Annie Kuo: Welcome to the ºìÌÒÊÓƵ Discovery podcast, where we discuss the biggest legal topics with the law school’s distinguished guests and experts from around the world. I'm your host, Annie Kuo. Today we discuss the issue of wildlife policy reform, particularly why ordinary citizens like you and me who may not be hunters should care about our bears. Did you know that black bears are found in 41 states and Washington is one of only eight states in the country that allows a spring bear hunt. On March 19 of this year, the Washington Fish and Wildlife Commission voted five to four against a proposed 2022 spring bear hunting season. That was the second vote on the spring bear hunt this year. To tell us a little bit more about the advocacy for the proper analysis of the threats against black bears, we have today, Claire Davis, managing partner of Animal and Earth Advocates, and a founding member and president of the Washington Wildlife First nonprofit. It's a watchdog organization, keeping our state's environmental agencies accountable to their roles as trustees of our wildlife and wild spaces.
Welcome, Claire.
Claire Davis: Thank you very much for having me. I'm delighted to be here.
AK: Claire, tell us about the inception of your nonprofit, Washington Wildlife First, and its reform objectives. How did you come to the realization that there was a need to focus on reform of state wildlife policy?
CD: Thank you for the question, Annie. It took me a while to come to that realization, frankly. Like most people in Washington, I spent most of my time, the first 10 years that I lived in the state, believing that we’re a relatively progressive state with relatively progressive policies. And I assumed that the state wildlife agency would follow suit. And what follows are the ethics and the values of the people of Washington. And I was shocked as I had occasion to learn more exactly how backward our Department of Fish and Wildlife really is, and how deeply it is need of reform.
Going back a few years, I was a partner in the securities litigation practice at the Lane Powell law firm in Seattle, sort of doing wildlife and animal law on the side. Then I had an occasion to start the Animal and Earth Advocacy practice group at Lane Powell and to start focusing on wildlife, environmental and animal law. I had planned from the beginning and really hit expected that most of my litigation would be in federal court. So, in under the Endangered Species Act, suing the federal government, doing work under the National Environmental Policy Act. But my first case just happened to be, once I formed this practice group, suing the Washington Department of Fish and Wildlife over an order that it had given to kill wolves in the northeastern part of the state as a result of wolf livestock conflict. And that was an eye-opening experience for me, because I was just shocked at the dysfunction and the lack of accountability within the department and the problems that went far beyond just a single wolf order.
So, my partner and I founded Animal and Earth Advocates, an independent law firm focused on wildlife and environmental law about two years ago. And since that time, our main focus has been on litigation with the Department and Fish and Wildlife, in an attempt to correct that dysfunction. But what we realized was that this kind of problem cannot be corrected by litigation alone. Litigation is a great tool when there's an act that's obviously illegal or to try to address one issue at a time. But when there's the sort of systemic dysfunction that we discovered, you really need something more. So, my law partner and I and several other committed citizens worked together to form Washington Wildlife First last August to be a nonprofit specifically dedicated toward achieving reform of our state environmental agencies, starting with the Washington Department of Fish and Wildlife.
AK: What reforms do you think need to be made at the Washington Department of Fish and Wildlife? And are we talking about reforms within the department or of the governance structure with Fish and Wildlife Commission?
CD: Well, all of the above. There is an inherent problem with the governance structure of the Department of Fish and Wildlife, not just in Washington, but really most states in the country. These enormously complex, diverse decisions on, you know, all sorts of species and numerable issues pertaining to those species are ultimately entrusted in Washington to a nine-member citizen commission that is appointed by the governor and is really a group of volunteers. They get paid a small stipend, but very little for their work. I think they have one staff member. They don't have independent staff that can research and provide reports to them on these issues. So, these volunteers are really dependent upon the staff, the director of the State Department of Fish and Wildlife and the other staff, to provide them with the information and present them with decisions to make. But the entire system of having that extra layer that is essentially a volunteer citizen body that may have some qualifications—and we're lucky enough to have some commissioners now who do have some very good qualifications—but does not necessarily need to have any expertise in fish and wildlife. It's just an outmoded system that needs to change. And what one of the real problems of that system is that the director of Fish and Wildlife and the rest of the department is not accountable to anybody else in our governmental system. Not accountable to the governor, they're not accountable directly to the voters, they are only accountable to this nine-person appointed body. And even if we get the best people in the world on the commission, they're really going to have their hands full, carrying out all the duties that have been put upon that body effectively.
