1 2 3 4 5 6 7 SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY 8 9 10 11 JOHN HUSKINSON, GENEVIEVE JAQUEZ-SCHUMACHER, and TIMOTHY COLEMAN, 14 15 16 FIRST AMENDED PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF Petitioners, 12 13 No. 19-2-20227-1 SEA v. WASHINGTON DEPARTMENT OF FISH AND WILDLIFE and KELLY SUSEWIND, in his official capacity as Director of Washington Department of Fish and Wildlife, 17 Respondents. 18 19 20 21 22 23 24 25 26 Petitioners John Huskinson, Genevieve Jaquez-Schumacher, and Timothy Coleman (collectively “Petitioners”) respectfully file this petition challenging as unlawful the actions of Respondents Washington Department of Fish and Wildlife (“WDFW”) and WDFW Director Kelly Susewind, in improperly authorizing the lethal removal of members of Washington’s endangered gray wolf population, namely the reauthorization of lethal removal of one or more members of the Old Profanity Territory (“OPT”) wolf pack on July 31, 2019. Petitioners seek declaratory and injunctive relief against WDFW and Susewind. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 1 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) I. 1 2 1. NATURE OF THE ACTION This is a petition for declaratory and injunctive relief arising out of and alleging 3 violations of the Washington Administrative Procedure Act (“APA”), RCW Ch. 34.05 and 4 SEPA, RCW Ch. 43.21C. 5 2. This action challenges Respondent Susewind’s order to kill members of the 6 OPT Pack, announced on July 31, 2019 (the “Reauthorized OPT Kill Order”), attached hereto 7 as Exhibit A. Petitioners seek a declaration the Reauthorized OPT Kill Order violated 8 Washington law, an injunction preventing WDFW from taking action to execute the 9 Reauthorized OPT Kill Order until its legality can be reviewed by the Court, and an injunction 10 preventing Respondents WDFW and Susewind from authorizing or implementing any future 11 such orders without complying with SEPA and the APA. 12 3. Gray wolves are listed as a federal endangered species in the western two-thirds 13 of Washington, where they are under the management of the U.S. Fish and Wildlife Service. 14 Gray wolves are listed as a state endangered species throughout Washington. WDFW manages 15 the wolf population in portions of the state where wolves are not a federal endangered species, 16 under the auspices of the 2011 Wolf Conservation and Management Plan (“Plan”). The Plan 17 was a phased non-project review proposal under SEPA, for which WDFW issued a 18 Determination of Significance, acknowledging that it required the development of an 19 Environmental Impact Statement (“EIS”). The EIS contemplates that because the project was 20 a phased review, “specific actions that may be proposed in the future relating to gray wolf 21 management in Washington would be evaluated under a supplemental environmental impact 22 statement process.” 23 4. The Plan is “the state recovery plan” for gray wolves. Its purpose is to “ensure 24 the reestablishment of a self-sustaining population of gray wolves in Washington and to 25 encourage social tolerance for the species by addressing and reducing conflicts.” The Plan 26 contemplates potential lethal control of wolves when there are conflicts with livestock, which FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 2 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 the EIS notes is “unusual” in a recovery plan for an endangered species, but is included as a 2 tool to “build public tolerance for wolves.” Public tolerance is crucial to recovery because 3 “[h]uman-caused mortality is the single most important factor” in wolf recovery, and thus 4 “addressing and reducing conflicts is an important part of conservation.” As a result, the EIS 5 provides: “Lethal control of wolves may be necessary to resolve repeated wolf-livestock 6 conflicts and would be performed to remove problem animals that jeopardize public tolerance 7 for overall wolf recovery.” 8 5. Before lethal control of wolves is used, however, the Plan emphasizes it must 9 be evaluated on a “case specific basis,” with decisions based on a number of factors, including 10 “pack history and size,” “state listed status of wolves,” and “extent of proactive management 11 measures being used on the property.” In addition, the Plan provides that wolves may only be 12 killed if: (1) there are repeated wolf predations of livestock; (2) it is documented that livestock 13 have clearly been killed by wolves; (3) nonlethal methods have been tried but failed to resolve 14 the conflict; (4) predations are likely to continue; and (5) there is no evidence of intentional 15 feeding or unnatural attraction of wolves. The EIS and the Plan specify that “[n]on-lethal 16 management will be emphasized while the species is recovering” and that lethal control will 17 be a “last resort.” In line with this, the EIS and Plan emphasize the use of non-lethal strategies 18 during wolf recovery, including “husbandry methods and non-lethal deterrents,” such as “using 19 range riders to help keep cattle more concentrated on grazing sites,” “delaying turnout of cattle 20 onto grazing sites until calving is finished or young wild ungulates are born,” “allowing calves 21 to reach at least 200 pounds before turning them out to grazing sites,” and “avoiding grazing 22 livestock near the core areas of wolf territories, especially dens and rendezvous sites.” 23 6. Since the Plan was adopted, WDFW has ignored these and other restrictions 24 that the Plan placed on the potential use of lethal control. Instead, WDFW has relied upon 25 criteria for its kill orders that are not contemplated under the Plan or its EIS, but which have 26 been spelled out in a series of informal “protocols” which form the basis for WDFW’s wolf FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 3 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 killing program. Specifically, the Reauthorized OPT Kill Order purports to rely upon WDFW’s 2 2017 Wolf-Livestock Interaction Protocol (“2017 Protocol”). 3 7. Since the adoption of the Plan, WDFW has killed 23 wolves from seven packs, 4 resulting in the near or total destruction of three packs. These actions eliminated up to 11% of 5 the wolf population in any given year. WDFW killed 19 of these 23 wolves, and targeted all 6 three wolf packs for extermination, for the benefit of a single livestock owner. This year, 7 WDFW has already killed one member of the OPT pack on behalf of the same livestock owner. 8 8. WDFW has taken these actions in contradiction to its own conservation goals, 9 and even its own protocols. Instead, WDFW has targeted an endangered species at the behest 10 of private commercial interests, willfully ignoring its own policies and overwhelming scientific 11 evidence demonstrating that killing wolves is both unnecessary and counterproductive—and 12 that it actually results in increased conflicts between wolves and livestock. 13 9. The Reauthorized OPT Kill Order violates SEPA because WDFW has departed 14 from the limited lethal control contemplated by the Plan, instead undertaking a program to 15 systematically and purposefully kill members of an endangered species—without performing 16 a new or supplemental EIS, or even making a threshold determination as to whether one is 17 required. 18 10. The Reauthorized OPT Kill Order is also arbitrary and capricious under the 19 APA, because it is contrary to WDFW’s rules and governing statutes, including the 20 management guidelines set by the Plan and the 2017 Protocol; is not the product of a reasoned 21 decision-making process; and is based on incomplete or erroneous facts—including a lack of 22 consideration of the available science. 23 24 11. Petitioners thus seek a declaration that the Reauthorized OPT Kill Order violates Washington law. 25 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 4 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 12. Petitioners additionally seek injunctive relief to prevent WDFW from executing 2 the Reauthorized OPT Kill Order, and to preclude it from issuing or acting upon any similar 3 orders that have not met the requirements of SEPA and the APA. II. 4 5 6 7 8 13. Jurisdiction is proper in this Court pursuant to RCW Chapters 7.24 (declaratory relief) and 7.40 (injunctive relief), RCW 34.05.570 (APA), and RCW 43.21C.075 (SEPA). 14. Venue is proper in this Court pursuant to RCW 4.92.010 and RCW 34.05.514(1)(b). III. 9 10 11 JURISDICTION AND VENUE PARTIES Petitioners 15. Petitioners are environmentalists, hikers, and advocates for wolves and wolf 12 habitat. Petitioners each have a longstanding interest in the reintroduction and restoration of 13 endangered gray wolf populations in Washington, including in the Colville National Forest, 14 which they regularly visit in part for the opportunity to watch for wild wolves and wolf sign in 15 the landscape. Petitioners Huskinson and Jaquez-Schumacher are King County residents. 16 Petitioner Coleman is a resident of Ferry County. 17 16. Petitioners take aesthetic enjoyment from observing, attempting to observe, 18 hearing, and seeing evidence of wild wolves, including observing signs of the species’ presence 19 in the area of the Colville National Forest, and observing ecosystems enhanced by these 20 animals. The opportunity to possibly view wolves, or signs of wolves, in these areas is of 21 significant interest and value to Petitioners, and increases their use and enjoyment of public 22 lands. Petitioners have engaged in these activities in the past, and intend to do so again in the 23 near future. 24 17. Petitioners seek to ensure the long-term survival and recovery of the gray wolf 25 in the Pacific Northwest, and to ensure that Respondents comply with all applicable state laws 26 related to the survival and recovery of the gray wolf in Washington. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 5 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 18. The interests of Petitioners have been, and will continue to be, injured by 2 Respondents’ continued authorization of the lethal removal of wolves in Washington, 3 including through the Reauthorized OPT Kill Order, and any similar orders that may follow. 4 The interests of Petitioners have been, and will continue to be, injured by Respondents’ killing 5 of wolves in Washington. The interests of Petitioners have been, and will continue to be, 6 injured by Respondents’ failure to comply with SEPA and the APA in authorizing and carrying 7 out the killing of wolves in Washington. 8 19. The relief requested by Petitioners in this petition would redress or lessen their 9 injuries. The relief requested by Petitioners, if granted, would prevent Respondents from 10 engaging in killing endangered gray wolves until, and unless, they comply with state law. The 11 relief requested by Petitioners, if granted, would reduce the number of endangered gray wolves 12 killed by the state of Washington. 13 20. Petitioners are represented by Jonathon Bashford of Bashford Law PLLC, 14 located at 600 First Avenue, Suite 405, Seattle, WA 98104-2216. The mailing address for each 15 of Petitioners for purposes of this action is c/o Bashford Law PLLC, 600 First Avenue, Suite 16 405, Seattle, WA 98104-2216. 17 Respondents 18 21. Respondent WDFW is an agency of the State of Washington, under the auspices 19 of the Washington Fish and Wildlife Commission (“Commission”). WDFW is located in the 20 Natural Resources Building at 1111 Washington Street S.E., Olympia, WA 98501, and its 21 mailing address is P.O. Box 43200, Olympia, WA 98504-3200. The mission of WDFW is to 22 “preserve, protect, and perpetuate wildlife and ecosystems while providing sustainable fish and 23 wildlife recreational and commercial opportunities.” 1 24 command to “conserve the [state’s] wildlife . . . resources in a manner that does not impair the Its statutory purpose includes a 25 26 Washington Dep’t of Fish and http://wdfw.wa.gov/about/mission_goals.html. 1 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA Wildlife, 6 Mission and Goals, About WFDW, BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 resource.” RCW 77.04.012. Under RCW 77.12.240, WDFW has the discretion to “authorize 2 the removal or killing of wildlife that is destroying or injuring property,” within the bounds of 3 its other responsibilities under state law. 4 22. The Director of WDFW is required to investigate the distribution of wildlife 5 species across the state. RCW 77.12.020(1). If WDFW determines a species to be “seriously 6 threatened with extinction in the state of Washington,” it may ask the Commission to designate 7 that species as endangered. RCW 77.12.020(6). The Commission has the authority and duty to 8 classify species to determine those requiring protection or management to ensure survival in 9 Washington. RCW 77.12.020(1), (6). Once a species is listed as endangered, WDFW is 10 required to write a species recovery plan that includes target population objectives, an 11 implementation plan to reach those objectives, and criteria for delisting, education, and 12 monitoring. WAC 220-610-110 §11.1. The gray wolf has been listed as endangered by the 13 State of Washington since 1980. WAC 220-610-010; see former WAC 232-12-014 (1981); 14 Wash. St. Reg. 81-12-029 (Jun. 1, 1981). As an endangered species, the gray wolf receives 15 protection under state law from hunting and killing throughout the state, RCW 77.15.120; and 16 its critical habitat is given certain legal protections. See e.g., WAC 222-16-080(1)(a) (limiting 17 forestry practices within one mile of a known den). Because gray wolves have been federally 18 delisted as endangered in the eastern one-third of Washington, WDFW has full management 19 authority over the species in that portion of the state. 2 20 23. Respondent Kelly Susewind is sued in his official capacity as the Director of 21 WDFW, appointed by the Commission in accordance with RCW 77.04.055(7). The Director 22 is required to “supervise the administration and operation of the department and perform the 23 duties prescribed by law and delegated by the commission.” RCW 77.04.080. Among other 24 duties, the Director must make recommendations regarding the classification of endangered 25 26 Washington Dep’t of Fish and Wildlife, Gray http://wdfw.wa.gov/conservation/gray_wolf/legal_status.html. 2 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 7 Wolf Conservation and Management, BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 species, RCW 77.12.020; and oversee authorizations for trapping or killing wildlife found to 2 be threatening human safety or damaging property. RCW 77.15.194(4); RCW 77.36.030(1). 3 Director Susewind authorized the Reauthorized OPT Kill Order. IV. 4 5 6 A. FACTUAL BACKGROUND Gray Wolves are a Unique Species with Key Ecological Roles 24. The gray wolf (Canis lupus) is the largest member of the Canidae family. Adult 7 gray wolves range in size from 40 to 175 pounds. A gray wolf’s fur is frequently grizzled gray, 8 but can vary from white to black. Gray wolves predominantly live in packs, which hunt, feed, 9 travel, rest and rear pups together. A wolf pack is formed when a male and female wolf bond, 10 breed, and produce pups. A wolf pack usually consists of a breeding pair of wolves, their 11 offspring from the previous year, and new pups. A wolf pack may also have other breeding- 12 aged adult wolves as members. Most packs produce only one litter each year. Litters are usually 13 born in April, and usually consist of four to six pups. All pack members help feed, protect, and 14 otherwise raise the pups. As wolf pups become adults, they may disperse from their pack to 15 establish new home-territories and start new packs. Dispersing wolves can travel hundreds of 16 miles before settling in a new territory and finding a mate. 17 25. Wolves are highly social animals, and a wolf pack has a well-established social 18 structure. At the top of the social structure are the breeding male and breeding female wolves, 19 but other wolves play key roles in pack survival. When humans remove a wolf from a pack, 20 pack structure and dynamics are disrupted, and the survival of the pack’s pups may be 21 endangered. Removal of the breeding male or breeding female from a pack is particularly 22 disruptive and damaging. Larger packs are much more likely to be successful in breeding and 23 raising pups, and when humans kill members of a pack and reduce pack size, it can reduce the 24 reproductive success of the wolf population. 