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Editor — Gary Sewell, 262 Lake Rd., Monticello, ME 04760; phone: 207-538-0945
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Legislative Liaison — Norm (Skip) Trask, P.O. Box 265, Readfield, ME 04365; phone: 207-685-4643
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Protectionists Use Lynx Listing as Weapon to Attack Trapping
When the U.S. Fish and Wildlife Service (the Feds) listed lynx as a species threatened with extinction in the lower 48 states, they couldn’t have handed the animal rights groups a better weapon to attack trapping in Maine. Lynx were listed as threatened in March of 2000. Since that time, animal protectionists have successfully used the lynx to end our coyote control program, restrict our trapping methods, intimidate Maine landowners and interfere with the state’s ability to manage wildlife.
In short, these fanatics have been able to twist the federal Endangered Species Act (ESA) to further an agenda that is unrealistic, unnecessary and, in the long term, designed to eliminate consumptive uses of wildlife and sound wildlife management. The federal ESA was enacted to help maintain and restore populations of species that are actually in trouble and headed for extinction. The ESA was never intended to give extremists a club to destroy the heritage and lifestyle of folks who pose no threat whatsoever to a listed species.
What A Difference 10 Years Can Make!
Ten years ago, the USFWS (the Service) had just proposed that the Canada lynx be listed as a threatened species even though they didn’t have the data to support it. In fact, only two years earlier, in December of 1994, they had concluded that the lynx was NOT warranted for listing as “threatened” under the federal ESA.
In 1998, however, the Service reversed that earlier decision. They changed their minds, not on the basis of any new information about lynx, but because of a lawsuit filed by the Defenders of Wildlife and 14 other plaintiffs. That lawsuit ended when a federal judge sent the matter back to the USFWS for further consideration. The “further consideration,” obviously influenced by the threat of additional lawsuits, led the Service to the following conclusion: “lynx populations in the contiguous United States are the southernmost extension of a larger ‘metapopulation’ whose core is in central Canada; however, the international boundary between Canada and the United States, and the differences in wildlife and habitat management between the two countries, is ample justification to list lynx in the contiguous United States as a Distinct Population Segment that is threatened with extinction.” In other words, the listing of lynx in the “lower 48” was largely the result of politics rather than wildlife biology (political pressure and a political boundary!).
Even then, it took two more years for the Service to compile enough information about lynx to justify the listing of lynx in the lower 48 as one “Distinct Population Segment (DPS).” That one “DPS” of lynx really consists of four distinct populations that are divided by barriers of unsuitable lynx habitat. There is apparently little if any movement of lynx back and forth between the regions that these four populations inhabit.
The four regions are (1) the Northeastern Region, including Maine, New Hampshire, Vermont, and New York; (2) the Great Lakes Region, including Michigan, Wisconsin, and Minnesota; (3) the Northern Rocky Mountain/Cascades Region, including Washington, Oregon, Idaho, Montana, northwestern Wyoming, and Utah; and (4) the Southern Rocky Mountains Region, including Colorado and southeastern Wyoming.
Northeast Lynx Population Not Viewed As Critical
When the Feds listed lynx as threatened, they had little interest in the Maine lynx population. Within the 70-page document released by the USFWS to justify the listing, they said that in the Northeast, “Maine is believed to be the only state that continues to support a resident lynx population.” They also concluded that “lynx habitat in the Northeast is naturally limited and does not contribute substantially to the overall DPS. The Northern Rockies/Cascades Region contains the largest amount of lynx habitat, shows the strongest historical and current evidence of significant resident lynx populations and will be the major focus of the USFWS in attempting to ensure the continued long-term existence of lynx in the contiguous U.S.”
So why did they “write us off” back then, and why are they focusing on us now? The answer is obvious. In 1998, when the Feds decided to list the lynx, the Maine lynx population was extremely low.
