Judge To Reconsider SEPA Claims Against WDFW Wolf Removals

Editor’s note: Updated 3 p.m., Feb. 20, 2020 with information from court documents in paragraphs four, five, six and fifteen.

A King County Superior Court judge today announced he is willing to reconsider part of his ruling last month that initially reaffirmed WDFW didn’t need to run its wolf removal protocols through the State Environmental Policy Act.

Judge John McHale’s decision follows a partial motion for reconsideration filed Jan. 22 by John Huskinson, Genevieve Jaquez-Schumacher and Tim Coleman.

According to a brief statement from WDFW, the judge “indicated that he is willing to re-hear the arguments in the context of a different kind of motion.”

In asking McHale to reconsider, the trio’s attorneys argue he made a mistake in dismissing the SEPA claims because he did so “on findings of fact that are contrary to the allegations in the Petition, which were therefore inappropriate to make in a ruling on a motion for judgment.”

“The Court’s Ruling contravenes well-pled allegations in the Petition with its factual findings that the [lethal removal] Protocol was (1) not a ‘policy, plan, or program that governs or controls the development of a series of connected actions’ and (2) ‘not part of a WDFW common scheme or plan’. Petitioners thus move for reconsideration because the Ruling was contrary to the legal standards that the Court should have applied in considering a motion for judgment on the pleadings,” write Claire Loeb and Jonathan Bashford.

In counter arguments, WDFW’s attorneys say the plaintiffs are trying to “broaden the reach of SEPA to recapture a categorically
exempt action” with the use of the phrase “policy, plan, or program.” They say that McHale shouldn’t accept that the protocols “governs” agency actions or that it’s part of a “common scheme.”

The plaintiffs now need to file a motion to have arguments heard once more, a WDFW spokeswoman said.

The original suit filed last August by Jaquez-Schumacher and Huskinson, both of King County, and Coleman, of Ferry County, challenged WDFW’s 2019’s removals of members of the Old Profanity Territory Pack in Northeast Washington’s Kettle Range.

They argued that the state’s 2017 lethal removal protocols, arrived at after extensive input between WDFW and members of its Wolf Advisory Group, should have undergone environmental reviews.

A long SEPA process would have handicapped the agency’s ability to remove wolves to try and head off further cattle and sheep depredations.

WDFW said the lethal removal protocols “flow from” its 2011 Fish and Wildlife Commission-approved management plan for the species.

And it argued that killing wolves that attack livestock in the federally delisted eastern third of the state falls “squarely within several SEPA categorical exemptions” and pointed to state Supreme Court case law, state statutes and administrative codes.

On Jan. 10 Judge McHale agreed, dismissing the plaintiffs SEPA claims, just as Thurston County Superior Court Judge John C. Skinder had done last November with a lawsuit filed by Arizona- and Oregon-based wolf advocates over removals done in 2018 in the same region.

In that three-page decision, McHale wrote, “The Court finds that WDFW’s referenced last resort approach allows for true case by case consideration that fits within … categorical exemptions … and that the lethal action challenged in this lawsuit is not part of a WDFW common scheme or plan for which actions can be seen as combined to the point that they require SEPA analysis.”

In his reconsideration today, he writes, “… The Court cannot find that [WDFW attorneys have] established beyond doubt that [the plaintiffs] can prove no set of facts … that would entitle [the plaintiffs] to relief as to allegations regarding SEPA applicability to the 2017 Wolf-Livestock Protocol. Accordingly, the Court must grant [the plantiffs’] motion for reconsideration and find that dismissal of claims … premised on SEPA applicability to the 2017 Wolf-Livestock Protocol is not appropriate on the pleadings.”

In response, state managers kept up their even, measured tone.

“We appreciate the Court’s continued diligence in studying the issue,” said policy lead Donny Martorello. “WDFW looks forward to continuing to work collaboratively and inclusively through decisions impacting wolves and livestock.”

Last fall Governor Jay Inslee also waded into wolf management in the Kettle Range, telling the WDFW to “make changes in the gray wolf recovery program to further increase the reliance on non-lethal methods, and to significantly reduce the need for lethal removal of this species.”

IN OTHER WASHINGTON WOLF NEWS, a bill requiring WDFW to prioritize collaring wolves until they’re off the state ESA list as well as make multiple attempts to put tracking devices on animals in depredating packs passed out of the state House of Representatives on a 96-0-2 vote Tuesday.

SHB 2906 now goes to the Senate.