Do Elk Feedgrounds Violate Public Trust?

Laramie – How much are big game animals worth to Wyoming? A judge recently ordered a hunter to pay $6000 restitution for killing a bull elk and leaving it to waste.

The Wyoming Game and Fish Department offers $5000 for information leading to the arrest of persons poaching moose or elk. A Wyoming game warden, describing an incident last fall involving three elk, stated: “Poachers stole these animals from hunters and wildlife enthusiasts alike. This is an unbelievable loss to the wildlife resource and all law-abiding citizens.”

If the animals are killed by the state, however, it’s a different story.

Chronic wasting disease (CWD) is a growing threat to Wyoming’s elk, deer and moose. Yet the Game and Fish insists on maintaining elk feedgrounds, which provide ideal conditions for incubation and spread of CWD, brucellosis and a host of other transmissible diseases. When CWD reaches the feedgrounds (indeed, it might already be there), thousands of elk, as well as deer and moose, will die, and habitat will be contaminated indefinitely. [see “Close Elk Feedgrounds Before It’s Too Late“)

Experts agree that while CWD cannot be eradicated, it is possible to slow and perhaps interrupt its spread. (Sigurdson 2008). Among their top recommendations: reduce cervid density by banning supplemental feeding. (Peterson 2005).

Even so, Game and Fish has no intention of shutting down its 22 elk feedgrounds. In fact, it has asked the U.S. Forest Service to renew the “special use permits” for feedgrounds on forest lands. In turn, the Forest Service has prepared an environmental impact statement, in which it concedes the risk but disclaims any authority to prevent elk feeding. (USDA 2008: 22-23)

Game and Fish approaches CWD as if it were hypothetical, not a looming crisis. Its latest report on feedgrounds notes the “concern” that “feedgrounds may mimic the circumstances of elk in captivity and … result in high CWD prevalence resulting in drastic population declines as implicated by the disease models.” Incredibly, the agency then asserts: “Although this may happen, a perfectly acceptable alternative hypothesis is that CWD will have little or no impact on elk populations based on the known low prevalence rates for CWD in wild elk.” (Game and Fish 2004: 11)

As trustee for Wyoming’s wildlife, Game and Fish’s management should be precautionary, not hypothetical, certainly not experimental.

Game and Fish calls feedgrounds “a complex biological, social, economic and political issue.” (WGFD 2005: 5). Contributors to The Elk of North America wrote: “Sociopolitical considerations rather than principles of balanced resource management dictate the need for [supplemental feeding].” (Robbins et al. 1982) In fact, feedgrounds are a concession to political pressure from the livestock industry. Let’s call a spade a spade.

No law requires supplemental feeding of elk. The question is, does the law allow feedgrounds? Game and Fish and the federal agencies have broad discretion to carry out their missions. But that discretion is not unlimited.

The legislature has declared that it is state policy “to provide an adequate and flexible system for control, propagation, management, protection and regulation of all Wyoming wildlife. (Wyo. Stat. 23-1-103) One suspects that Game and Fish considers feedgrounds an exercise of “flexible” management. “Adequate” protection for elk is plainly a secondary priority.

According to the Wyoming Supreme Court, elk have “been entrusted to the care of the State by the people … and must be carefully tended in order to be preserved.” (O’Brien v. State, 711 P.2d 1144, 1986), quoting Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 1978) In one case the State’s “duty to preserve, protect, and nurture the wild game” led the court to strike down a statute that caused overhunting and “serious depletion of deer.” The court ruled that the State must employ means that are “reasonable and … appropriate for the accomplishment of this duty to protect and nurture the game.” (Shakel v. State, 513 P.2d 412 (1973))

Nevertheless, Game and Fish argues that feedgrounds are needed to protect ranchers’ livestock from wildlife diseases. But Game and Fish has no legislative mandate to protect domestic stock – from diseases found in wildlife or otherwise.

The Wyoming Constitution directs the legislature to “pass all necessary laws to provide for the protection of livestock against … infectious or contagious diseases.” (Article 19, § 1). The legislature responded by enacting Wyo. Stat. §§ 11-19-101 through 506, which authorize the State to pay for any diseased stock the state vet sends to slaughter. The State also assumes some liability for damage caused by big game to livestock, land, crops, and improvements. (Wyo. Stat. § 23-1-901) But the Wyoming Supreme Court rejected a livestock producer’s argument that this law provides compensation for livestock losses allegedly attributable to wildlife-carried disease. (Parker Land & Cattle Co. v. State, 845 P.2d 1040, 1993).Maintaining elk feedgrounds, given the perils of CWD, simply can’t be reconciled with Game and Fish’s wildlife trust duties.

State-operated feedgrounds are also unlawful as a matter of federal law, whether located on national forests or other lands.

The Forest Service reasons that Wyoming’s “jurisdiction over state wildlife” deprives the Forest Service of any authority to regulate elk feeding. (USDA 2008) Thus, even if feeding were disallowed in national forests, the State could just establish feedgrounds elsewhere. (About a third of feedgrounds are on private or other federal lands.) This reasoning allowed the Forest Service to shrug off as “unavoidable” all adverse environmental effects of feedgrounds.

The Forest Service is badly mistaken.