AK: I understand that part of your concern is that the Washington Department of Fish and Wildlife is not fulfilling its role as a public trustee for the state's fish and wildlife resources. So, how do you see that role? And how is the department falling short?
CD: That's a good question. And that goes to another layer of reform that's really necessary because the problems might start with the governance structure, but they go much deeper. And I think there really is a need for systemic reform at the management level of the Washington Department of Fish and Wildlife. I think a lot of people do not realize that WDFW's role is to be a public trustee. The animals, the wildlife and fish of the state of Washington—the extent that they can be owned by anybody—are owned by the people of Washington. And we allow the government to manage fish and wildlife on our behalf as our trustee, and that trustee is supposed to be responsible, and responsive to all of the citizens of Washington. But what we have seen instead of being responsive to all citizens, and instead of managing Fish and Wildlife for the benefit of all Washingtonians, and that includes both current and future generations of Washingtonians, what we've seen is that the department focuses on what it still believes to be its, quote, unquote, customers, and that is the tiny population of the state that hunts and fishes, as well as some commercial interests, like livestock producers and timber farms. And the interests of those tiny constituencies gets far more attention and far more sway in every departmental decision than does, you know, an allegiance to the department's role as a public trustee. And that's one of the most fundamental things that needs to change.
AK: So, when we're talking about the hunting community, what percentage of hunters are in the Washington population? And is that number significant in this debate over state wildlife management?
CD: Well, the latest numbers that we have, which I think are from 2020, about 2.3, of the Washington population hunts and something more than that, I think about 8.4% fishes. So, we can't necessarily combine those numbers because obviously some people both hunt and fish, but that gives us a good idea of how few people in Washington, both hunt and fish. And I want to be clear that it's not my contention that because there are only a few of them, their interests do not matter. My concern is that their interests should not be the only ones that matter to the management of the Department of Fish and Wildlife. And I think for a very long time, that has been the case and hopefully we're just starting to see that turn around.
One of the reasons that the department has been able to get away with only paying attention to one tiny constituency for so long is that that's the only constituency that's been showing up, that's been talking to them. And that's been giving them, the department, their opinion on lots of issues. But I know that there are a lot of people in Washington, and a very large percentage of people in Washington, who care about our fish and wildlife. What we really need for the department to reform and to serve as it's full duty as a public trustee is for those people to show up, for them to show up to commission meetings, for them to write letters, for them to engage in these issues, and no longer allow these issues to run under the radar so that most of us, as I did just a few years ago, you know, love wildlife and understand the importance of healthy ecosystems and biodiversity can just go along believing that probably everything's fine and it's being taken care of because Washington's a progressive state. And I'm sure the agencies are doing their job. What we found out is that that isn't true. And in order to change that, we need people to show up and let the department, the commission and the governor and the legislature know that they care about these issues.
AK: Why did Washington Wildlife First focus so much on the spring bear hunt issue? And how is that important to the broader issues of reform?
CD: Well, the simplest answer as to why we focus so much on the spring bear hunt is simply that it was one of the first big issues that came up after our organization started. We've been focusing on the spring bear issue for many months now because of the circuitous route that it has taken through the commission and the department. So, it's not so much that we believe that the spring bear hunt is an issue that is much, much more important than other issues. It's important, and we would have paid attention to it in any case, but I think really, it is a symbolic issue.
