by Jackie Dove
On November 3, 1998, 57.5 percent of California voters said yes to Proposition 4, a grassroots initiative that banned several wildlife traps and poisons.Citing their "cruel and indiscriminate" effects, Proposition 4 outlawed both the steel-jaw and the padded-jaw leghold traps for commercial or recreational fur-trapping. The measure also banned the use of snares and Conibear traps for recreational trapping and the commercial fur trade and outlawed the use of "predator control" poisons such as Compound 1080 and sodium cyanide within the state.
Padded-jaw leghold trap. Coalition to Abolish the Fur Trade |
Prop. 4's sponsoring coalition, Protect Pets and Wildlife (ProPAW), estimates that Prop. 4 will save the lives of some 24,000 bobcats, beavers, foxes, coyotes, minks, muskrats, raccoons, skunks, weasels and badgers in California each year.
But now, Prop. 4 is in court, under attack by what its proponents call an "unholy alliance" of hunters, trappers and members of the National Audubon Society.
Despite Prop. 4's stated intent to target only commercial and recreational fur trapping, the Audubon Society and the pro-hunting California Waterfowl Association (joined by the National Trappers' Association), have jointly challenged Prop. 4 because it failed (among other things) to specifically grant federal officials the right to use padded leghold traps to protect threatened or endangered species.
The lawsuit claims that Prop 4's enforcement might endanger the California clapper rail, the light-footed clapper rail, California least tern, western snowy plover, Belding's savannah sparrow, salt marsh harvest mouse and the San Joaquin kit fox.
Arthur Feinstein, executive director of Golden Gate Audubon Society, claims that the wording of Prop. 4 virtually forced Audubon to sue in order to protect wildlife under the Endangered Species Act (ESA). "If we did not sue," Feinstein explained, "anyone that was using the padded leghold [including federal agents] would be susceptible to fines and imprisonment."
"We did not intend to restrict the Endangered Species Act," says Aaron Medlock, lawyer and campaign manager for ProPAW. "We know that state law cannot restrict federal programs ... so we did not see it as an issue ... If I had known, I would have changed the wording."
Wayne Pacelle of the HSUS had telephoned Dan Taylor, executive director of the National Audubon Society in California, and thought he had been given the green light to proceed with Prop. 4. That turned out not to be the case. Taylor now claims that ProPaw dismissed concerns that Audubon raised about Prop. 4. This matter might never have landed in court had these two parties been able to come to an agreement.
"Prop. 4 won by 15 percentage points - that is a landslide," says Alan Berger, executive director of the Animal Protection Institute (API). Voters "don't want animals killed," Berger claims, adding that "if you are going to protect the threatened and endangered species ... you have to rethink how you are dealing with predators."
Ecology or Animal Rights?
ProPAW (a coalition that includes the Humane Society of the United States (HSUS), the Animal Protection Institute, the American Society for the Prevention of Cruelty to Animals, The Ark Trust, Doris Day Animal League, The Fund for Animals, and the International Fund for Animal Welfare) takes an "animal rights" position. ProPAW views each animal as an individual with an independent life and desire to live, whose ability to suffer pain and fear must be considered.
Audubon, in contrast, adopts an "ecological" stance that considers animals not as individuals, but as populations - some of which, because they are threatened or endangered, are worth defending. This viewpoint echoes that of the US Department of the Interior's Fish and Wildlife Service (FWS) and the Department of Agriculture's Wildlife Services (a trap-shoot-and-poison predator control program formerly called Animal Damage Control).
Why is this in Court?
Over the past few years, voters in Massachusetts, Colorado and Arizona have passed similar anti-trapping laws. Trapping has also been severely restricted or banned in Rhode Island, New Jersey and Florida. These laws also do not specifically grant an exemption to federal trappers but none of them have been challenged in court. The HSUS's initiative in Massachusetts, ironically, was co-sponsored by Massachusetts Audubon.
Clapper rail. USFWS |
The national Audubon Society's objection to the California statute has widened considerably since the campaign. Going beyond the issue of endangered species, the injunction against Prop. 4 now seeks to extend the use of leghold traps to protect birds under the federal Migratory Bird Treaty Act. The MBTA protects a huge number of birds that are neither threatened nor endangered.