Here are a few lines I “clipped” from an MTA newsletter report that I wrote during that time period (September 1998): “When was the last time you saw a Canada lynx in the State of Maine? I’m sure that few, if any, of you have ever seen one. What are the chances that you will ever catch a lynx by accident in a trap set for some other species? It will almost certainly never happen! In fact, there have only been three verified incidental lynx catches in Maine during the past 30 years. The reason, of course, is that we have very few lynx in Maine. Maine is at the extreme southern edge of the historical range of the Canada lynx, and it is doubtful that they ever existed here in significant numbers.”
Obviously, when I wrote those words, I wasn’t anticipating what was about to happen. Between 1998 and today, a 10-year period, our lynx population skyrocketed! As with many wildlife populations, dramatic changes are not unusual. Many of us can remember when Maine had almost no fisher — there had been a closed season on fisher for years. In the late ’50s, things started to turn around, the state opened the season and by the early 1970s, trappers were catching fishers everywhere. The same thing happened with marten. I was stationed in Caribou during the early ’70s when the state decided we finally had enough marten to try an experimental trapping season with a five marten limit. Coyotes first started appearing in the western mountains of Maine (Upton area) during the mid-’60s. The first coyote tracks I ever saw were in the Mount Blue area (Carthage) in 1969.
Shortly after that, their numbers exploded. The Penobscot River acted as a barrier to coyote expansion into Down-east Maine, but that was temporary. Soon, they were everywhere and our deer herd has been suffering the consequences ever since. The point I’m trying to make is that wildlife populations sometimes expand dramatically in a relatively short time, and that’s exactly what happened with our lynx. That’s also why the Feds have suddenly become much more interested.
Habitat, Not Trappers, Will Determine Future Lynx Populations
In March of 2000, when lynx were listed as threatened, the Maine population was estimated at fewer than 200 animals. Today, state and federal biologists estimate the population to be between 500 and 1,000 — an adequate number to keep lynx off the state list of threatened species. This estimate is ultra conservative, in my opinion, and I’d be surprised if we don’t have twice that number and probably more.
This dramatic increase is the direct result of land management practices over the past 30 or so years that have created near perfect conditions for snowshoe hares. Lynx are extremely dependent on snowshoe hares for survival, and lynx populations everywhere fluctuate up and down in proportion to hare populations. Any future change in the lynx population from its current status will almost certainly be the result of cutting practices and/or fluctuations in the hare population.
The tiny number of lynx taken incidentally by trappers, while unfortunate, has no impact whatsoever on the lynx population. At one time, I thought the Feds understood that. When they listed lynx, they made the following statements in the Federal Register: “Legal trapping activities for bobcat, coyote, wolverine and other furbearers create a potential for incidental capture of lynx. The threat to resident lynx from legal trapping for other species may be limited in many areas because bobcat or coyote trapping generally occurs outside of areas where lynx would be found, although we know that incidental capture occurs.
Although we are concerned about the loss of lynx that are incidentally captured, we have no information to indicate that the loss of these individuals has negatively affected the overall ability of the contiguous United States DPS to persist. Additionally, we believe that lynx have been incidentally trapped throughout the past, and still they persist throughout most of their historic range. In summary, we conclude that past and present over-utilization is not a factor threatening lynx.” Now it appears that they may have forgotten what they said or maybe they’ve just changed their minds again.
Reluctance by federal biologists to act quickly on an Incidental Take Permit to protect Maine’s trapping programs, and the various trapping restrictions they want included, appear to be inconsistent with their previous findings. Personally, I believe that at least some of them are more interested in exerting their authority than in maintaining the lynx population.
Lynx-Related Lawsuits Proving Lucrative for Animal Rightists
It’s ironic, I think, that when lynx numbers in Maine were extremely low, nobody paid much attention to these elusive cats. Nobody was screaming that we had to stop trapping in order to save the handful of lynx that were out there. Today there are at least 30 times as many lynx as there were 15 years ago, and nearly every time a lynx gets caught in a trap, the animal fanatics file another lawsuit. It just goes to show that it isn’t about lynx; it’s about using the threatened status of the lynx as a means to restrict various types of activities with which they don’t agree. It’s also about the money!
