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Animal Welfare Institute v. Martin: dispute over Canada lynx trapping creates factual twists and procedural controversies

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ANIMAL WELFARE INSTITUTE, v. ROLAND D. MARTIN, 2008 U.S. Dist. LEXIS 97766, CV-08-267-B-W (D. Maine, Nov. 26, 2008)(Order on Motion for Preliminary Injunction)

EXCERPT & SUMMARY: 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…  The Court orders the state of Maine to immediately take all action necessary to avoid the trapping of Canada lynx in Conibear traps, including the promulgation of emergency regulations, if necessary, to assure that Canada lynx do not have access to Conibear traps either by way of the structure upon which the Conibear trap is placed or by way of adjacent structures.

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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. P 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. P 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. P 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).  Photo from FWS Mountain Prairie Region.  See also ESA blawg.

KEITHINKING: During the briefing of this dispute over the adequacy of the Maine trapping regulations and their compliance with the Endangered Species Act, a Canada lynx was caught and killed by a trap that arguably violated the state rules, or at least, their spirit and intent.  In light of that evidence, the Court ordered the State to immediately amend its rules, but did not substitute its judgment for the State officials, and left the manner of the amendment to the state’s discretion.  

MORE KEITHINKING: This also presented two interesting procedural disputes.  The first procedural question was whether two different non-profit organizations, led by the same people, with very similar animal rights agendas, could pursue separate lawsuits.  The trappers argued that one group, the Animal Welfare Institute, was using a new lawsuit to evade claim preclusion based on the other existing lawsuit involving the Animal Protection Institute.  Recently, in Taylor v. Sturgell, 128 S. Ct. 2161 (2008), the United States Supreme Court extensively addressed claim preclusion. Taylor noted that "e preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'" 128 S. Ct. at 2171. "  A second question procedural question was whether the Court should rule at all on the preliminary injunction, or instead, issue a stay, because the State of Maine had a pending incidental take permit application for its trapping program that would resolve the questions of ESA compliance.  The court, however, pushed forward with adjudication on the merits.  Excerpts from the Court’s discussion of the stay, and the claim preclusion issue, are at the very end of the READ MORE section below.

   EXCERPTS: Status of the Lynx in Maine.  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. P 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 Department of Inland Fisheries and Wildlife (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 PP 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. P 50…  Since 1967, Maine law has made it illegal to intentionally hunt or trap lynx. Elowe Aff. P 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. P 11. For most of these animals, the trapping season is permitted from the beginning of November to the end of December. Id. P 15.
EXCERPT: The 2007 Consent Decree - Animal Protection Institute v. Martin.  In 2006, a group called the Animal Protection Institute (API) filed a 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). The Decree required the Commissioner to impose restrictions on trapping in Wildlife Management Districts 1, 2, 3, 4, 5, 6, 8, 9, 10, and 11. Id. P 5.  

   EXCERPT: After the Consent Decree.  The parties present different versions of what has happened to lynx in Maine following the October 4, 2007 Consent Decree. The Plaintiffs say that during the 2007 trapping season, even after the Consent Decree was issued, eight lynx were reported trapped in the state of Maine in the twenty-nine day period from October 15 through November 13, 2007. 11 Fox Aff. P 53. This is equivalent to one lynx trapped every four days during the trapping season. Id. P 53…  The Commissioner starts with a different perception of what the Consent Decree was intended to achieve. Dr. Elowe, the DIFW Director of Resource Management, states that they "were not sure whether these restrictions would reduce the incidence of accidental lynx captures, [but they] expected that the restrictions would reduce the incidence of injuries to lynx that were captured." Elowe Aff. P 27…  Finally, the Trappers presented the views of Craig McLaughlin, Ph.D., who holds a doctorate in Wildlife Ecology and is employed as Wildlife Program Chief for the state of Utah Division of Wildlife Resources, and Dana R. Johnson, Sr., President of the Maine Trappers Association. Decl. of Dana Johnson (Docket # 22) (Johnson Decl.); Decl. of Craig McLaughlin (Docket # 24) (McLaughlin Decl.)  Dr. McLaughlin observed that "[o]ne of the remarkable characteristics of lynx is their extremely high dependence on snowshoe hare, which constitutes the vast majority of the lynx diet." Id. P 12. Lynx, coyotes, bobcat, and fisher all compete for the same snowshoe hares. Id. PP 13, 15-16. Finally, fisher, and to a lesser extent coyote, prey on lynx. Id. P 18. A decrease in trapping these predators, in Dr. McLaughlin's opinion, would harm the lynx by increasing competition for their sole food source and increasing the numbers of animals for whom the l Lynx itself is a food source. Id. P 20. Balancing the benefits and detriment to the lynx from the imposition of the additional restrictions proposed by the Plaintiffs results, in Dr. McLaughlin's view, in a net detriment to the lynx. Id. P 23.