"Audubon recognizes that there is more to the world than endangered species and there are other species that are being threatened," Feinstein says. "Migratory birds are at critical risk. It is critical that they don't get endangered."
But in this belated concern for migratory birds, ProPAW detects the footprints of the hunters who joined Audubon's lawsuit. "The MBTA covers virtually every bird except starlings, pigeons, and [English] sparrows," Medlock says. "That's why we see the California Waterfowl Association in on this lawsuit. They want to get rid of all the predators so we can be the predator. The effect will be to allow the use of the leghold trap to benefit hunters, not birds."
Joelle Buffa, chief biologist at the San Francisco Bay National Wildlife Refuge (NWR) insists that government employees should be allowed to trap predators to protect non-endangered migratory birds.
According to the California Department of Fish and Game, there are about 300,000 hunters in the state, each of whom must pay $26.50 for an annual hunting license - an $8 million revenue line for the state treasury. In addition to the hunting license, some 75,000 adult duck and goose hunters also purchase state "duck stamps" at $10 a pop, netting another $750,000 for the state. And finally there is the upland game bird stamp, for some 220,000 hunters who readily pay $5.75 a year to shoot migratory birds such as band-tailed pigeons and doves. (Of course, not all bird hunters buy both stamps and not all the people that buy the stamps actually hunt migratory birds.)
Ironically, some migratory birds can be hunted legally inside national wildlife refuges. In ProPAW's view, this diminishes FWS's and Audubon's credibility in claiming to "protect wildlife."
Target: Red Fox
The red fox is not native to California. It was brought west in the late 1800s for fur-farming and fox-hunting. Over the years, some red foxes escaped and integrated themselves into the landscape.
Red fox. API |
In the mid-1980s, FWS staff at the San Francisco Bay NWR noted a decline in populations of the ground-nesting California clapper rail. Clapper rails had been hunted to near-extinction early in the 19th century and they continue to suffer severely from habitat loss. FWS staff noticed that the population of this endangered bird had dropped precipitously at the same time that they first observed red foxes in the bay marshlands.
Government wildlife biologists and the Audubon Society hold the red fox (along with feral cats) primarily responsible for the clapper rail's recent decline. The FWS, however, admits that a range of impacts have contributed: contaminants such as mercury and selenium, poor weather conditions, human depredation, and shrinking habitat caused by urbanization and commercial development. Predation by native species such as red-tailed hawks and peregrine falcons also has played a role in the clapper rail's decline.
In 1991, the FWS initiated a Predator Management Program inside the San Francisco Bay NWR. This trapping program killed approximately 90 red foxes a year for five years. FWS compiled the results of this program into a report that was published in August 1998, just as the campaign for Prop. 4 kicked into high gear.
Medlock dismissed the FWS report as nothing more than an unscientific "sham." He drew particular attention to the fact that "it came out just two months before the election. It was politically motivated." Medlock insists that ProPAW does "not necessarily oppose removing red fox if they must be removed.… Let's use real science and humane alternatives."
Management Tool
Because the FWS focused nearly its entire clapper rail protection plan on eliminating the red fox, Prop. 4's ban on the padded leghold trap threatened to remove its most valuable "management tool" to protect endangered species. Federal officials consider the padded leghold trap the only effective means of "managing" the red foxes.
State Department of Fish and Game Deputy Director Terry Mansfield declared that state officials had no plans to enforce Prop. 4 against federal wildlife employees acting in their official capacities.
"In the absence of a statutory waiver of federal sovereign immunity," Mansfield stated, "the Department's historic practice has been not to pursue criminal or civil actions against federal employees for violating state law when acting in furtherance of a federal statute or regulation on federal lands."
Well before the election, the Humane Society sought legal counsel concerning Prop. 4's effect on the Endangered Species Act. The public interest law firm Meyer and Glitzenstein advised that FWS employees are protected under the Supremacy Clause of the Constitution, which grants federal laws precedence over state laws. "Proposition 4 would not and could not impair implementation of the ESA," the lawyers determined, as long as FWS officials concluded that "the use of the trapping techniques ... were necessary to conserve an endangered or threatened species."
