Animal Welfare Inst. v. Martin

623 F.3d 19

ANIMAL WELFARE INSTITUTE and Wildlife Institute of Maine, Plaintiffs, Appellants,

v.Roland D. MARTIN, Commissioner of Maine Department of Inland Fisheries and Wildlife, et al., Defendants, Appellees.

No. 09-2643.

United States Court of Appeals,First Circuit.

Heard Sept. 8, 2010.

Decided Oct. 20, 2010.

COPYRIGHT MATERIAL OMITTED.

Eric R. Glitzenstein, with whom William S. Eubanks II was on brief, for appellants.

Christopher C. Taub, Assistant Attorney General, with whom Janet T. Mills, Attorney General, Paul Stern, Deputy Attorney General, and Nancy Macirowski, Assistant Attorney General, were on brief for appellee Roland D. Martin, Maine Department of Inland Fisheries and Wildlife Commissioner.

James H. Lister, for appellees Maine Trappers Association, U.S. Sportsmen's Alliance Foundation, Fur Takers of America, Dana Johnson, Sr., Donald Dudley, and Carl Guay.

Gary R. Leistico, on brief for appellee National Trappers Association.

Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

This is a case about the Canada lynx. The Endangered Species Act makes it unlawful to “take” a member of an endangered species. 16 U.S.C. § 1538(a)(1)(B). By regulation, it is also unlawful to “take” a “threatened” species, that is, one likely to become endangered in the foreseeable future. 16 U.S.C. § 1532(20); 50 C.F.R. § 17.31(a). The term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532(19).

The Canada lynx is a wild cat, weighing about 20 pounds, which eats small animals, particularly the snowshoe hare, and is most commonly found in Canada. It is not listed as an endangered species. In 2000, the U.S. Fish and Wildlife Service (FWS) of the federal Department of the Interior listed the Canada lynx as a “threatened” species throughout its U.S. range: certain states contiguous to Canada, as well as certain Western states. 65 Fed.Reg. 16,052. In Maine, a listed state, Canada lynx are found primarily in the northern portion of the state, in state Wildlife Management Districts (WMD) 1 through 11. Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other furbearing animals.

This appeal is from the district court's denial of plaintiffs' motion to enjoin Maine state officials from allowing the use of any foothold traps, which are used to legally trap other species, in WMDs 1 through 11. Plaintiffs argued this relief was necessary to prevent incidental takes of lynx in these traps. See 50 C.F.R. § 17.3 (defining incidental taking). The district court held that plaintiffs had not shown irreparable injury, even recognizing the special emphasis in the Endangered Species Act (ESA) on protecting threatened species. We affirm.

I.

Plaintiffs are two private groups, Animal Welfare Institute and Wildlife Institute of Maine (together “AWI”), that sued in August 2008, under the ESA citizen suit provision, 16 U.S.C. § 1540(g). They allege that Maine, by allowing trappers to obtain permits to use foothold traps (also called “leghold traps”) to catch other species that are neither threatened nor endangered, violates the ESA because some individual lynx will incidentally be caught in such traps.

Foothold traps spring shut on an animal's leg or foot, holding the animal in place until the trapper returns. Trappers usually use foothold traps to trap coyote and fox. There are no known instances of lynx deaths caused by a foothold trap. ¹ Still, historically, a small number of Canada lynx are trapped and released each year in Maine.

Earlier litigation over the protection of the Canada lynx, brought by an organization called the Animal Protection Institute ² (API) in October 2006, had resulted in a consent decree which provided significant protections for the Canada lynx. See Animal Welfare Institute v. Martin, 588 F.Supp.2d 70, 76-77 (D.Me.2008) ( AWI I ) (describing earlier litigation).

Under that consent decree, Maine issued new regulations in 2007 and 2008, which limited the size of foothold traps in lynx territory in an effort to reduce the number of incidental takes of Canada lynx. ³ Maine also attempted to reduce any harm from incidental takings of Canada lynx by requiring trappers to report any incidental Canada lynx takings. This, in turn, allows biologists from the Maine Department of Inland Fisheries and Wildlife (IF & W) to examine the captured lynx and rehabilitate any injured lynx before releasing them to the forests.

