Legal and Ethical Principles

Module 12 Legal and Ethical Principles

Learning Objectives

  1. List the agencies responsible for regulating the control of wildlife.
  2. Identify and explain ethical principles and practices as they apply to the control of wildlife.

Terms to Know

Ethics   A system of moral principles that guides a person’s decisions and actions.
Game species   Wildlife that may be hunted, trapped, or fished in appropriate seasons.
Non-game species   Species that are not harvested and no open seasons are available for their harvest. Most non-game wildlife species are protected and cannot be harmed.
Regulation   Rules created by agencies that interpret and apply statutes.
Statute   A law created by an act of the state legislature or US congress.
Taking/take   Pursuing, shooting, hunting, killing, capturing, trapping, snaring, and netting wildlife and all lesser acts such as disturbing, harrying, or worrying; or placing, setting, drawing, or using any net or other device commonly used to take any such animal.
Unprotected and invasive exotic species  These animals can usually be taken anytime without special permits (e.g., European starlings or feral hogs).

Laws and Agencies

Local, state, and federal laws and regulations are designed to protect wildlife and the public. Always be aware of the current status of laws at all levels of authority. Often, state and local regulations are more restrictive than federal regulations. Different laws and regulations apply to NWCOs, pesticide applicators, hunters, trappers, wildlife rehabilitators, and those who control populations of domestic animals.

Federal Agencies

Five major agencies are involved in regulating the wildlife control industry or handling related programs at the federal level.

  • Wildlife Services is part of USDA Animal and Plant Health Inspection Service (APHIS). Its goal is to lessen damage caused by wildlife. The Division of Wildlife Services provides federal assistance in addressing wildlife damage issues but does not have a regulatory role. They help manage wildlife to reduce damage to agriculture and natural resources, minimize risks to human health and safety, and help protect endangered and threatened species.
  • The US Fish and Wildlife Service (USFWS) regulates the protection of endangered species and migratory birds.
  • The US Environmental Protection Agency (EPA) regulates the use of toxicants, repellents, and other pesticides.
  • The Occupational Safety and Health Administration (OSHA) in the Department of Labor regulates worker safety rules (www.osha.gov).
  • The Centers for Disease Control and Prevention (CDC) makes recommendations for the prevention of human and other zoonotic diseases (www.cdc.gov).

In special circumstances, other federal agencies may have jurisdiction, such as the Federal Aviation Administration, which supervises control of wildlife at airports. The Bureau of Alcohol, Tobacco, and Firearms (ATF) regulates the use of wildlife control pyrotechnics.

Federal Laws

The following discussions include brief descriptions of pertinent federal laws and regulations that affect wildlife control. These are part of the US Code and are found on-line and at most public libraries: “16 U.S.C. 1531-1544, 87 Stat. 884.”

Endangered Species Act

The Endangered Species Act (ESA) was passed in 1973 to protect imperiled plant and animal species. The ESA requires that an endangered or threatened species must not be injured or harassed by wildlife control activities. Endangered and threatened species cannot be killed, harmed, or collected except under carefully described circumstances and only with appropriate federal and state permits. The only exception to this in New York is when endangered or threatened bats are found inside an occupied home. These bats may be killed if necessary for rabies testing ordered by the health department. This can take place without the need for an additional permit.
If endangered or threatened species exist in your service area, you must take special precautions. The presence of endangered or threatened species will affect how you set traps or apply pesticides. Some pesticides used to manage wildlife may affect endangered species. The label will inform the user of potential risk to endangered species. It may direct the user to EPA’s Endangered Species Protection Bulletins through a telephone number or a website. If referenced, this is a part of the label and must be called or visited.
One measure of professionalism is the level of effort made to protect non-target species, whether they are endangered or not. Endangered species probably will not be present in most urban settings, however, protected birds often are. Many species of wildlife are protected under state regulations but are not threatened or endangered (e.g., game animals are protected during closed seasons). For more information on the ESA, visit http://www.fws.gov/endangered/laws-policies/index.html.

Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA) protects all migratory birds, as well as their feathers, nests, and eggs. It does not include pigeons (except banded homing pigeons), house sparrows, or European starlings, which are non-native species. You may not take, possess, or transport migratory birds, nests, or eggs without a federal permit.
Before you attempt to capture or kill a migratory bird (e.g., woodpeckers, raptors, and waterfowl), the landowner must obtain a 50 CFR Depredation Permit from the USFWS (USFWS Bird Depredation Permit (http://www.fws.gov/forms/3-200-13.pdf). The permit allows the taking of migratory birds that have become a nuisance, are destructive to public or private property, or are a threat to public health or welfare. The permit spells out the conditions under which the birds may be controlled and the methods that may be used. Permit holders may control migratory birds that are causing, or are about to cause, serious damage to crops, nursery stocks, or fish in hatcheries. A fee is required for the permit.
You may help clients through the permit process and answer questions but you cannot secure the permits for them. When clients fill out the permit application, have them assign your company as the agent to perform the service. A recent exception was added to the regulations allowing NWCOs to rescue migratory birds trapped inside buildings, provided they are released unharmed and on-site.
One exception in the MBTA (50 CFR 21.43) is that “a federal permit shall not be required to control red-winged and Brewer’s blackbirds; cowbirds; all grackles, crows, and magpies; when found committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner as to constitute a health hazard or other nuisance.” These regulations change periodically. Check that you have the latest information about blackbird depredation and excluded species by contacting the USFWS or your state wildlife agency.
Some states also may have a federal General Depredation Order for control of Canada geese, gulls, and cormorants that are causing conflicts, property damage, or threatening endangered wildlife. Check with your state wildlife agency to determine if a General Depredation Order applies in your work area. A table listing states with General Depredation Orders and species of birds is at https://www.fws.gov/forms/3-200-13.pdf as well.
State and local ordinances may further define control activities. For example, in New York the Environmental Conservation Law states: “Red-winged blackbirds, common grackles and cowbirds destroying any crop may be killed during the months of June, July, August, September and October by the owner of the crop or property on which it is growing or by any person in his employ.” Local laws may limit the types of treatments that may be used in controlling birds (e.g., pyrotechnics). Check local and state laws before attempting to control any bird species.

Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) regulates the availability and use of pesticides including repellents and toxicants. Unless licensed as a pesticide applicator, a NWCO usually cannot legally apply these products as a commercial activity.

Occupational Safety and Health Act

The Occupational Safety and Health Act (OSHA) sets standards to promote worker safety. For example, workers must be informed in advance about potential job hazards such as possible exposure to histoplasmosis from contact with pigeon droppings. All employers who have more than 10 employees must keep records of all work-related deaths, injuries, and illnesses, and report to OSHA periodically. OSHA also oversees the investigation of employee complaints that may be related to the use of chemicals. Even if you do not have more than 10 workers, review OSHA standards and training recommendations, especially those concerning the safe use of ladders, confined spaces, and respirators.

State Agencies

In general, state regulations add restrictions to federal laws. They cannot be less restrictive. Wildlife species that are not regulated by the federal government fall under state jurisdiction. Some problem species are unprotected and have no restrictions on their take. More on NY agencies, laws, and regulations is in Module 13.
States typically classify wildlife in the following ways:

  • Game species may be legally hunted.
  • Furbearer species are captured for fur, usually through trapping. Animals under these designations (game and furbearer species) require a state hunting or trapping license to capture or “take” them.
  • Non-game species are not harvested and no open seasons are available for their harvest. Most non-game wildlife species are protected and cannot be harmed.
  • Unprotected and invasive exotic species (e.g., European starlings or feral hogs). These animals can usually be taken anytime without special permits.

Local Agencies

The major agencies involved in wildlife-related work at the local level include:

  • Municipal animal control
  • Humane societies
  • County sheriff and police departments
  • County departments of health and human services.

Local Laws and Regulations

In recent years, some animal control agencies have extended enforcement of regulations developed for the humane treatment of domesticated animals to the treatment of wildlife. In some states, state laws against animal cruelty also apply to wildlife. For example, NWCOs have been cited for animal cruelty because cage-trapped animals did not have access to water. It is imperative that your wildlife control activities be humane and in accordance with the highest standards. Just because a technique is legal does not mean it is wise or appropriate. Always consider how a conflict situation might be perceived by clients and the public. Keep in mind that with public access to cell phone cameras, any of your activities might be filmed and appear in the media.

Non-target Animals

In general, a non-target animal is an individual or species that is not the objective in an effort to manage wildlife.
If you are authorized to control a species, most states permit you to deal with it according to the wishes of the client. If the animal is a rabies vector species (e.g., raccoon, skunk, or fox), some states require it to be euthanized regardless of whether it was targeted. Most non-target species should be released onsite.
The legal situation becomes more unclear when dealing with domestic animals. House cats, in particular, frequently enter traps. If the cat is owned, it must be released. It often is unclear, however, if feral cats are considered wild or domestic. Most states do not clarify this situation, so NWCOs may work with local animal shelters when capturing feral domestic animals. Your local government may require domestic species to be taken to your local animal shelter for final disposition. Always investigate the rules before you act.