Listing of the lynx as a federally threatened species has paved the way for animal rightists to use the federal courts to attack trapping in Maine. The federal Endangered Species Act specifically allows citizens to file lawsuits for alleged violations of the Act. Prior to lynx being listed, most efforts to ban trapping in Maine were dealt with by the Maine Legislature. Those efforts will likely continue, but they seldom get much support. Protectionists also tried ballot initiatives (referendums) to attack trapping in several states, but their success was largely limited to states with large numbers of uninformed urban voters who could easily be deceived into believing all the anti-trapping propaganda. Plus, ballot initiatives are very time consuming and extremely expensive.
The federal courts provide animal fanatics with the best of all worlds in their efforts to outlaw trapping. They can circumvent Maine policy makers (the Legislature); they can circumvent the state agency charged with managing the state’s wildlife (the Fish and Wildlife Department); they can plead their case to a federal judge who, in most cases, knows virtually nothing about trapping; and they can often recover every cent they spend in bringing their lawsuit. In fact, they often use volunteer help to do the lion’s share of their legal work (law school students who do the legal research as part of their education). It remains unclear how much of this “free” legal work shows up in the bottom line when they try to recoup their expenses, but I’m guessing that a lot, if not all, of it is included. If so, not only do they recoup all their expenses, they actually make a “bundle” every time they go to court. That’s the seed money that allows them to launch their next attack.
WAM’s True Agenda Becoming More Obvious
The Wildlife Alliance of Maine has been in existence for only a few years. In the beginning, they tried to deceive people into believing that their primary purpose was to represent the “non-consumptive users” of Maine’s wildlife resources. It should now be clear to everyone that WAM is a radical animal welfare group whose goal is to outlaw activities with which they don’t agree. Right now they are attacking trappers, and they are forcing every person who hunts, fishes or traps to pay for those attacks. In 2007, they assisted a national animal rights group (Animal Protection Institute) in bringing a lawsuit against the Fish and Wildlife Department for alleged violations of the federal Endangered Species Act (ESA).
You all know that the API lawsuit resulted in some changes in the trapping rules — changes that make things more difficult for trappers and might help reduce the already tiny number of times that lynx are trapped accidentally. What many of you may not know is that our license dollars were used to reimburse the protectionists for the money they spent in bringing that lawsuit. The federal ESA contains a provision that sometimes allows the plaintiffs in a lawsuit to recover some or all of their legal fees. As a result, API received a check from the Department to the tune of $140,000. Since then, the same animal rights group has received an additional $160,000 from a nearly identical lawsuit in Minnesota. I suspect that Minnesota sportsmen paid that bill.
WAM is now teamed up with another national animal rights organization from Washington DC — the Animal Welfare Institute (AWI). They are using a second lawsuit to continue their efforts to chip away at our trapping privileges. My guess is that they are equally interested in getting another pot of money from the state. They are counting on that money to keep them solvent and help finance their next attack. If another check is written, which is highly likely, it will be money that came out of your pocket and mine. Every penny of it will be money that we gave to the state in the form of license fees, believing that it would be used to help manage and protect Maine’s wildlife resources. There is no reason to believe that these animal protection groups will ever stop filing lawsuits, no matter how frivolous, as long as they can continue to recoup their expenses.
