Animal Welfare Institute v. Martin, No. CV-08-267-B-W.
| Decision Date | 26 November 2008 |
| Docket Number | No. CV-08-267-B-W. |
| Parties | ANIMAL WELFARE INSTITUTE, et al., Plaintiffs, v. Roland D, MARTIN, Commissioner of the Maine Department of Inland Fisheries and Wildlife, Defendant. |
| Court | U.S. District Court — District of Maine |
Judith M. Brawer, Law Office of Judith M. Brawer, Boise, ID, Lynne A. Williams, Law Office of Lynne A. Williams, Bar Harbor, ME, for Plaintiffs, Animal Welfare Institute and Wildlife Alliance of Maine.
Christopher C. Taub, Nancy M. Macirowski, Maine Attorney General's Office, Augusta, ME, for Defendant, Maine Department of Inland Fisheries and Wildlife Commissioner.
David C. King, Phillip D. Buckley, Rudman & Winchell, Bangor, ME, James H. Lister, Birch, Horton, Bittner & Cherot, Washington, DC, for Intervenor Defendants, U.S. Sportsmen's Alliance Foundation, Maine Trappers Association, Fur Takers of America, National Trappers Association, Dana Johnson, Sr., Donald Dudley and Carl Guay.
Gary R. Leistico, Rinke Noonan, St. Cloud, MN, for Intervenor Defendant, National Trappers Association.
ORDER ON MOTION FOR PRELIMINARY INJUNCTION AND MOTION FOR LEAVE TO FILE REBUTTAL DECLARATION AND SUPPLEMENTAL DECLARATION
On October 4, 2007, the Court approved a Consent Decree between the Animal Protection Institute and the state of Maine in which the state agreed to impose restrictions on trapping in order to avoid incidental takes of Canada lynx, a threatened species, and to apply for an incidental take permit from the United States Fish and Wildlife Service. The Plaintiffs have filed suit claiming that the restrictions in the Consent Decree have failed to prevent continued incidental takes of lynx and asking the Court to further enjoin trapping in the state of Maine to prevent such takes. The recent take of a lynx in a Conibear trap has revealed an acknowledged gap in the state's regulatory scheme, which the Department of Inland Fisheries and Wildlife has promised to amend by the next trapping season. However, as the regulatory gap presents an immediate risk to lynx during the current trapping season and the state has proffered no reason the regulations cannot be amended on an emergency basis, the Court grants the Plaintiff's motion for preliminary injunction in part to require the state to take immediate action. Because the Plaintiffs have failed to demonstrate irreparable harm and the balance of equities favors the status quo as regards the remaining claims for relief, the Court denies the remaining demands for relief in the Plaintiffs' motion for preliminary injunction.
On August 11, 2008, the Animal Welfare Institute (AWI) and the Wildlife Alliance of Maine (WAM) filed an action for declaratory and injunctive relief, contending that Roland D. Martin, the Commissioner of the Maine Department of Inland Fisheries and Wildlife (Commissioner) (DIFW) was violating the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., by authorizing and allowing trapping activities that "take" Canada lynx, a threatened species. Compl. (Docket # 1). On September 23, 2008, the Plaintiffs moved for a preliminary injunction to prevent the Defendant from authorizing trapping activity during the upcoming trapping season, Pls.' Mot. for Injunctive Relief (Docket # 7) , and on October 3, 2008, the Plaintiffs filed an amended complaint, which added new factual allegations. First Am. Compl. (Docket # 9). On October 10, 2008, the U.S. Sportsmen's Alliance Foundation, Maine Trappers Association, Fur Takers of America, National Trappers' Association, Dana Johnson, Sr., Donald Dudley, and Carl Guay (Trappers) filed an unopposed motion to intervene, which the Court granted on October 14, 2008. Unopposed Mot. to Intervene (Docket # 12); Order Granting Without Ob. Mot. to Intervene (Docket # 18). On October 14, 2008, the Commissioner responded in opposition to the motion for preliminary injunction. Def.'s Opp'n to Pl.'s Mot. for Prelim. Injunction (Docket # 15) (Def.'s Opp'n). On October 15, 2008, the Trappers also responded in opposition. Def-Intervenors' Opp'n to Pls.' Mot. for Prelim. Injunction (Docket # 23) (Trappers' Opp'n). On October 27, 2008, the Plaintiffs replied. Pls.' Consolidated Reply to Def.'s and Def-Intervenors' Opp'n to Mot. for Injunctive Relief (Docket # 29) .
