Wildlife Services Tries and Fails to Buy a "Get Out of Jail Free" Card

In a decision that will have repercussions for the USDA's Wildlife Services program across the country, a federal Court of Appeals ruled today that the agency may not escape court review of their predator killing program just because State governments might kill predators without them.

At issue was a challenge to Wildlife Service's plan to engage in the systematic killing of hundreds of native carinvors, including coyotes, mountain lions and bobcats, across the State. WildEarth Guardians, a conservation group, brought a challenge to this plan, arguing that Wildlife Services had failed to prepare a thorough environmental analysis pursuant to the National Environmental Policy Act or "NEPA".

In response, USDA argued that the courts should refuse to even consider WildEarth Guardians case because Nevada had written a letter stating that if USDA were to do nothing, it would go ahead and kill these animals anyway. That claim was dubious to begin with - Nevada has a limited history in engaging in this work, which is both specialized and expensive (federal taxpayers foot the bill for about half of Wildlife Services state management plan). Nonetheless, a lower court bought this argument and threw out WildEarth Guardians case, finding that a decision would be pointless. Put in lawyer-speak, the court found that WildEarth Guardian's claim was not "redressable" by a federal court.

WildEarth Guardians appealed. NRDC, representing a dozen national and local conservation groups supported them, filing a "friend of the court" brief. Today, the Ninth Circuit reversed the lower court's ruling. Citing the Supreme Court's opinion holding that EPA has the authority to regulate carbon pollution despite the fact that many countries contribute to global warming, the court found that

..the mere existence of multiple causes of an injury does not defeat redressability, particularly for a procedural injury. So long as a defendant is at least partially causing the alleged injury, a plaintiff may sue that defendant, even if the defendant is just one of multiple causes of the plaintiff's injury....The conclusion that [ WildEarth's] injury is redressable is bolstered by the fact that any independent predator damage management activities by Nevada are hypothetical rather than actual. What, if any, the extent of a Nevada predator damage management program would be if APHIS stopped its activity in Nevada is entirely a matter of speculation because Nevada currently has no such independent program. ...The notion that Nevada would replace everything APHIS currently does is therefore speculative at best.

The consequences of this ruling are hard to understate. If USDA had prevailed, it would have been virtually impossible to ever challenge any predator management plan undertaken with a state or local government in federal court. After all, all Wildlife Services would have to do is to get a letter from the state or locality saying: "we would do this anyway." Instead, Wildlife Services will now be forced to comply with the same federal environmental laws that apply to all other federal agencies. And that is a victory for wildlife everywhere.


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