On Sept. 11, the State of Colorado filed a brief in response to the lawsuit brought against the Colorado Department of Parks and Wildlife’s (CPW) Piceance Basin and Upper Arkansas River Predator Control Plans. The suit was filed by WildEarth Guardians’ (WEG) (see “Off target: Part 8,” Aug. 31).
The brief, in defense of CPW’s predator plans disputes the arguments made in an earlier WEG brief in the case that claimed CPW’s plans are a violation of the 1996 trapping ban (Colorado Constitution Amendment 14) and its implementing legislation. Purported violations include the CPW commission never actually determining whether the management plans meet the regulatory definition of bona fide scientific research before approving them. In addition, it’s claimed the plans don’t meet the definition of “research” because they were not designed to provide strong scientific inferences that would pass peer review and/or meet the requirements for publication in a peer-reviewed scientific journal. The lawsuit also argues the killing of black bears and mountain lions will not be implemented in a humane fashion by qualified personnel, aka the USDA’s Wildlife Services (WS).
CPW did not return calls for comment as of press time.
With regard to the claims made in CPW’s brief, Stuart Wilcox, staff attorney for WEG, says CPW continues to try to introduce new information that wasn’t before the CPW commission and substantively change the predator control plans post-approval in an attempt to escape the illegality of the plans as approved.
Wilcox further notes, “If they want to propose and approve legal [management] plans, that is one thing. However, they can’t cure their failure to do so now by misrepresenting the plans and their support during this litigation.”
As an example of the type of “new information” CPW is trying to add post lawsuit, Wilcox cites a program narrative CPW submitted along with its Sep. 11 response in which they state they’ll rely on WS’ requirement to adhere to the federal Animal Welfare Act, adding they will “oversee” WS’ snaring, trapping, and killing of lions and bears to ensure the animals are humanely handled. But, Wilcox says, this information wasn’t before the CPW commission when they approved the plans and is contrary to what the commission approved, arguing courts may not rely upon additional information that was not available at the time the agency made its decision to review that decision. As a result, WEG filed a motion along with their final response brief on Oct. 2 asking the court strike down this documentation.
And in the same program narrative, CPW appears to have actually revised the language from what the CPW commission approved, changing that after lions and bears are trapped, snared or treed by hounds, “a firearm will be used for euthanasia” to “a firearm will be used to kill non-family groups,” which are two very different things.
CPW further argues the Piceance Study is exempt from Amendment 14, contrary to WEG’s allegations, because its use of non-lethal snares is for the primary purpose of relocation. However, the Piceance plan approved in December by the CPW Commission states trapped and snared lions and bears will be killed with a firearm, as noted above.
And to clarify, Amendment 14 prohibited the taking of wildlife with any leghold trap, any instant kill body-gripping design trap, or by poison or snare in the state of Colorado. That’s because these now illegal activities often resulted in the same thing: a killed wild animal.
And the intention of this prohibition, relative to CPW’s plans, can be ascertained by examining the activities it bans. As such, leghold traps and snares are included in the prohibition, both of which may be non-lethal in and of themselves, but are included in the ban nonetheless. Which is to say, they are banned from use precisely when they are employed as a part of a process intended to kill a wild animal, which is exactly what CPW’s plans, as approved by the CPW commission, call for. And the exemption from this ban dealing with scientific research makes no mention of allowing such killing. WEG argues that this suite of research exemptions is uniformly non-lethal, which appears to refute CPW’s argument, along with their plans.
And in its brief, in the context of the Piceance plan, CPW attempts to refute WEG’s allegations that CPW’s plans violate the 1996 trapping ban and its implementing legislation, by arguing Amendment 14, “clearly and unequivocally states that it ‘shall not apply to the taking of wildlife with firearms, fishing equipment, archery equipment, or other implements in hand as authorized by law.’” However, in the context of the trapping ban, this statement appears to be saying the trapping ban doesn’t prohibit killing lions or bears with hand-held weapons in the act of legal hunting, but in killing those same wild animals in the act of illegal trapping or snaring.
This apparent discrepancy may explain why CPW goes to great lengths in its brief addressing the Upper Arkansas River plan, which would use non-lethal snares, stating no lions captured in non-lethal snares will be killed. But that is not true of the Piceance plan.
On Oct. 2, WEG filed its final brief in the lawsuit, reiterating and bolstering their aforementioned arguments, attempting to rebuff CPW’s responses, and reaffirming the request to the court to vacate CPW’s predator control plans.
The one thing that appears certain: The ruling of this court may set a legal precedent for the future in either allowing or disallowing for the killing of trapped or snared bears and lions in the spring and summer as a means of predator control by CPW.
And the photos interwoven with this article attest to the realities of how this potential future would likely look.