According to the amended complaint, AWI is "a national, non-profit charitable organization headquartered in Washington[,] D.C. and founded in 1951 to reduce the sum total of pain and fear inflicted on animals by humans." Am. Compl. ¶ 5. AWI has "tens of thousands of members and constituents living throughout the United States, including approximately 174 members and constituents who live in Maine." Id. WAM is "a non-profit, 501(c)(3) organization with offices located at 96 Harlow St., Suite 355, Bangor, Maine, 04401" Id. ¶ 6. It is "an all volunteer organization dedicated to advocacy for wildlife and representing non-consumptive interests of wildlife in Maine." Id. It has "over 700 members living, working and recreating in Maine as full time residents." Id. As Commissioner of the DIFW, Mr. Martin is responsible for all department actions, "including the promulgation of Maine's trapping regulations and ensuring compliance with federal laws, such as the ESA." Id. ¶ 10. The Intervenors are organizations and individuals who are concerned with or who engage in trapping in Maine. Unopposed Mot. to Intervene at 2-4.
In the lower forty-eight states, Canada lynx (Lynx canadinsis) inhabit both boreal forests and subalpine coniferous forest or northern hardwoods. Pls.' Mot. Attach. 2, Camilla Fox Aff. ¶ 20 (Docket # 7-3) (Fox Aff.). The historical range of the species in the contiguous states encompassed the northeastern states, including New York and Pennsylvania, the Great Lakes states, the Rocky Mountains, including Montana, Idaho, Oregon, Utah, and Colorado, and the Cascade Range of Washington and Oregon. Id. As a result of habitat degradation and overexploitation, lynx populations have declined dramatically over the last century and have disappeared completely from portions of their former range. Id. ¶ 23. Lynx are highly dependent on the snowshoe hare as their primary prey and their populations generally fluctuate with the ten-year hare population cycle. Id. ¶ 22. As of March 24, 2000, the United States Fish and Wildlife Service (USFWS) listed the lynx as a threatened species. 65 Fed.Reg. 16052 (March 24, 2000) (codified at 50 C.F.R. § 17.11).
The Canada lynx has existed in the state of Maine since at least 1833 and was distributed widely within the entire state up to 1912. Fox Aff. ¶ 49. Though no longer found in southern Maine, lynx continue to exist in northern Maine. Id. The parties dispute the number of Canada lynx within the state of Maine and whether the lynx population is increasing or decreasing. The DIFW estimates that there are currently more than 500 lynx in the state of Maine and claims the lynx population appears to be increasing. Aff. of Dr. Kenneth Elowe ¶¶ 4, 5 (Docket # 16) (Elowe Aff). The Plaintiffs say that the DIFW estimated 200 to 500 lynx in 2006 and that USFWS has predicted that the lynx population will decline, because there has been a marked decline in the snowshoe hare population over the last two years. Fox Aff. ¶ 50.
When the USFWS proposed adding the Canada lynx as a threatened species, it observed that lynx behavior makes them susceptible to trapping and that lynx are easy to trap. Fox Aff. ¶ 29 (quoting 63 Fed.Reg. 37003). Also, the USFWS concluded that trapping mortality for lynx has been shown to be entirely additive, that is in addition to natural mortality, rather than compensatory, that is taking the place of natural mortality.2 Id.
Since 1967, Maine law has made it illegal to intentionally hunt or trap lynx. Elowe Aff. ¶ 14. There is no claim here that the state of Maine has authorized or that the Intervenors have engaged in purposeful takes of lynx. The issue is whether lynx have been subject to incidental takes. The regulations define "incidental take" as "any taking otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 50 C.F.R. § 17.3. The incidental takes in this case are incidental to Maine's lawful trapping seasons.
Maine, through the DIFW, allows the trapping of the following species of furbearing animals: beaver, bobcat, coyote, fisher, fox, marten, mink, muskrat, opossum, otter, raccoon, red squirrel, skunk, and weasel.3 Elowe Aff. ¶ 11. For most of these animals, the trapping season is permitted from the beginning of November to the end of December. Id. ¶ 15. Early trapping, beginning about two weeks before the regular trapping season, is allowed for fox and coyote, and in certain areas, muskrats may be trapped for one week prior to the regular trapping season. Id. ¶¶ 16-17. Maine prohibits all types of traps except ordinary foothold traps,4 duffer-type foothold traps,5 killer-type bodygripping traps,6 cage-type traps,7 colonytype traps,8 and snares.9 Id. ¶ 19.
The state of Maine is divided into twenty-nine Wildlife Management Districts (WMD). Id. ¶ 3. Some DIFW regulations are geographically-based, allowing certain types of trapping in some WMDs and not in others. Id. ¶¶ 17-18. The primary lynx range in Maine is in WMDs one through six and eight through eleven. Id. ¶ 9.
In 2006, a group called the Animal Protection Institute (API) filed a similar complaint in this Court. Animal Prot. Inst. v. Martin, No. 06-128-B-W (D.Me. Oct. 12, 2006) (API). API's Complaint was resolved by the issuance of a detailed Consent Decree on October 4, 2007. API, Consent Decree and Order (Docket # 134) (Consent Decree)....
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