Trappers Gear Up for Maine Lawsuit Appeal

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by Norm (Skip) Trask, Legislative Liaison for Maine Trappers Association

Trappers Win Big In Lawsuit Decision!

The lawsuit threatening to ban many of our trapping privileges is over! The results couldn’t be better. In mid-November, Judge Woodcock handed down his long-awaited decision. He ruled in favor of the defendant and defendant interveners and against the plaintiffs.

The six-day trial ended in late June. More than four months later, after the judge was able to allocate the time necessary to thoroughly review and consider what he termed the “exhaustive testimonial and documentary evidence” presented during trial, he issued his 28-page ruling. In a nutshell, he found that the small number of lynx taken incidentally by trappers does not pose a threat to the lynx population.

Obsessive Behavior Displayed By Activists

To those of us who work hard to protect our trapping heritage, it’s no secret that many of the animal rightists are obsessed with destroying the lifestyle that we love. If I didn’t detest what they are trying to do, I might even feel sorry for them. It’s interesting just to sit back and observe them. They seldom smile. Whenever they speak in public, just about everything they say focuses on the negative. I find it impossible to relate to people whose only satisfaction in life comes from making others angry or unhappy. It must be a terrible way to live! Their obsession to put trappers out of business came through loud and clear during this lawsuit. Did it help us win? Probably not. I believe that the judge made his decision strictly on the basis of the evidence that was presented. He also went the extra mile to make sure that his decision would be upheld in an appeal. At the same time, I think the judge liked us a lot better than he did those who were trying to destroy us. It’s easy to see why!

When the trial ended in late June, the judge indicated that he hoped to have a decision in the case by early September. Our fox and coyote season was scheduled to open on Oct. 18. As that date approached, and no decision had been issued, the plaintiffs couldn’t stand it! On Oct. 14, they filed a motion for a preliminary injunction seeking to stop the canine season. On Oct. 19, when they hadn’t received a response from the court on their earlier motion, they filed another one. The second motion was for a temporary restraining order seeking to immediately stop the canine season and to halt the start of the regular fall trapping season.

I’m sure that Judge Woodcock was more than a bit miffed at having these additional motions thrown onto his already full plate. The trial was over. There was no new evidence. Yet the plaintiffs continued to hassle the judge with motions that had no merit. On Oct. 20, Judge Woodcock denied both motions. I’ve included below (in italics) several paragraphs from his five-page denial. Not only does it help explain how things progressed during this lengthy lawsuit, but it also, in my opinion, gives clear indication that the judge was as frustrated with the plaintiffs as they were with him:

Judge’s Denial Of October Motions

“This exhaustively litigated case is in order for decision. Frustrated by the Court’s failure to issue a ruling on the pending motion for preliminary injunction before the commencement of the early coyote and fox trapping season in the state of Maine, the Plaintiffs have filed a motion for preliminary injunction and a motion for temporary restraining order. The Court denies each motion.”

“On August 11, 2008, Animal Welfare Institute and the Wildlife Alliance of Maine (Plaintiffs) filed an action for declaratory and injunctive relief against the Maine Department of Inland Fisheries and Wildlife Commissioner (DIFW), claiming that the Commissioner had violated the Endangered Species Act (ESA) by authorizing and allowing trapping activities that “take” Canada lynx, a threatened species. Subsequently, the Court allowed a number of intervenors to participate in this litigation.”

“This was not the first time the Court has struggled with an ESA claim involving the lynx. In 2006, the Animal Protection Institute (API) filed suit in this Court, alleging that the then existing trapping regulations had resulted in incidental takes of lynx. The API litigation resulted in the issuance of a Consent Decree on October 4, 2007, which committed the state of Maine to tightening its trapping rules to avoid takes of lynx.”

“The Plaintiffs in this case, however, were not bound by the terms of the Consent Decree, and they filed the instant lawsuit because there was continuing evidence that, even with the more stringent DIFW trapping regulations, lynx were still subject to incidental takes in Maine. On September 23, 2008, the Plaintiffs moved for a preliminary injunction and on November 26, 2009, the Court issued a sixty-four page opinion, granting the motion in part and denying it in part. The Court concluded that there was a regulatory gap in the DIFW regulations and ordered the state of Maine to take immediate action, but the Court also concluded that, apart from that gap, the Plaintiffs had not proven their entitlement to relief.”