This does not satisfy some FWS or Wildlife Services managers in California. Mark Jensen, the Wildlife Services district supervisor who runs the trapping program on the San Francisco Bay NWR, continues to question ProPAW's intent with Prop. 4. "Why didn't they specifically exempt federal employees?" he asks.
Was the study conclusive?
"We attribute the resurgence of the clapper rail to the predator management program," Buffa argues, "because a lot of things got worse over that 10-year period, and this was the only step we took; there is nothing else that we did."
But trying to correlate the number of red foxes to clapper rails is problematic, says Berger. "The five-year plan was basically a red-fox killing program to save the California clapper rail. This report did not prove that this predator management program worked ... we didn't see any real proof that anything happened." On addition, he noted, "There was no pre-report data so there was nothing to compare with from the front end. There weren't control groups in the same refuge area so you couldn't tell what happened."
According to the report, between 1991 and 1996, bird populations and growth rates varied all over the refuge despite the trapping program. Population counts of clapper rails grew in some marshes but dropped in others.
"You can't look at the numbers from individual marshes, but the entire area over a five-year period," Buffa counters. "There is a positive correlation between [clapper rail] growth rates and the high number of foxes trapped the previous year."
Striking at the heart of ProPAW's argument is the contention that the padded leghold trap is not cruel, despite numerous studies documenting edema, skin lacerations, tooth fracture, tendon abrasion or severance and bone fracture suffered by various trapped animals.
Trapper Mark Jensen explains that the padded leghold "is not a device with teeth. It is designed to minimize damage. It has a swivel and springs in the chain and allows the animal to move. The swivels turn and absorb the shock. Everybody thinks it breaks bones, but it doesn't do that. I've been doing this for a lot of years and not once have I seen an animal chew off a leg. Not with a padded jaw."
"Audubon is not a humane society," says Feinstein. "We take no position on hunting ... We are trying to control these predators. [FWS officials] believe the padded leghold is a superior trap so why not use it?" Feinstein is convinced that padded traps don't hurt. "I have seen it snap over people's hand without blinking an eye," he insists.
The FWS actually has a demonstration that they perform to convince people that the padded leghold is humane. In this demonstration, FWS employees allow a padded trap to snap shut over their fingers.
For Medlock, such demonstrations are a stunt. Unlike a startled animal that springs a hidden trap, FWS employees "know not to struggle to get out of the trap. They know they will get out." An animal "may be in shock or exhausted after spending 24 hours exposed to the elements and other predators."
But Feinstein turns the pain-and-suffering argument around. "Does an animal killed by the red fox feel pain?" he asks. "Critters who die by the red fox suffer ... There may be 1,000 red foxes, but they kill 50,000 to 100,000 critters and cause a lot of pain and death. There is more suffering as a result of their actions."
"The animal rights people answer that (the foxes) are here now and that they deserve to live," Feinstein says. "Does that mean that the native species do not deserve to live? Where are the bad guys? Someone is dying no matter what we do."
Unholy Alliance
Medlock suggests that the underlying concern of Wildlife Service's trappers is not protection for endangered species so much as the needs of entrenched ranching and farming interests that depend on the government's free predator control programs.
"It is their goal to get [Prop.4] off the books," Medlock contends. "The majority of their work is done for ranchers. A minority of their work is done to protect ESA ... They are using the endangered species as a red herring to satisfy their ranching clients."
What the Prop. 4 electoral victory demonstrates, Medlock says, is that "the public cares about all wildlife and they have a hard time pitting one animal against another."
But perhaps it is Feinstein's observation that everyone can get behind. "Humans are responsible for this," he said. "We people are the bad guys. We brought the red foxes here. They are innocent too."
Jackie Dove is the host of the San Francisco-based radio program,
"Animal Nation," broadcast on KUSF (90.3 FM, www.slip.net/~dove/animalnation) and "Unheard Cries," carried on San Francisco Liberation Radio (93.7 FM, www.slip.net/~dove).
Earth Island's International Marine Mammal Project and Wildlife Alive supported the passage of Proposition 4.
Wildlife Hanging in the Balance