Lynx Lawsuit Heats Up In The Middle Of Trapping Season
The second lynx-related lawsuit in as many years has taken a lot of twists and turns since I wrote my last newsletter report in September. I’ll attempt to bring you up to date. As previously reported, the Wildlife Alliance of Maine and the Animal Welfare Institute filed this lawsuit in early August. When I submitted my September report to the editor, there had been no word from the Court about the disposition of this case. That all changed on September 23rd, when WAM and AWI filed a motion requesting injunctive relief. That motion, if granted by Judge Woodcock, would have banned foothold and bodygripping traps at land sets (both on the ground and elevated) in Wildlife Management Districts 1 through 11 and 18. The state, and interveners in the case, were given until Oct. 14 to respond to the motion. The filing of that motion triggered a flurry of activity by the MTA to ensure that the interest of Maine trappers would be well represented.
I immediately contacted Rob Sexton, VP for Governmental Affairs at the US Sportsmen’s Alliance. Rob has a lot of influence over how USSA funds are spent, and once again the USSA came to our assistance. As in the previous lawsuit, we would have the services of USSA attorney Jim Lister, from Washington DC. In turn, the MTA agreed to hire an attorney to provide local representation, and we signed a contract with Bangor attorney Phil Buckley, a partner at Rudman and Winchell Law Firm. To date, MTA legal expenses are about $7,000. We then assembled our team of interveners consisting of the MTA, the USSA, Fur Takers of America, National Trappers Association and individual trappers Dana Johnson, Don Dudley and Carl Guay.
On Oct. 14, our attorneys filed with the court a 22-page objection to the plaintiff’s motion for injunctive relief. We attached an additional 18 pages of documentation supporting our objection, including signed, sworn declarations from MTA President Dana Johnson and our expert witness Dr. Craig McLaughlin (the wildlife biologist that did a lot of the early lynx work in Maine — now employed by the state of Utah as their Wildlife Program Chief). Assistant Attorney General Chris Taub, representing the F&W Department, also filed a 28-page objection to the WAM/AWI motion.
Season Opened on Schedule Despite Lawsuit
The 2008 trapping season started on schedule and had been in progress for several days before federal Judge John Woodcock scheduled a hearing to listen to oral arguments on the plaintiff’s motion. The hearing took place on Nov. 10 at the federal courthouse in Bangor. Several MTA members were in attendance. I wish to extend my heartfelt thanks to each of you that suspended your trapline activities to attend that hearing! The hearing was held in a very small courtroom, and there was not enough room for every trapper to be seated. The debate continued for more than two hours. The judge was clearly impressed with the number of trappers that gave up a day on the trapline to attend these oral arguments.
I think each of us in attendance learned a great deal, and we got a lot of insight into what we are up against. I think we were also somewhat encouraged by several remarks made by Judge Woodcock during the proceedings. The judge did not render a decision on the plaintiff’s motion while we were in the courtroom and gave no indication as to when he would make his decision. Neither did he give any indication that he might consider implementing changes while the season was in progress. In short, we all left the courtroom feeling quite confident that the 2008 trapping season would continue without interruption.
Incidental Catch Jeopardizes Remainder of Season
A week after that hearing, but before Judge Woodcock issued his decision, a lynx was killed in a conibear trap in Aroostook County. The plaintiffs in the case used the incident to try to further convince the judge to grant their motion. The judge waited a few days to get all the facts about the incident. He was provided with evidence showing that the lynx was killed as the result of a trapper’s failure to comply with the rules and/or the intent of the rules adopted specifically to keep lynx away from conibear traps. Then, on Nov. 26, Judge Woodcock issued a 64-page decision on the plaintiff’s motion for a preliminary injunction. He denied their request for an immediate ban on footholds and bodygrippers. He also denied their request for lynx-related restrictions in WMDs 7 and 18. My best guess is that the plaintiff’s entire motion would have been denied had it not been for the lynx that died in a #160 bodygripper on Nov. 17.
In that incident, the trap was set more than 4 feet off the ground on a small tree, but the tree to which the trap was attached did not satisfy the current rule requiring that the tree be at an angle of at least 45 degrees from the ground. Of perhaps even greater significance is the fact that the trap was set less than 6 inches from two very large cedar trees joined at the base. While we will never know exactly what happened, it is almost a certainty that the lynx went up the large cedar and then reached from there into the baited box. The large tree was so close to the small tree to which the baited box was attached that the set was the equivalent of placing it on a large tree in further violation of the rules.