It helps us to understand if we need to dissect that issue in the way the department responded to it, just how out of touch the department is with the values and the morals of ordinary Washingtonians. And it also helps us to understand the degree of dysfunction in the department and the degree to which department management has been taking the commission for granted as a rubber stamp and has been failing to be open and transparent with both the commission and the public.
AK: Are spring bear hunts supposed to be a management tool to decrease timber damage and reduce bear human conflicts or are these recreational hunts. And does that distinction really matter?
CD: I'm glad you asked that question because that's actually a perfect way to illustrate what I was just talking about in regards to the department's lack of transparency. For decades, the department has said that spring bear hunts are necessary for management reasons, to alleviate bear-human conflicts, to reduce the damage that hungry bears can do to commercial timber farms when they emerge from hibernation in the spring, or to allow sensitive undulate deer and elk populations to recover. And because of the governance structure that we talked about before that the Commission isn't in a great position to really question that rationale. So, I'm not faulting the commissioners that have come before the current commission. And that they took that reasoning, just believed the department when it said that there was this management need, and continually year after year approved a spring bear hunt.
But what we saw starting a couple of years ago, is that the citizens really stepped up to question whether those management needs were really there to start with, and whether or not the spring bear hunt addressed any of those management needs. In fact, we owe all of this to one particularly motivated citizen who was just relentless starting a couple of years ago and asking department management for information to substantiate what they claimed was this management need for spring bear hunts. Only as a result of that continued questioning and examination did the department finally admit really last fall, last October and November, that they could not substantiate this management need for spring bear hunts, that they couldn't substantiate the problems that they claimed existed in the game management units where the spring bear hunt takes place. And even less so could they show that spring bear hunts actually helped to address any of those problems.
So, they were forced to take a step back and admit what I suspect has been true for many, many years, which is that these spring bear hunts are just recreational hunts that have been passed off as so-called management hunts for a lot of years because they believe that would be more palatable to people. In fact, we have internal documents where they say the public won't like a recreational spring bear hunt. So, we need to be careful to confine it to a management-permanent only hurt. And that reflects their understanding that spring bear hunts are extremely unpopular, as you said only eight states continue to allow spring bear hunting. And a recent poll showed that only 15% of people in western states supported spring bear hunting.
AK: I just want to insert a fun fact here, just did you know—I know, you know, Claire, but for the listeners—we mentioned Washington is only one of eight states that still allow spring bear hunting. The others are Oregon, Idaho, Wyoming, Montana, Utah, Arizona, Oklahoma and Arkansas. And it seems that the Washington Department of Fish and Wildlife singles bears out for spring hunting. They don't allow spring hunting of any other species except for Turkey. That got my attention.
Question: hunters are saying that the science supports spring bear hunting and the opposition to the spring bear hunt is purely emotional. Do you agree with that? And if not, what do they get wrong about the science?
CD: No, I don't agree with that. I think that's an example of an extraordinary double standard, which we see employed when we talk about the debate on fish and wildlife issues—that you know when the side that wants to kill wildlife or kill fish almost always says that it has the science in the hard cold facts on its side. And any concerns over killing a particular species or using a particular method to kill a particular species is labeled as emotional, no matter how backed in science it is. But I don't really blame the hunters and the hunting groups for getting this wrong. They're just parroting what department management has told them and department management said that science supports the spring bear hunt. What they mean by that is there are enough bears in Washington that we can hunt them in the spring when they're raising their cubs and recovering from hibernation and in several months in the summer and fall and we will still have bears. And I don't disagree with that. I don't think that the spring bear hunt is going to cause our bear population to go extinct.
But that should not be the question. The question should be: given, as you said, we don't hunt other species in the spring, spring is generally recognized as the time of renewal and recovery from winter and the time that we allow species a break from hunting so that they can raise their young and have healthier populations. We single bears out to be hunted in the spring for a reason. And the question should be, what is that reason? We've watched them the last few months, the scientific case for these management needs for spring bear hunt fall apart completely. So, if the answer is then we hunt bears in the spring just because some people like to kill bears in the spring. I think that becomes a question for the commission: is that a good enough reason to single the species out because some people want to kill bears in the spring? But I understand is that, you know, bears right after they come out of hibernation, their hides make better rugs, and that is a large part of the impetus behind spring bear hunting.
