Summary of a Recent
Judicial Development in
Environmental Law

Court Grants Preliminary Injunction to Enjoin Trapping Practices
that Threaten ESA Listed Species

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Animal Welfare Institute v. Martin, 588 F. Supp. 2d 70 (D. Me. 2008), the United States District Court for the District of Maine granted in part and denied in part the motion for preliminary injunction brought by the Animal Welfare Institute (AWI) and the Wildlife Alliance of Maine (WAM) to prevent trapping. The state of Maine reached a consent agreement with the Animal Protection Institute (API), under which the state agreed to impose trapping restrictions to avoid incidental takings of the Canadian lynx. AWI and WAM filed suit claiming the agreement would not effectively accomplish its goal and motioned for preliminary injunction to enjoin authorized trapping practices during the upcoming trapping season. The court held that the plaintiffs' claims were not precluded, the plaintiffs established a likelihood of success on the merits, and the plaintiffs established that the current regulations were inadequate to prevent the Canadian lynx species from suffering irreparable harm.

Background

On October 4, 2007, API and the Commissioner of the Maine Department of Inland Fisheries and Wildlife (DIFW) entered into a consent decree designed to prevent incidental takings of the Canadian lynx, a listed species under the Endangered Species Act (ESA), 16 U.S.C. § 1531. Id. at 77. Plaintiffs AWI and WAM claimed that even after the consent decree took effect, several Canadian lynx were reported trapped during the 2007 trapping season. Id. Despite restrictions in the size of leghold traps in the consent decree, many leghold traps remained legal in areas where Canadian lynx were known to exist. Id. On August 11, 2008, the plaintiffs filed the instant suit asserting that the Commissioner was violating the ESA. Id. at 74. They sought a declaratory judgment and injunctive relief in response to the Commissioner's decision to enter into the consent agreement with API. Id. Additionally, the plaintiffs claimed that the "DIFW regulations were inadequate to protect the [Canadian] lynx." Id. at 78. The Commissioner responded that the consent decree was not designed to reduce the number of incidental trappings of lynx, but was designed to reduce the number of injuries to lynx if they were accidentally trapped. Id. The DIFW also "vigorously disputed" that the incidental trappings would adversely effect the lynx population in Maine. Id.

Arguments

In their complaint, the plaintiffs alleged that the Canadian lynx "ha[d] been, and [continued] to be, trapped in leghold traps as well as within [Wildlife Management Districts] that [were] not covered by the consent decree; (2) the number of lynx trapped in leghold traps 'rose subsequent to, and in spite of, the consent decree'; and (3) 'more trapped lynx were reported in the one month period after the consent decree was entered into and trap restrictions were put in place than during the entire trapping seasons over the previous two years.'" Id. at 83. For these reasons, the plaintiffs sought a preliminary injunction to require the state to "submit a completed habitat conservation plan to the [United States Fish and Wildlife Service] for application of an [incidental take permit]," and to "prohibit the use of leghold traps . . . in the identified lynx [Wildlife Management Districts]" as well as "killer-type traps with an opening of more than four inches in both ground and elevated sets." Id.

In response, the Commissioner argued that "the state of Maine ha[d] filed an application . . . for an [incidental take permit] and urge[d] the court to stay the action until the [United States Fish and Wildlife Service] ha[d] acted on the state's application." Id. at 84. He also argued that the court should "deny the motion because (1) the plaintiffs delayed seeking relief; (2) the plaintiffs [were] not likely to prevail on the merits because of the doctrine of claim preclusion and the absence of any state violation of the ESA; and, (3) any relief should be limited to an order requiring continuing compliance with the Consent Decree." Id. Additionally, the DIFW and the trappers associations moved for dismissal, asserting that the plaintiffs' claims were barred by the doctrine of claim preclusion. Id. at 86.

Analysis and Holdings

The plaintiffs brought the instant action pursuant to ESA, which allows a person to "commence a civil suit on his own behalf . . . to enjoin any person, including . . . [any] governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof." Id. at 85 (quoting 16 U.S.C. § 1540(g)(1)(A)). They sought a preliminary injunction to enjoin the consent decree to take effect in the upcoming trapping season. Id. For a party to successfully move for preliminary injunction, courts consider four established factors: (1) the likelihood of the movant's success on the merits; (2) irreparable harm to the movant if the injunction is not granted; (3) whether the balance of hardships favors the moving party; and (4) the effect of the ruling on public interest. Id.

The court first discussed the plaintiffs' likelihood of success on the merits. Id. at 97. Under the ESA, threatened species are afforded fewer protections than endangered species. Id. The ESA expressly prohibits taking endangered species but not threatened species. Id. Although the Canadian lynx was a threatened species, rather than an endangered species, the defendants did not focus on this distinction; therefore, the court simply looked at the definition of taking under the ESA in general terms. Id. Under the ESA, a taking includes trapping animals. Id. On this factor, the court held that

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.
Id. at 99.

The court then addressed the irreparable harm prong. Id. at 101. On this issue, the two sides disagreed as to whether irreparable harm applied to each member of the Canadian lynx species individually or the Canadian lynx population as a whole. Id. at 106. Ultimately, the court held that "where there are approximately five hundred lynx in the state of Maine, the plaintiffs ha[d] not established that the death of one threaten[ed] the species as a whole, but they [did] establish[] that the current regulations [were] inadequate and it [was] predictable that if the regulations [were] not amended, other lynx [would] suffer irreparable harm." Id.

Finally, the court addressed the balance of harms. Id. at 108. It concluded that the balance weighed in favor of the Canadian lynx. Id. Although the state would be required to promulgate additional law in the future, the court held that the state's difficulty paled in comparison to future deaths of additional lynx. Id. For these reasons, the court granted the plaintiffs request for a preliminary injunction.

In conclusion, the court held that the ESA required the state to be more urgent in protecting the lynx, and it issued a federal injunction to enjoin certain hunting practices until the state fully complied with the ESA, including its promulgation of emergency regulations if necessary. Id. at 109-10.

The case was decided on November 26, 2008.