25 26 26. A pack establishes an annual home territory and defends it from other packs and trespassing wolves. From spring until fall, pack activity is centered around its den and FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 8 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 rendezvous sites, as the adults hunt and bring food back to the pups. Rendezvous sites are 2 specific areas that wolf packs use to rest, gather, and play after the pups emerge from the den. 3 27. As apex predators, wolves play a crucial role in the ecosystems where they live, 4 having direct and indirect effects on multiple animal and plant species, and promoting 5 biodiversity and ecosystem balance. The loss of apex predators was a major driver in the 6 destabilization and collapse of certain ecosystems, leading to pandemics, incursions of invasive 7 species, unsustainable increases in prey populations, and lost ecosystem functions. For 8 example, the eradication of wolves likely produced a number of important ecological changes 9 in Washington’s Olympic National Park, where resultant over-browsing by elk caused 10 substantial changes in riparian plant communities, including declines in black cottonwood and 11 bigleaf maple, which in turn caused riverbank erosion and channel widening, and likely 12 reduced the rearing habitat for salmon, steelhead, and resident fish. 13 28. Wolves are predominantly predators of medium and large-sized mammals, such 14 as elk and deer, but are also known to hunt or feed on ground squirrels, hares, voles, insects, 15 fish, and plant material. Gray wolves occasionally feed on livestock, but account for a tiny 16 fraction of total livestock losses, even in areas such as Idaho, Montana, and Wyoming where 17 more wolves reside. Statistics cited in the Plan indicate that during 2004 and 2005, wolves in 18 19 20 21 22 23 24 25 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 9 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 these states were responsible for less than 0.1% of cattle deaths and 0.6% of sheep deaths. The 2 following chart used in the Plan illustrates the minimal role that wolves play in livestock losses: 3 4 5 6 7 8 9 10 29. Wolves pose virtually no safety threat to humans. In North America, where there are about 60,000 wolves, two human deaths have been attributed to wolves in the past 60 years, in Alaska and Saskatchewan. By comparison, about 18 people in the U.S. are killed by livestock each year, and 200 by car collisions with deer. B. Gray Wolves are Exterminated in Washington, then Start a Comeback 30. Humans waged a devastatingly successful campaign to exterminate wolves in the United States from colonial times well into the twentieth century. 31. A robust population of wolves, numbering as many as 5,000, once ranged 11 throughout nearly all of Washington, but a government-supported policy of eradication led to 12 the near-extirpation of wolves from the state by the early 1900s. As in other states, Washington 13 wolf populations were destroyed through trapping, poisoning, hunting, use of bounties, and 14 government predator-eradication campaigns. Thus, wolves were eliminated from nearly the 15 entire state by 1900. 16 17 18 32. In 1974, the gray wolf was listed under the federal Endangered Species Act. This action started to halt the extinction of the species in the United States. 33. In 1980, the gray wolf was added to Washington’s list of endangered species. 19 By this time, there had been only occasional sightings of individual wolves, pairs, and tracks, 20 as well as reports of howl vocalizations, generally in the Cascade Mountains and in some 21 northeastern parts of Washington. However, there was no evidence that Washington had a 22 resident breeding population at the time, and these sightings were likely dispersing animals 23 from British Columbia or other states. 24 25 34. In 1990, the Commission adopted rules requiring WDFW to prepare a recovery and management plan for the gray wolf within 5 years. WAC 220-610-110 § 11.2.1; former 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 10 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 WAC 232-12-297 (1990); Wash. St. Reg. 90-11-066 (May 15, 1990). Despite this requirement, 2 WDFW did not begin the recovery and management plan process for the gray wolf until 2007. 3 35. In 1995-1996, wolves were reintroduced to Yellowstone National Park and 4 central Idaho. This northern Rockies wolf population soon began to increase in size and expand 5 in territory. t also became a source population for dispersing wolves, which began heading 6 west into Washington in the early 2000s. 7 36. In 2002, a radio-collared female wolf crossed the border from Idaho into 8 northeastern Washington. The remained there for several weeks before disappearing north into 9 British Columbia. his was the first confirmed instance of any wolves moving westward into 10 Washington from the northern Rockies population. Lone wolf sightings in northeastern 11 Washington were reported in the ensuing years, and breeding pairs and packs gradually formed 12 and established territories. 13 37. While the Plan development process was under way, more wolves dispersed 14 into Washington from Idaho and British Columbia. In 2008, the state’s first two wolf packs 15 since the 1930s were confirmed. One pair, named the Diamond Pack, was first documented in 16 2008 in Pend Oreille County and confirmed to have pups in 2009 and 2010. Simultaneously, 17 confirmation was made in Okanogan County of the Lookout Pack, which had litters in 2008 18 and 2009 (and probably also in 2007). 19 C. 20 Washington Develops its Wolf Recovery Plan and EIS 38. In 2007, WDFW finally initiated development of the Plan—twelve years after 21 it was supposed to be completed. WDFW issued a Determination of Significance in 2007, 22 noting that WDFW had decided that the Plan may have a significant impact on the 23 environment, and that an EIS was therefore required under RCW 43.21C.030(2)(c). A draft 24 EIS was developed and underwent public review in 2009 and 2010. 25 26 39. The EIS reviewed the Plan as “a phased non-project review proposal.” A “[p]hased review allows agencies and the public to focus on issues that are ready for decision FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 11 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 and excludes from consideration issues that . . . are not yet ready.” In its EIS, WDFW identified 2 three “areas of controversy and uncertainty” with regard to the Plan. One of these “areas of 3 controversy and uncertainty” is “wolf-livestock conflict management,” including “lethal 4 management options to address wolf-livestock conflicts.” The EIS states that it considered 5 “current and anticipated factors” that “could result from implementation of proposed 6 management strategies,” but contemplated further environmental review, providing in 7 particular, “Specific actions that may be proposed in the future relating to gray wolf 8 management in Washington would be evaluated under a supplemental environmental impact 9 statement process.” 10 40. WDFW convened a stakeholder group, representing diverse interests, to assist 11 in development of the Plan. The 17 members of the stakeholder group met regularly over 15 12 months to identify, discuss, negotiate, and draft components of the Plan. The State held 23 13 public scoping meetings plus official comment periods that generated more than 65,000 14 comments by members of the public. Drafts of the Plan were peer-reviewed by 43 reviewers 15 and 3 blind peer reviewers. In December 2011, the Commission formally adopted the Plan. 16 17 18 41. Public opinion polls at the time showed that 75% of Washingtonians supported wolf recovery. 42. The Plan “serves as the state recovery plan” for gray wolves, and its goals 19 include (1) “restor[ing] the wolf population in Washington to a self-sustaining size and 20 geographic distribution that will result in wolves having a high probability of persisting in the 21 state through the foreseeable future”; (2) “manag[ing] wolf-livestock conflicts in a way that 22 minimizes livestock losses, while at the same time not negatively impacting the recovery or 23 long-term perpetuation of a sustainable wolf population”; and (3) “develop[ing] public 24 understanding of the conservation and management needs of wolves in Washington, thereby 25 promoting the public’s coexistence with the species.” 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 12 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 43. The EIS that accompanied the Plan presented four alternatives for different 2 approaches to wolf recovery. However, with regard to the state’s lethal control of wolves 3 involved in repeated livestock predations, all four alternatives simply provided that it was, 4 “Allowed, consistent with state and federal law.” The EIS noted that it was “unusual to include 5 lethal management strategies in a plan for recovery of a listed species,” but included lethal 6 control as an option that may be necessary to “build public tolerance for wolves.” It left lethal 7 management strategies to be determined at a later date, noting that “[l]ethal control of wolves 8 may be necessary to resolve repeated wolf-livestock conflicts” and “[i]mplementation of 9 management options that include lethal control would be based on the status of wolves to 10 11 ensure that conservation/recovery objectives are met.” 44. The Plan also leaves the issue of the circumstances under which the state would 12 kill wolves to be determined later, stating that “[l]ethal control of wolves may be necessary to 13 resolve repeated wolf-livestock conflicts and is performed to remove problem animals that 14 jeopardize public tolerance for overall wolf recovery.” The strategy for lethal control in the 15 Plan and EIS is summarized as follows: 16 17 18 19 20 21 22 23 24 25 Lethal removal may be used to stop repeated predation if it is documented that livestock have clearly been killed by wolves, non-lethal methods have been tried but failed to resolve the conflict, predations are likely to continue, and there is no evidence of intentional feeding or unnatural attraction of wolves by the livestock owner. Situations will have to be evaluated on a case-specific basis, with management decisions based on pack history and size, pattern of predations, number of livestock killed, state listed status of wolves, extent of proactive management measures being used on the property, and other considerations. 45. The Plan does not define central terms such as “repeated livestock predations,” “clearly been killed by wolves,” or “unnatural attraction,” and fails to describe any criteria for determining that “non-lethal methods have been tried but failed to resolve the conflict,” when “depredations are likely to continue,” or how management is supposed to take into account the 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 13 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 listed considerations. The Plan specifically left for the future the “develop[ment] and 2 implementation of a comprehensive program to manage wolf-livestock conflict.” 3 46. The Plan states that “[n]on-lethal management techniques will be emphasized 4 throughout the recovery period and beyond” as a response to wolf-livestock conflicts. It directs 5 that WDFW “should manage conflicts in a way that gives livestock owners experiencing losses 6 the tools to minimize losses, while at the same time not harming the recovery or long-term 7 sustainability of wolf populations.” The Plan provides that “WDFW will work with livestock 8 producers to provide technical assistance on proactive, non-lethal management methods and 9 technologies.” The Plan lists husbandry techniques that are useful in avoiding wolf predation, 10 including the use of range riders and sheepherders, burying of livestock carcasses, moving sick 11 or injured livestock off grazing allotments, delaying the turnout of cattle until calving is 12 finished or wild ungulates are born, allowing calves to reach at least 200 pounds before turning 13 them out, and avoiding grazing livestock near wolf territory core areas, especially dens and 14 rendezvous sites. The Plan also lists a number of non-lethal wolf deterrents, including the use 15 of guard animals, light and noise scare devices, hazing with non-lethal munitions, predator- 16 resistant fencing, and fladry (numerous strips of flagging hung along a fence or rope). 17 47. The Plan provides for generous compensation for livestock killed by wolves. 18 Even if livestock are killed long before achieving marketable weight, livestock owners are paid 19 full market value for each animal confirmed to have been killed by wolves and half the market 20 value of an animal whose death is deemed a probable wolf kill. If the animals were killed on 21 grazing sites of 100 or more acres, livestock owners receive double compensation, i.e., they 22 are paid full market value of two animals for a single confirmed wolf kill, and full market value 23 of one animal for a probable kill. 24 25 48. The Plan’s first listed objective is to develop a program to monitor the population status, trends, and conservation and management needs of wolves in Washington. 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 14 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 Its second objective is to “[p]rotect wolves from sources of mortality and disturbance at den 2 sites,” with one goal to “minimize mortality from lethal control.” 3 49. The Plan notes that “excessive levels of lethal removal can preclude the 4 recovery of wolf populations,” and discusses the need for constraints on lethal control to 5 minimize negative impacts, including limiting it to killing solitary individuals or territorial 6 packs whenever possible, and only killing animals in reproductive packs when pups are more 7 than six months old, the packs contain at least six members, there are neighboring packs 8 nearby, and the population is at least 75 wolves. The Plan also suggested managers should 9 consider minimizing lethal control around core recovery areas, especially during the denning 10 and pup-rearing period of April to September. The Plan directs that “managers should assess 11 the potential negative impacts of wolf removal on pack structure and persistence for creating 12 unstable pack dynamics if sink habitats [that is, lower quality habitats where resident packs 13 have difficulty sustaining themselves without immigration from source habitats elsewhere] are 14 created by depredation control, especially in recovering populations.” Another strategy 15 mandated by the Plan is to “minimize disturbance at active wolf den sites,” including 16 implementing suitable protective measures, and providing information to landowners about the 17 location of den sites and how to avoid disturbing them. 18 50. The Plan’s objectives also emphasize the need to “[c]onduct research on wolf 19 biology, conservation and management in Washington,” indicating that WDFW will initiate 20 wolf research “if important management questions arise that could be answered through 21 research and monitoring,” including “on the levels and effects of depredation on livestock and 22 other domestic animals, and the factors influencing depredation.” It also notes the “strong need 23 to conduct research on non-lethal control methods to reduce wolf depredation on livestock,” 24 because such research is “essential” to any “successful wildlife conservation and management 25 plan,” and “[f]uture conservation and management actions involving Washington’s gray 26 wolves will depend on accurate and complete data related to a broad range of biological and FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 15 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 social topics, including population status and impacts on affected resources and human 2 activities.” 3 51. The Plan acknowledges that a “well-informed public is essential to gray wolf 4 conservation and some authorities consider outreach efforts to be the highest priority in 5 restoring the species.” It further explains that it is “crucial that wolves and wolf management 6 issues be portrayed in an objective and unbiased manner, and that the public receives accurate 7 information on the species. Conflicts with wolves and the solutions and compromises needed 8 to resolve those conflicts must be discussed fairly.” 9 52. The Plan indicated that wolves would be downlisted from state endangered to 10 threatened status when there had been six successful breeding pairs for three consecutive years, 11 with two successful breeding pairs in each of three separate recovery regions. Wolves would 12 be downgraded from threatened to sensitive when there were 12 successful breeding pairs 13 present for three consecutive years, with four successful breeding pairs in each of the three 14 recovery regions; and would be removed from the list under either of two circumstances, as 15 follows: (1) when there were 15 successful breeding pairs present for three consecutive years, 16 with four successful breeding pairs in each of the three recovery regions and three successful 17 breeding pairs anywhere in the state, or (2) when there were 18 successful breeding pairs, with 18 four successful breeding pairs in each of the three recovery regions and six successful breeding 19 pairs anywhere in the state. The Plan acknowledges that 15 breeding pairs, which represent an 20 estimated 97-361 wolves, would be a “minimal objective to achieve recovery.” In fact, two of 21 the three blind peer reviewers said the recovery objectives in the Plan would be inadequate to 22 achieve recovery. Comments to the EIS said the objectives were not biologically defensible, 23 assumed that connectivity with viable wolf populations elsewhere would be maintained, and 24 lacked a population viability analysis. 