Maine Trappers Association February 2011 Report

President — Dana Johnson Sr., 115 Thompson St., Wells, ME 04090; phone: 207-646-5467

Vice President — Dave Wilson, 76 Drummond Rd., Sidney, ME 04330; phone: 207-458-0590

Secretary — Pat Favolise, 115 Farnsworth Rd., Columbia, ME 04623; phone: 207-483-4779

Treasurer
— Linda Bridges, 93 Arundel Road, Kennebunkport, ME 04606; phone: 207-967-4237

Editor — Gary Sewell, 262 Lake Rd., Monticello, ME 04760; phone: 207-538-0945

Membership Director — Ted Perkins, 1826 Hudson Rd., Hudson, ME 04449; phone: 207-947-5109

Legislative Liaison — Norm (Skip) Trask, P.O. Box 265, Readfield, ME 04365; phone: 207-685-4643

NTA Director — Brian Cogill, 416 Moulton Hill Rd., Parsonsfield, ME 04047; phone: 207-793-4605

Membership Options:

• Regular with The Trapper & Predator Caller subscription — $31
• Supporting with The Trapper & Predator Caller subscription — $36
• Junior (under 16 years) with subscription to The Trapper & Predator Caller — $16
• Family (up to 2 adults and all children under 18 yrs.) with subscription to The Trapper & Predator Caller — $34
• Regular lifetime (under age 65) — $235
Plus $11 per year for subscription to The Trapper & Predator Caller
• Senior lifetime (65 yrs. and older) — $110
Plus $11 per year for subscription to The Trapper & Predator Caller

Complete membership application on first page of association section and send dues to:

MTA Membership Director
Ted Perkins
1826 Hudson Rd., Hudson, ME 04449

LEGISLATIVE LIAISON’S REPORT

Proud To Be A Maine Trapper

Another fall trapping season has come and gone. I hope you had the opportunity to set some traps, catch some critters and perhaps even make a little money. Most of all, I hope you had some fun. That’s really what it’s all about! While you were out there running your line, I hope you also took the time to reflect on how lucky we are to be able to enjoy most of the same trapping opportunities that existed 60 years ago. In some cases we have a lot more opportunity today than we did back then. When I was a kid, the fall season on mink and muskrat lasted 30 days – the month of November. Most trappers had never taken a fisher, and what few marten we had in the state were fully protected. We trapped beaver only during the months of January and February, and many towns were completely closed to the taking of beaver. In addition, we were required to visit every trap every day, except beaver sets.

Other than losing a few weeks of muskrat trapping in the spring, Maine trappers have longer trapping seasons and more species of furbearers to trap than our grandfathers did. Oh, I know! The unwarranted decision by the Feds in the spring of 2000 to list the lynx as a threatened species has caused us considerable grief over the past several years. In much of the state, our larger footholds can only be used at water sets, and we’ve had to dramatically change the way we set killer-type traps, especially for fisher and marten. Even so, we now have trapping seasons on furbearing animals that begin in late October and continue through the month of April. At some time during that 6-month period, we are still able to legally trap for 15 different species of furbearing critters. Not bad for a state where trappers have constantly been under attack by the animal rightists for more than two decades.

Whenever I hear trappers grumbling about what we’ve lost because of lynx and eagles, I’m quick to remind them of everything we’ve gained. I know that the MTA will never be able to satisfy the expectations of some of our members. However, if you compare what we still have today with what trappers in other states have lost, it becomes obvious that the MTA has done a remarkable job in protecting our trapping privileges. I’m proud to have been a part of that effort.

Election Results Should Benefit Rural Life-Styles

The November elections are over, but the results will be felt in the State House and throughout Maine for years to come. Republicans now control both the House and the Senate for the first time in decades. Republican Governor Paul LePage appears ready to discontinue the “road to protectionism” that the Baldacci Administration has been working feverishly to complete. The liberal southern Maine philosophy that has been dominant in the Legislature throughout the time I’ve served as your Legislative Liaison will now take a back seat to a more conservative approach. This change in direction should spell “good news” for those of us who rely on the consumptive use of Maine’s natural resources for business and recreation.

