Friends of Animals v. Phifer
| Decision Date | 15 February 2017 |
| Docket Number | 1:15–cv–00157–JDL |
| Citation | 238 F.Supp.3d 119 |
| Parties | FRIENDS OF ANIMALS, et al., Plaintiffs, v. Paul PHIFER, in his official capacity as Assistant Regional Director of Ecological Services for the Northeast Region Office of the U.S. Fish and Wildlife Service, et al., Defendants, and State of Maine, et al., Intevenor Defendants. |
| Court | U.S. District Court — District of Maine |
Jennifer Best, Pro Hac Vice, Michael Ray Harris, Pro Hac Vice, Friends of Animals, Centennial, CO, Rachel L. B. Stevens, David K. Mears, Environmental and Natural Resources Law Clinic Vermont Law School, South Royalton, VT, Kevin Cassidy, Pro Hac Vice, Norwell, MA, Sarah Leclaire, Law Office of Sarah Leclaire, Presque Isle, ME, Sean Mahoney, Conservation Law Foundation, Portland, ME, for Plaintiff.
Alison C. Finnegan, Jason Hill, US Department of Justice, Washington, DC, John G. Osborn, U.S. Attorney's Office District of Maine, Portland, ME, for Defendant.
Christopher C. Taub, Office of the Attorney General, Augusta, ME, James H. Lister, Pro Hac Vice, Zacharia D. Olson, Pro Hac Vice, Birch, Horton, Bittner & Cherot, Washington, DC, Daniel J. Murphy, Bernstein Shur Sawyer & Nelson, Portland, ME, Gary R. Leistico, St. Cloud, MN, for Intervenor Defendant.
ORDER ON THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT
This case concerns the Canada lynx, a wild cat that typically weighs about twenty pounds and has long legs; large, well-furred paws; long tufts on the ears; and a short, black-tipped tail. Canada lynx are most commonly found in Canada and several states contiguous to Canada, including Maine. The U.S. Fish and Wildlife Service (the "Fish and Wildlife Service" or "the Service") has listed Canada lynx as a threatened species under the Endangered Species Act, 16 U.S.C.A. §§ 1531 – 1544 (2016). 65 Fed. Reg. 16052–01 (Mar. 24, 2000), 2000 WL 299328 (F.R.).
The State of Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other animals such as coyotes, bobcats, fishers, foxes, martens, and other species. Because traps catch animals indiscriminately, Canada lynx can be caught in traps set to catch other species. When this happens, it is called a "take,"1 which is permitted by the Endangered Species Act only if an incidental take permit has been issued. 16 U.S.C.A. § 1539(a)(1)(B). In November 2014, the Service issued an Incidental Take Permit (the "Permit") to the Maine Department of Inland Fisheries and Wildlife ("Maine") which exempts the State from liability for incidental takes of Canada lynx resulting from its state-regulated trapping programs. AR–0070422.2 In response, two sets of plaintiffs filed separate actions asserting that the Permit violates both the Endangered Species Act and the National Environmental Policy Act, 42 U.S.C.A. § 4321 et seq. (2016). All claims are brought under the Administrative Procedure Act, 5 U.S.C.A. § 706 (2016).
The first action was filed against the Service and its then-director, Daniel M. Ashe, by three environmental advocacy organizations: the Center for Biological Diversity, the Wildlife Alliance of Maine, and the Animal Welfare Institute. The second action was filed by a fourth organization, Friends of Animals, against Director Ashe and against Paul Phifer, in his capacity as the Assistant Regional Director of Ecological Services for the Northeast Region Office of the Fish and Wildlife Service. The two cases were ordered consolidated in October 2015. The State of Maine, U.S. Sportsmen's Alliance Foundation, Maine Trappers Association, and National Trappers Association have intervened as defendants. This matter is before the court on the cross-motions for summary judgment filed by the Plaintiffs and the Service. For the reasons explained below, the Plaintiffs' Motion for Summary Judgment is denied and the Service's Cross–Motion for Summary Judgment is granted.