25 26 53. A number of studies published before the Plan pointed to the need to take pack dynamics, social structure, and associated mortality rates into consideration when evaluating FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 16 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 the impact of lethal control. See Scott Creel and Jay J. Rotella, Meta-Analysis of Relationships 2 between Human Offtake, Total Mortality and Population Dynamics of Gray Wolves, 5 PLOS 3 ONE e12918 (2010); Linda Y. Rutledge, et. al., Protection from Harvesting Restores the 4 Natural Social Structure of Eastern Wolf Packs, 24 BIOLOGICAL CONSERVATION 332 (2009); 5 Arian D. Wallach, et. al., More than Mere Numbers: The Impact of Lethal Control on the 6 Social Stability of a Top-Order Predator 4 PLOS ONE e6861 (2009); Thomas M. Gehring, et. 7 al., Limits to Plasticity in Gray Wolf, Canis lupus, Pack Structure: Conservation Implications 8 for Recovering Populations, 117 CANADIAN FIELD-NATURALIST 419 (2003); John A. Vucetich, 9 et. al., Effects of Social Structure and Prey Dynamics on Extinction Risk in Gray Wolves, 11 10 CONSERVATION BIOLOGY 957 (1997); Gordon C. Haber, Biological, Conservation, and Ethical 11 Implications of Exploiting and Controlling Wolves, 10 CONSERVATION BIOLOGY 1068 (1996). 12 54. One such study, cited in the Plan, emphasizes the need for wildlife managers to 13 carefully evaluate the possible impacts of lethal control on territorial wolves relative to ethical 14 and biological considerations.” Scott M. Brainerd, et. al, The Effects of Breeder Loss on 15 Wolves, 72 THE JOURNAL 16 particular, the Brainerd Study recommends that managers “prioritize the removal of solitary 17 wolves or territorial packs,” and exercise extreme caution when it is absolutely necessary to 18 kill members of reproductive packs, so as to “minimize pup mortality, social disruption, and 19 breeding interruption.” Specifically, the Brainerd Study recommends (and the Plan 20 acknowledges, in its discussion of strategies for minimizing mortality from lethal control) that 21 managers only remove wolves from reproductive packs when pups are more than six months 22 old and the packs contain six or more members, including three or more adults, and that ideally, 23 such removals would only take place when the pack was close to neighboring packs and the 24 wolf population was more than 75 wolves. From 2012 to the present, WDFW has repeatedly 25 ignored these recommendations. In five of the six kill actions WDFW conducted between 26 2012-2017 – the Wedge Pack in 2012, the Huckleberry Pack in 2014, the Profanity Peak Pack FIRST AMENDED PETITION NO. 19-2-20227-1 SEA OF WILDLIFE MANAGEMENT 89 (2008) (“Brainerd Study”). In 17 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 in 2016, and the Smackout Pack in 2017 – wolves were killed when these packs had pups that 2 were less than 6 months old. The kill actions in 2012 and 2014 were undertaken when the wolf 3 population was far less than 75 individuals (annual end of year 2011 report noted 27 wolves, 4 and annual end of year 2013 report noted 52 wolves). 5 55. Other studies published before the Plan had already started to challenge the 6 efficacy of traditional lethal control programs as opposed to non-lethal deterrence measures, 7 laying the foundation for the research that would emerge in the years to follow. See Elizabeth 8 K. Harper, et. al., Effectiveness of Lethal, Directed Wolf-Depredation Control in Minnesota, 9 72 JOURNAL OF WILDLIFE MANAGEMENT 778 (2008) (“Harper Study”); see also Tyler Muhly, 10 et. al, Livestock Husbandry Practices Reduce Wolf Depredation Risk in Alberta Canada, in 11 THE WORLD OF WOLVES, NEW PERSPECTIVES ON ECOLOGY, BEHAVIOUR AND MANAGEMENT 12 263 (Marco Musiani, et. al., ed., 2010) (the “Muhly Study”); Marco Musiani, et. al., 13 Seasonality and Reoccurrence of Depredation and Wolf Control in Western North America, 14 33 WILDLIFE SOCIETY BULLETIN 876 (2005). 15 D. 16 Plan Addresses Concerns of Livestock Owners 56. WDFW quickly came under pressure from special interests opposed to wolf 17 recovery, most significantly from certain livestock owners and groups that use public lands to 18 graze their cattle and sheep during the summer. In 2016, beef cattle ranching amounted to one 19 tenth of one percent (0.1%) of Washington’s economy 3 and made up even less of the state’s 20 covered employment, providing 697 of the 3.2 million jobs in the state eligible for 21 unemployment insurance. 4 There are so few sheep ranchers in Washington that neither data on 22 covered employment nor 2016 statistics from the National Agricultural Statistics Service are 23 24 25 26 Compare National Agricultural Statistics Service, Cattle, Incl. Calves - Gross Income, Measured in $, Quick Stats, http://tinyurl.com/yceex5ld, with Washington State Dep’t of Revenue, Gross Business Income, Statistics & Reports, http://tinyurl.com/yc7vu7l3. 3 Washington Emp’t Sec. Dep’t, 2016 Annual Averages, Preliminary, Quarterly Census of Employment and Wages, http://tinyurl.com/ycdo8ojb. 4 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 18 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 available. 5 In 2010, sheep raising amounted to one one-thousandth of one percent (0.001%) of 2 Washington’s economy. 6 3 57. While many Washington livestock producers rely entirely on private land for 4 their annual operations, some livestock owners depend on public land grazing leases, primarily 5 for cattle. These livestock owners typically keep their livestock on private land during the 6 winter, with most calving and lambing occurring in late winter or early spring. In the spring, 7 livestock are released to grazing allotments on state and federal public lands, often in remote 8 locations with rough topography, such as the Colville National Forest. Livestock owners 9 typically provide minimal to no supervision to these herds throughout the summer, and expect 10 to suffer significant losses. In Washington, the Plan estimated that death losses from all causes 11 totaled 44,000 cattle and calves in 2005 and 5,000 sheep and lambs in 2004, or 4.1% of all 12 cattle and calves and 10.9% of all sheep and lambs. Producers lose livestock to a variety of 13 natural and non-natural causes, including injury, illness, disease, weather, birthing problems, 14 and predation. In Washington in 2004 and 2005, the Plan indicated that 94% of cattle losses, 15 valued at $28.7 million, were non-predator related, and 54% of sheep losses, valued at 16 $293,000, were non-predator related. Predators, primarily coyotes and cougars, killed an 17 estimated 2,500 cattle and calves worth $1.53 million and 2,300 sheep and lambs worth 18 $192,000. 19 58. In the fall, livestock owners gather up the livestock that has survived the 20 summer, shipping most off to feedlots or slaughter, and returning the breeding stock to private 21 land. According to the Plan, Washington public lands have 3.36 million acres set aside in 1,333 22 active grazing leases, with most on national forest lands. Overall, grazing occurs on about one- 23 24 25 26 See National Agricultural Statistics Service, Sheep, Incl. Lambs - Gross Income, Measured in $, Quick Stats, http://tinyurl.com/y7ovmx4n. 5 6 Compare National Agricultural Statistics Service, Sheep, Incl. Lambs - Gross Income, Measured in $, Quick Stats, http://tinyurl.com/y7ovmx4n, with Washington State Dep’t of Revenue, Gross Business Income, Statistics & Reports, http://tinyurl.com/yacpe9ct. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 19 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 quarter of state and national lands managed by the U.S. Forest Service, the U.S. Bureau of 2 Land Management, the Washington Department of Natural Resources, and WDFW; with the 3 highest incidence of public land grazing occurring in Colville National Forest, where more 4 than 50% of the land is leased to livestock owners. In 2018, livestock owners pay $1.41 per 5 month for each cow and calf that they graze on U.S. Forest Service lands. 6 59. Although significant portions of the Plan are devoted to concerns about effects 7 on livestock owners, it correctly anticipated that wolves would be responsible for killing very 8 small numbers of livestock. When the population reached about 100 wolves, WDFW predicted 9 that wolves would kill between 2 and 12 cattle a year, valued at between $1,338 and $16,056, 10 and between 14 and 35 sheep a year, valued at $1,920 to $4,795. When the population reached 11 300 wolves, the Plan anticipated that wolves would kill between 12 and 67 cattle each year, 12 which would amount to less than 0.15% of total cattle losses, valued at $8,028 to $89,646 a 13 year; and between 22 and 92 sheep, which would be less than 1.8% of total losses, valued at 14 $3,010-$12,600. The Plan also noted that wolves may benefit some livestock operations by 15 reducing the abundance of coyotes, which are responsible for 40% of confirmed calf death 16 losses and 71% of lamb death losses to predators. 17 60. The Plan’s predictions have been roughly accurate. Between 2013 and 2017, 18 when the wolf population had between 51 and 122 wolves, WDFW confirmed that wolves 19 killed a total of 27 cattle, or an average of 5.4 a year, and 28 sheep, or an average of 7 a year. 20 E. 21 WDFW Immediately Deviates from Plan to Eliminate the Wedge Pack 61. WDFW started killing wolves less than a year after adopting the recovery Plan, 22 targeting the Wedge Pack for elimination in 2012. WDFW killed seven of the eight members 23 of the Wedge Pack, eliminating one of only eight confirmed packs in the state at the time, and 24 killing 14% of the state’s endangered wolf population. 25 26 62. WDFW eliminated the Wedge Pack at the behest of Diamond M Ranch, a livestock producer that has consistently refused to cooperate with WDFW in implementing FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 20 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 non-lethal conflict-prevention measures, as required by the Plan, preferring to take losses from 2 its herds and to demand that the state respond by eliminating the pack. In public statements to 3 the media, representatives of the Diamond M Ranch have made clear their hatred for wolves, 4 and disdain of government agencies and conservation efforts. 5 63. Many objected that these actions failed to adhere to the Plan that had just been 6 adopted. For example, on September 28, 2012, Sen. Kevin Ranker, the Chair of the 7 Washington State Senate Committee on Energy, Natural Resources and Marine Waters, sent a 8 letter to WDFW, indicating that the destruction of the entire Wedge Pack represented a “serious 9 failure,” and called on WDFW to take steps to ensure that it was not repeated. Sen. Ranker 10 noted that while he was “gratified that numerous ranchers and other residents of northeast 11 Washington have worked tirelessly with [WDFW] to avoid wildlife conflicts,” he was 12 concerned by the high number of attacks on “certain ranches” that refused to participate in 13 prevention efforts. Wrote Ranker: “I fear that the Department’s actions in the Wedge will be 14 viewed by some who do not support wolf recovery as setting a precedent that localized public 15 pressure can dictate wolf plan implementation, including lethal removal decisions.” 16 F. 17 WDFW Develops First “Protocol” and Kills Members of Huckleberry Pack 64. Following the elimination of the Wedge Pack, seven environmental 18 organizations filed administrative petitions requesting that WDFW go through rulemaking to 19 adopt regulations on when it could kill endangered wolves. WDFW refused. Instead, the 20 Commission granted WDFW’s request to use an informal “protocol” and “flowchart” to guide 21 its considerations for lethal removal, so it could retain “flexibility” in making these decisions. 22 As a proxy for public involvement, the Commission decided WDFW would informally consult 23 the WAG for nonbinding input on its protocols, and hired an independent facilitator to revisit 24 the responsibilities of the WAG and coordinate WAG meetings. After extensive meetings with 25 the facilitator that focused on the importance of process, developing relationships, and 26 consensus, the WAG agreed to a “sufficient consensus” model, whereby each of the members FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 21 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 of the WAG would agree to publicly support the group’s decisions, even if they did not agree 2 with them. 3 65. None of WDFW’s “protocols” that WDFW subsequently developed in 2014, 4 2016 and 2016 to guide its wolf killing program were subjected to rulemaking, formal public 5 review and comment, outside scientific assessment, or a SEPA environmental impact 6 determination. 7 66. On January 1, 2014, WDFW released the “Protocol for Lethal Removal of Gray 8 Wolves in Washington During Recovery” (“2014 Protocol”) which it noted was “intended as 9 advisement to WDFW.” The 2014 Protocol largely attempted to parrot the Plan, including its 10 11 statement that the purpose of lethal removal was to kill “offending wolves.” 67. The 2014 Protocol indicated WDFW would consider killing wolves when there 12 had been between two and four livestock predations over a four-month time period, requiring 13 that only one of those predations be a confirmed kill by a wolf, while the others could be 14 suspected wolf attacks and injuries. The 2014 Protocol also provided that WDFW could extend 15 the four-month time period to six months if it determined that predations had been “chronic or 16 excessive.” 17 68. Prior to killing wolves, the 2014 Protocol advised that WDFW should confirm 18 that “essential non-lethal measures consistent with the Livestock-Wolf Mitigation Checklist” 19 and the Plan “have been tried but failed to resolve the conflict, depredations are likely to 20 continue, and there is no other evidence of intentional feeding or unnatural attraction of wolves 21 by the livestock producer.” 22 69. Following the release of the 2014 Protocol, WDFW targeted the Huckleberry 23 Pack for elimination, and succeeded in killing one wolf. WDFW targeted the pack in order to 24 protect sheep belonging to a producer who had refused to cooperate with WDFW, and who left 25 his sheep largely unsupervised to widely disperse in rugged, steep terrain in the middle of the 26 Huckleberry Pack’s territory. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 22 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 G. 2 U.S. Wildlife Services Enjoined from Participating in WDFW Wolf Kills Due to Lack of Appropriate Environmental Review 70. In March 2015, four environmental organizations filed suit against U.S. 3 Wildlife Services, alleging that it failed to do the proper review under the National 4 Environmental Policy Act (“NEPA”) before contracting with WDFW to kill members of the 5 Huckleberry Pack. The suit challenged Wildlife Services’ final Environmental Assessment for 6 Wolf Damage Management in Washington, in which Wildlife Services made a Finding of No 7 Significant Impact, authorizing Wildlife Services to contract with WDFW to kill wolves in 8 eastern Washington. 9 71. The federal district court in Tacoma granted summary judgment in favor of the 10 plaintiffs in December 2015, finding that Wildlife Services had failed to take the required “hard 11 look” at the likely effects of lethal wolf removal on gray wolf populations and their ecosystems. 12 Cascadia Wildlands v. Woodruff, 151 F. Supp. 3d 1153, 1164-67 (W.D. Wa. 2015). The court 13 found that Wildlife Services could not rely on the EIS and Plan to kill wolves at the behest of 14 WDFW. In particular, the court found that the Plan was not specific about when lethal versus 15 non-lethal removal should be used, and did not specify the protocols to be used. It also found 16 that the Plan was nonbinding and subject to changes or additions by WDFW. The court found 17 that Wildlife Services was required by NEPA to conduct an Environmental Impact Statement 18 because its actions killing wolves in Washington on behalf of WDFW were likely to be highly 19 controversial and the effects were highly uncertain, particularly given the dispute within the 20 scientific community regarding whether lethal wolf removal actually reduced livestock 21 predation. The court also found that Wildlife Services had failed to consider the cumulative 22 impact on wolf conservation and population management. It ordered that Wildlife Services 23 stop participating in actions to kill wolves in Washington until and unless it completed the 24 required Environmental Impact Statement. 