“On December 12, 2008, the Plaintiffs filed an emergency motion for temporary restraining order, urging the Court to require a 24-hour trap check time for all Conibear traps. The Court denied the motion on December 16, 2008.”

“The Plaintiffs proceeded with their motion for permanent injunction and in April and June, the parties presented extensive testimony and documents in six days of contested hearings. The parties filed post-hearing briefs, the last of which was filed on August 7, 2009.”

“On October 10, 2009, the Plaintiffs moved for preliminary injunction and on October 19, 2009 for temporary restraining order.”

“The Plaintiffs claim that failing to eliminate the fourteen-day early fox and coyote trapping season will cause irreparable harm, since it will likely result in takes of lynx and eliminating the fourteen-day season will ‘have no impact on the Defendant and will have minimal impact on the trapper-intervenors’.”

“The record in this and the predecessor case should confirm that the Court has conscientiously attempted to give careful and thorough attention to the issues the parties have raised. Just last December, the Court concluded that the Plaintiffs had not sustained their burden to justify the extraordinary remedy of an injunction following the DIFW’s court-ordered tightening of its trapping regulations. The circumstances that led the Court to deny the Plaintiffs’ emergency motion for a temporary restraining order have not changed. The regulations remain as they did in December and, as there has been no trapping, the facts on the ground are the same.”

“The Plaintiffs have therefore failed to provide a justification for revisiting the December 16, 2008 Order. Although the Court can appreciate Plaintiffs’ frustration, the issues before the Court are unusually complex, require shifting through a voluminous record, and applying nuanced, intricate and contested principles of law. The Court assures counsel for the Plaintiffs that it is acutely aware of their desire for a speedy decision, but has opted for a considered, rather than an immediate opinion. At the same time, the Court reminds counsel for the Plaintiffs that their case is not the only one the Court has pending before it.”

Lawsuit Decision Devastating To Animal Rightists

Three weeks after denying the two motions filed by the plaintiffs in October, Judge Woodcock issued his decision in the lawsuit. The decision is devastating to animal rights groups. Not only did the ruling go against them, language contained in the ruling sets a precedent that will make it much harder for these fanatics to misuse the federal Endangered Species Act in the future to attack trapping, hunting, fishing or any other activity with which they don’t agree.

Included below (in italics) are several particularly relevant sections taken directly from Judge Woodcock’s 28-page decision. I hope this information will give you some idea of the tremendous effort we (the interveners) made on behalf of Maine trappers in fighting this lawsuit, the outstanding work done by the State to protect the future of trapping and the extent to which our adversaries are willing to go to try to take it all away from us:

Conibear Traps

“According to IF&W records, since 1999, six lynx have been captured in Conibear traps. Four of these lynx were captured in Conibear traps between 1999 and June 2007 when IF&W promulgated new Conibear trap regulations. Dr. Elowe testified that none of these traps was set in compliance with current Conibear trap regulations. Two lynx were captured and died in Conibear traps in 2008. Dr. Elowe testified that neither of these traps was legally set. Since the State’s emergency promulgation of more restrictive Conibear trap regulations, there have been no reports of incidental takes of Canada lynx from legally-set Conibear traps. AWI itself admits that ‘[n]o lynx have been reported trapped in killer-type traps (also called Conibear traps) since December 2008, when the DIFW amended its regulations governing their use’.”

“After evaluating the evidence, the Court finds that AWI has not demonstrated that Maine’s current Conibear trap regulatory scheme is likely to cause incidental takes of Canada lynx.”

