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Caught Between a Trap and a Lawsuit
By: Jackie Dove

Feb. 01, 2000

On November 3, 1998, California voters banned the trapping of fur-bearing animals for fur coats. A large majority?57.5 percent?said yes to Proposition 4, a statewide ballot initiative that banned several varieties of wildlife traps and poisons.

But now Prop. 4 is in court, under attack by what its proponents call an "unholy alliance" between hunters, trappers, and the National Audubon Society. Debate over the statute's wording (see sidebar) resulted in a November 1998 lawsuit filed against the state to prevent it from enforcing parts of Prop. 4. The conflict pits traditional animal allies against each other over an issue upon which they ostensibly agree: the protection of endangered species.

Proposition 4 outlaws both steel-jaw and padded-jaw leghold traps, as well as snares and Conibear traps, for recreational and commercial fur trapping, based on their cruelty and indiscriminate effects. It also bans certain "predator control" poisons such as Compound 1080 and sodium cyanide. Supporters estimate that Prop. 4 will save the lives of some 24,000 bobcats, beavers, foxes, coyotes, raccoons, and many more "nontarget" animals each year.

Despite the law's intent to target only commercial and recreational fur trapping, the Audubon Society and the California Waterfowl Association (a hunting group) are challenging Prop. 4 over the right of federal officials to use padded leghold traps to catch and kill animals who prey on such threatened or endangered species as the California clapper rail, the western snowy plover, the salt marsh harvest mouse, and the San Joaquin kit fox.

Aaron Medlock, lawyer and campaign manager for ProPAW, the coalition that sponsored Prop. 4, said, "The entire lawsuit was unfortunate because the parties are not in disagreement. We did not intend to restrict the Endangered Species Act (ESA)....Audubon decided to go to court even though there was no one doing anything against the ESA."

But according to plaintiff Arthur Feinstein, executive director of Golden Gate Audubon Society, the wording of Prop. 4 virtually forced Audubon to sue in order to protect endangered species. "If we did not sue, they could jail federal agents; anyone that was using the padded leghold would be susceptible to fines and imprisonment. They [ProPAW] know the federal law would supersede them, but they could get around the law by penalizing federal agents. Why else would they be included among the people who would be fined? That was the problem and ProPAW just blew it off. It clearly states that anyone using the padded trap would be subject to jail time."

The National Trappers Association and the California Trappers Association have also entered the lawsuit, seeking a complete revocation of the statute, but on November 12, a U.S. District Court judge tossed out their arguments for the second time after finding them without merit. It remains to be seen whether the trapping groups will attempt to refile their lawsuit for a third time.

Ecology vs. Animal Rights

The battle over Prop. 4 reflects what appears to be a widening gulf between the "animal rights" and "ecological" wings of the animal protection movement. It also encompasses the definition of animal cruelty, the public's evolving view of animals, and an increasing aversion to the idea of killing one animal in order to save another.

"Prop. 4 won by 15 percentage points?that is a landslide," said Alan Berger, executive director of the Animal Protection Institute (API). "The public is speaking out....They don't want animals killed, and if in fact you are going to protect the threatened and endangered species, it's not by killing and torturing animals."

California voters are not alone in their opposition to commercial and recreational fur trapping; 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 . Ironically, it was the Massachusetts Audubon Society, in an alliance with The Humane Society of the United States (HSUS) and the Massachusetts SPCA, that co-sponsored the anti-trapping initiative in that state in 1996. Neither the Massachusetts statute nor those in other states specifically addressed the issue of endangered species, and none of the other trapping laws have been challenged in court.

Proposition 4 was drafted by a coalition of humane groups?consisting of HSUS, API, the American Society for the Prevention of Cruelty to Animals, The Ark Trust Inc., Doris Day Animal League, The Fund for Animals, and the International Fund for Animal Welfare?that banded together to form Protect Pets and Wildlife, or ProPAW. The group takes an animal rights position that considers each animal as an independent individual whose ability to suffer pain and fear must be considered. Audubon, in contrast, takes an ecological point of view that considers animals not as individuals, but as populations?some of which are threatened or endangered, and thus worthy of defending even at the expense of members of nonthreatened species. This viewpoint echoes that of the government agencies involved in protecting endangered species, including the Department of the Interior, the U.S. Fish and Wildlife Service (USFWS), and the Department of Agriculture's Wildlife Services division, formerly known as Animal Damage Control.

But Wayne Pacelle, a senior vice president at HSUS, tells the story differently. "Before we filed the measure, I called...Dan Taylor and ran all of its provisions by him," he said. "He said, 'I don't see any problem with it.' We took that as a clear signal that Audubon would at least remain neutral on the measure." The conflict over Prop. 4 has now grown to include other issues, which will be sorted out in the U.S. District Court in Northern California at an undetermined date. Audubon's objection to the statute has widened considerably; language in the injunction seeks to extend the use of padded leghold traps to protect migratory birds under the federal Migratory Bird Treaty Act, which covers species that are not threatened or endangered. But this belated concern for migratory birds (many of which are considered "game" animals) may be linked to the hunting groups that have joined Audubon's lawsuit. Noted Medlock, "The effect will be to allow the use of the leghold trap to benefit hunters, not birds."