That science does not support any need to hunt bears in the spring and, more importantly, the science does not show that the department has any clear understanding—any understanding at all—of the status of Washington's bear population, the effects of recent changes that were made a couple of years ago to the general hunting season regulations that have resulted in 50% more bears being killed every year, or the effects of the spring bear hunt on those specific areas that are targeted by the spring bear hunt.
AK: Claire, let's talk Washington values and hunting ethics. What are some ethical concerns related to bear hunts? And how should those figure into the debate?
CD: One of the important ethical concerns about the spring bear hunt is the concern of cub orphaning. Departments that have run spring bear hunts in the past, department managers, scientists pretty much universally agree that spring bear hunting will inevitably orphan nursing newborn cubs that cannot survive apart from their mothers. It is very difficult for hunters to tell the difference between female and male bears to begin with, and almost impossible to tell if a female bear is nursing cubs because when she goes out to forage in the spring the mother bear will often stick her cubs somewhere safe in the distance, maybe up a nearby tree so that they're not in danger when she's out foraging for food. So, a certain number, and we don't know how many, but a certain number of cubs are certainly orphaned every time we have a spring bear hunt. And those cubs are left to die of starvation or predation. And many people find that morally troublesome in cruel.
I think there's also a moral question about whether we should be pursuing bears when they come out of hibernation or on the verge of starvation, are desperate to get food and are finding food wherever they can, making them very vulnerable and easy to hunt during that time period.
As to your question about how we should figure those values in, that's not for me to say that's for the people of Washington, to say. And I think it presents a dilemma for our commissioners. How much should our commission be weighing value judgments and moral judgments when deciding on particular hunting methods? And I think that's a question of conscience for each commissioner. But I would hope that that's a question on which the people of Washington are going to start to speak out in greater numbers, to tell the commission what they think and to let the commission know what their values are, and that their values are not necessarily the same as the values by the tiny, tiny percentage of people in the state who want to hunt bears in the springtime. That's one of the reasons that it's so vital for people to become involved and show up to the Commission.
AK: Which is a perfect note to end on. Could you tell us some ways that the people of Washington can step up and make their voices heard and lend their voices and consciences into the debate?
CD: I think we just need the people of Washington to show up in greater numbers. And that means writing to the commission when a rule is under consideration or when there are issues they're concerned about. It means talking to the department and writing and calling the director about issues that are important to them. It means providing testimony at commission hearings. All of that can be difficult to access and it can be difficult to follow the commission and to know when issues that might be of interest are coming up. So, as a shortcut, we would suggest that people go to our website, which they can find at wawildlifefirst.org and sign up for a free subscription to our website so that they receive our action alerts and the materials that we put together to help them know when there are issues coming up and know how to interact with the commission and the Department in a productive way.
What most people don't realize is that most management of Fish and Wildlife is not at the federal level. It's at the state level. It's done by agencies, like our Department of Fish and Wildlife. So, if we really care about reversing the biodiversity crisis, if we care about ensuring healthy ecosystems in Washington, we need to get involved with what our state agencies are doing. And citizens, you know, by and large, have not done that. I think that these agencies have been mysterious and inaccessible and really below the radar. they don't get much news coverage, they don't have much of a profile. So, it's very hard for ordinary citizens to become informed about these issues, and to become involved in these issues. And we're hoping to change that because that is the most essential element needed for long term reform.
AK: Claire Davis is managing partner of Animal and Earth Advocates, a Seattle area law firm that brings public interest litigation on behalf of animals and wildlife. She's also a founding member and president of Washington Wildlife First.
Thank you so much, Claire. Thank you for the work that you're doing on behalf of animals and wildlife and for joining us today.
CD: Thank you very much any I sure appreciate it.