Multiple Areas of Factual Disagreement

“The parties fully aired their differences during the six-days of evidentiary hearing. AWI relied upon the expert testimony of Dr. Paul Paquet and Camilla Fox; IF&W relied on the testimony of Dr. Kenneth Elowe; the Trappers called Dr. Craig McLaughlin and Dana Johnson, President of the Maine Trappers Association. The parties introduced thousands of pages of documents, and vigorously controverted an array of factual issues, some simple, others complex, including:

1) The current size of the Canada lynx population in the state of Maine;

2) The interrelationship between the Canada lynx population in Maine and the neighboring lynx population in Canada;

3) The cyclical nature of the lynx population in Maine;

4) The cyclical nature of the snowshoe hare population in Maine and its implications on the lynx population in Maine;

5) The impact of forestry practices in Maine, including clear cutting, on the lynx population;

6) The extent of competitive species, such as fisher and coyote, predation on lynx;

7) The carrying capacity of the lynx population in Maine;

8) Whether the lynx population in Maine has sufficient genetic diversity;

9) The validity of lynx population modeling performed by IF&W;

10) Whether lynx are attracted to blind Conibear sets where scat or urine are used as attractants;

11) The extent to which leghold traps cause physical injuries to lynx;

12) The extent to which different types of leghold traps, such as “Soft Catch” traps, minimize physical injuries;

13) The impact of physical injuries to lynx on the survivability of the trapped animal;

14) Whether staked leghold traps or leghold traps with drags cause fewer significant injuries;

15) The extent to which an animal which has been trapped sustains stress-related and behavioral injuries, which affect its ability to survive; and,

16) The extent to which the Court should take into account the likelihood of unreported takes of lynx.”

Post-traumatic Stress Disorder Among Canada Lynx

“The Court does not find persuasive AWI’s position on the question of stress-induced or behavioral injuries from trapping. This was a major point of contention, since AWI argued that incidental takes have caused not only physical injuries to the lynx, but also ‘psychological, similar to post-traumatic shock in humans’. To sustain its burden on the motion for permanent injunction, AWI added together the physical and psychological injuries to the lynx from trapping to demonstrate irreparable harm to the species.”

“In essence, AWI contends that when trapped, a lynx can suffer from “nonphysical injuries,” which Dr. Paquet described as ‘[n]ot dissimilar from what we see in humans, an example being posttraumatic shock, for example, would be a traumatic injury that has repercussions.’ The Court does not discount Dr. Paquet’s testimony that a lynx caught in a trap could experience heightened physical symptoms, such as a ‘rapid rate of breathing’ or ‘elevated temperature – body temperature, rather than a lowered body temperature or normal’.”

“But, Dr. Paquet went far beyond the rather commonsense contention that being trapped could cause an animal stress, which is expressed physically. He testified that an initial trapping can lead to capture myopathy and death.”

“The Court is not convinced. AWI’s position anthropomorphizes the lynx. It is not beyond the realm of imagination that the Canada lynx possesses human-like sensitivities and horrible memories about traumatic events in the past, which cause systemic deterioration, leading to debilitation and death. But, the daily life of a mid-size predator in the woods of Maine is inherently stressful, one most humans would find overwhelmingly so, including the imperative to catch and eat elusive prey, the risk of being caught and eaten by more powerful, aggressive predators, and the exposure to harsh elements. Where along the lynx stress scale being trapped and released by a human would compare to being chased and nearly caught, killed and eaten by a fisher or coyote is speculative, but if such stressful events caused a “cascade of deterioration,” leading to death, it is a wonder the species has survived.”

“Further, the evidence reveals that some lynx, usually those who are aged, can become “trap happy,” a circumstance that occurs with many animals. Dr. Elowe explained that the animal comes to realize that the benefit of easy food in the trap is worth the drawback of being trapped, and they are repeatedly found in traps. It is difficult to square AWI’s contentions about stress-induced or behavioral injuries from trapping with the same animal that can become trap happy.”

“From the evidence AWI has amassed, the Court does not find it is more likely than not that trapping as regulated in Maine causes stress-induced or behavioral injuries in Canada lynx.”

A Failure of Proof

“To the extent AWI presented affirmative evidence, it consists largely of generalized studies and expert opinions arrayed against IF&W’s Maine-based and lynx-specific data and experts.”