25 H. Increasing Number of Studies Show Lethal Control is Not Effective 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 23 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 72. At the same time that WDFW was developing a new protocol to kill wolves, 2 there was a wave of new scientific research that challenged the efficacy of lethal control 3 policies, and found that non-lethal measures were both cheaper and more cost-effective at 4 stopping predations. WDFW at best ignored, and at worst, actively tried to suppress, this 5 research. 6 73. In 2013, a policy review was published that challenged the last 100 years of 7 government policy of lethal control of wildlife to benefit livestock producers, finding that the 8 policy damaged the ecosystem and was ineffective at reducing predation in the long term, and 9 recommending that government agencies cease all lethal control in federal wilderness areas, 10 and instead train livestock producers in non-lethal control methods. Bradley J. Bergstrom, et. 11 al., License to Kill: Reforming Federal Wildlife Control to Restore Biodiversity and Ecosystem 12 Function, 7 CONSERVATION LETTERS 131, 142 (2014). 13 74. On May 1, 2014, a study was published comparing the costs of lethal and non- 14 lethal predator management, and finding that non-lethal mitigation can reduce predation and 15 can be economically advantageous compared to lethal methods of predator control. J.S. 16 McManus, et. al., Dead or Alive? Comparing Costs and Benefits of Lethal and Non-Lethal 17 Human-Wildlife Conflict Mitigation on Livestock Farms, FAUNA & FLORA INTERNATIONAL 1 18 (2014) (the “McManus Study”). 19 75. On May 2, 2014, a study was published questioning the assumption that 20 intolerance for predators, including wolves, was tied to perceived threats to livelihoods, such 21 as from livestock owners. The study suggested illegal poaching of predators was more 22 influenced by social factors, and that negative attitudes that led to poaching may be reinforced, 23 rather than decreased, by government-sanctioned predator killing. Adrian Treves and Jeremy 24 Bruskotter, Tolerance for Predatory Wildlife, 344 Science 476, 476-77 (2014). 25 26 76. In 2014, under contract with WDFW, Western Wildlife Outreach prepared an annotated scientific literature review that annotated over 50 peer-reviewed papers related to FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 24 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 the topic of reducing and avoiding conflicts livestock and wolves. The report includes 2 extensive recommendations as to measures that it determined would be most effective in 3 Washington, and is available on WDFW’s website. 7 The consensus of these studies was that 4 nonlethal methods, when used appropriately, provide the best method for reducing and 5 avoiding wolf-livestock conflict. The research found that livestock were a secondary prey 6 source for wolves, and were killed opportunistically when they were encountered. Specifically, 7 it observed that researchers had demonstrated that livestock proximity to den location 8 correlated with higher wolf predations, and recommended management strategies to move 9 livestock away from wolf core areas, especially denning and rendezvous areas. The primary 10 finding of the Western Wildlife Outreach literature review was that site and operational factors 11 needed to be considered for each individual livestock operation in order for non-lethal 12 deterrents to be effectively deployed. 13 77. On October 29, 2014, the University of Washington co-hosted a discussion 14 panel with the Pacific Wolf Coalition, which brought together scientists from around the 15 country. 8 Several members of the Commission, WDFW employees, and elected officials 16 attended the October 2014 symposium, and WDFW Wolf Policy Lead Donny Martorello spoke 17 at the opening of the panel, describing the status of wolves in Washington. Dr. Robert Wielgus, 18 director of WSU’s Large Carnivore Conservation Lab, discussed his recent study, which found 19 that there was a 5% increase in predation for both cattle and sheep for every wolf that was 20 killed. Dr. Douglas Smith, from Yellowstone National Park, concluded that killing wolves 21 reduces social cohesion in packs and causes wolves to disperse, and that dispersing wolves and 22 smaller packs are more likely to hunt livestock. Dr. Adrian Treves, from the University of 23 24 25 26 L. Smith and J. Hutchinson, Living with Livestock & Wolves, Wolf-Livestock nonlethal Conflict Avoidance: A review of the Literature, available at https://wdfw.wa.gov/conservation/gray_wolf/livestock/wolf_livestock_conflict_avoidance_literature_review_1 1_2014_final_submitted_version.pdf. 7 8 A video of the panel is available at http://www.pacificwolves.org/videos/. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 25 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 Wisconsin-Madison, discussed his studies that found that lethal removal actions in Michigan 2 actually shortened the period between subsequent predations. 3 78. Based on the panel discussion, a subsequent white paper concluded that the 4 WAG would benefit from regular consultation with outside scientists, and might consider 5 expanding its membership to include at least one wolf researcher. The white paper further 6 suggested that Washington should rethink how lethal control was implemented, including 7 focusing on time and location recommendations for decreasing the impact of lethal removal, 8 and making it mandatory for livestock owners to implement site-specific conflict prevention 9 plans before lethal control is undertaken. 10 79. On December 3, 2014, Wielgus published “Effects of Wolf Mortality on 11 Livestock Depredations” (“Wielgus Study”), following review by WDFW, which had funded 12 the research. The Wielgus Study assessed the effects of wolf mortality on reducing livestock 13 predations in Idaho, Montana, and Wyoming from 1987 to 2012, and found that, contrary to 14 expectations, increased wolf mortality was positively associated with an increase in predations 15 the following year. The trend continued with a 5 to 6% increase in cattle predations for every 16 wolf killed, until wolf mortality exceeded the wolf population growth rate of 25%—a level 17 that was unsustainable for continued wolf populations. Wielgus indicated that one reason for 18 the link between wolf killing and livestock predation might be that killing wolves caused pack 19 instability, which caused the dispersal of wolves and allowed for an increase in the number of 20 breeding pairs. 21 80. The Wielgus Study was heralded nationwide as a significant advance in the 22 understanding of the effects of lethal control. For example, National Geographic reported that 23 the Wielgus Study “flies in the face of the common idea that the swiftest and surest way to deal 24 with wolves threatening livestock is by shooting the predators,” and “adds to a growing 25 understanding of how humans influence the complex dynamics driving these pack animals, 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 26 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 sometimes with unexpected consequences.” 9 2 81. Wielgus’s 2014 paper also provoked furious backlash from those who wanted 3 to see WDFW continue killing wolves. In a December 3, 2014 New York Times article, a 4 spokesperson for the Stevens County Cattlemen’s Association said the study was “shameful” 5 and “not clean science,” and accused it of having a predetermined pro-wolf conclusion because 6 it was funded by WDFW. 10 As a result of pressure from Rep. Joel Kretz over the study, WSU 7 stopped publicizing Wielgus’s work, and ultimately agreed with Kretz and WDFW to take 8 Wielgus’s name off of WSU’s continuing grants for wolf research in exchange for continued 9 funding. Following a demand by Kretz that Wielgus be investigated for scientific misconduct, 10 however, WSU ultimately refused. After an independent review of Wielgus’s research by the 11 director of the Center for Interdisciplinary Statistical Education and Research, the university 12 concluded there was “no evidence of research misconduct.” 13 82. Although Wielgus had regularly appeared before the WAG, WDFW and the 14 legislature to discuss the ongoing research that WDFW was funding on interactions between 15 wolves and livestock, after the Wielgus Study was published, he was not invited back. 16 83. Instead of asking Wielgus to discuss the research that WDFW had funded, on 17 September 25, 2014, WDFW invited Elizabeth Bradley from Montana Fish, Wildlife and Parks 18 to speak to the WAG. Bradley described the results of a forthcoming study, which she said 19 found that removal of entire packs would decrease predations for a while, but that partial pack 20 removal was not effective. On July 6, 2015, Bradley published the article that she had 21 previewed for the WAG (“Bradley Study”). It looked at statistics from Montana, Idaho, and 22 Wyoming from 1989 to 2009, to study the effects on predation of no action, partial pack 23 24 25 26 Warren Cornwall, Why Killing Wolves Might Not Save Livestock, National Geographic, Dec. 3, 2014, http://news.nationalgeographic.com/news/2014/12/141203-wolves-hunting-livestock-ranchers-endangeredspecies-environment/ 9 Kirk Johnson, Study Faults Efforts at Wolf Management, New York Times, Dec. 3, 2014, https://www.nytimes.com/2014/12/04/us/washington-state-study-faults-efforts-at-wolf-management.html. 10 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 27 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 removal, and full pack removal. Bradley found that killing entire packs significantly reduced 2 predations in a localized area. She found that partial pack removal was somewhat more 3 effective than no action if performed within the first seven days of a predation, but after that 4 time, there was only a marginal difference, with no difference at all if it was conducted after 5 14 days following a predation. Her study did not examine whether any difference that she 6 detected was due to the increased human presence that came with partial pack removal, or 7 whether there would have been the same, or a more significant, decrease in predations if non- 8 lethal deterrents were used. In an interview on January 25, 2016, Bradley emphasized her 9 opinion that removing “one [wolf] here and one there” was ineffective, and that it was better 10 to immediately kill entire packs in response to predations. 11 11 84. On January 1, 2016, researchers in Italy published a study that examined why 12 wolves predated on livestock, and found that the rate of predation was decreased by the 13 presence of stable packs, instead of dispersing wolves; the adoption of non-lethal preventative 14 measures by livestock owners; and the availability of other prey. The research suggested that 15 wolf management focus on increasing prey abundance and non-lethal deterrents in lieu of using 16 lethal controls. Camille Imbert, et. al., Why Do Wolves Eat Livestock? Factors Influencing 17 Wolf Diet in Northern Italy, 195 BIOLOGICAL CONSERVATION 156, 156-68 (2016). 18 85. On May 11, 2016, Adrian Treves and Guillaume Chapron published a study 19 examining the hypothesis used by many wolf management programs that state-sponsored wolf 20 culls were necessary to control poaching and improve public acceptance of wolf populations. 21 Looking at wolf populations and policy in Wisconsin and Michigan, they found state lethal 22 control actually increased poaching and decreased social acceptance of wolves. The authors 23 wrote: “When the government kills a protected species, the perceived value of each individual 24 of that species may decline. Liberalized wolf culling may have sent a negative message about 25 26 Andy Walgamott, Another ‘Counterintuitive’ Study on Wolf Depredations, Northwest Sportsman Magazine, Jan. 25, 2016, http://nwsportsmanmag.com/wolf-news/another-counterintuitive-study-wolf-depredations/. 11 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 28 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 the value of wolves or that poaching prohibitions would not be enforced.” Adrian Treves & 2 Guillaume Chapron, Blood Does Not Buy Goodwill: Allowing Culling Increases Poaching of 3 a Large Carnivore, 283 PROC. R. SOC. B 1, 5 (2016) (“Chapron/Treves Study”). 4 86. Treves co-authored another study published on September 1, 2016, which 5 surveyed the scientific literature to date, and found there was little evidence that killing 6 predators accomplishes the goal of protecting livestock. Treves found that the studies of non- 7 lethal methods of control applied higher standards of evidence than the tests of lethal predator 8 control, and that “non-lethal methods were more effective than lethal methods in preventing 9 carnivore predation on livestock generally” and were not shown to have any negative effects, 10 while studies showed that both government culling and public hunting “were followed by 11 increases in predation on livestock.” Adrian Treves, et al., Predator Control Should Not Be a 12 Shot in the Dark, 14 FRONTIERS IN ECOLOGY & ENV’T 380, 380 (2016) (“Treves Study”). The 13 Treves Study recommended suspending lethal predator control methods until tests were 14 completed that showed that they had effectiveness in preventing livestock loss. 15 87. Once again, this study was recognized as bringing an important shift to wolf 16 management programs. National Geographic proclaimed that “The Case for Mass Slaughter 17 of Predators Just Got Weaker,” specifically mentioning that the Treves Study challenged 18 WDFW’s rationale for authorizing the removal of the Profanity Peak Pack in order to decrease 19 wolf predation. 12 The article quoted Doug Smith, a senior wildlife biologist with Yellowstone 20 National Park, who said the Treves Study filled a gap in the understanding of lethal control 21 methods and it was “about time that lethal and nonlethal control had a critical evaluation.” 22 Smith also pointed out that it would be difficult to persuade livestock owners to shift away 23 from lethal control because it was a quick and easy fix with short-term results. 24 25 26 Jani Actman, The Case for Mass Slaughter of Predators Just Got Weaker, National Geographic¸ September 1, 2016, http://news.nationalgeographic.com/2016/09/wildlife-lethal-nonlethal-predator-control-hunting-evidence/. 12 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 29 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 88. In February 2017, the Journal of Mammalogy published a special feature 2 presenting data showing that “nonlethal methods of preventing depredation of livestock by 3 large carnivores may be more effective, more defensible on ecological, legal, and wildlife- 4 policy grounds, and more tolerated by society than lethal methods.” Bradley J. Bergstrom, 5 Carnivore Conservation: Shifting the Paradigm From Control to Coexistence, 98 JOURNAL OF 6 MAMMALOGY 1, 1 (2017). The special feature included a study based on seven years of 7 research on non-lethal deterrence measures to protect sheep herds in Idaho, which found that 8 sheep losses were 3.5 times higher in areas that did not use the deterrence measures, and that 9 when deterrence measures were used without killing wolves, sheep predation losses decreased 10 to just 0.02% of the total sheep present, the lowest loss rate statewide. Suzanne Stone, et al., 11 Adaptive Use of Nonlethal Strategies for Minimizing Wolf-Sheep Conflict in Idaho, 98 12 JOURNAL OF MAMMALOGY 33, 33 (2017). The special issue also included a study of predator 13 control in Australia, which found that “ending lethal control may in itself reduce livestock 14 losses by enabling the predator’s social structure to stabilize,” and a study related to the hunting 15 of wolves in Michigan, which found that hunting did not reduce threats to livestock or human 16 safety, or meet any standards for wildlife management. Arian D. Wallach, et al., Cattle 17 Mortality on a Predator Friendly Station in Central Australia, 98 JOURNAL OF MAMMALOGY 18 45, 45 (2017); John A. Vucetich, et al., Evaluating the Principles of Wildlife Conservation: a 19 Case Study of Wolf (Canis Lupus) Hunting in Michigan, United States, 98 JOURNAL 20 MAMMALOGY 53, 53 (2017). 21 89. OF WDFW willfully ignored the mounting research demonstrating that killing 22 wolves would not help it to either achieve conservation goals or limit livestock losses. 23 Although it had funded the Wielgus Study, and reviewed it before publication, after it saw the 24 backlash from livestock producers, it pretended the study did not exist. Under increasing 25 pressure to take the developing science into account, the Commission eventually directed 26 WDFW to prepare a “science panel” at a Commission hearing to discuss wolf management. