FRIENDS OF ANIMALS v. PHIFER et al

Filing 136

ORDER ON THE PARTIES CROSS MOTIONS FOR SUMMARY JUDGMENT By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FRIENDS OF ANIMALS, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
PAUL PHIFER, in his official
)
capacity as Assistant Regional
)
Director of Ecological Services for the )
Northeast Region Office of the U.S.
)
Fish and Wildlife Service, et al.,
)
)
Defendants,
)
)
and
)
)
STATE OF MAINE, et al.
)
)
Intevenor Defendants.
)

1:15-cv-00157-JDL

ORDER ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY
JUDGMENT
This case concerns the Canada lynx, a wild cat that typically weighs about
twenty pounds and has long legs; large, well-furred paws; long tufts on the ears; and
a short, black-tipped tail. Canada lynx are most commonly found in Canada and
several states contiguous to Canada, including Maine. The U.S. Fish and Wildlife
Service (the “Fish and Wildlife Service” or “the Service”) has listed Canada lynx as a
threatened species under the Endangered Species Act, 16 U.S.C.A. §§ 1531-1544
(2016). 65 Fed. Reg. 16052-01 (Mar. 24, 2000), 2000 WL 299328 (F.R.).
The State of Maine prohibits the trapping of Canada lynx, but allows the
regulated trapping of many other animals such as coyotes, bobcats, fishers, foxes,

martens, and other species. Because traps catch animals indiscriminately, Canada
lynx can be caught in traps set to catch other species. When this happens, it is called
a “take,”1 which is permitted by the Endangered Species Act only if an incidental take
permit has been issued. 16 U.S.C.A. § 1539(a)(1)(B). In November 2014, the Service
issued an Incidental Take Permit (the “Permit”) to the Maine Department of Inland
Fisheries and Wildlife (“Maine”) which exempts the State from liability for incidental
takes of Canada lynx resulting from its state-regulated trapping programs. AR0070422.2 In response, two sets of plaintiffs filed separate actions asserting that the
Permit violates both the Endangered Species Act and the National Environmental
Policy Act, 42 U.S.C.A. § 4321, et seq. (2016). All claims are brought under the
Administrative Procedure Act, 5 U.S.C.A. § 706 (2016).
The first action was filed against the Service and its then-director, Daniel M.
Ashe, by three environmental advocacy organizations: the Center for Biological
Diversity, the Wildlife Alliance of Maine, and the Animal Welfare Institute. The
second action was filed by a fourth organization, Friends of Animals, against Director
Ashe and against Paul Phifer, in his capacity as the Assistant Regional Director of
Ecological Services for the Northeast Region Office of the Fish and Wildlife Service.
The two cases were ordered consolidated in October 2015. The State of Maine, U.S.
Sportsmen’s Alliance Foundation, Maine Trappers Association, and National
Trappers Association have intervened as defendants. This matter is before the court
1 The term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”
16 U.S.C. § 1532(19).
2 All references to the documents in the administrative record begin with the letters “AR” and are
followed by the document’s page number in the record.

2

on the cross-motions for summary judgment filed by the Plaintiffs and the Service.
For the reasons explained below, the Plaintiffs’ Motion for Summary Judgment is
denied and the Service’s Cross-Motion for Summary Judgment is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.

The 2006 Litigation and the 2007 Consent Decree
In 2006, the Animal Protection Institute, a national, nonprofit animal advocacy

organization based in California, sued Maine, alleging that it was violating Section 9
of the Endangered Species Act, 16 U.S.C. § 1538, by authorizing and allowing
trapping that killed protected species such as bald eagles, Canada lynx, and gray
wolves. Animal Protection Institute v. Martin, Case No. 1:06-cv-00128-JAW, ECF No.
1 at 1-2, ¶ 1. In 2007, Judge John A. Woodcock, Jr., entered a Consent Decree and
Order in the Martin case which required Maine to adopt numerous measures to
minimize the incidental take of Canada lynx in Maine’s recreational trapping
program.3

1:06-cv-00128-JAW, ECF No. 134 at 2-6.