“This is not to say that AWI relied exclusively on marginally relevant studies, but it is true that on crucial factual issues running to the heart of its most decisive contentions, AWI’s case contained a notable absence of Maine-generated, lynx-specific studies. It relied instead on extrapolations from studies about other animals in different regions to prove contentions about the lynx in Maine.”

“The same general point applies to Dr. Paquet and Ms. Fox. Dr. Paquet is certainly an expert, but he acknowledged that most of his work has been with coyotes and wolves, with bears, and with lynx in descending order. He has had limited direct contact with the state of Maine, and with lynx in the State. Although Ms. Fox has had some direct experience in Maine as a participant in the Maine Wolf Inquiry Project in the summer and fall of 2008, the Court has a sense of disquiet about the extent to which Ms. Fox was testifying as an objective expert as opposed to an educated advocate. But, neither Dr. Paquet nor Ms. Fox’s level of expertise about Canada lynx in Maine compares favorably with Dr. Elowe’s long term, in depth, professional knowledge of wildlife in the state of Maine, including lynx. Dr. Elowe has been employed by IF&W since 1988, and has been responsible for all mammals since 1990. To the extent the case has been a battle of the experts, the Court has relied on Dr. Elowe’s testimony over the testimony of both Dr. Paquet and Ms. Fox.

Footnote Regarding Ms. Camilla Fox

“The Court respects Ms. Fox’s intelligence and commitment, but is concerned that her opinions as an expert were colored by her strongly held personal views. Ms. Fox was involved in the decision to initiate API’s 2006 litigation. When she testified in this case, the Court was forced to repeatedly admonish Ms. Fox to answer the questions asked, not to advocate. At times while testifying, Ms. Fox seemed more like an attorney, presenting an under oath closing argument for AWI’s side.”

Lawsuit Decision Headed For US Court Of Appeals

On Dec. 3, AWI and WAM filed notice with the court that they are appealing Judge Woodcock’s decision. That means this case is now headed to the United States Court of Appeals for the First Circuit in Boston. The Court of Appeals consists of a panel of judges that has appellate jurisdiction over the lower courts, meaning that it has the power to review decisions and change outcomes. The attorney from Idaho who represented the plaintiffs in District Court has moved onto other things. The plaintiffs have apparently hired a new law firm from Washington DC to handle their appeal. While you can never predict the outcome of an appeal, our attorneys feel quite confident that Judge Woodcock’s decision will be upheld. The appeal process is usually quite slow, and it might be a year or more before the Court of Appeals reviews this case.

“In Unity There Is Strength”

Our success in winning this lawsuit at the District Court level was greatly enhanced by the help we received from our friends throughout the country, from individual trappers to state trapping associations to dedicated national organizations. The financial and legal assistance we received from the US Sportsmen’s Alliance, Fur Takers of America and the National Trappers Association was remarkable and far exceeded our expectations. Although many of our friends, too numerous to mention here, made significant contributions on our behalf, three individuals played key roles in helping deliver the knock-out punch.

At a time when most organizations were experiencing funding shortfalls because of a sour economy, Rob Sexton (USSA Vice President for Government Affairs) pulled the strings that gave us the additional resources necessary to battle the animal fanatics here in Maine. Those resources, and the legal expertise that accompanied them, made a world of difference. The MTA paid more than $20,000 in legal fees during this lawsuit, but, while I don’t have exact figures, I’m sure that the combined contributions from the USSA, FTA and NTA was at least 10 times that amount.

USSA attorney Jim Lister, from Washington DC, was our primary litigator throughout this lawsuit, filing for intervener status on our behalf and responding brilliantly to every motion filed by the plaintiffs during this 15-month ordeal. He was soon joined by NTA attorney Gary Leistico, from Minnesota, and these two men worked with the MTA to mastermind a defense that could not have played out any better. During six days of trial, these two attorneys exhibited a tag-team approach to soliciting powerful testimony from our own expert witnesses and shooting holes in the testimony offered by the plaintiffs. Several times during the trial, our local counsel pulled us aside and commented on the outstanding legal representation we were receiving from these men.