Regardless of which party controls the House and Senate, however, the MTA has always taken (and will continue to take) a non-partisan approach to working with the Legislature. We’ve consistently had a lot of friends on both sides of the isle. I spend a lot of my time representing the MTA in front of the Fish and Wildlife Committee and the Committee on Agriculture, Conservation and Forestry. From my perspective, the individual philosophy of legislators assigned to those committees is much more important to the future of trapping than party affiliation.

Fish and Wildlife Committee Assignments Looking Good

So far, things are looking pretty good as far as the Fish and Wildlife Committee assignments are concerned. The Committee is being chaired by Senator Tom Martin, from Kennebec County and Representative Paul Davis from Sangerville. Senator Martin is serving his first term in the Legislature. Representative Davis has many years of legislative experience, has previously served on the F&W Committee and has been a strong supporter of our way of life.

Other returning members of the Committee include Senator Dave Trahan from Lincoln County and Representatives Ralph Sarty from Denmark, Dale Crafts from Lisbon, Herb Clark from Millinocket, Jane Eberle from South Portland, Mike Shaw from Standish and Sheryl Briggs from Mexico. I’ve enjoyed a good working relationship with each of them. They have varying degrees of fish and wildlife related experience and/or legislative service. For example, Representative Sarty is a retired game warden, and Representative Clark has served a total of more than 20 years on the F&W Committee.

Senator John Patrick from Oxford County is the Committee’s third Senator. Senator Patrick previously served four terms in the House but is new to the F&W Committee. There are also three Representatives that are new to the Committee. All three are serving their first term in the Legislature. They are Representatives Eleanor Espling from New Gloucester, Stacy Guerin from Glenburn and Stephen Wood from Sabattus.
These thirteen legislators will be hearing all bills that relate directly to trapping.

MTA Gearing Up For Challenging Legislative Session

Even though things are looking pretty good so far, the legislative session that got underway on January 5th will be filled with challenges that could adversely impact our future. For the most part, new legislators know little or nothing about trapping. That’s why you pay me the “big bucks”! Educating legislators about trapping is the primary reason that the MTA has employed the services of a full-time lobbyist for more than thirty years. This education process doesn’t happen over night. Sometimes it takes several sessions to get a new legislator to understand what trapping is all about and to get that legislator feeling comfortable about supporting the MTA on issues that are important to us.
The first step in the education process is to get to know these new legislators and develop a friendly working relationship with them. Once a legislator knows that he or she can trust you, that legislator will often seek you out and ask your opinion before voting on any bill that might impact the folks you represent.

This session, out of the 151 House members, 53 have never before served in the Legislature. This represents a major challenge. These new legislators will be voting on trapping bills long before I can possibly get to know them. Things are better in the 35-member Senate, where all but half a dozen have had prior legislative experience. Even though the F&W Committee will initially deal with all trapping bills, an anti-trapping bill can only be killed in committee if every member votes against it. If that happens, the bill is dead. However, if just one Committee member votes the other way, that constitutes a “divided committee report”, and the bill is sent upstairs to be voted on by the entire Legislature.

Although it doesn’t happen often, it is possible for a bill to come out of committee with a 12 to 1 “ought not to pass” vote and still be enacted into law by the full Legislature. A few years ago that nearly happened with the bill to ban bear trapping. A 12 to 1 “ought not to pass” committee vote, that should have been a “sure thing” for trappers, was nearly enacted by the House following a long emotional debate. Several of us shared some pretty tense moments as we tried to keep track of the number of red and green lights coming on at the front of the House Chamber as 151 Representatives recorded their votes. I’ll be working hard to make sure that something similar doesn’t happen this session.