The Consent Decree also

permitted Maine to seek an order from the court terminating the decree if the Fish
and Wildlife Service issued an incidental take permit pursuant to the Endangered
Species Act that authorized the State’s trapping program.
B.

Maine’s Application for an Incidental Take Permit
Maine filed its first application for an incidental take permit with the Fish and

Wildlife Service in June 2007, AR-0007618-0007843, and over the next seven years it
3 The measures that Maine adopted included issuing new regulations in 2007 and 2008 which limited
the size of foothold traps in lynx habitat in an effort to reduce the number of incidental takes of Canada
lynx, and required trappers to report any incidental lynx takings so that Maine state biologists could
examine the captured lynx and rehabilitate them before releasing them to the forests. Animal Welfare
Inst. v. Martin, 623 F.3d 19, 22-23 (1st Cir. 2010).

3

submitted multiple revised drafts of its Incidental Take Plan in response to the
Service’s comments. AR-0008787-0008807; AR-0009869-0010146; AR-00111880011508; AR-0013350-51; AR-0070457-0070458. Maine submitted the final version
of its Incidental Take Plan in October 2014, in which it proposed that up to 195 lynx4
could be incidentally trapped over a fifteen-year period, of which up to three could
involve lethal take, and up to nine lynx could experience a major injury. AR-0070103.
In October 2014, the Service issued an Environmental Assessment as required
by the National Environmental Policy Act, which addressed the environmental
impact of Maine’s proposed Incidental Take Permit. AR-0069861-0070041. The
Environmental Assessment concluded that the proposed Incidental Take Permit
would not be a major federal action that would significantly affect the quality of the
human environment and, therefore, a more comprehensive Environmental Impact
Statement was not required for the Permit. AR-0069954-56; see also AR-0070462-64.
Also in October, the Service issued its Biological Opinion, a requirement of Section 7
of the Endangered Species Act.5

AR-0070042-0070093.

The Biological Opinion

concluded that the proposed Incidental Take Permit was not likely to jeopardize the
continued existence of Canada lynx or result in an adverse modification of any
designated critical habitat. AR-007043. The Service approved and issued Maine’s
Incidental Take Permit in November 2014. AR-0070422-23.
The Plaintiffs seek a declaratory judgment determining that: (1) the Service
violated the Endangered Species Act by arbitrarily and capriciously approving the

4

All references to “lynx” in this opinion are to Canada lynx.

5

See note 10, infra.
4

Permit; and (2) that the Service violated the National Environmental Policy Act by
failing to prepare an Environmental Impact Statement for the Permit. The Plaintiffs
also seek an injunction vacating the Permit, as well as reasonable costs, litigation
expenses and attorneys’ fees. As part of its response, the Service has challenged the
standing of one of the four Plaintiffs, Friends of Animals, to sue.
II. STANDARD OF REVIEW
When reviewing a final agency decision for alleged violations of the
Endangered Species Act or the National Environmental Policy Act, courts conduct
their review under § 706(2)(A) of the Administrative Procedure Act. See Theodore
Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011). Under the
Administrative Procedure Act, the court must determine whether the agency’s
decision was made “without observance of procedure required by law,” 5 U.S.C.A. §
706(2)(D), and whether it was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law” (the “arbitrary and capricious” standard), id.
at § 706(2)(A).
“An agency acts arbitrarily or capriciously if it has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Union Neighbors United, Inc.
v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (quoting Am. Wildlands v. Kempthorne,
530 F.3d 991, 997-98 (D.C. Cir. 2008)). Stated differently, “[t]he task of a court
reviewing agency action under the [Administrative Procedure Act’s] arbitrary and
5

capricious standard is to determine whether the agency has examined the pertinent
evidence, considered the relevant factors, and articulated a satisfactory explanation
for its action including a rational connection between the facts found and the choice
made.” Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir. 1999) (quoting
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quotation marks omitted)).
Regarding the National Environmental Policy Act, an Environmental Impact
Statement is required if there is a “substantial possibility” that the agency action
could significantly affect the human environment. Sierra Club v. Marsh, 769 F.2d
868, 870-76 (1st Cir. 1985). Judicial review must ensure that “the agency has taken
a ‘hard look’ at the environmental consequences” of the proposed action and the
decision not to prepare an Environmental Impact Statement.