In November, in a move that is almost certain to widen the current rift between Audubon and the supporters of Proposition 4, Audubon sought the court's permission to expand its lawsuit to include the use of padded leghold traps by Wildlife Services for predator control activities, which Prop. 4 backers say has nothing to do with the protection of endangered species or migratory birds. According to court papers, Audubon now maintains that Prop. 4 violates the Animal Damage Control Act of 1931, which authorizes Wildlife Services to "conduct campaigns for the destruction" of predators and other animals deemed "injurious" to agriculture and ranching interests. "This is the last act of a desperate plaintiff," said Jonathan Lovvorn, an attorney with the public interest law firm Meyer & Glitzenstein, who represents the Prop. 4 proponents. "If the National Audubon Society has some legitimate reason for expanding this lawsuit to include the Animal Damage Control Act?the longtime bane of both environmental and animal protection advocates?they have not shared it with us."

Red Fox or Red Herring?

Then there is the issue of red foxes, which are not native to California but were introduced in the late 1800s by fur farmers and fox hunters. Some escaped or were set free, eventually integrating themselves into the landscape. USFWS staff at the San Francisco Bay National Wildlife Refuge noted in the mid-1980s that populations of California clapper rails?which had been hunted to near extinction earlier in the century and which continue to suffer severely from habitat loss?had dropped precipitously just as they were first observing the presence of red foxes in the marshlands of San Francisco Bay. The foxes also were observed in other areas where they were deemed a similar threat. Today, the red fox?along with feral cats, also dumped onto the landscape by humans?is being blamed by government wildlife biologists and the Audubon Society for population declines of endangered and threatened species.

"The red fox in this state has a bull's eye on their head," declared Berger, whose group's recent campaign in the city of Redwood Shores prevented the trapping of red foxes and other predators with the padded leghold trap.

In 1991, the USFWS began a Predator Management Program that killed approximately 90 red foxes a year for five years inside the San Francisco Bay National Wildlife Refuge. Because the agency focused nearly its entire action plan on the red fox, from the government's point of view, Prop. 4 removed its most valuable "management tool" to protect endangered species. Joelle Buffa, the refuge's chief biologist, contends that the language in Prop 4 is unclear as to the federal government's role in protecting endangered species. But Terry Mansfield, deputy director of the state's Department of Fish and Game, stated in an affidavit that state officials had no plans to enforce Prop. 4 against federal wildlife employees acting in their official capacities. He noted, "In the absence of a statutory waiver of federal sovereign immunity, 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." But Buffa argued, "Other federal law enforcement agents enforce each other's laws. The Forest Service may read the Fish and Game codes and say there are violations."

Attorney Eric Glitzenstein stated, "...[E]lementary legal principles dictate the conclusion that Proposition 4 could not restrict the ability of FWS officials to carry out their duties under ESA?e.g., if FWS officials were to conclude that the use of the trapping techniques regulated by the proposition were necessary to conserve an endangered or threatened species." While the clapper rail is obviously no longer hunted, other migratory birds can be killed by hunters on national wildlife refuges in California , something that sits poorly with ProPAW and which, in their view, diminishes the credibility of both the USFWS and Audubon in claiming to want to protect wildlife.

ProPAW harshly criticizes as an "unholy alliance" Audubon's connection with hunting and trapping interests, and is particularly incensed at what they call the group's cozy relationship with Wildlife Services, which is infamous for trapping and killing wildlife for special interest groups, especially ranchers. Said Medlock. "We question the role that Wildlife Services played against Prop. 4....They are using the endangered species as a red herring to satisfy their ranching clients." According to the Predator Defense Institute, Wildlife Services annually kills tens of thousands of coyotes, bears, mountain lions, bobcats, wolves, and other predators through shooting, poisoning, gassing, snaring, and leghold trapping.

Conflicting Reports Audubon has based its lawsuit against Prop. 4 largely on inconclusive information from a USFWS report compiled between 1991 and 1996, which noted that bird populations and growth rates varied all over the San Francisco Bay National Wildlife Refuge despite the fox-trapping program. For example, it says population counts of clapper rails in Dumbarton and Mowry North marshes grew while populations mostly dropped in the Mowry South and Greco Island Marshes. The report also noted decreases in clapper rail growth rates during the same period in the Dumbarton, Mowry North, Greco Island and Bair Island populations. Western snowy plover nest success also went up and down from 1992 to 1996.

"We attribute the resurgence of the clapper rail to the predator management program, because a lot of things got worse over that...period, and this was the only step we took, there is nothing else that we did," Buffa said.

And this is precisely the problem of trying to correlate the number of red foxes to clapper rails, 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 to save California clapper rails."

The USFWS cites additional factors that contributed to the decline of the clapper rail, including chemical contamination, poor weather, shrinking habitat, and commercial development. According to the study, predation by such native species as red-tailed hawks and peregrine falcons, as well as some unknown factors, also played a negative role in clapper rail survival.