The consent decree remains in effect unless and until the FWS acts favorably on Maine's application for a federal “incidental take permit” (ITP). ⁴ 16 U.S.C. § 1539(a)(1)(B). An ITP allows takes incidental to otherwise lawful activity when requisite measures to minimize and mitigate harms are taken such that the permitted incidental takes will not “appreciably” impact the species as a whole. 16 U.S.C. § 1539(a)(2). Maine filed its first draft ITP application in August 2006; Maine filed a complete ITP application in June 2007, and in August 2008, at the request of FWS, filed a revised application. FWS has taken no action yet on the application and so the consent decree continues in effect. ⁵

The present plaintiffs, apparently dissatisfied with the relief accomplished earlier, filed suit in August 2008 alleging that Maine had not done enough. ⁶ Unless and until an ITP is issued, they argued, the court was required by the ESA to issue a preliminary injunction banning all foothold traps. The court rejected the argument that as a matter of law injunctive relief must issue, even absent a showing of irreparable harm, upon a showing that incidental takings result from Maine's decision to allow any foothold traps. AWI I, 588 F.Supp.2d at 104-05. The court denied preliminary injunctive relief as to foothold traps, but set the matter for hearing on evidence as to the actual risk of incidental trapping in foothold traps and actual consequences to the Canada lynx of any such trapping.

As to Conibear traps, the court granted preliminary injunctive relief on November 26, 2008, enjoining IF & W to immediately promulgate regulations, by emergency order if necessary, to prevent further takes in these “killer-type” traps. Id. at 110. The court found irreparable harm in the death of a single lynx that had been killed by a Conibear trap in November 2008 (a second lynx was killed in a Conibear trap shortly after the court issued its opinion). Id. at 103. Even though AWI had “not established that the death of one threatens the species as a whole,” it had demonstrated that “the current regulations are inadequate and it is predictable that if the regulations are not amended, other lynx will suffer irreparable harm.” Id. at 106. The court found that under the ESA the balance of hardships and public interest factors “tip[ ] heavily in favor of the protected species.” Id. (quoting Strahan v. Coxe, 127 F.3d 155, 160 (1st Cir.1997)) (internal quotation marks omitted).

In April and June 2009, the district court held a six-day hearing, which had extensive evidence as to both types of traps. The court found AWI had not shown it was likely that lynx would be taken in Conibear traps under the new regulations promulgated by Maine as a result of the preliminary injunction. AWI III, 668 F.Supp.2d at 260. AWI does not appeal this finding and so Conibear traps are not at issue in this appeal.

Maine conceded that Canada lynx would continue to be caught in foothold traps, even after the tighter regulations. AWI III, 668 F.Supp.2d at 261. As to consequences to the lynx of being caught in a foothold trap, the court found as a matter of fact that AWI had failed to prove lynx suffer serious physical injury from incidental takes in foothold traps. The court recounted IF & W's records of lynx takings from 1999 to 2008, distinguishing between periods before and after the tighter regulations were imposed in 2007. Id. at 268. In the seven-year period from 1999-2006, during which thirty lynx were taken in foothold traps, IF & W was able to assess just under half, and only one had an injury that required veterinary treatment. Id. None of the thirty died as a direct result of being trapped. Id. In 2007-2008, eight lynx were taken and IF & W was able to assess five of them: two sustained no injuries, and the other three had minor skin lacerations (one also had a “very slight limp upon release”). Id.

The court found that AWI had failed to prove the truth of its assumption that most of the taken lynx suffered some sort of injury, or to provide any reliable data to counter IF & W's evidence. Id. at 269. Rather, AWI relied on studies about lingering negative effects of trapping on other species, or, in one case, about the convergence of multiple stressors on Canada lynx in a different part of the country. See id. at 270 & n. 16. The court found that AWI's use of generalizations from other regions and species amounted to a “failure of proof.” Id. at 269. On the question of whether Canada lynx caught in incidental takes in foothold traps would be more likely to die from predation or starvation in the future, the court found that any “incremental impact is unknown and probably unknowable.” Id. at 272.

The court did accept the testimony of AWI's experts that Canada lynx might experience physical symptoms of stress-such as an elevated breathing rate and temperature, or hormonal or other chemical changes-as a result of being trapped. Id. at 266-67. But the court rejected expert testimony that Canada lynx could die from “capture myopathy,” a deterioration of the animal's organ systems resulting from stress-induced overproduction of lactic acid during a temporary capture. Id. at 267. The court was skeptical that any stress caused by incidental takes in foothold traps could be so damaging for two reasons. First, it was unlikely a temporary trapping by humans would cause stress-induced death if the stress of daily survival efforts does...