MTA President Prepares Second Declaration
We told the judge, in Dana’s second sworn declaration since this lawsuit was filed, that it would be inappropriate to enjoin the State’s 2,500 other trappers from continuing to use bodygrippers at elevated sets because of one trapper’s mistake. We also suggested that an appropriate remedy would be a modification of the existing rules requiring that there be no trees, poles or other objects greater than 4 inches in diameter within lynx reaching distance of the tree or pole on which the trap is set. The State indicated to the judge that they would change the rules to address this issue prior to the 2009 trapping season.
Although Judge Woodcock denied most of the plaintiff’s motion, he concluded that the death of the lynx in a conibear “exposed an unanticipated hole in the state’s regulatory scheme” to protect lynx. He agreed that the state should amend the rules to address this problem, but he was not happy about the idea of waiting until next season to do it. As a result, he ordered the state to correct the problem immediately.
State Adopts Emergency Rule To Further Protect Lynx
Prior to going ahead with the rule change ordered by Judge Woodcock, the Department (Ken Elowe) provided me with the opportunity to submit language on behalf of the MTA that we’d be able to support. On Dec. 1, I sent Ken some language for his consideration. The next thing I knew, the Attorney General’s Office had gotten into the act. With little understanding of trapping, the recommendations from the AG’s office were based strictly on legal and enforcement considerations. In a nutshell, the recommendations would have required, when setting bodygrippers in trees, that the area within 4 feet of the trap in all directions be free of all objects, including, but not limited to, rocks, banks, trees, and poles, greater than 6 inches in height and that the tree on which the trap were set be no greater than 4 inches in diameter from ground to trap.
Needless to say, this would have been unacceptable, and I immediately sent the following response: “Requiring a clearing 8 feet in diameter would make it virtually impossible to set a trap in good marten habitat unless you were willing to cut a lot of small trees (which is illegal without landowner permission and probably wouldn’t set well with most landowners). I also don’t think that a complete clearing is necessary. I would again suggest that you consider the language that we submitted at your request (and which I have since modified a bit). I think it addresses everything that’s needed to reasonably ensure against lynx being able to get to elevated traps. I doubt that we could possibly anticipate and address every conceivable scenario where a lynx might possibly be taken incidentally. Rocks and banks are already covered adequately (a rock smaller than 4 inches in diameter isn’t going to be high enough to cause any problems and if a high bank were close to the tree on which the trap were set, the trap would not be 4 feet above ground level as required by a rule that’s been around for years.)
The measurement of tree diameter has never been a problem to my knowledge and, in my opinion, is best left alone. In much of the country where these traps are set, small trees have exposed roots near the bottom, and many 3-inch trees would measure 5 or 6 inches at the very base. The MTA has agreed to support emergency rules to help ensure against a repeat of the lynx related incident that took place on Nov. 17 in Aroostook County. We will not support restrictions that go beyond what is necessary to reasonably ensure that lynx are denied access to these traps.”
The Department listened to the concerns that we raised. On Dec. 4, they complied with the judge’s order and used their emergency rule-making authority to make the necessary clarifying changes. The language they adopted is pretty close to what we recommended. Every trapper should have received a copy. Here it is — the underlined language is new:
All killer-type traps in Wildlife Management Districts 1 – 11 that rely on the rule requiring such traps to be set at least 4 feet above the ground or snow level must be at least 4 feet away from any bank and must be affixed to a pole or tree that is at an angle of 45° or greater to the ground and that is no greater than 4 inches in diameter at 4 feet above the ground or snow level. If a pole is used, the pole must be a natural section of tree, with or without bark, the sides of which have not been sawed, planed or otherwise altered to create a flat surface. The pole or tree to which the trap is affixed must be at an angle of 45° or greater to the ground the entire distance from the ground to the trap. The area within 4 feet of the trap in all directions must be free of trees, poles or other objects greater than 4 inches in diameter and must be free of all trees or poles that are slanted at an angle of less than 45° to the ground at any point between the ground and the height of the trap. The purpose of this rule is to ensure that killer-type traps are not placed in the vicinity of objects that make it easier for lynx to access the trap.