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 30 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 However, WDFW refused requests to ask an independent third party to empanel experts for 2 the presentation, to produce a white paper that would be subject to peer review, or to allow 3 public and expert comment on WDFW’s conclusions. 4 90. Instead, WDFW staff, led by Martorello, gave a science presentation on 5 February 10, 2017 that included no input from third-party experts (“February 2017 Panel”). 6 Although the posted minutes from this Commission meeting indicate that WDFW staff briefed 7 the Commission on “the body of wolf science,” in fact the February 2017 Panel only reported 8 on six studies. Dozens of relevant studies, including many mentioned above, were missing 9 from the discussion. Most notably, the February 2017 Panel ignored substantial research that 10 WDFW had funded, and which was contemplated by the Plan as essential: there was no 11 mention of any of the intensive work WDFW had funded through the WSU Large Carnivore 12 Lab, including the Wielgus Study, or of the comprehensive literature review and 13 recommendations on wolf-livestock conflict avoidance that Western Wildlife Outreach had 14 performed under contract with WDFW. 15 91. Nevertheless, the February 2017 Panel did consider some studies that caused 16 WDFW to acknowledge the need to reevaluate its program. During the panel, Martorello gave 17 a presentation on the Chapron/Treves Study, which upended the old conventional (but 18 unsupported) wisdom that state-sponsored lethal control was necessary to maintain social 19 tolerance of wolves. Martorello said the study compelled WDFW to question the goal of lethal 20 removal: “Is it tolerance? Is it to minimize reoccurring depredations? What is it? Where do we 21 have the science to back up what that goal is?” Martorello also discussed the Treves Study, 22 which found the research supporting the effectiveness of lethal control was so substandard it 23 did not support current policies. Based on this study, he similarly concluded that WDFW 24 needed to “really hone in” on its objective for lethal removal. 25 I. WDFW Issues 2016 Kill Protocol 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 31 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 92. Unfortunately, WDFW has refused to this day to conduct the reevaluation of its 2 policies that Martorello conceded was necessary during the February 2017 Panel. Instead, 3 WDFW has continued its wolf killing program under the guise of new protocols, which shift 4 the justification for killing wolves farther and farther away from the purposes contemplated by 5 the Plan. 6 93. On May 31, 2016, WDFW issued a new “Protocol for consideration and 7 implementation of lethal removal of gray wolves during recovery to stop wolf depredation on 8 livestock” (“2016 Protocol”). WDFW ignored objections from some members of the WAG in 9 releasing the 2016 Protocol, falsely proclaiming that the WAG had unanimously agreed to 10 support the protocol, and that it thus “represents input and considerations from numerous 11 individuals representing Department staff, livestock, producer, environmental, and hunter 12 interests.” The 2016 Protocol provided that WDFW may kill wolves to stop predations on 13 livestock if it had documented: 14 15 16 1) four or more confirmed wolf predation events within a calendar year, or six or more within two consecutive years; 2) at least one confirmed predation resulted in the death of livestock; 18 3) the producer had used proper sanitation procedures to remove carcasses that would attract wolves, as well as one proactive non-lethal deterrent measure that had been in place a sufficient amount of time prior to a confirmed predation; 19 4) WDFW expects predations to continue; and 20 21 5) WDFW has notified the public of the chronology of events leading to the kill order, including all confirmed wolf predations and the non-lethal deterrence measures that had been used. 22 94. 17 The 2016 Protocol shifted away from the purposes of lethal control in the Plan 23 and EIS. Instead of targeting “problem wolves” to secure “social tolerance,” the 2016 Protocol 24 indicated that it aimed to “stop depredations from continuing in the near future.” The 2016 25 Protocol stated that the objective of killing wolves was to “stop livestock depredations by 26 removing as few wolves as possible,” and that ideally WDFW would start out with killing just FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 32 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 one or two wolves, then progress to partial pack removal, before making a decision to kill the 2 entire pack. However, it noted that WDFW “has full discretion on how many wolves to 3 remove.” 4 95. The 2016 Protocol did not undergo any outside scientific assessment, and 5 WDFW did not conduct any analysis of whether lethal control would be effective at reducing 6 livestock predations. Nor did it weigh the effectiveness of lethal versus non-lethal control after 7 predations occurred; look at the effects of lethal control on wolf ecology, reproduction and 8 pack dynamics; examine whether killing wolves decreased social tolerance for them; analyze 9 the importance of keeping livestock away from core wolf areas such as den or rendezvous sites; 10 or consider whether there should be different thresholds for killings wolves on public versus 11 private lands. 12 J. 13 WDFW Targets Profanity Peak Pack for Destruction 96. In August 2016, WDFW once again targeted an entire wolf pack for 14 extermination at the behest of the Diamond M Ranch, against the recommendations of WSU 15 wildlife biologists who were working with wolves and livestock in that area. WDFW all but 16 destroyed the Profanity Peak Pack by killing seven of its 11 wolves, or about 10% of the state’s 17 confirmed wolf population at the time. Once again, Diamond M had refused to use effective 18 deterrent measures and declined the state’s offer to compensate it for its losses. But this time, 19 the evidence also shows that Diamond M had knowingly provided an “unnatural attraction” to 20 the wolves, by placing salt blocks for its livestock within 200 yards of the wolf den, and leaving 21 them there for several weeks after it knew the salt blocks were causing its cattle to swarm 22 around the den location. WDFW records indicate the salt blocks were only moved because 23 WDFW had placed traps near the den to kill wolves, and was afraid the cattle milling around 24 the den would get caught by them. 25 26 97. In 2014, the Profanity Peak Pack was first documented in the area of a 30,000- acre tract of remote and rugged land in the Colville National Forest where Diamond M grazes FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 33 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 its cattle. In the spring of 2016, the pack was estimated to consist of six adult wolves, including 2 a successful breeding pair, and five new pups. Earlier that year, the female wolf in the 3 Profanity Peak Pack that WDFW had outfitted with a radio collar had left the pack and paired 4 with a male to form the new Sherman Pack. This temporarily left WDFW without a collared 5 wolf in the Profanity Peak Pack, but on June 9 and 12, WDFW captured and collared an adult 6 male and an adult female belonging to the pack. 7 98. Diamond M turned its cattle out onto its grazing allotment between June 8 and 8 10, 2016, at which time the current den site of the Profanity Peak Pack was unknown. By the 9 end of June, however, WDFW had confirmed the pack’s den site. WDFW was aided in this 10 determination by a team of WSU researchers, who were in the area researching cattle-wolf 11 interactions, and monitoring both collared wolves and collared cattle from cooperating ranches. 12 According to the Seattle Times, WDFW informed Diamond M of the den site almost 13 immediately, while Diamond M independently found the den site at almost the same time. 13 14 99. Through the WSU research team, WDFW also knew by the end of June that the 15 Profanity Peak den was within 200 yards of where Diamond M had placed salt blocks for its 16 cattle, causing cattle to congregate in the immediate vicinity of the den and a nearby 17 rendezvous site. WSU cameras filmed the wolves and their pups frolicking in the area next to 18 the den within days, hours, and sometimes even minutes of cattle traversing the same path in 19 search of the salt. 14 A WGU graduate student wrote in his thesis that “everywhere [the 20 Profanity Peak] wolves went there were cattle,” and noted that the pack started to kill cattle 21 only after the cattle had been overwhelming its den and rendezvous site for days. 22 23 24 25 26 13 Lynda V. Mapes, A War Over Wolves: Outspoken Researcher Says His University and Lawmakers Silenced and Punished Him, Seattle Times, http://projects.seattletimes.com/2017/wsu-wolf-researcherwielgus/?utm_source=email_share&utm_medium=email&utm_campaign=projects. 14 See https://www.youtube.com/watch?v=9umv3j1yBP4. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 34 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 100. Despite their knowledge of this proximity, however, neither WDFW nor 2 Diamond M took any steps to move the salt blocks, to move the cattle, or to deploy more people 3 to watch the cattle. At the time, Diamond M staff only checked on the cattle a couple of times 4 a week. 5 101. On July 8, 2016, a WDFW staff member found a dead calf belonging to 6 Diamond M, and WDFW confirmed that the calf had been killed by wolves. Following the 7 first predation, Wielgus, who was leading the WSU team, called Martorello multiple times to 8 urge him to take action to have the salt blocks removed before they created further conflict. 9 Yet the salt blocks stayed in place. 10 102. In its final report on the Profanity Peak operation, released on January 12, 2017, 11 WDFW said that following the first predation, it reviewed Diamond M’s procedures and found 12 that they met the expectations for “proactive deterrence measures” under the 2016 Protocol. 13 This finding did not mention the fact that Diamond M had turned its cattle out onto a vast and 14 rugged landscape with virtually no supervision, had kept salt blocks in the immediate area of 15 the wolf den, and had taken no action to herd its cattle away from the den. 16 103. Instead, WDFW maintained that it had determined that Diamond M had met the 17 criteria for proactive deterrence measures because it had waited to turn out its calves until they 18 were over 200 pounds and less vulnerable. But WDFW knew this was not true. In an internal 19 email written on July 15, 2016, Martorello indicated that Diamond M’s calves were “early 20 born, so calf weights at turnout were generally at or above 200 lbs.,” but admitted that “some 21 calves were below this weight.” The reports from WDFW’s predation investigations show that 22 many of the Diamond M calves killed by wolves throughout July were just around, or even 23 below, 200 pounds, even after they had been grazing for four to six weeks. 24 104. In the chronology of events maintained on its website, WDFW also maintained 25 that Diamond M had satisfied the 2016 Protocol’s “sanitation requirement” by allowing 26 WDFW to remove the calf carcass it had found on July 8, 2017. But, as Martorello FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 35 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 acknowledged in a phone conversation, removing carcasses after a predation is not the 2 proactive sanitation the protocol envisioned, which requires livestock owners to remove 3 carcasses of livestock that have died from any cause in order to not attract wolves in the first 4 place. WDFW was vague when asked whether carcasses of other cows and calves were 5 regularly removed from the allotment, which it described as “dense and rugged,” with only 6 one road access point. 7 105. WDFW also reported that the ranch had staff on the allotment about twice a 8 week, and that Diamond M was arranging for some additional hands to help monitor its herds. 9 In the chronology of events, WDFW reported that Diamond M had hired two additional people 10 to patrol the range by “horseback and/or foot.” However, it told the WAG on September 2, 11 2016, that these people were just attempting to navigate the 30,000-acre parcel on foot. WDFW 12 did not make clear how often these people were present, or whether they were there to deter 13 wolves, or just to move cattle around the allotment. 14 106. Finally, WDFW reported in its chronology that a single range rider was 15 deployed onto the 30,000-acre allotment on July 12, 2016. But there was also no indication 16 that a single range rider was able to create any significant human presence in the vast territory. 17 To the contrary, it appears the range rider was not monitoring the herd very closely, because 18 the vast majority of dead cattle were found by WDFW staff, not by the range rider or ranch 19 staff. Indeed, WDFW records indicate WDFW staff were directed to monitor GPS data point 20 clusters from the collared wolves to attempt to discover more dead cattle, rather than using the 21 collar information to try to prevent conflicts. 22 107. Between July 12 and July 23, there were one additional confirmed and three 23 additional probable wolf predations of Diamond M cattle, and one confirmed predation of 24 another livestock owner’s cattle on a nearby grazing allotment. On August 3, WDFW reported 25 the fourth and fifth confirmed cattle deaths, both Diamond M calves. WDFW responded by 26 directing a “partial pack removal,” authorizing up to two adults and three pups of the Profanity FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 36 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 Peak Pack to be killed. On August 5, a helicopter sharpshooter shot and killed two adult female 2 wolves, including the pack’s breeding female. 3 108. Diamond M’s range rider finally moved the salt blocks away from the wolf den 4 on August 8, 2016—more than five weeks after the location of the wolf den was known, a 5 month after the first calf was found dead, and three days after WDFW started killing Profanity 6 Peak wolves. Indeed, WDFW only asked Diamond M to move the salt block after it started 7 trapping wolves—in part because WDFW was worried that the traps would catch cattle instead. 8 However, WSU researchers observed that even after the salt blocks were removed, the cattle 9 continued to return to the area to search for them and to lick salt on the ground, and Diamond 10 11 M took no action to move them away from the den to another pasture within the allotment. 109. Meanwhile, WDFW conducted additional trapping and hunting operations 12 through August 18, but was unable to kill more wolves due to difficulties with the rugged 13 terrain and heavy timber. After 16 days passed without another cattle predation, WDFW 14 suspended the kill order on August 18. 15 110. On August 19, WDFW documented two confirmed and two probable wolf 16 predations, all of Diamond M calves. In response, WDFW issued an order to kill all the 17 remaining nine wolves in the Profanity Peak Pack. Over the next two days, helicopter gunners 18 killed two adult males and a female pup, and mortally wounded an adult female. WDFW 19 reported in an email advisory that a wolf had been shot but her body could not be found, yet 20 assured the public that she had been humanely killed. However, the mortally wounded female 21 wolf was found three days later dragging her legs, and was only then put out of her misery. 22 111. WDFW confirmed additional predations on August 31, September 27, and 23 October 3, bringing the total to ten confirmed and five probable predations. WDFW killed an 24 adult male wolf on September 28, bringing the total number of dead wolves to seven. WDFW 25 continued unsuccessfully to try to kill the remaining four members of the pack through October 26 19, using helicopter and ground operations and hiring a local trapper. It suspended the killing FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 37 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 operation on October 19, because most of the cattle had been moved off the national forest 2 lands. One adult female and three pups escaped WDFW’s sharpshooters, although biologists 3 speculated that with the pack decimated, the three pups might have died of starvation. By 2017, 4 WDFW indicated that the Profanity Peak Pack had disappeared. WDFW spent at least 5 $134,999 in its efforts to exterminate the Profanity Peak Pack. 6 K. 7 WDFW Hides the Facts of its Profanity Peak Operation 112. While feigning openness, WDFW worked hard to obscure the facts throughout 8 the Profanity Peak kill operation, avoiding direct answers, telling a series of half-truths, and 9 facilitating attacks on a scientist who revealed the facts it was trying to hide. As described 10 above, WDFW had issued a number of false and misleading statements about Diamond M’s 11 supposed “deterrence measures.” In addition, WDFW went to great lengths to hide information 12 about the salt blocks, their proximity to the wolf den, and what it had known about this issue 13 at the time of the predations. 