   EXCERPT: The November 17, 2008 Conibear Trap Take.  On November 18, 2008, the DIFW, through its attorney, informed the Court that, although he had represented at oral argument that two additional lynx had been caught by trappers during the 2008 season, a third lynx had been caught in a Conibear trap and had died…  Dr. Elowe opined that the Conibear trap in this case was set in violation of current Maine regulations, … however, the rule needs to be modified….  The Trappers agree that this recent incident has "revealed that the regulation is not as tight and specific as it is intended to be and that a change is appropriate to prevent a recurrence of another similar incident." Trappers' Supplemental Mem. at 1…  The Plaintiffs point out that the state's proposal to alter the current regulations will not take effect until next trapping season, which is in their view "not adequate to protect lynx during this trapping season." Pls.' Supplemental Resp. P 1.

   EXCERPT: The Likelihood of Success of the Motion for Preliminary Injunction.  The Court analyzes a request for a preliminary injunction through application of the following four well-established factors:  (1) the likelihood of success on the merits; (2) the potential for irreparable harm [to the movant] if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the ruling on the public interest...   Under § 9 of the ESA, any person is prohibited from "taking" an endangered species. 16 U.S.C. § 1538(a)(1)(B)…  The ESA defines "take": "The term 'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The First Circuit has noted that a "take" is "defined . . . in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." Strahan v. Coxe, 127 F.3d 155, 162 (1st Cir. 1997). Trapping that causes harm is subsumed under "harm" and by adding the term "trap," Congress must have intended a meaning distinct from "harm." United States v. Menasche, 348 U.S. 528, 538-39 (1955) (stating that lilt is our duty to give effect, if possible, to every clause and word of a statute") (internal quotation and citation omitted); United States v. Rodriguez, 26 F.3d 4, 8 (1st Cir. 1994). It follows, even if a lynx is harmlessly trapped, it has been subject to a prohibited take under the statute. Consequently, even assuming that no lynx has been harmed since issuance of the Consent Decree, that at least eleven lynx have been trapped since its adoption is alone sufficient to constitute "take" as that term is expansively defined in the ESA. Because the statute explicitly prohibits such take in the absence of an ITP, the Court concludes that the Plaintiffs have made out a case of violation of the ESA that has a reasonable likelihood of success on the merits…
That the ESA does not impose affirmative obligations on the states to prevent takes by private persons is correct, but not germane. The state of Maine has the unquestioned authority to "conserve, protect and regulate its wildlife." State v. McKinnon, 153 Me. 15, 18, 133 A.2d 885, 887 (1957). This is true, even though the ancient concept of state ownership of wildlife is now "generally regarded as but a fiction." Hughes v. Oklahoma, 441 U.S. 322, 334 (1979) (citation omitted). The state's authority to regulate the hunting and trapping of game rests not on its ownership of the wildlife, but on its "power to preserve and regulate the exploitation of an important resource." Id. at 335.  In Maine, unless the state authorizes it, no one has the authority to hunt or trap an animal. 12 M.R.S.A. §§ 10951, 12251(1). The question, then, is not whether the state has an obligation to undertake an affirmative act, but whether, when it undertakes an affirmative act by authorizing trapping, it is violating the ESA.  This question is settled in the First Circuit. In Coxe, the First Circuit addressed an ESA challenge to a Massachusetts licensure scheme under which endangered Northern Right whales were becoming entangled in state-permitted fishing gear. 127 F.3d at 158. The First Circuit readily concluded that "a governmental third party pursuant to whose authority an actor directly exacts a taking of an endangered species may be deemed to have violated the provisions of the ESA." Id. at 163.