Court Of Appeals Sides With Trappers In Lynx Lawsuit

More than a year ago federal Judge John Woodcock rendered a decision in a lynx related lawsuit that was very favorable to Maine trappers. The Animal Welfare Institute (AWI) and the Wildlife Alliance of Maine (WAM) had asked the Court to find that the F&W Department had violated the terms of the federal Endangered Species Act by allowing trapping practices that result in lynx being taken accidentally in traps and to impose an injunction (ban) on trapping in areas where lynx are known to exist. Judge Woodcock ruled in favor of the defendant (F&W Department) and defendant interveners (trappers) and against the plaintiffs. In a nutshell, he found that the small number of lynx taken incidentally by trappers does not pose a threat to Maine’s lynx population.

Shortly after that decision was handed down, the two plaintiffs filed notice that they were appealing Judge Woodcock’s decision to the United States Court of Appeals for the First Circuit in Boston. The plaintiffs hired a new law firm from Washington DC (Meyer Glitzenstein & Crystal) to handle their appeal. On September 8, 2010, the Court of Appeals assembled in Boston to listen to oral arguments related to this case. The three judges selected to hear the appeal were Chief Judge Lynch, Judge Boudin and Judge Howard (a woman and two men).

The purpose of oral arguments is primarily to give each side a final opportunity to summarize and emphasize the key issues contained in the volumes of written arguments previously filed with the Court. The oral arguments lasted only about half an hour, with the plaintiffs (appellants) and defendants (appellees) each being allotted 15 minutes to “make their case”. When 15 minutes had elapsed, a buzzer sounded and you were done. As it turned out, neither side got much chance to give their prepared arguments. Most of the time was spent with attorneys from both sides responding to questions raised by the three judges.

Exactly six weeks later, the Court of Appeals handed down their decision. They affirmed, in all respects, Judge Woodcock’s earlier findings. Their ruling was a huge win for Maine trappers, for the F&W Department and for sportsmen and sportswomen across the country. This decision will make it much harder in the future for animal fanatics to use the federal Endangered Species Act to attack trapping, hunting or any other activity that could result in individual members of a listed species being taken accidentally.

The key element of this decision, as explained by Maine Assistant Attorney General Chris Taub, the lead attorney for the Department in this lawsuit, is that it “conclusively establishes in Maine and other states within the court’s jurisdiction that anyone seeking an injunction under the Endangered Species Act must prove not only that the Act is being violated, but that the violation is causing irreparable harm to the species.”

Appeals Court Critical of Tactics Used By Plaintiffs

In their appeal, AWI and WAM argued that even though Judge Woodcock had denied their injunction because they had failed to show irreparable harm to Maine’s lynx population, he should have formally declared that the F&W Department violated the provisions of the ESA (declaratory judgment) and should have issued some lesser form of relief (other than a permanent injunction) to remedy the situation. The following three paragraphs, taken directly from their 21-page decision, spells out what the Appeals Court thought of this “bait and switch” maneuver by AWI and WAM to try to salvage something from their failed lawsuit:

“AWI argues that even if it did not show irreparable harm sufficient for the injunction it sought, the district court should have issued both a declaratory judgment and alternate relief.

AWI argues it was entitled to a declaratory judgment, for which irreparable harm need not be shown. The district court did not abuse its discretion in deciding not to issue a declaratory judgment. The court, in two published decisions, made findings that Maine had violated the ESA through the incidental takings. It acknowledged the relief obtained through the consent decree, and it issued injunctive relief as to the Conibear traps, which caused a change in Maine’s regulations. It was within the court’s discretion to conclude that such relief was an adequate remedy and a further formal declaration was not needed.

AWI, on appeal, additionally argues the district court erred in not granting other relief, such as a new working group or new regulations. This argument fails because AWI expressly disavowed such remedies before the district court. It may well have done so for tactical reasons, preferring to stress the inadequacy of other remedies in order to strengthen its case for injunctive relief against foothold traps. Parties are held to their choices and AWI’s bait and switch tactics in the courts are to be deplored, not rewarded.”