I have been assured that we will continue to receive the best legal assistance possible during the appeal process. In a recent USSA press release, Rob Sexton was quoted as saying, “We fully expect to win the appeal and are dedicated to winning this fight no matter how far the anti’s decide to take it. A sportsmen win here will make it increasingly difficult for the anti’s to manipulate the Endangered Species Act in order to ban hunting, fishing and trapping across the country.”

Use of ’Rat Traps For Weasels

After Judge Woodcock issued his decision on the lawsuit, I started getting questions from some of our members about the possibility of making changes in the trapping rules. For example, a couple folks have asked me if we can now ask the Department to restore the use of wooden ’rat traps for taking weasels in lynx habitat. Some of you are apparently under the assumption that this latest lawsuit was the key to getting back some of the trapping privileges that were lost three years ago under the terms of the Consent Decree that settled the earlier lawsuit. That’s understandable! This whole lynx thing has gotten extremely complicated. I’ll try to explain.

The 2007 Consent Decree resulted in trapping restrictions in WMDs 1 through 6 and 8 through 11 to help protect lynx. Those restrictions included such things as limiting the size of footholds, eliminating the use of baited bodygrippers on the ground, eliminating the use of large live traps, etc. Although unintentional, those changes also eliminated the use of ’rat traps on the ground for weasels.

In a nutshell, the lawsuit that we won this past November has nothing to do with the Consent Decree that settled the previous lawsuit. The terms of that Consent Decree are still in effect and will remain so until the Feds issue an Incidental Take Permit (ITP) for lynx. If and when an ITP is issued, the Consent Decree goes out the window. When that happens, any restriction previously imposed by the Consent Decree (that are not also imposed by the ITP) will again be open to negotiations. The use of ’rat traps on the ground for weasels is one example of something we should easily be able to get back after the Consent Decree is gone. It’s hard to guess when that might happen.

Will Maine Ever Get An ITP For Lynx?

The two lynx-related lawsuits that we’ve been forced to endure, at tremendous cost to the MTA, could and should have been avoided. If the US Fish and Wildlife Service had kept the promise they made back in 2000, when they first listed the lynx as threatened, things would be looking good. Unfortunately, they never followed through on their promise to adopt a rule to protect individual trappers and the state from liability when lynx are taken incidentally. They have, so far, been equally reluctant to issue an ITP, which, basically, would serve the same purpose.

There are, in my opinion, several reasons why the Feds have been dragging their feet on the issuance of an ITP. First of all, the Feds have never issued an ITP for trapping-related “takings” of a threatened species, and they are concerned about the lawsuits that will almost certainly follow their issuance of such a permit. Secondly, some of the federal biologists who have been working on the ITP application appear to be more philosophically aligned with members of WAM than with members of the MTA when it comes to trapping. Each time the state appears to be on the verge of satisfying the Federal requirements for obtaining an ITP for lynx, those requirements get changed. Dr. Elowe explained it very nicely when testifying at the trial — as we continue through the application process, the bar keeps getting raised higher and higher (or words to that effect).

It certainly appears that at least some of the federal wildlife people either don’t want us to have an ITP or, if an ITP is issued, they want it to contain trapping restrictions that go well beyond what we have right now. The state filed its latest draft of the ITP application in August of 2008. Mark McCollough, an endangered species biologist at the USFWS office in Orono, was recently quoted in the Bangor Daily News as saying that he hopes his agency will make a decision on the permit sometime next year. I’m not sure what they’ve been doing for the past year and a half, but the term “sitting on their hands” comes to mind!

Trappers Denied Use Of Floats For Spring ’Rats

The muskrat season in Maine is tied directly to the beaver season. Not only are we allowed to trap muskrats during the regular fall trapping season, but after the general season ends, we can continue to trap for ’rats in any area of the state that is open to beaver trapping. During the past few years, beaver trapping seasons have been extended into the spring in many areas as a partial answer to an increase in nuisance beaver problems. This has allowed some opportunity to trap for muskrats in the spring after the ice had melted. Initially, trappers were allowed to set foothold traps on “floats” to take those heavily furred spring ’rats. That practice quickly came to an end in 2006, when the Department, out of concern for eagles, limited spring muskrat trappers to the underwater use of killer-type traps and colony traps.