14 113. At various times, WDFW claimed it did not know the location of the pack’s den 15 until the end of summer. However, in a September 2, 2016, email update on the Profanity Peak 16 operation, Martorello informed the WAG that WDFW knew by the end of June that the 17 Profanity Peak den was four to five miles from the cattle turnout area, and that “as cattle 18 continued to disperse through the allotment they inevitably crossed paths with the den site and 19 later with rendezvous sites.” Martorello further advised that: “In one situation, the wolf 20 rendezvous site overlapped with part of the normal grazing path, where livestock were 21 concentrated with the use of salt blocks. Once that overlap was detected, the Department 22 contacted the producer, who removed the salt blocks from the area.” WDFW did not disclose, 23 to either the public or the WAG, that (1) the salt block was actually within 200 meters of the 24 den; (2) it knew of this proximity by the end of June; (3) wolves only started killing cattle after 25 the salt caused cattle to congregate at the den; and (4) neither WDFW nor the producer took 26 any action to move the salt or the cattle until the kill order was already being implemented. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 38 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 114. The location of the salt blocks only became public knowledge because it was 2 exposed by WGU Professor Rob Wielgus. In an interview with the Seattle Times on August 3 25, 2016, about the Profanity Peak situation, Wielgus said, “This livestock operator elected to 4 put his livestock directly on top of their den site; we have pictures of cows swamping it, I just 5 want people to know.” 15 Wielgus said that it was both “predictable and avoidable” that the 6 Profanity Peak Pack would start killing cattle after the cattle were left to mill around its den 7 site. 8 115. The comment provoked another intense backlash. Rep. Kretz told the Seattle 9 Times that Wielgus “ought to be drawn and quartered and a chunk of him left everywhere in 10 the district.” 16 Martorello contacted WSU and dictated text for a press release issued on 11 August 31, 2016. The press release “disavowed” Wielgus’s statements to the Seattle Times, 12 called them “inaccurate and inappropriate,” and falsely claimed that Wielgus had 13 “subsequently acknowledged” that the statements “had no basis in fact.” 17 Although he helped 14 write the statement, Martorello refused WSU’s request for WDFW to release it jointly. 15 116. Nevertheless, Martorello referenced and linked to WSU’s statement in an email 16 to WAG members that he sent out two days later, in order to “make sure” the WAG members 17 were aware of the development. Meanwhile, Wielgus made no further comments because he 18 had been forbidden by WSU from having any further contact with the media. 19 117. Following this incident, WDFW funding for large carnivore studies was 20 diverted from WSU to the University of Washington, including the removal of funding for 21 research that was already under way. 22 23 24 25 26 Lynda V. Mapes, Profanity Peak Wolf Pack in State’s Gun Sights After Rancher Turns out Cattle on Den, Seattle Times, Aug. 25, 2016, http://www.seattletimes.com/seattle-news/environment/profanity-peak-wolf-packin-states-gun-sights-after-rancher-turns-out-cattle-on-den/. 15 16 Id. WSU Issues Statement Clarifying Comments on Wolf Pack, August 31, 2016, https://news.wsu.edu/2016/08/31/wsu-issues-statement-clarifying-comments-profanity-peak-wolf-pack/. 17 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 39 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 118. Despite the fact that members of the WAG specifically asked WDFW at a 2 September 15, 2016, meeting to address the salt blocks in its final agency report on Profanity 3 Peak released in January 2017, the report makes no mention of the issue. All the report said 4 about the overlap between cattle and wolves was that a WDFW biologist had collared wolves 5 “about two miles” from cattle, and by the end of June, WDFW had confirmed that the pack’s 6 new den was four to five miles from where Diamond M turned out its cattle. Thus completely 7 ignoring the salt block issue, the report concluded Diamond M had “met the expectations for 8 non-lethal deterrence” outlined in the Plan and the 2016 Protocol. The report did not mention 9 that the kill operation violated the Plan’s second primary objective, to protect wolves from 10 “mortality and disturbance at den sites,” as well as a Plan provision directing lethal control to 11 be minimized near dens, and its recommendation that livestock owners avoid “grazing 12 livestock near wolf territory core areas, especially dens and rendezvous sites.” 13 L. 14 WDFW Implements 2017 Protocol Designed to Kill Wolves Faster 119. In a February 2017 meeting, WAG members declared that the 2016 Protocol 15 was “terrible,” and had resulted in “disaster.” These perceived failures led to discussion of 16 creating a new protocol based on lessons learned from Profanity Peak. However, instead of 17 focusing on how to avoid the proximity of the cattle to the wolf den—the factor that created 18 the Profanity Peak problem—the WAG focused on an option WDFW put forward, to start 19 killing wolves earlier. 20 120. The WAG was not given a chance to learn the real lessons of Profanity Peak, 21 because WDFW has failed to ever come clean about the events that transpired—or to 22 acknowledge to the WAG that it made a grievous error by failing to demand that the salt block 23 and cattle be moved as soon as the proximity was discovered. There is also no sign that the 24 WAG saw two studies completed by WSU and WDFW in 2016 and 2017, which pointed to 25 the conclusion that Profanity Peak was an anomaly that could have been prevented. In the 2016 26 study, WGU student Jeffrey Brown collared 588 calves in 10 herds to track mortalities over FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 40 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 two grazing seasons in wolf-occupied territory. Brown detected no wolf-caused mortalities in 2 any of the collared animals, and found that losses due to wolves were at most 0.81%. Brown 3 concluded that “The low mortality estimates suggest that wolves have little widespread impact 4 on livestock mortality in Washington and that livestock producers in this system are effectively 5 managing for all causes of livestock loss.” 6 121. Neither does the record reflect that the WAG ever learned the results of the 7 2017 study by WGU student Gabriel Spence, which had been under way during the Profanity 8 Peak incident. Spence used GPS to monitor 10 different wolf packs over three grazing seasons. 9 He found that most wolf packs killed no livestock, such that 94% of wolf prey in Washington 10 consists of wild ungulates. On average, wolves killed only 3 of 1,000 cattle in wolf pack 11 territory. While all of the packs that killed cattle had a den in an active grazing allotment, 12 Profanity Peak in 2016 was the only pack that had cattle “at the den site while it was being 13 used for wolves,” and the pack only started killing cattle after the cattle arrived at the den. 14 Notably, Spence also found the predation rate on cattle belonging to Producer X was 3 wolf- 15 killed cows per 100 cows on the range, roughly 14 times higher than the average for other 16 Washington livestock owners in wolf territory. 17 122. On March 14, 2017, WDFW sent the WAG its “Draft Concepts and 18 Framework” for a new Protocol (“2017 Framework”). The 2017 Framework signaled a 19 significant shift in the goals of WDFW’s lethal control protocols, with the purpose of lethal 20 control now becoming to “influence pack behavior to reduce the potential for recurrent 21 depredations while continuing to promote wolf recovery.” In making this change, WDFW 22 explicitly broke from the Plan’s “social tolerance” goals of lethal removal, citing to the 23 Chapron/Treves Study in noting that the “reason for using lethal removal as a tool is not to 24 increase social tolerance, as the use of lethal removal may or may not have ancillary desired 25 outcomes to social tolerance.” The 2017 Framework thus no longer attempted to draw any 26 purported connection between state-sponsored killing of endangered wolves and wolf FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 41 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 recovery. Rather, it proclaimed that instead of focusing on wolf recovery, it is now using a 2 “livestock producer-centered and community driven model,” through which one of WDFW’s 3 roles is to “[r]ecognize and support livestock producers’ culture of independence.” The 2017 4 Framework also reiterated language from the 2016 Protocol disclaiming the Plan’s focus on 5 “problem wolves,” indicating that it is difficult to identify the “offending pack members,” and 6 “given this complexity,” WDFW gave itself complete discretion on how many wolves to kill. 7 123. Finally, the 2017 Framework indicated in a “Note for WAG” that identifying a 8 specific number of predations as a threshold for when WDFW will consider lethal removal 9 “may be an over simplification given the complexities in real world situations, has some inherit 10 [sic] challenges, and is not generated by science.” However, WDFW acknowledged that 11 “stakeholders” want “certainty and a means to hold government accountable,” and offered to 12 accept “a number” for that reason. But WDFW punted to the WAG the decision of whether to 13 use “a number” and what that “number” would be: “Therefore, WDFW prefers to leave the 14 number discussion – whether or not to have a number and what number to use if so—to 15 WAG/WDFW process.” 16 124. In its March 23, 2017, comments to this document, a conservation organization 17 observed that WDFW was using a “quasi-scientific, experimental approach to lethal control” 18 as means of avoiding livestock conflict. Cascadia Wildlands urged WDFW to provide specific 19 guidance on “meaningful, long and short term monitoring efforts” to determine whether the 20 approach was effective, and to test the “equally viable approach” of “not killing wolves in a 21 depredation situation and measuring response.” 22 125. In separate comments dated March 28, 2017, six conservation organizations 23 told WDFW that “existing science does not support moving quickly to kill wolves in response 24 to depredations as suggested by the draft protocol.” The comments challenged WDFW’s 25 apparent reliance on the Bradley Study to support this concept, pointing out that the study 26 found that partial pack removal “was only slightly more effective in reducing depredation FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 42 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 recurrence than no removal,” and that recurrence rates between partial removal and no removal 2 were virtually the same after seven days. 3 126. Wielgus asked to speak to the WAG during its next meeting on March 29-30, 4 at which it was scheduled to discuss the new protocol. Wielgus was hoping to discuss the 5 results of the research that Spence, his student, had completed for WDFW the previous 6 summer. Wielgus also sought to explain to the WAG that the Profanity Peak conflict could 7 have been avoided if the salt blocks had been moved in June after its proximity to the den was 8 discovered, and if people had been deployed at that time to keep cattle away from the den site 9 and to move them to another pasture. 10 127. Martorello told Wielgus that he could have only five minutes to address the 11 WAG during the public comment period. WAG member Tom Davis, of the Washington Farm 12 Bureau, said he would not attend the meeting if Wielgus was allowed to speak. Instead, 13 Wielgus sent written comments, conveying the results of the completed WSU field study and 14 his thoughts on Profanity Peak. Wielgus also urged the WDFW to add a requirement to the 15 new protocol, specifying that it would only kill wolves on public lands on behalf of livestock 16 owners who had signed and agreed to abide by WDFW’s Cooperative Agreement, which sets 17 forth requirements for the use of deterrence measures. 18 128. None of the considerations raised by the environmental organizations or by 19 Wielgus were discussed during the March 29-30 WAG meeting to finalize the new protocol. 20 Rather, much of the discussion centered on WDFW’s unsupported hypothesis that if it killed 21 wolves more quickly, it might result in fewer predations and necessitate the killing of fewer 22 wolves. Records do not indicate that WDFW and the WAG discussed any of the science 23 demonstrating that lethal control is at best ineffective at stopping livestock predations, or the 24 science indicating that when the state kills wolves, it causes the rest of society to value them 25 less as a species. 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 43 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 129. After more than a day of scattered discussions with no general agreement, 2 someone proposed before lunch on March 30 that WDFW “look at all the options” that had 3 been thrown out and “put together a draft statement over lunch.” Following lunch, WDFW 4 proposed new “numbers,” which would allow lethal removal after either 3 predations within a 5 30-day rolling window or 4 predations in a 10-month rolling window, if livestock producers 6 “meet[] expectations” for two appropriate deterrence measures and responsive deterrent 7 measures. After more discussion, the WAG’s third-party mediator “gauge[d] the temperature” 8 of the group, concluding that there was a “general positive vibe.” Following public comment, 9 there was more discussion, during which one WAG member said he was not “feeling great 10 about this” and had not “given approval to anything.” In response, a WDFW representative 11 sympathized that “we are all in a really hard spot,” but pushed for a decision on whether or not 12 the WAG can “support the policy stuff.” Time was up, so soon afterward, the third-party 13 neutral declared a “sufficient consensus.” Although nothing was in written form, the WAG had 14 thus decided upon the new thresholds for lethal removal. 15 130. These new thresholds were the centerpiece of the protocol WDFW issued on 16 June 1, 2017 (“2017 Protocol”). The 2017 Protocol includes WDFW’s new goal, that it “may 17 consider lethal removal of wolves to attempt to change pack behavior to reduce the potential 18 for recurrent depredations while continuing to promote wolf recovery.” Although many of the 19 overt references about being “livestock-producer centered” were removed from the final 2017 20 Protocol, it espouses two new values, “supporting rural ways of life, and maintaining livestock 21 production as part of the state’s cultural and economic heritage.” The 2017 Protocol obediently 22 follows the “decision” made by the WAG and charts a quicker path to kill wolves. In contrast 23 to the 2016 Protocol, which required four confirmed predations in a calendar year, the 2017 24 Protocol allows WDFW to kill wolves if there are (1) four predations within a 10-month rolling 25 window, or (2) three predations within a 30-day rolling window. In both cases, one predation 26 may be a “probable” rather than a “confirmed” wolf predation. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 44 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 131. The 2017 Protocol describes a “variety of proactive measures livestock 2 producers can take to reduce the probability of wolf-livestock conflicts.” These example 3 deterrence measures include “human presence” around livestock, monitoring livestock, 4 protecting calving/lambing areas, avoiding den and rendezvous sites, using scare devices, 5 using guardian or herding dogs, strategic carcass sanitation, using permanent and portable 6 fencing, delaying turnout of calves under 200 pounds, and coordination between the livestock 7 producer and the landowners. None of these proactive measures is required, but the 2017 8 Protocol provides that WDFW may consider lethal removal only if at least two proactive or 9 responsive deterrence measures had been implemented, and had failed to meet the goal of 10 changing pack behavior. In addition, the 2017 Protocol provides that if proactive deterrence 11 measures were not in place “a sufficient amount of time prior to the wolf depredations,” 12 WDFW would consider lethal removal only at a higher number of predation events and after 13 such measures had been tried and failed to resolve the conflict. 