Lynx Continue To Cause Problems For Trappers

This particular lawsuit was decided in our favor and is now history. That doesn’t mean, however, that we are safely “out of the woods” as far as lynx are concerned. Until the Feds come through on their promise to issue an Incidental Take Permit for lynx, another incidental catch resulting in injury or death to one of these animals could force us back into the courthouse. In the meantime, not only will we continue to be saddled with cumbersome restrictions in Wildlife Management Districts 1 through 11, some of which do little if anything to protect lynx, we can also expect lynx-protection measures to be permanently implemented in other parts of the state.

In fact, as you are all now aware, the Department recently added WMDs 14, 18 and 19 to the list of Districts with special lynx-protection rules. That emergency rule, adopted the second week in December, caught all of us by surprise, although a few of us knew about it a few days in advance and had a chance to discuss how we should respond. In the end, upon the advice of our attorney, we decided not to publicly oppose it.

Rule Could Have Waited Until Next Year

I first got wind of this emergency rule in early December when I received a “heads up” call from Mark Stadler, Director of Wildlife at the Department. I gave Mark all sorts of reasons why this was a bad idea, and I’m reasonably sure he agreed with me. Unfortunately, the final decision was made at a higher level. This was a situation where I really missed not being able to “make my case” with Ken Elowe. Had Ken still been the Department’s top biologist, I believe this rule would have been delayed until next season.

The Department’s decision to implement lynx-protection restrictions in WMDs 14, 18 and 19 was the result of 4 lynx being trapped incidentally in those Districts earlier in the fall. All four trapped lynx, taken in footholds, were released alive and unharmed. Two were caught in late October. The others were trapped during the first two weeks of November. If this constituted an emergency, why wait another three weeks before getting the rule in place. Why inconvenience and infuriate a handful of dedicated trappers late in the season when most trappers had already pulled their lines. The chances of a lynx getting into a killer-trap in these WMDs would have been much greater earlier in the season. There was also the issue of being able to notify trappers of the rule change and then expecting them to be able to pull their traps or modify their sets immediately.

The Department decided to go ahead with the emergency rule after being encouraged to do so by the Attorney General’s Office. The thinking, of course, was to avoid another lawsuit. I don’t disagree with their thinking, but I strongly disagreed with the timing of their decision. The rule was adopted on December 9th, and the notification letter went out to trappers the following day, a Friday. On December 16th I was still receiving emails from trappers who had heard rumors about the rule but had not yet received their notification letter. I heard from one trapper who had more than 100 marten boxes on the ground in these WMDs, was tending them every five days and was “fit to be tied” that all his sets were now illegal. In my mind, adopting this rule this late in the season did virtually nothing to protect lynx. What it has done is create public relations problems for the Department that could have easily been avoided. As I’ve stated several times recently, we’re going to miss Ken Elowe for a long time!

Time To Consider Different Methods For Avoiding Lynx

The good news is that an emergency rule only remains in effect for 90 days. To remain in place after the 90-day period, it must be re-adopted through the regular rule-making process. I’ve already requested a meeting with the Department before they attempt to adopt these rules permanently. Although the Department has a legal obligation to adopt rules that will help ensure that lynx are not injured or killed in traps in WMDs 14, 18 and 19, there is nothing that would prohibit them from taking a different approach than what they currently have in place in WMDs 1 through 11. As long as the Consent Decree that settled lawsuit number one remains in place, the lynx protection rules in WMDs 1 through 11 are “fixed in stone”. Not so in the three WMDs that have just been temporarily added. For example, come next fall, there is no legal reason why the Department couldn’t have new rules in place in these three WMDs that allow marten boxes to be set on the ground as long as each box is protected with a “lynx excluder”.

As most of you are aware, past MTA President Dana Johnson has been experimenting with protected boxes, and they work. At the Gray Animal Park, a lynx tried unsuccessfully to get to the bait in a protected box and finally gave up. A fisher, on the other hand, went through the opening in the “lynx excluder”, made the 90-degree turn and got to the bait in seconds. In short, these things work. There is no way a lynx could ever get into the trap. Yet, marten and fisher would not be deterred at all. True, boxes fitted with “lynx excluders” would be more cumbersome to transport, but that would be a small price to pay to be able to set marten boxes on the ground.