For each of the past two years, the MTA has petitioned the Department for a rule change that would allow the use of covered floats for taking ’rats in the spring. We suggested that a “covered float” be defined as a float completely covered on the sides and top with hardware cloth, screen or other similar material having a mesh size no greater than 2 inches square.

Access would be limited to openings at the extreme ends of the float and the openings could not exceed 10 inches in height. Trappers at Indian Township in Washington County have been using these types of floats for years with excellent results, and “covered floats” pose no threat to eagles or waterfowl.

We almost succeeded in getting covered floats legalized this year. We received support from several Advisory Council members, and I was still hopeful right into September that it was going to happen. I’ve included below (in italics) parts of an e-mail message from the Department to the Advisory Council that explains how things finally played out:

Advisory Council members,

At the August 20th Advisory Council meeting, the Commissioner requested that the Wildlife Division, MTA, and several Advisory Council members participate in a telephone conference call to discuss the + and – of allowing covered float sets for spring muskrat trapping.

This call occurred on the afternoon of Thursday, September 10. Participants included: Skip Trask, John Simko, Cathy DeMerchant, Steve Philbrick, Mike Witte, and Al Goodwin.

A wide-ranging discussion occurred around what a covered float set is; the status of muskrats in Maine and the northeast, the potential impact (if any) to Maine’s muskrat population; the fact that the Penobscot Indian Nation allows the use of this set on its lands; and that currently Maine muskrat trappers have two sets [colony traps and killer traps] available for use during the closing weeks of the beaver / muskrat season.

At the close of the call, participants requested that MDIFW contact neighboring jurisdictions to determine the status of muskrats and any modifications to muskrat trapping that they may have implemented. John DePue has completed this assessment and it is attached herein.

The Wildlife Division is recommending to the Council that it not incorporate covered float sets for spring muskrat trapping into the 2009-2010 furbearer trapping rule for the following reasons:

• The decline of muskrat populations continues to be a concern of biologists in the northeast region.

• Several northeast jurisdictions have experienced significant declines in their muskrat harvest over the past several years when compared to 5 and 10 years averages.

• At this time, northeast jurisdictions are not shortening the muskrat season or taking measures to regulate the muskrat harvest. However, northeast jurisdictions are not increasing opportunity for the harvest of muskrat at this time.

• Contrary to other northeast states, Maine has increased the opportunity to harvest muskrats for the 2009-2010 season by expanding the beaver season in several WMDs.

• Maine muskrat trappers have two sets [colony traps and killer traps] available for use during the closing weeks of the beaver / muskrat season.

Needless to say, we are still not allowed to use covered floats for ’rats in the spring! Neither do we intend to stop trying! As I’m sure many of you recall, it took us several years of hard work to finally be allowed to set traps on abandoned beaver dams. There was great concern that setting traps on abandoned beaver dams would devastate the otter population. That didn’t happen. Neither will the use of covered floats impact the muskrat population, and we’ll eventually get these things legalized.

While I certainly agree that more work needs to be done to determine the status of Maine’s muskrat population, I do not believe for one minute that allowing a few trappers to put out a few floats for a couple of weeks in the spring is going to make one iota of difference.

There are a lot more trappers out there in the fall than in the spring, and floats are legal at that time of year. What I do believe is that there is no better way to get kids interested in trapping than helping them build a few floats in the basement during the winter and then helping them set out those floats in the spring of the year when the weather is good and it’s fun to be outside.

I’ll never forget, as a kid, the excitement of looking downstream to the next little cove where another of my muskrat floats was waiting. Had I made a catch? When I was a kid, I trapped numerous species of furbearers throughout the season.

Looking back, however, I’m convinced that building muskrat floats and setting them out in the spring of the year not only helped me earn a little spending money, but also instilled in me a love of trapping that will last a lifetime.

— Norm (Skip) Trask

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