Second Incidental Catch Adds Further Complications
On Dec. 5, the MTA was notified by our attorney that another lynx had died as the result of being caught in a conibear trap. Our efforts to obtain additional information were largely unsuccessful because of an ongoing criminal investigation into the incident. On Friday, Dec. 12, the plaintiffs in the lawsuit filed another motion requesting that the judge issue a Temporary Restraining Order banning the use of conibear traps in lynx habitat for the remainder of the season or, as an alternative, requiring that conibear traps be checked daily.
The MTA immediately started working with USSA attorney Jim Lister to prepare written objections to the new motion. It’s a good thing we did, because on Dec. 14, a Sunday, the judge sent notice that he was scheduling a telephone hearing for the following afternoon to listen to oral arguments on the motion.
Dana Johnson and I worked nonstop all day Sunday trying to finalize his third sworn declaration in as many months. Dana was still without power as the result of an ice storm three days earlier, but his cell phone was still working! At midnight on the 14th, I was still swapping e-mails with attorney Jim Lister in Washington DC in preparation for filing our written objections to the Temporary Restraining Order the following morning. We were also able to get a little more information about the death of the second lynx, which helped us in preparing our objections.
The lynx was apparently killed in a conibear trap set illegally in the Stacyville area by a nonresident trapper. The trapper apparently hid the animal in the woods and did not report it.
Earlier this fall, the same trapper was cited for several trapping related violations, some of them involving violations of the rules designed to protect lynx. In addition to the earlier citations issued to this trapper by state game wardens, the U.S. Fish and Wildlife Service plans to prosecute him criminally in federal court for violations of the federal Endangered Species Act.
Judge Denies Temporary Restraining Order
Attorney Lister filed our written objections with the Court about noon on Dec. 15. He then participated in the telephone hearing on the motion, expressing orally what we had already submitted in writing. The state also argued against the motion during the conference call, but chose not to file written comments.
On Dec. 16, I received a copy of Judge Woodcock’s decision denying the plaintiff’s motion. In a nutshell, he denied the motion because the lynx was taken in a trap that violated the rules adopted by the state to protect lynx. In his 6-page decision the judge states that the “Plaintiffs have produced no new evidence of harm to lynx caused by trappers acting in compliance with existing state law.”
The lawsuit itself is ongoing and is currently scheduled for trial in front of Judge Woodcock in mid-April in Bangor.
Maine Trappers Well Represented in Fight to Save Trapping
The MTA wishes to thank the US Sportsmen’s Alliance, Fur Takers of America and the National Trappers Association for all the help they have given us throughout this ordeal. Attorney Jim Lister has done an outstanding job providing us with the best possible legal representation.
We are also grateful for all the legal assistance provided us by Gary Leistico on behalf of the NTA. Gary is the attorney from Minnesota who helped represent the Minnesota trappers in the lynx-related lawsuit that was recently settled in that state. We also wish to thank wildlife biologist Gerry Lavigne, who served many years as Maine’s deer biologist and is now retired. Gerry prepared a sworn declaration for us to file with the Court refuting many of the statements made by the plaintiffs in their lawsuit. He has also volunteered to testify on our behalf in the upcoming trial. The MTA also wishes to express our gratitude to MTA members Dana Johnson, Don Dudley and Carl Guay for their willingness to be named as interveners in this lawsuit and for being on call throughout the fall trapping season to provide assistance in this ongoing threat to our future.
— Gary Sewell