Subscribe!

 Full Posts

Bloglines Subscribe in Bloglines
Newsgator Subscribe in NewsGator Online
MyYahoo
Google Add to Google
netvibes Add to Netvibes

Copyleft

ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

Creative Commons License

florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

gatorlogo2.gif

Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

uvaswords.jpg

Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Ninth Circuit defers to U.S. Forest Service Record of Decision, even without a biological opinion | Main| FWS reopens comment period on Hawaiian damselflies »

Federal judge denies permanent injunction against animal trapping in Maine, finds no irreparable harm to Canada lynx population

Category
Bookmark : del.icio.us  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

Animal Welfare Institute v. Martin, CV-08-267-B-W, 2009 U.S. Dist. LEXIS 105268 (D. Me., November 10, 2009)

BACKGROUND. On March 24, 2000, the United States Fish and Wildlife Service (USFWS) designated Canada lynx as a threatened species under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. 65 Fed. Reg. 16052 (March 24, 2000) (codified at 50 C.F.R. § 17.11). Since 1967, substantially before this designation, but consistent with it, the state of Maine has made it illegal to intentionally hunt or trap lynx...  Even though it has long been illegal in Maine to deliberately trap lynx, lynx have found their way into traps set for other legally-trapped animals and have been subject to incidental takes, which are themselves prohibited by federal law and regulation. See Animal Welfare Institute v. Martin, 588 F. Supp. 2d 70, 98-99 (D. Me. 2008)  See prior ESA blawg

RULING.  The Court denies the Plaintiffs ' request for permanent injunction against the state of Maine's (and Maine Department of Inland Fisheries and Wildlife) current trapping regulations because it finds that the Plaintiffs have failed to prove the Canada lynx as a species will suffer irreparable harm if the injunction is not granted...  

EXCERPTS RE: INCIDENTAL TAKE DUE TO TRAPPING.  After evaluating the evidence, the Court finds that AWI has not demonstrated that Maine's current Conibear trap regulatory scheme is likely to cause incidental takes of Canada lynx.  he Court accepts Dr. Elowe's testimony that none of the lynx captured in Conibear traps since 1999 was caught in traps that would be legal under Maine's current regulatory scheme. Accordingly, the Court concludes that AWI has failed to demonstrate a likelihood of success on the merits as to Conibear traps. ...  However,  Faced with persistent evidence of incidental takes of lynx in leghold traps, IF&W concedes that "it is likely that lynx will continue to be caught in foothold traps." Def.'s Br. at 12. Because these incidental takes have occurred and are likely to continue to occur, the Court concludes that AWI has met its burden of proof to establish it is likely Canada lynx will be subject to incidental takes from leghold traps in contravention of the ESA under Maine's current regulatory scheme.

EXCERPTS RE: APPLICATION OF IRREPARABLE HARM STANDARD.     AWI maintains that "a taking of a single protected species" is the appropriate irreparable harm standard and the trapping of a single lynx is all that is required. Id. at 15-16. (citing Loggerhead Turtle v. County of Volusia County, 896 F. Supp. 1170, 1180 (M.D. Fla. 1995)...   The Court has carefully considered AWI's arguments, but finds them unpersuasive. Instead, the Court continues to conclude that Coxe is authoritative in the First Circuit for determining irreparable harm. 10 Under Coxe, injunctive relief is not mandatory upon every take that violates the ESA. Coxe, 127 F.3d at 171 (observing that TVA rejected the proposition "that injunctive relief is mandatory upon a finding of a violation of the ESA"). The Court retains discretion and is "not mechanically obligated to grant an injunction for every violation of law." Id...    The Court reiterates its view that the proper test for determining irreparable harm is effect on the species as a whole, not on individual members of the species, unless the take of an individual member has been demonstrated to affect the species as a whole.

EXCERPTS RE: IRREPARABLE HARM TO SPECIES AS A WHOLE.   Despite its centrality in the parties' dispute, the parties do not even agree on the number of lynx in the state of Maine. This factual issue is obviously significant, since the number of recorded takes of lynx must be tested against the total lynx population to evaluate the impact of the takes on the species...  Dr. Elowe, the State's expert, testified that IF&W estimates that Maine has "at least 650 breeding pairs. Breeding adults, not breeding pairs."  ...AWI is intensely skeptical of Dr. Elowe's population estimates. In rebuttal, Dr. Paquet described Dr. Elowe's population modeling as "simplistic" and "rather crude." Id. 1182:21-24. He thought the population figures were "overinflated." ...  From the Court's perspective, AWI's criticisms of the State's methodology, however valid, do not entirely negate the probative value of Dr. Elowe's estimate. Moreover, there is no countervailing expert guidance from which the Court could reasonably determine a more accurate figure.

CanadaLynxKits.jpg
Canada lynx kits, photos from USFWS/Maine DIFW

EXCERPTS RE: IRREPARABLE HARM DUE TO TRAPPING INJURIES.    Since 1999, IF&W itself has engaged in a radio-collaring program in which it has captured approximately 100 lynx in foothold traps. ... Some lynx had litters of kittens after being caught in leghold traps. Trial Tr. 659:2-10; 661:4-9. In sum, IF&W records and Dr. Elowe's testimony suggest that lynx can be caught in leghold traps, sustain minor injuries, return to the wild, and continue to live successfully and to propagate after being trapped.  ...   In proving its case, AWI is handicapped by an absence of its own specific evidence, and, rather than positing the results of its own Maine-based lynx-specific studies, it resorts to undercutting IF&W's data, and to extrapolating its generalizations to the lynx in Maine. From the Court's perspective, this amounts to a failure of proof.

CONCLUSION.  The Court has analyzed each of the disputed factual contentions... AWI bears the burden of proof, and simply put, it has failed to convince the Court hat its view of the evidence is more likely than not; AWI has failed to satisfy the irreparable harm prong of the injunction standard.  The Court need go no further.  The Court concludes that Animal Welfare Institute and the Wildlife Alliance of Maine failed to sustain their burden of proof to demonstrate that the Canada lynx will suffer irreparable harm if an injunction against the state of Maine does not issue. The Court DENIES the Plaintiffs' request for permanent injunction.

MORE LINKS ON THE LYNX...