In 2006, the Animal Protection Institute, a national, nonprofit animal advocacy organization based in California, sued Maine, alleging that it was violating Section 9 of the Endangered Species Act, 16 U.S.C. § 1538, by authorizing and allowing trapping that killed protected species such as bald eagles, Canada lynx, and gray wolves. Animal Protection Institute v. Martin, Case No. 1:06–cv–00128–JAW, ECF No. 1 at 1–2, ¶ 1. In 2007, Judge John A. Woodcock, Jr., entered a Consent Decree and Order in the Martin case which required Maine to adopt numerous measures to minimize the incidental take of Canada lynx in Maine's recreational trapping program.3 1:06–cv–00128–JAW, ECF No. 134 at 2–6. The Consent Decree also permitted Maine to seek an order from the court terminating the decree if the Fish and Wildlife Service issued an incidental take permit pursuant to the Endangered Species Act that authorized the State's trapping program.
Maine filed its first application for an incidental take permit with the Fish and Wildlife Service in June 2007, AR–0007618–0007843, and over the next seven years it submitted multiple revised drafts of its Incidental Take Plan in response to the Service's comments. AR–0008787–0008807; AR–0009869–0010146; AR–0011188–0011508; AR–0013350–51; AR–0070457–0070458. Maine submitted the final version of its Incidental Take Plan in October 2014, in which it proposed that up to 195 lynx4 could be incidentally trapped over a fifteen-year period, of which up to three could involve lethal take, and up to nine lynx could experience a major injury. AR–0070103.
In October 2014, the Service issued an Environmental Assessment as required by the National Environmental Policy Act, which addressed the environmental impact of Maine's proposed Incidental Take Permit. AR–0069861–0070041. The Environmental Assessment concluded that the proposed Incidental Take Permit would not be a major federal action that would significantly affect the quality of the human environment and, therefore, a more comprehensive Environmental Impact Statement was not required for the Permit. AR–0069954–56; see also AR–0070462–64. Also in October, the Service issued its Biological Opinion, a requirement of Section 7 of the Endangered Species Act.5 AR–0070042–0070093. The Biological Opinion concluded that the proposed Incidental Take Permit was not likely to jeopardize the continued existence of Canada lynx or result in an adverse modification of any designated critical habitat. AR–007043. The Service approved and issued Maine's Incidental Take Permit in November 2014. AR–0070422–23.
The Plaintiffs seek a declaratory judgment determining that: (1) the Service violated the Endangered Species Act by arbitrarily and capriciously approving the Permit; and (2) that the Service violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement for the Permit. The Plaintiffs also seek an injunction vacating the Permit, as well as reasonable costs, litigation expenses and attorneys' fees. As part of its response, the Service has challenged the standing of one of the four Plaintiffs, Friends of Animals, to sue.
When reviewing a final agency decision for alleged violations of the Endangered Species Act or the National Environmental Policy Act, courts conduct their review under § 706(2)(A) of the Administrative Procedure Act. See Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011). Under the Administrative Procedure Act, the court must determine whether the agency's decision was made "without observance of procedure required by law," 5 U.S.C.A. § 706(2)(D), and whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" (the "arbitrary and capricious" standard), id. at § 706(2)(A).
"An agency acts arbitrarily or capriciously if it has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997–98 (D.C. Cir. 2008) ). Stated differently, "[t]he task of a court reviewing agency action under the [Administrative Procedure Act's] arbitrary and capricious standard is to determine whether the agency has examined the pertinent evidence, considered the relevant factors, and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir. 1999) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quotation marks omitted)).
Regarding the National Environmental Policy Act, an Environmental Impact Statement is required if there is a "substantial possibility" that the agency action could significantly affect the human environment. Sierra Club v. Marsh, 769 F.2d 868, 870–76 (1st Cir. 1985). Judicial review must ensure that "the agency has taken a ‘hard look’ at the environmental consequences" of the proposed action and the decision not to prepare an Environmental Impact Statement. United States v. Coalition for Buzzards Bay, 644 F.3d 26, 31 (1st Cir. 2011).
I first address (A) the Fish and Wildlife Service's challenge to Friends of Animals' standing to sue, and then consider the Plaintiffs' challenges to the Permit under (B) the Endangered Species Act and, (C) the National Environmental Policy Act.
The Fish and Wildlife Service argues that Friends of Animals lacks standing to sue because the declarations submitted by members of the organization do...
To continue reading
Request your trial