Department released in response to public information requests show that multiple Department employees have long sought to remedy its legal flaws, but these calls for reform have gone unheeded. The Program was publicly exposed on May 25, 2017 by King 5 News, following a year-long investigation. This racer appwess: 1420 FIFTH AVENUE. SUITE 223.7107 LANEPOWELLCOM NG ADRESS, PO. BOX 92302 | SEATTLJoe Stohr February 26, 2018 Page 2 investigation revealed that the Department was expanding the narrow exceptions in Initiatives 655 and 713 into broad loopholes to allow a select group of hunters to kill bears using hounds, bait, and traps—the unethical and cruel hunting practices banned by those initiatives. And on December 5, 2017, the Humane Society of the United States (“HSUS”) sent a 17-page letter to former Director Jim Unsworth, demanding that the Department immediately halt the Program or cure its legal deficiencies. On behalf of the Center, we have evaluated the Program, including reviewing the materials gained through prior public information requests. Our conclusion is that in the administration of the Program, the Department has flouted statutory constraints, circumvented rulemaking, and engaged in arbitrary and capricious action, including applying the law inconsistently to favor powerful special interests. We have compiled a list of legal deficiencies in different stages of the design and implementation of the Program, including: (a) the 2016 rules enacted to administer the Program; (b) the internal guidelines for the Program developed later in 2016; and (c) the issuance and monitoring of permits through the Program. These legal abuses include: ‘© Violation of both the spirit and the letter of Initiatives 655 and 713, by creating an illegal and unofficial annual hunting season that allows select hunters to kill bears with the use of traps, bait, and dogs for the purposes of sport and population control, when the Initiatives permit such methods only to remedy a specific “animal problem” or “for the purpose of protecting... . private property.” RCW 77.15.194(4)(b); 77.15.245(1}(a) & (2)(a), © Violation of Initiative 713, by granting permits to use traps to catch and kill bears without requiring that the permittee establish that the animal problem “has not been and cannot be reasonably abated by the use of nonlethal control tools.” RCW 77.15.194(4)(b). # Violation of Initiative 655, by authorizing hunters and landowners who are not “agents of [the]. . . state . .. acting in their official capacities” to use bait to attract and kill bears. RCW 77.15.245(1)(a). © Violation of Initiative 655, which allows “feeding stations” to be used as a nonlethal alternative to killing bears, by allowing these stations to be used effectively as bait to attract bears to areas where they are killed, RCW 77.15.245(1)(b). © Violation of Initiative 655, by authorizing a select group of hunters to pursue bears with dogs, although these hunters are neither “agents of [the] . .. state” nor “owner(s) or tenant(s) of real property.” RCW 77.15.2452). * Violation of the APA through the adoption of WAC 220-440-210, because this rule is, arbitrary and capricious and exceeds the Department’s statutory authority, including because it fails to set the conditions of the use of bait and hounds consistent with the requirements of Initiative 655, disregards the distinction between activities permittedJoe Stohr February 26, 2018 Page 3 for agents of the state and activities permitted for landowners and lessees, and fails to limit timber damage depredation permits to bears that are a threat to private property. RCW 34.05.570(2)(c). * Violation of the APA through the adoption of WAC 220-440-070, because this rule is arbitrary and capricious and exceeds the Department's statutory authority, including because it fails to ensure that the Department makes the necessary findings before permits for traps can be issued, and fails to limit trapping permits to “problem” bears. RCW 34.05.570(2\(). * Violation of the APA, by failing to go through required rulemaking in drafting internal policies for the implementation of the Program, even though these policies substantially “alterfed]” the “qualificationfs] or requirement{s}” for the “enjoyment of benefits or privileges conferred by law.” RCW 34.05.010(16)(c) * Violation of the APA, by acting outside the Department’s statutory authority and engaging in unprincipled, arbitrary and capricious decision-making throughout the administration of the Program, including by: failing to follow Department rules, policies and guidelines, including, but not limited to, the Department's own permit process described in WAC 220-440-210; refusing to explore nonlethal means of limiting timber damage by bears; failing to implement policies that show any measurable success in limiting timber damage; ignoring scientific evidence that the Program may increase timber damage; unlawfully exempting powerful special interests from legal requirements; and purposefully overlooking known violations of permits granted under the Program. RCW 34.05.570(4)(c). The Department is well aware that its Program is deeply unpopular. Initiative 655 was passed with 62% of the vote, and the Department's own polls show that 70% of the public is opposed to the lethal removal of black bears to prevent damage to commercial timberlands.' For that reason, the Department advises its staff that “discretion by all parties involved in the process important.” In accordance with this “discretion,” the Department does not make publicly available the policies that guide the Program, announce changes to those policies, or post information about the number of permits issued or the number of bears killed under the Program. By design, this secrecy thwarts public accountability. However, going forward, the Center intends to closely monitor the Program, starting with a public disclosure request sent * See Washingion Residents’ Opinions on Bear and Wolf Management and Their Experiences with Wildlife that Cause Problems, Survey Conducted by Responsive Management for the Washington Department of Fish and Wildlife, at iv, available at https://wdfw.wa.gov/publications/01594/wafw01594.pdt. 2 See Washington Department of Fish and Wildlife Black Bear Timber Damage Program Bear Removal Training Manual, at 6.Joe Stohr February 26, 2018 Page 4 concurrently with this letter, and continuing with regular disclosure requests that will seck weekly updates on the Program and its implementation. In response to recent criticism, the Center is aware that the Department has formed a Bear ‘Timber Damage Management Working Group. As the Center has made clear in regard to the Wolf Advisory Group, it has significant concerns with the Department's use of this “collaborative” model to evade real accountability, and to sidestep its responsibility to manage wildlife in accordance with the best available science, and in compliance with the law. ‘The Center’s concerns with the nascent “Bear Advisory Group” were heightened last week, when it learned that the Department intends to use Wolf Policy Lead Donny Martorello as the “facilitator” of that group. As the Department's carnivore section manager, Mr. Martorello played a central role in the development of many of the illegal policies discussed above, and his involvement as a “facilitator” to resolve the problems that he helped to create is inappropriate and counterproductive, ‘The Center is in favor of involving stakeholders and the public in the process of constructing new proposed rules to guide the management of bear timber depredation issues in accordance with the law, But no stakeholder process is an adequate substitute for compliance with the law. ‘The Department must take immediate action to put the Program on hold until it can remedy its legal deficiencies. Very truly yours, LANE POWELL pc Gx “Claire Loebs Davis Shareholder Governor Jay Inslee Joseph Shorin Office of the Governor Senior Assistant Attorney General P.O. Box 40002 Fish, Wildlife and Parks Division Olympia, WA 98504-0002 1125 Washington Street SE governor@gov.wa.gov P.O. Box 40100 jay.inslee@gov.wa.gov Olympia, WA 98504-0100 Josephs@atg.wa.gov