14 132. Before killing wolves, 2017 Protocol also requires WDFW to conclude that it 15 expects predations to continue and that killing wolves is not expected to harm wolf recovery. 16 However, the 2017 Protocol provides no criteria for WDFW to use to determine whether it 17 “expects depredations to continue,” deterrence measures were “appropriate,” or killing wolves 18 will harm wolf recovery. The 2017 Protocol provides that WDFW will use an “incremental 19 removal approach,” during which it will have periods of active attempts to kill wolves, 20 followed by periods of evaluation, to see if the predations continue and to give the wolves a 21 chance to regroup so that they can be killed more easily. The 2017 Protocol also provides that 22 WDFW will no longer inform the public when it is going to remove an entire pack of wolves, 23 although “the removal of the entire pack may occur as a result of repeated incremental 24 removals.” 25 26 133. WDFW did not perform any analysis of the 2017 Protocol’s likely effects versus the likely effects of a different approach, such as insisting that livestock owners use FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 45 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 more effective non-lethal deterrents before lethal control is considered (including requiring 2 livestock owners to sign WDFW’s Cooperative Agreement); requiring that cattle be moved 3 away from known den or rendezvous sites on public lands; or utilizing only non-lethal methods 4 to prevent wolf predations on public lands. Despite WDFW’s earlier promises to “incorporate 5 science into the protocol,” the 2017 Protocol did not undergo any outside scientific review, 6 and there is no evidence that WDFW conducted any assessment of whether or not lethal control 7 would be effective at reducing livestock predations; weighed the effectiveness of lethal versus 8 non-lethal control after predations occurred; looked at the effects of lethal control on wolf 9 ecology, reproduction and pack dynamics; examined whether killing wolves decreased social 10 tolerance for them; analyzed the importance of keeping livestock away from core wolf areas 11 such as den or rendezvous sites; or considered whether there should be different thresholds for 12 killings wolves on public versus private lands. 13 134. To the contrary, the 2017 Protocol provides no support at all for its 14 “experimental quasi-scientific” theory that using an “incremental removal approach” and 15 killing wolves after fewer predations would be effective in stopping predations and preventing 16 more wolves from being killed, especially in light of the fact that the weight of the science 17 indicates the opposite is true. Nor does WDFW provide any rationale for using a 10-month 18 rolling window to measure predations, despite the fact that conditions for both the pack and 19 the herd can change drastically during that time. Indeed, WDFW has since admitted that there 20 is no scientific basis for the 10-month rolling predation window. 21 135. Unlike previous protocols, the 2017 Protocol includes a bibliography, which 22 cites to a couple of social science studies about human motivations, the population model used 23 to support the plan (developed jointly by Wielgus and WDFW), the materials developed by 24 Western Wildlife Outreach in 2014 on non-lethal deterrence measures, and the Harper Study, 25 which noted that the act of attempting to kill wolves may change behavior of the pack even if 26 unsuccessful. Notably, the 2017 Protocol did not cite to any scientific support for its hypothesis FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 46 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 that using incremental measures to kill wolves faster would decrease either livestock 2 predations or wolf deaths. Nor did it show any consideration of the mounting science showing 3 that lethal control is, at best, ineffective. 4 M. 5 WDFW Issues 2017 Orders to Kill Members of Smackout and Sherman Packs 136. The Smackout wolf pack was confirmed as a pack in 2011, in a forested, 6 mountainous range in Stevens County and Pend Oreille County, including a portion of the 7 Colville National Forest. Following the death of the pack’s breeding adult male, other wolves 8 dispersed from the pack and formed the Dirty Shirt, Carpenter Ridge, and Ruby Creek 9 packs. According to the WDFW survey conducted at the end of 2015, the pack had a 10 11 minimum of eight wolves, including a successful breeding pair. 137. If the 2017 Protocol had been in place, it is likely that the Smackout Pack would 12 not have survived the 2016 grazing season. WDFW reported a confirmed wolf predation 13 resulting in a dead calf on national forest land on September 21, 2016, a probable wolf 14 predation resulting in a dead cow on national forest land on September 28, 2016, and a 15 confirmed wolf predation resulting in an injured calf on private property on September 29, 16 2016. No further predations were reported in 2016, so the requirements to kill wolves under 17 the 2016 Protocol were not met. 18 138. There were also no predations reported in spring 2017. However, WDFW 19 reported that wolves started harassing cattle in late June, and on June 30, a ranch employee 20 killed one wolf that the employee said was in the act of attacking livestock. 21 139. On July 20, 2017, WDFW reported that there had been an additional confirmed 22 predation attributed to the Smackout Pack on July 18, 2017, resulting in an injured calf. It was 23 only the first confirmed predation of the 2017 grazing season, but under the 2017 Protocol, it 24 counted as the pack’s last strike. By a margin of just a few days, the predations from the 25 previous year counted within the 2017 Protocol’s rolling 10-month window, bringing the total 26 confirmed and probable predations attributed to the pack to four. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 47 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 140. On July 20, 2017, WDFW announced that it had authorized the killing of 2 wolves from the Smackout Pack. WDFW later reported that it killed a female pup on July 21, 3 2017, and a female adult on July 30, 2017. WDFW also reported one additional predation on 4 July 22, 2017, of a calf that was believed to have been killed before July 20, 2017. 5 141. The Sherman wolves split from the Profanity Peak Pack in early 2016. The 6 Sherman Pack included about five wolves at the start of 2017, with a range in the forested, 7 rugged terrain of the Colville National Forest. 8 142. On August 25, 2017, WDFW issued an order to kill members of the Sherman 9 Pack, because there had been four predations in a ten-month period of cattle from the Diamond 10 M Ranch. WDFW reported that the livestock owner had satisfied the 2017 Protocol by using 11 range riders and calving outside the grazing area, and summarily reported that it expected 12 predations to continue and that the lethal removal was not expected to harm the wolf 13 population’s ability to reach recovery objectives. WDFW stated it was authorizing 14 “incremental removal,” and that the “last estimate of pack size from the 2016 survey was 5 15 wolves.” However, at the time, WDFW knew that only two wolves remained of the Sherman 16 Pack, and that “incremental removal” would result in the destruction of the pack. 17 143. In issuing the order to destroy the Sherman Pack, WDFW did little more than 18 check the boxes on the 2017 Protocol, ignoring its knowledge that some of those boxes were 19 meaningless. WDFW found that Diamond M had adopted two proactive deterrence measures, 20 as required by the 2017 Protocol, but this finding was based on Diamond M’s self-reporting, 21 with no attempt by WDFW to verify the accuracy of the information. As one deterrence 22 measure, WDFW claimed that Diamond M’s calves were born “outside of occupied wolf 23 range.” But WDFW failed to verify that all of Diamond M’s calves were actually born outside 24 the wolf range, instead basing this finding on “the producer’s business model,” which entails 25 its calves generally being born early in another location before trucking them in to the grazing 26 allotments. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 48 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 144. WDFW also credited Diamond M with a non-lethal deterrent for the five range 2 riders paid by WDFW to rotate through its grazing allotments, even though it knew this “human 3 presence” was not meaningful. The contract range rider hired by WDFW indicated in June 4 2017 that he and the four range riders he supervised were watching cattle for seven producers 5 over four counties. In their July 2017 report, this range rider group indicates it had covered the 6 territories of the Profanity, Sherman, Wedge, Smackout, and Dirty Shirt packs, which cover 7 roughly 1.2 million acres. Diamond M’s grazing allotments alone are 30,000 to 40,000 acres 8 of extremely rough terrain, which is inaccessible, even by horseback, and upon which even 9 Diamond M is unable to find its cattle. Indeed, the logs of the range riders hired by Diamond 10 M indicated on some days that they “saw no cattle,” while on others they noted only “cattle 11 seen,” with no indication of how many. 12 145. On September 1, 2017, WDFW reported it had killed one member of the 13 Sherman Pack. Although the pack had thus been destroyed, WDFW nevertheless reported that 14 it had begun an “evaluation period” to determine if its action “changed the pack’s behavior.” 15 It did not acknowledge in any of its weekly reports that the pack had been destroyed. Instead, 16 on October 20, 2017, WDFW announced that the “Sherman pack’s behavior had responded to 17 the approach highlighted in the protocol of using non-lethal deterrents, and, if necessary, 18 incremental removal.” 19 N. 20 21 22 WDFW Issues 2018 Togo Pack Kill Order 146. WDFW first recognized the Togo Pack in the 2017 Annual Report, released on March 30, 2018, and listed it as having two members. 147. On August 20, 2018, WDFW issued an order to kill wolves from the Togo Pack, 23 alleging that the Togo Pack had been responsible for three predations within 30 days, and six 24 predations within the past 10 months. 25 26 148. On August 23, 2018, the livestock owner whose cattle had been injured or killed by the Togo Pack went to the pack’s rendezvous site, the location of which had been provided FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 49 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 to him by WDFW, and shot and injured the collared adult male wolf of the Togo Pack. The 2 producer claimed that he had shot the wolf in “self defense,” after the male wolf advanced 3 upon him while barking, in an effort to defend his nearby pups. WDFW later reported that the 4 wolf sustained a broken rear leg as a result of the shooting, but that it has a possibility of 5 recovering and surviving. 6 149. Although WDFW had admitted in court that the injured male was no longer a 7 threat to cattle, on September 2, 2018, a WDFW marksman shot and killed the injured Togo 8 male from a helicopter. 9 150. On November 7, 2018, WDFW announced that it planned to kill the remaining 10 three members of the Togo Pack. It indicated that additional depredations were documented 11 on September 7 and October 26, after WDFW shot and killed the Togo Pack male on 12 September 2. WDFW further announced the decision of Director Susewind to issue a permit 13 to the livestock owner “allowing him, his immediate family, or his employees to kill wolves if 14 they are within his private fenced pasture where the livestock are located.” However, no 15 additional members of the Togo Pack were killed in 2018. 16 O. 17 WDFW Issues 2018 Orders to Kill members of the OPT Pack 151. On September 7, 2018, WDFW announced that it had documented five 18 confirmed wolf depredations on calves in the territory formerly occupied by the Profanity Peak 19 pack, which had resulted in one dead and four injured calves. Newspaper accounts confirmed 20 that the injured calves belonged to the Diamond M Ranch. 21 152. On September 12, 2018, WDFW announced that it planned to kill one or more 22 members of the new OPT Pack. It indicated that the pack has been responsible for six 23 predations in 30 days, and that the livestock producers had satisfied the Protocol’s requirement 24 of having employed at least two nonlethal deterrents. This decision was publicly opposed by 25 organizations with memberships on the WAG, including Conservation Northwest and 26 Defenders of Wildlife—both of which had previously supported WDFW’s decision in 2016 to FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 50 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 kill the entire Profanity Peak Pack. These conservations organizations took the position that 2 the new OPT Kill Order was contrary to the provisions of the 2017 Protocol that they had 3 endorsed as members of the WAG, and that WDFW needed to review its policies rather than 4 killing wolves in the same area for the same producer for the third year in a row. 5 6 153. WDFW killed one juvenile member of the OPT Pack on September 16, and the pack’s breeding female member on September 28. 7 154. On October 26, 2018, WDFW announced that it planned to kill the remaining 8 two members of the new OPT Pack. It indicated that two additional depredations were 9 identified between October 5-7, including one that likely occurred after the initial removal 10 period; and that another depredation was documented on October 23. WDFW acknowledged 11 that the Diamond M’s grazing lease had expired on October 15, and that the producer had 12 failed to fully remove his livestock from public lands by that date. A WDFW update on October 13 19 confirmed that Diamond M was failing to protect cattle or remove injured cattle, as it 14 reported cattle with old wolf injuries (more than 2 weeks old) that the producer had failed to 15 remove, and cattle with injuries over a week old being attacked a second time— indicating the 16 injured cattle were acting as an unnatural attractant or bait for wolves. 17 155. Despite these facts, WDFW determined that the OPT Pack should be eliminated 18 and authorized lethal removal against all remaining pack members. However, it was unable to 19 execute this order, and did not kill any additional OPT wolves in 2018. 20 P. 21 WDFW Issues 2018 Smackout Pack Kill Order for Diamond M Predations 156. On November 7, 2018, WDFW announced that it planned to kill one or more 22 members of the Smackout Pack in an “incremental” removal action. It indicated that following 23 the 2017 lethal removal of Smackout wolves, WDFW had confirmed that Smackout Pack 24 members injured one calf and killed four heifers on private pastureland between August 20, 25 2018 and November 1, 2018. The Department later confirmed that these predations were 26 suffered by the same Producer who had experienced predations from the OPT Pack, i.e. FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 51 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 Diamond M Ranch. On November 8, 2018, WDFW shot and killed one member of the 2 Smackout Pack. 3 Q. 4 WDFW Issues 2019 OPT Pack Kill Order and Reauthorization 157. On January 11, 2019, WDFW announced that the OPT pack had killed three 5 more of Diamond M’s cattle, who had been marooned in more than three feet of snow after 6 Diamond M had left them on the grazing allotment after the season ended in October 2018. 7 On July 9, 2019, WDFW announced that the OPT pack had killed an adult cow belonging to 8 Diamond M. WDFW indicated that this meant OPT pack had injured or killed a total of 20 9 cattle since the previous September. On July 10, 2019, WDFW announced that Director 10 Susewind had authorized WDFW to kill wolves from the pack. WDFW killed a radio-collared 11 adult male from the OPT Pack on July 13, 2019, and then started a period of “evaluation.” 12 Although WDFW-contracted range riders had been patrolling Diamond M’s allotments before 13 the first predation, after the first wolf was killed, Diamond M refused to allow the WDFW 14 range riders back onto the allotments, and there was no range riding until July 26, when 15 Diamond M hired a single range rider to cover its three allotments within the OPT Pack area— 16 comprising a total of 124-square miles. 17 158. WDFW reported that additional dead and injured calves were found on July 18, 18 20, and 26, during which time there were no range riders protecting the Diamond M cattle. On 19 July 31, 2019, WDFW issued the Reauthorized OPT Kill Order, announcing that it would kill 20 additional wolves from the OPT Pack. In the Reauthorized OPT Kill Order, WDFW did not 21 identify any additional “responsive deterrent measures” (as required by the 2017 Protocol) that 22 had been taken since the initial predations; indicated that there had been no range riders 23 protecting Diamond M cattle between July 10 and 26; and acknowledged that other protective 24 measures, such as Fox lights, had also been removed during this time. V. 25 26 FIRST CLAIM FOR RELIEF SEPA Violation: Failure to Perform a Threshold Determination FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 52 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 159. Petitioners incorporate by reference all preceding paragraphs. 