    EXCERPT: The Court’s balancing of the preliminary injunction factors.   The troublesome circumstances of the November 17, 2008 lynx death are sufficient to convince the Court that the gap in the Conibear trap regulations constitutes a violation of the ESA that requires federal injunction. Although only one lynx has been subject to a take, it is reasonably foreseeable that other lynx will be subject to future takes in the event the regulations are not amended. The sole question is not whether the current regulations are inadequate, the state agrees they are; it is not whether they should be amended, the state agrees they should; it is only when the amendments to the regulations should be made effective. The state says additional protection can wait until next year. However, as the November 17, 2008 incident confirms, the risk to the lynx is present today. The Court concludes the ESA requires greater urgency…  Whether the current restrictions on leghold traps comply with the ESA and whether the trapping and ensuing harm to lynx under these restrictions affect the species are matters that remain very much in dispute. On these matters, the Court declines to enjoin the state, because it is not convinced that the current leghold regulations represent a harm to the lynx as a species within the meaning of the ESA and, unlike the Conibear regulations, there is no proposal that is likely to have a minimal impact on the trappers' side of the equation...  The Court is reluctant to impose an ukase on trapping in the state of Maine based on dueling affidavits for the relatively brief interval before the USFWS acts, since to do so would be in derogation of the Supreme Court's recent admonition about the extraordinary nature of the injunction remedy and its re-emphasis that courts of equity should pay particular regard for public consequences before employing such a remedy. Winter, 2008 U.S. LEXIS 8343, at *30. Nevertheless, with fresh dramatic evidence of a lynx death under the current restrictions and the admitted need to amend those regulations, the Court exercises its equitable powers as narrowly as possible only to assure the state complies immediately with the ESA regarding Conibear traps. As to the remaining issues, the Court will await further evidentiary development as this motion for preliminary injunction hardens into a permanent injunction.

    EXCERPT: The people behind API and AWI.  Behind the non-profit advocates, the DIFW and the Trappers see many of the same people, but in particular they focus on two people as the prime movers: Daryl DeJoy and Camilla Fox. Trappers' Opp'n at 2 (stating "two organizations spearheaded by the same underlying individuals (Camilla Fox and Daryl Dejoy) file an essentially identical lawsuit try-ing to bypass that settlement"); Def.'s Opp'n at 13 (stating "the two individuals who apparently spearheaded the API lawsuit are spearheading this one"). The DIFW notes that while at API, Ms. Fox was involved in the decision to initiate the 2006 litigation. Def.'s Opp'n Attach. 9, Dep. of Camilla Fox at 198:9-19. She was a proposed expert witness in the 2006 litigation and is serving as an expert witness in this litigation. Def.'s Opp'n at 13. Mr. DeJoy submitted declara-tions in the API case and attended a deposition, and he is the Executive Director of WAM, the co-Plaintiff in this litiga-tion. Def.'s Opp'n Attach. 3, 4, 10. The Trappers thought the two were married. Trappers' Opp'n at 2.

    Mr. DeJoy and Ms. Fox acknowledge much of what the DIFW and the Trappers contend is true about their in-volvement with the two lawsuits. Mr. DeJoy is Executive Director and founder of WAM and filed a declaration in sup-port of API's 2006 litigation. Pls.' Reply Attach 4, Decl. of Daryl DeJoy PP 1, 5 (DeJoy Decl.). Ms. Fox served in vari-ous positions at API, including National Campaign Director and Director of Wildlife Programs, from November 1996 through November 2006. Pls.' Reply Attach 1, Second Decl. of Camilla Fox P 2 (Second Fox Decl.). While at API, she was involved in API's decision to initiate the 2006 lawsuit. She served as an expert witness in the API case and is serv-ing as an expert in this case. Id. P 7. Though not married, Mr. DeJoy and Ms. Fox are partners. Id. P 16.
But, the Plaintiffs present other evidence that supports their claim that API and the current Plaintiffs are independent organizations, which made separate and independent decisions about these lawsuits. API was founded in 1968 and is based in Sacramento, California; its "primary campaign areas currently include animals used in entertainment, captive exotic animals, trapping & fur, and the international wildlife trade." Second Fox Decl. P 2. AWI was founded in 1951 and is based in Washington, D.C.; its general mission is to "reduce the sum total of pain and fear inflicted on animals by humans" and, more specifically, one of its major efforts is "to end the torture inflicted on furbearing animals by steel jaw leghold traps and wire snares . . . ." Id. P 8. Although the Plaintiffs did not provide further detail about WAM, the Amended Complaint alleges that it is a non-profit, 501(c)(3) organization with offices headquartered in Bangor, Maine; its general mission is "advocacy for wildlife and representing non-consumptive interests of wildlife in Maine." First Am. Compl. P 6; see DeJoy Decl. P 2.