States do possess “broad trustee and police powers over wild animals,” but the U.S. Supreme Court has ruled that federal power over the public lands under the Property Clause “necessarily includes the power to regulate and protect the wildlife living there.” (Kleppe v. New Mexico, 426 U.S. 529, 1976). Exercise of this power in statutes or valid federal regulations “overrides conflicting state laws.” (Kleppe)

Federal powers and duties with respect to national forests can be traced to several statutes and regulations. Beginning in 1915, Congress authorized the Forest Service to permit national forests to be used for various purposes. A state may be allowed to use areas “not exceeding eighty acres and for periods not exceeding thirty years” to maintain facilities necessary or desirable for “any public use.” Exercise of this “special use” authority may not “preclude the general public from full enjoyment of the natural, scenic, recreational, and other aspects of the national forests.” (16 U.S.C § 497(d)) Regulations require permitted uses to satisfy several prerequisites, to be revocable, and to “minimize damage to … fish and wildlife habitat.” (36 C.F.R. part 251)

In 1960 and again in 1976, Congress directed the Forest Service to manage forest resources in the “combination that will best meet the needs of the American people”; to “consider the relative values of the various resources in particular areas”; and to avoid “impairing the productivity of the lands.” (16 U.S.C. §§ 529, 531, 1604)

Another 1976 statute authorizes the Forest Service as well as the BLM to regulate or close areas to hunting “for reasons of public safety, administration, or compliance with … applicable law.” In “emergencies” the agencies may exercise this power without first consulting the state. (43 U.S.C. § 1732(b))

Allowing feedgrounds, and thus inviting a CWD outbreak, on national forest lands arguably violates these requirements in several ways.

Western Wyoming’s elk populations are world renowned and crucial to the valuable hunting and tourism sectors. Cattle and sheep, on the other hand, are among the planet’s most abundant commodities. Yet, the Forest Service, like the State, has implicitly chosen to manage for livestock rather than wildlife. Contrary to law, the Forest Service has ignored the relative values of these resources, the impact of a CWD eruption on the productivity of the lands, and the needs of the American people.

The Forest Service has not explained how feedgrounds qualify under the special use permit regulations as a “public use” or “in the public interest.” Nor can it ensure that feedgrounds will not pose a future public health or safety risk or interfere with other uses of the lands. Contaminating the soil with prions seems analogous to disposing solid waste or hazardous substances, which the regulations explicitly prohibit.

Despite the requirement to “minimize” habitat impacts, feedgrounds will harm soils, vegetation, wildlife, water quality, and riparian areas, and increase disease and parasite transmission. (USDA 2008: 87).

Long-term, possibly permanent, contamination of feedground soils would effectively violate both the 30-year term limit and the requirement that special use permits be revocable. (Compare Wilderness Society v. Morton, D.C. Circuit [en banc], 479 F.2d 842, D.C. Cir. 1973)Finally, given that Congress empowered the Forest Service to forbid hunting—a quintessentially traditional state prerogative—there can be no doubt that the agency can forbid other activities that would interfere with its management of public lands.

But is the Forest Service helpless to prevent the State from feeding on private or state lands?Since the U.S. Supreme Court’s decision in Camfield v. U.S. (167 U.S. 518, 1897), it has become well established that the United States has “power to regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property.” (U.S. v. Lindsey, 595 F.2d 5, 9th Cir. 1979). Relying on Camfield, Judge Clarence Brimmer ordered a rancher to remove or lay down portions of a fence on private land near Rawlins because it prevented pronghorn from reaching critical public-land winter range, in violation of an 1885 law. (U.S. v. Lawrence, 848 F.2d 1502, 1988). Other cases have upheld penalties for building campfires or using motor vehicles on nonfederal lands, where those uses threatened national forests or wilderness. (U.S. v. Alford, 274 U.S. 264, 1927; Minnesota v. Block, 660 F.2d 1240, 8th Cir. 1982).

Markus J. Peterson, Chronic Wasting Disease and the Greater Yellowstone Area, 2005, at http://greateryellowstone.org/media/pdf/MPeterson2005reportfinal.pdf

Christina J. Sigurdson, A prion disease of cervids: chronic wasting disease, Vet. Research 39 (2008): 41.

Wyoming Game and Fish Department, Chronic Wasting Disease Management Plan (2005), at:
http://gf.state.wy.us/downloads/pdf/CWDPlanapprovedbycommission2-17-06.pdf.

Ron Dean et al. [Wyoming Game and Fish Department], Elk Feedgrounds in Wyoming, Aug. 30, 2004, at
http://www.fs.fed.us/r4/btnf/projects/2008/feedground/Appendix%202%20WEMP%20DEIS.pdfU.S. Geological Survey, Disease Costs and Consequences (Actual and Potential) of CWD in Deer and Elk, at
http://usgs.wildlifeinformation.org/OnlineCWD.asp

USDA-Forest Service, Draft Environmental Impact Statement: Long Term Special Use Authorization for Wyoming Game and Fish Commission to Use National Forest System Land for their Winter Elk Management Programs, at http://www.fs.fed.us/r4/btnf/projects/2008/feedground/Winter%20Elk%20Management%20Programs%20DEIS%20March%202008.pdf