That’s the type of thing we’ll be trying to get the Department to consider for WMDs 14, 18 and 19 prior to another year. If the Department agrees and it works (which it will!), we could eventually be using protected boxes on the ground in WMDs 1 through 11. Remember, once the Feds issue an Incidental Take Permit for lynx, the State is no longer bound by the terms of the Consent Decree and could adopt different rules.

MTA Submits Bill To Create Apprenticeship Trapper License

I’m sure you’ve all talked with people who would like to learn more about trapping but are not willing to spend the time and money for a trapper education course. They may have even asked to accompany you on your trapline. That’s certainly okay, as long as all they do is watch. Before long, however, they start assisting in ways that could be viewed by a warden as trapping without a license.

For several years the MTA has been talking with the Department about the idea of creating an apprenticeship trapper license. The one-year license would allow someone who has never trapped and never taken a trapper education course to actually go trapping. The only hitch is that the apprentice trapper would have to be accompanied by an experienced trapper. This would allow someone who thinks they might be interested in becoming a trapper to give it a try for a year without committing to a trapper education course.

This year the Department finally agreed to submit a bill to create this new license. Recently, however, I got a call from the Department saying that the Governor’s Chief of Staff had rejected the bill – something about a new Administration taking over in a few weeks and not wanting to saddle them with a lot of bills, especially another license that could be viewed as a new tax, etc., etc. To make a long story short, I told the Department that the MTA would submit the bill. I’ve already contacted Representative Ralph Sarty from Denmark, and he has agreed to sponsor it for us. Included below is the language I drafted and forwarded to Representative Sarty. When the legal analysts at the State House get done “tinkering” with my language, it may look considerably different, but it will accomplish what we want.

ACT TO CREATE AN APPRENTICESHIP TRAPPER LICENSE

§12201-A. Apprenticeship trapper license

1. Eligibility. A resident or nonresident 16 years of age or older who has never held a valid trapping license or junior trapping license in this State, or any other state, province or country, is eligible to obtain an apprenticeship trapper license, except that a person may not be issued an apprenticeship trapper license after having previously held an apprenticeship license under this section. A person is eligible to obtain an apprentice trapper license without having successfully completed a trapper education course as described in section 10108, subsection 7.

2. Issuance; fee. The commissioner, through the commissioner’s authorized agent, shall issue an apprenticeship trapper license to an eligible person. The fee for an apprenticeship trapper license is $35 for residents and $317 for nonresidents.

3. Expiration of apprenticeship trapper license. An apprenticeship trapper license is valid for up to 12 calendar months and expires on June 30th.

4. Supervisor required. A holder of an apprenticeship trapper license may not trap other than in the presence of a person at least 18 years of age who holds a valid Maine trapping license.

5. Supervisor eligibility and responsibility. A supervisor must have held a valid trapping license for the prior 3 consecutive years to be qualified to supervise a holder of an apprenticeship trapper license. A supervisor is responsible for ensuring that the holder of an apprenticeship trapper license follows safe and ethical trapping protocol and adheres to the laws under this Part. A supervisor may not intentionally permit a person trapping under an apprenticeship trapper license with that supervisor to violate subsection 4.

6. Definition. For purposes of this section, “in the presence of” means in visual and voice contact without the use of visual or audio enhancement devices, including binoculars and citizen band radios. For purposes of this section, “supervisor” means a person or persons who are 18 years of age or older, hold a valid Maine trapping license and are trapping with a person holding an apprenticeship trapper license.

7. Restrictions. The holder of an apprenticeship trapper license is not eligible to obtain a permit to trap for bear under section 12260A.

8. Penalties. The following penalties apply to violations of this section:

(A) A person who violates this section commits a civil violation for which a fine of not less than $100 and not more than $500 may be adjudged.

(B) A person who violates this section after having been adjudicated as having committed 3 or more civil violations under this Part within the previous 5-year period commits a Class E crime.

— Skip Trask

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