    EXCERPT: The Court’s Claim Preclusion Holding.  In general, "one is not bound by a judgment in personam in a litigation in which he is not designated as a party." Hansberry v. Lee, 311 U.S. 32, 40 (1940). There are, however, several exceptions to this rule. Taylor, 128 S. Ct. at 2172. In Taylor, the Supreme Court grouped these exceptions into six categories: (1) where a person agrees to be bound by the determination of issues in an action between others; (2) where there exists a pre-existing substantive legal relationship between the party to be bound and a party to the judgment; (3) in certain limited circumstances where a nonparty was adequately represented by someone with the same interests who was a party to the suit; (4) where a nonparty assumed control over the litigation in which that judgment was rendered; (5) where the nonparty is acting as a proxy for a party to the first lawsuit; or (6) where a special statutory scheme expressly forecloses successive litigation by nonlitigants. Taylor, 128 S. Ct. at 2172-73.
In sum, the Court cannot conclude at this early stage in the litigation that WAM and AWI were adequately represented by API in the prior suit. As with other Taylor issues, discovery may lead to evidence that supports a more direct intertwining among these three organizations regarding the API suit, but the current evidence does not sustain such a finding…  Based on the current record, the Court finds that none of the Taylor exceptions applies to this case. The Court's finding is with a caveat. When the same actors appear in different roles in different scenes, it is not illogical to conclude they are taking part in the same play. For purposes of future action, if any, the Court's credulity has limits.

    EXCERPT: The Request for a Stay.   In 1982, Congress amended the ESA to allow non-federal actors to apply for a permit to engage in the otherwise prohibited taking of protected species under limited circumstances. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, sec. 6, § 10, 96 Stat. 1411, 1422-24 (1982). To obtain an ITP, however, the applicant must submit a comprehensive habitat conservation plan and the USFWS, after allowing for public comment, must find that the take complies with spec fic statutory criteria. See 16 U.S.C. § 1539(a)(2)(A)-(B).  The state of Maine applied for an ITP on June 29, 2007. Elowe Aff. P 71. In October 2007, the USFWS staff expressed concern about whether the application met its criteria. Id. P 72. The Commissioner agreed to revise and resubmit the application. Id.…  If USFWS grants the DIFW an ITP allowing some incidental takes of lynx by licensed trappers, the present action may be rendered moot. Def.'s Opp'n at 7-8. In the name of judicial economy then, the DIFW urges the Court to stay this action pending resolution of its ITP application. Id.

    The Court's authority to issue Defendants' requested stay is not disputed.  Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936); Microfinancial, Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72, 77 (1st Cir. 2004) ("It is apodictic that federal courts possess the inherent power to stay proceedings for prudential reasons."). Nor is there argument that the mere filing of a draft ITP application divests the Court of jurisdiction, or removes the Court's discretion to decide whether to grant a stay. See Loggerhead Turtle v. County Council of Volus a County, 896 F. Supp. 1170, 1177 (M.D. Fla. 1995), rev'd on other grounds, 148 F.3d 1231 (11th Cir. 1998) (finding that the filing of an ITP application does not divest the court of jurisdiction); see also Holsten, 541 F. Supp. 2d at 1076. In fact, in Loggerhead Turtle, addressing a similar situation, Judge Roney in dissent suggested, since there was a dispute about whether an ITP in that case authorized takings caused by artificial lights, the appeals court "could simply require a stay of the district court proceedings while the defendant repairs to the [USFWS] to get a clarification on that point." Loggerhead Turtle, 148 F.3d at 1260.  The resolution of this issue depends largely on the extent to which the lynx are subject to impermissible takes under the restrictions in the Consent Decree. If the lynx are not subject to impermissible takes, staying the case until the USFWS acts on the pending application will do no harm. If the lynx are subject to impermissible takes, to stay the case would sanction an ongoing violation of the ESA. In the latter case, the Court is chary to delay granting relief, particularly in the ESA context, where Congress has directed that "endangered species . . . be afforded the highest of priorities." 19 TVA, 437 U.S. at 174. Thus, the resolution of this issue is generally congruent with the resolution of the merits of the motion for preliminary injunction. If the USFWS approves the DIFW's ITP application, the gravamen of the Plaintiffs' claim would be precluded and the case, if stayed, would be subject to dismissal. If the USFWS does not approve the application, the Plaintiffs' lawsuit would be substantially reinvigorated, and in that event, it would be of no real moment whether the Plaintiffs would reinitiate their claim or move to remove the stay. None of these considerations is sufficiently convincing for the Court to exercise its discretion and hold in abeyance a ruling on the merits of the motion for preliminary injunction.