Wildlife Control Ethics

Ethics are the principles that guide the way you conduct your life. Your behavior flows from your moral value system. Your work with animals must follow the highest ethical and humane practices because the public holds wildlife in such high regard. Consider how your actions affect the client and the animal. Many traditions teach that proper ethical behavior requires us to treat others the way we would like to be treated. This requires you to look at the situation from the perspective of the client.
Respect is the quality of treating people and things relative to their inherent value and dignity. Be empathetic and respectful of clients and you are likely to make good decisions.
An understanding of people’s feelings and values will help you navigate the emotionally charged nature of WDM. It is important to appreciate the wide range of attitudes and values that people show for wildlife. Some clients, even those suffering severe damage, may have conflicting attitudes toward an offending animal. They want the animal eradicated but they may feel guilty for harming an animal.

Nine Principles of
Wildlife Damage Management

Ethical professionals in WDM follow nine principles:

  1. Strictly follow all laws and regulations related to WDM.
  2. Behave in a professional manner. Show and act with honesty, sincerity, and dedication.
  3. Treat people, property, and wildlife with a great deal of respect.
  4. Be sensitive to different viewpoints on WDM.
  5. Promote competence and present an image worthy of the profession by supporting high standards of education, employment, and performance.
  6. Treat other practitioners in a courteous and honorable manner.
  7. Strive to broaden knowledge, skills, and abilities to advance the practice of WDM.
  8. Attempt to resolve wildlife damage conflicts with the most humane, selective, practical, and effective management techniques available.
  9. Encourage clients, co-workers, and others involved in the situation to do the same.

An Explanation of the Principles of Wildlife Damage Management

  1. Obey the law. Laws reflect societal standards for the treatment of wildlife. Failure to obey the letter and the spirit of the law exhibits contempt for public values and exposes you to criminal and civil liability, including but not limited to, having a criminal record, prison, and economic loss due to fines and penalties.
  2. Behave professionally. Just because something is legal does not mean it is right or advisable. Education, experience, and good judgment will help you to maintain high professional standards.
  3. Treat clients and wildlife with respect. Behave in a manner that onlookers would agree is appropriate and fair. We recommend that NWCOs act in a way that assumes every action will be front-page news or on video. If you do not want it seen in the media, do not do it.
  4. Be sensitive to other viewpoints. Do not argue with clients about wildlife control issues. Explain the law and try to fulfill client expectations as much as is legally and practically possible. Be discrete with neighbors.
  5. Develop your professionalism by improving yourself and the image of the industry. The day you think you know everything about WDM is the first day you step back from being a full professional. Wildlife damage management is an extremely diverse field requiring knowledge about animal behavior, equipment, construction, laws, and public relations. The profession is in constant change.
  6. Avoid the temptation of speaking poorly about your competition. Instead of emphasizing what they do wrong, emphasize how your company does it right.
  7. Your job is to control damage to a level that the client finds tolerable. Encourage clients to see the benefits of enacting long-term solutions, such as exclusion and habitat modification.
  8. Use techniques that have the highest likelihood of catching target animals in the safest and most cost-effective manner.
  9. Participate in trade associations, such as National Wildlife Control Operators Association (NWCOA) and training opportunities. Encourage others to use the highest ethical standards in NWCO work.

Conclusion

While many decisions are clearly right or wrong, many more depend on the situation. Reasonable people can disagree over a specific course of action, but always consider whether you can defend your decisions. If you know that you are doing something wrong or illegal, then you should not do it. Always consider how your actions will affect: the client, your employer, neighbors, on-lookers, the environment, and the animal being controlled. Sometimes no “perfect” solutions exist, but you can always choose the options with the fewest negative consequences. While your company wants to service client requests, sometimes those requests are unreasonable, dangerous, or illegal. In those situations, the ethical response is to walk away. Do not take money from a client when you do not reasonably believe you can provide effective service.

Additional Resources

US Fish & Wildlife Service
http://www.fws.gov
http://www.fws.gov/endangered/laws-policies/index.html.
US Environmental Protection Agency
http://www.epa.gov
USDA APHIS Wildlife Services
http://www.usda.gov/
Acknowledgments
The original module was reviewed by

  • Gary Lunsford, Tulsa Zoo;
  • Claude Oleyar, Alpine Animal Control;

Robb Russell, www.wildlifepro.net.