Medlock denounces the report as an unscientific sham, and says its release just prior to the vote on Prop. 4 was politically motivated to damage the measure's chance for passage. "Serious wildlife biologists look at this [report] and cannot believe that this is being passed off as science," he said. "But the fact remains that we do not necessarily oppose removing red fox if they must be removed....Let's use real science and humane alternatives."

Definitions of Cruelty

Striking at the heart of ProPAW's main argument?that padded leghold traps are as bad as steel-jaw ones?is the contention by Audubon and the U.S. government that padded traps are not cruel, despite numerous studies documenting edema (swelling), skin lacerations, tooth fracture, tendon abrasion or severance, and fracture suffered by animals caught in them. Mark Jensen, the Wildlife Services district supervisor who runs the San Francisco refuge trapping program, defends the device. "Everybody thinks it breaks bones, but it doesn't do that," he said. "I've been doing this for a lot of years and not once have I seen an animal chew off a leg." But he concedes that some injuries are possible if an animal is left in a padded trap too long. "I didn't say there would be no bruising. I didn't say the animal will not feel fear." California law requires traps to be checked daily, although the degree of compliance is unknown. Federal agents claim to kill trapped animals with a lethal injection of sodium pentobarbital, a controlled substance not used by commercial trappers. Killing methods used by other trappers include clubbing, stomping, or drowning.

Feinstein maintains his group's focus on protecting endangered species. "Audubon is not a humane society. We take no position on hunting...we are trying to control these predators," he said. "The padded leghold isn't inhumane. Wildlife Services has trapped several hundred species in the traps. They're padded and they don't hurt. I have seen it snap over people's hands without blinking an eye."

A demonstration used by USFWS officers to convince people that the padded leghold is humane involves someone sitting at a table and briefly placing his or her hand in a trap and then removing it. But Medlock calls the demonstrations deceptive. "A scientist knows not to struggle to get out of the trap," he said. "So to close the trap on your finger is a stunt because you won't bite it and tug at it. But the animal doesn't know. The animal may be in shock or exhausted after spending 24 hours exposed to the elements and other predators [while] in a trap."

But Feinstein shifts the pain and suffering argument to the issue of a predator preying on an already weakened endangered bird. "There may be 1,000 red foxes, but they kill 50,000 to 100,000 critters and cause a lot of pain and death," he said. "The animal rights people answer that [the foxes] are here now and that they deserve to live. 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."

Voters Decide

The questions of whether the red fox is responsible for the demise of the clapper rail, whether trapping is the best or only solution to fox predation, whether migratory birds should be protected so that hunters can shoot them, and whether the padded leghold trap is cruel or not may never be completely resolved to everyone's satisfaction. But what has been unequivocally established is the opinion of California voters.

Despite an intense statewide effort against Prop. 4 by the Audubon Society and the USFWS, environmentally conscious voters rejected their arguments on the trapping issue. In San Francisco , Prop. 4 won by a whopping 70 percent, despite Audubon's warnings and despite strong opposition to the measure by most of the region's daily newspapers.

"I interpreted the 70 percent vote in San Francisco as a repudiation of [the opinions of] the Chronicle, Golden Gate Audubon, and Marin Audubon," said Medlock. "What it says is that the public cares about all wildlife and they have a hard time pitting one animal against another. They did not buy the Audubon line that the padded legholds are safe."

But perhaps it is Feinstein's conclusion that everyone can get behind, at least to some degree. "Humans are responsible for this. We people are the bad guys. We brought the red foxes here, they are innocent too."

Proposition 4 provides that:

(a) It is unlawful for any person to trap for the purposes of recreation or commerce in fur any fur-bearing mammal or nongame mammal with any body-gripping trap. A body-gripping trap is one that grips the mammal's body or body part, including, but not limited to, steel-jawed leghold traps, padded-jaw leghold traps, Conibear traps, and snares. Cage and box traps, nets, suitcase-type live beaver traps, and common rat and mouse traps shall not be considered body-gripping traps.

(b) It is unlawful for any person to buy, sell, barter, or otherwise exchange for profit, or offer to buy, sell, barter, or otherwise exchange for profit the raw fur, as defined by Section 4005 of the Fish and Game Code, of any fur-bearing mammal or nongame mammal that was trapped in California with a body-gripping trap as described in subdivision (a) after the effective date of this section.

(c) It is unlawful for any person, including employees of the federal, state, county or municipal government, to use or authorize the use of any steel-jawed leghold trap, padded or otherwise, to capture any game mammal, fur-bearing mammal, nongame mammal, protected mammal, or any dog or cat. The prohibition in this subdivision does not apply to federal, state, county or municipal government employees or their duly authorized agents in the extraordinary case where the otherwise prohibited padded-jaw leghold trap is the only method available to protect human health or safety.

The measure also bans the use of Compound 1080 and sodium cyanide. Violators face fines of $300-$2,000 and/or up to a year in prison.