March 22, 2019
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Federal judge to decide whether enough is being done in Maine to protect lynx

BANGOR, Maine — A legal battle over whether enough is being done in Maine to protect the Canada lynx from being killed or injured by trappers is in the hands of a federal judge after a hearing Thursday that drew about 30 people to the Margaret Chase Smith Federal Building.

U.S. District Judge Jon Levy heard arguments in cross motions for summary judgment in the most recent legal skirmish over the Canada lynx, which was listed in 2000 as threatened under the U.S. Endangered Species Act.

In August 2015, wildlife and animal welfare groups, including the Center for Biological Diversity, Wildlife Alliance of Maine and the Animal Welfare Institute, sued the U.S. Fish and Wildlife Service for allegedly failing to enforce rules protecting Canada lynx from being killed or injured. Since then, the Maine Department of Inland Fisheries and Wildlife, the U.S. Sportsmen’s Alliance Foundation, the National Trappers Association and the Maine Trappers Association have been granted intervenor status on the side of the defendant.

Each year Maine trappers targeting coyotes, foxes, bobcats and other wildlife unintentionally kill and seriously injure Canada lynx, according to the plaintiffs. Because lynx are protected under the Endangered Species Act, the state cannot authorize such “incidental” harm to lynx without an “incidental take permit” issued by the Fish and Wildlife Service.

The lawsuit argues that the permit issued in November 2014 to Maine is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and as such should be vacated.

The defendants claim the Fish and Wildlife Service acted reasonably and in compliance with the law in issuing the permit, which allowed for three lynx to be killed unintentionally by all trappers over the next 15 years.

Shortly after the permit was issued, however, Maine trappers reported killing two lynx, according to court documents. That led to a one-month suspension of trapping in northern Maine in December 2014 and the issuance of new rules that more tightly regulated the type of traps that could be used and how they should be set beginning in 2015, according to court documents.

No lynx has been reported killed since then, but a document filed in federal court in Bangor under seal by attorneys for the Fish and Wildlife Service is described as a “notice of fatally shot lynx.”

Rachel Stevens, attorney for the plaintiffs, said after the hearing that she could not discuss the filing.

If the notice contains proof that a third lynx has been killed by a trapper, the incidental take permit could be revoked, perhaps making the lawsuit moot.

Efforts to protect the lynx appear to be having some success. The number of lynx living in northern Maine may be increasing, since the number struck and killed each year by vehicles is increasing, Maine Assistant Attorney General Christopher Taub told the judge Thursday.

“So far this year, 10 have been killed by cars,” he said, arguing that the permitting process was not flawed. “In 2015, eight were killed, and in 2014, five were killed.”

While the lynx is considered imperiled in the lower 48 states, it is not on an endangered species list in Alaska or Canada, where it ranges widely in forest areas. Its population in the continental U.S. is believed to be small, though actual numbers are unknown, according to government scientists.

In 2014, the Fish and Wildlife Service identified 38,954 square miles in Idaho, Montana, Wyoming, Washington, Minnesota and Maine as lynx habitat. In September 2016, a federal judge ordered the agency once again to designate critical habitat for the lynx, with an eye toward adding parts of certain national forests in Idaho and Montana and to include areas of Colorado inhabited by the lynx and its favored prey, the snowshoe hare.

However, the judge denied conservationists’ demands for additional critical habitat in Oregon and Washington.

That decision is not expected to affect Levy’s ruling in Maine. Levy’s decision, however, could affect efforts in Minnesota, Montana, Idaho and Colorado, where officials are seeking to duplicate Maine’s permit, Stevens said.

“The Endangered Species Act is clear on what is required to protect threatened and endangered species, and the U.S. Fish and Wildlife Service has failed to ensure that Maine is meeting even the most basic requirements,” Tara Zuardo, attorney for the Animal Welfare Institute, said Wednesday in a press release. “We are hopeful that the court will ensure that the agency does not allow Maine or other states to refuse to comply with federal law when it comes to protection of Canada lynx.”

There is no time frame under which the judge must issue a decision.


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