2 160. Under SEPA, a threshold environmental determination is required before any 3 action is taken by a state agency. WAC 197-11-310; see WAC 197-11-704 (definition of 4 “action” includes, inter alia, agency decisions on management activities that directly modify 5 the environment and agency adoption of any plan or policy governing the development of a 6 series of actions). 7 161. A threshold environmental determination requires an agency to determine 8 whether a proposed action is likely to have a probable significant adverse environmental 9 impact and to consider mitigation measures. The threshold determination is “critical for full 10 implementation of SEPA’s mandate.” Lassila v. Wenatchee, 89 Wn.2d 804, 813, 576 P.2d 54 11 (1978). The SEPA responsible official is required to determine whether all or part of the action, 12 as well as alternatives or impacts, have been analyzed in a previously prepared environmental 13 assessment document. The responsible official is also required to take into account the absolute 14 quantitative effects of a proposal, whether several marginal impacts when considered together 15 may result in a significant adverse impact, whether the proposal affects an endangered species, 16 and whether the proposal establishes a precedent for future actions with significant effects. An 17 SEIS is required if the lead agency reasonably believes that a proposal may have a significant 18 adverse impact. WAC 197-11-330. 19 162. Despite a request in March 2017, Respondents refused to initiate SEPA review 20 on the 2017 Protocol. Respondents have refused to conduct a threshold determination before 21 issuing any of its kill orders, or the 2017 Protocol on which they rely for guidance. Respondents 22 thus failed to determine whether the Reauthorized OPT Kill Order, and other orders based on 23 the 2017 Protocol, would have a significant environmental impact or to consider alternatives 24 such as an exclusive focus on non-lethal control. Respondents failed to take into account 25 relevant factors, including the absolute quantitative effects of the Reauthorized OPT Kill 26 Order, the quantitative effects of the 2017 Protocol on which it relies for guidance, and whether FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 53 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 the Reauthorized OPT Kill Order and the 2017 Protocol establish a precedent for future actions 2 with regard to an endangered species. 3 163. 4 violation of SEPA. 5 164. Respondents’ failure to conduct a threshold environmental determination is a WDFW should be enjoined from enforcing the Reauthorized OPT Kill Order, 6 or issuing any further kill orders, until it has conducted the required threshold determination 7 for a protocol to guide any such future orders. 8 9 165. associated with this litigation pursuant to the Equal Access to Justice Act, RCW 4.84.350. VI. 10 11 Petitioners are entitled to an award of costs, attorneys’ fees, and other expenses SECOND CLAIM FOR RELIEF SEPA Violation: Failure to Produce a Supplemental Environmental Impact Statement 12 166. Petitioners incorporate by reference all preceding paragraphs. 13 167. The purpose of SEPA is to provide decision makers and the public information 14 about potential adverse impacts of a proposed action, and ensure decisions are made after 15 thorough scientific analysis, consideration of expert comments, and public scrutiny. 16 168. Under SEPA, an agency must consider environmental information—impacts, 17 alternatives, and mitigation—before committing to a particular course of action. WAC 197- 18 11-055(2)(c). SEPA requires an agency to consider total environmental and ecological factors 19 to the fullest extent when taking major actions significantly affecting the environment. The 20 procedural requirements of SEPA are designed to provide full environmental information and 21 are to be invoked whenever more than a moderate effect on the quality of the environment is a 22 reasonable probability. Moss v. City of Bellingham, 109 Wn. App. 6, 19, 31 P.3d 703 (2001). 23 When describing the environmental impacts of a proposal, the agency should consider direct, 24 indirect, and cumulative impacts. 25 26 169. Environmental review may occur in phases. WAC 197-11-060. Phased review assists agencies and the public to focus on issues that are ready for decision and exclude from FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 54 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 consideration issues not yet ready for decision. The Plan and the EIS were part of a phased 2 environmental review. 3 170. SEPA requires an SEIS if there are substantial changes to a proposal which are 4 likely to have significant adverse environmental impacts or when new information indicates a 5 proposal’s probable significant adverse environmental impacts were not previously covered by 6 the range of alternatives in existing environmental documents. WAC 197-11-600. 7 171. The EIS for the Plan provides, “Specific actions that may be proposed in the 8 future relating to gray wolf management in Washington would be evaluated under a 9 supplemental environmental impact statement process.” The EIS for the Plan does not weigh 10 the individual or cumulative environmental impact of any specific criteria for the lethal 11 removal of wolves while they are a state endangered species; the impact of the standards used 12 by WDFW under the 2017 Protocol to execute the Kill Orders; or the impact of WDFW’s wolf 13 killing program as outlined by the 2017 Protocol. The EIS did not evaluate any wolf killing 14 program, or weigh the impacts of alternatives to any such program. 15 172. The Reauthorized OPT Kill Order is a specific action related to gray wolf 16 management that was not considered by the EIS. The 2017 Protocol, on which the 17 Reauthorized OPT Kill Order relies, outlines a wolf killing program that was not considered 18 by the EIS. The Reauthorized OPT Kill Order and the 2017 Protocol represent a substantial 19 change to the EIS likely to have significant adverse direct and cumulative environmental 20 impacts. 21 173. New information since the development of the EIS also indicates that 22 significant adverse environmental impacts of such lethal control actions were not previously 23 covered by the EIS. Scientific research since the EIS demonstrates that non-lethal control 24 measures are the most effective means of reducing predations; that the single most important 25 factor in predicting wolf predations is distance between livestock and wolf den sites and 26 rendezvous points; that lethal control measures are not effective at reducing wolf predations, FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 55 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 but may actually increase them; and that lethal control measures by the state may have a 2 negative impact on public perception of wolves, and may actually increase illegal poaching of 3 wolves by the public. This research indicates that the likely significant adverse environmental 4 impacts of the Reauthorized OPT Kill Order and the 2017 Protocol on which it relies, were 5 not previously considered by the alternatives and impacts covered in the EIS. 6 174. The Reauthorized OPT Kill Order, and the 2017 Protocol on which it relies, 7 constitute substantial changes to the EIS which are likely to have significant adverse 8 environmental impacts. Additionally, new scientific information indicates that the probable 9 significant adverse environmental impacts of WDFW’s wolf killing program were not 10 11 previously covered by the range of alternatives and impacts in the EIS. 175. Respondents violated SEPA by issuing the Reauthorized OPT Kill Order 12 without first preparing an SEIS that considered the likely adverse environmental impacts of 13 the wolf killing program outlined by the 2017 Protocol. 14 176. Respondents should be enjoined from executing the Reauthorized OPT Kill 15 Order, or issuing any further kill orders, until it has conducted the required SEIS on the criteria 16 that it uses to authorize and implement such orders. 17 18 177. Petitioners are entitled to an award of costs, attorneys’ fees, and other expenses associated with this litigation pursuant to the Equal Access to Justice Act, RCW 4.84.350. VII. 19 20 THIRD CLAIM FOR RELIEF APA Violation: The Kill Order is Arbitrary and Capricious 21 178. Petitioners incorporate by reference all preceding paragraphs. 22 179. Action by an agency that is arbitrary and capricious is void under the APA. 23 RCW 34.05.570. Agency action is arbitrary and capricious if it is “willful and unreasoning and 24 taken without regard to the attending facts or circumstances.” Washington Indep. Tel. Ass’n v. 25 Washington Utils. and Transp. Com’n, 148 Wn.2d 887, 905, 64 P.3d 606 (2003). 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 56 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 180. Through the Reauthorized OPT Kill Order, WDFW has violated the 2 requirements of its 2017 Protocol, including by failing to ensure that meaningful non-lethal 3 deterrent measures were in place at the time of the alleged wolf predations, or that responsive 4 non-lethal deterrent measures were put into place after the first wolf predation of the year. In 5 addition, the Reauthorized OPT Kill Order, and the 2017 Protocol on which it relies, are 6 arbitrary and capricious because they are inconsistent with the limitations of the Wolf 7 Conservation and Management Plan formally adopted by the Commission, which, among other 8 relevant provisions, requires the agency to minimize wolf mortality as a result of lethal control; 9 requires an emphasis on non-lethal management techniques; provides that lethal control may 10 only be used when non-lethal deterrence measures have been tried but failed to resolve the 11 conflict; provides that lethal control may only be used on a case-by-case basis after full 12 evaluation of all the relevant circumstances; and allows for the use of lethal control only 13 insomuch as it serves the greater purpose of wolf recovery by reducing the illegal poaching of 14 wolves. 15 181. The Reauthorized OPT Kill Order is arbitrary and capricious because it purports 16 to rely upon, but takes action that is inconsistent with, the guidance of the 2017 Protocol. The 17 Reauthorized OPT Kill Order does not meet the criteria established by the 2017 Protocol, and 18 the criteria in the 2017 Protocol are themselves arbitrary and capricious and in contravention 19 of the Plan. The 2017 Protocol was developed through a flawed advisory group process, in 20 which WDFW impeded the flow of accurate information and suppressed science that 21 contradicted its assumptions. 22 182. The Reauthorized OPT Kill Order is arbitrary and capricious because it is the 23 sixth time that WDFW has targeted a wolf pack in the Colville National Forest at the behest of 24 Diamond M Ranch, including the Wedge Pack in 2012, the first Profanity Peak Pack in 2016, 25 the Sherman Pack in 2017, and the OPT Pack in 2018. The Reauthorized OPT Kill Order also 26 marks the third time that WDFW has sought to eliminate an entire pack in this same territory FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 57 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 within the Colville National Forest. After WDFW exterminated the Profanity Peak Pack in 2 2016, the Sherman Pack took over much of the former Profanity Peak territory. WDFW 3 destroyed the Sherman Pack in 2017, and now the same territory has been occupied by the new 4 OPT Pack, which WDFW attempted to destroy in 2018, and now threatens to destroy again. 5 Although WDFW knows that Diamond M Ranch has not taken sufficient nonlethal steps to 6 protect its cattle within the Profanity Peak territory, it nonetheless continues its program to 7 exterminate all wolves within the wilderness of the Colville National Forest, in violation of 8 both the Plan and the 2017 Protocol. 9 183. WDFW took action through the Kill Orders without adequate and reasonable 10 independent investigation, based on flawed and incomplete information. The Reauthorized 11 OPT Kill Order and the 2017 Protocol on which it relies for guidance fail to consider the 12 attending facts and circumstances, including the scientific evidence that state-sponsored lethal 13 control not only fails to reduce wolf-livestock conflicts and the illegal poaching of wolves— 14 but that, to the contrary, it might actually increase livestock predation and wolf poaching. In 15 particular, WDFW ignored and/or actively suppressed prevailing scientific research indicating 16 that non-lethal control measures are the most effective means of reducing predations; that the 17 single most important factor in predicting wolf predations is distance between livestock and 18 wolf den sites and rendezvous points; that lethal control measures are not effective at reducing 19 wolf predations, but may actually increase them; and that lethal control measures by the state 20 have a negative impact on public perception of wolves, and actually increase illegal poaching 21 of wolves by the public. In addition, WDFW ignored the evidence that its own prior lethal 22 removal actions in the Profanity Peak area have failed to reduce or eliminate livestock 23 predations in that area, but have only led to more livestock predations and the killing of more 24 wolves. 25 26 184. The Reauthorized OPT Kill Order should be declared invalid and its implementation enjoined as arbitrary and capricious agency action under RCW 34.05.570(4). FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 58 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 2 185. Reauthorized OPT Kill Order, are based on the guidance of the 2017 Protocol. 3 4 186. VIII. PETITIONERS’ PRAYER FOR RELIEF Petitioners respectfully request that this Court: 7 8 1. 2. Declare that any future kill orders are invalid until WDFW has completed a threshold SEPA determination of significance regarding agency lethal wolf removal actions; 11 12 Declare that WDFW violated SEPA and the APA in purporting to reauthorize the lethal removal of one or more members of the OPT Pack; 9 10 Petitioners are entitled to an award of costs, attorneys’ fees, and other expenses associated with this litigation pursuant to the Equal Access to Justice Act, RCW 4.84.350. 5 6 WDFW should be enjoined from issuing further orders that, like the 3. Declare that any future kill orders are invalid until WDFW has completed an SEIS on a protocol that sets forth the criteria for such orders; 13 4. Order WDFW to withdraw the Reauthorized OPT Kill Order; 14 5. Enjoin WDFW and its agents from killing the remaining members of the OPT 6. Enjoin WDFW and its agents from issuing any further kill orders, or taking 15 16 Pack; 17 actions to kill any additional wolves, until such time as WDFW demonstrates to this Court that 18 it has adequately complied with the law; 19 7. Award Petitioners their costs of suit and attorneys’ fees; and 20 8. Grant Petitioners such other relief as the Court deems just and equitable. 21 22 23 24 25 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 59 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 DATED: August 15, 2019 2 BASHFORD LAW PLLC 3 4 By 5 Jonathon Bashford, WSBA No. 39299 jon@bashfordlaw.com Telephone: 206.494.3344 Facsimile: 206.494.3344 6 7 Attorney for Petitioners 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 60 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 CERTIFICATE OF SERVICE Pursuant to RCW 9A.72.085, the undersigned certifies under penalty of perjury under the laws of the State of Washington, that on the 15th day of August 2019, the document attached hereto was presented to the Clerk of the Court for filing and uploading to the E-Filing system and served upon the parties listed below in the following manner: Jason Ruyf Attorney General’s Office 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 Jason.Ruyf@atg.wa.gov Amy.Dona@atg.wa.gov Jeanne.Roth@atg.wa.gov fwdef@atg.wa.gov Attorneys for Respondents Washington Department of Fish and Wildlife and Kelly Susewind       by King County E-File by Electronic Mail by Facsimile Transmission by First Class Mail by Hand Delivery by Overnight Delivery Executed on the 15th day of August 2019, at Seattle, Washington. 15 Jonathon Bashford, Attorney 16 17 18 19 20 21 22 23 24 25 26 FIRST AMENDED PETITION NO. 19-2-20227-1 SEA 61 BASHFORD LAW PLLC 600 FIRST AVENUE, SUITE 405 SEATTLE, WA 98104-2216 206-494-3344 (PHONE/FAX)