United States v.

Coalition for Buzzards Bay, 644 F.3d 26, 31 (1st Cir. 2011).
III. LEGAL ANALYSIS
I first address (A) the Fish and Wildlife Service’s challenge to Friends of
Animals’ standing to sue, and then consider the Plaintiffs’ challenges to the Permit
under (B) the Endangered Species Act and, (C) the National Environmental Policy
Act.
A.

Standing to Sue
The Fish and Wildlife Service argues that Friends of Animals lacks standing

to sue because the declarations submitted by members of the organization do not
establish that the members suffered an injury in fact, which is one of the
requirements for standing.
6

The “irreducible constitutional minimum of standing contains three elements:
(1) that the plaintiff suffered an injury in fact, (2) that there is a causal connection
between the injury and the conduct complained of, and (3) that it is likely that the
injury will be redressed by the requested relief.” Sutliffe v. Epping Sch. Dist., 584
F.3d 314, 325 (1st Cir. 2009) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992) (internal quotation marks omitted)).

The injury in fact requirement for

standing arises from Article III of the U.S. Constitution, and requires that the alleged
injury be both “concrete and particularized and actual or imminent, not conjectural
or hypothetical.” Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1548 (2016) (internal
quotations omitted).
To demonstrate an injury in fact, Friends of Animals submitted declarations
prepared by two of its members, Katherine Grazyk and Peter Weissbrod.

The

declarations indicate that as of the filing of the complaint, Grazyk and Weissbrod had
never visited Canada lynx habitat, but that they had decided in December 2014 that
they would plan a trip to view lynx or signs of lynx. They ultimately arranged an
October 2016 trip to Moosehead Lake, which is at the southern edge of lynx habitat.
Grazyk and Weissbrod asserted that their ability to view lynx or signs of lynx would
be harmed if the Permit remained in place.
In arguing that the declarations do not establish standing, the Service does not
challenge the causation or redressability elements of standing, but only whether
Grazyk and Weissbrod suffered a cognizable injury in fact. The Service asserts that:
(1) Grazyk’s and Weissbrod’s trip to Moosehead Lake was scheduled to take place
before the trapping season and, therefore, the Permit would have no adverse effect
7

on their ability to view Canada lynx; and (2) the declarations are silent as to when
Grazyk and Weissbrod made their plans to visit Moosehead Lake and, therefore, do
not demonstrate that they had definite plans at the time Friends of Animals filed its
complaint. Neither argument is persuasive.
First, although Grazyk’s and Weissbrod’s visit to Moosehead Lake was
scheduled to take place before the 2016 trapping season, Maine’s Permit was in effect
during the 2015 trapping season.

Thus, any incidental take from the previous

trapping season could have affected Grazyk’s and Weissbrod’s ability to view lynx in
October 2016. In addition, the Service acknowledges that Moosehead Lake is located
in one of Maine’s Wildlife Management Districts in which lynx are found. Because it
is reasonably possible that the Permit has or will, over time, diminish Grazyk’s and
Weissbrod’s ability to observe Canada lynx in their natural habitat, the declarations
establish a concrete injury that is actual or imminent. See Animal Welfare Inst. v.
Martin, 623 F.3d 19, 25-26 (1st Cir. 2010) (Plaintiffs adequately alleged an injury in
fact by asserting that “Maine’s trapping regulations, by causing Canada lynx to be
taken, interfere with the Canada lynx’s natural state and may increase the animals’
risk of death, reducing the likelihood that the members will observe Canada lynx in
their natural state on future visits.”).
Second, Grazyk’s supplemental declaration establishes that she joined Friends
of Animals in December 2014 having learned of possible threats to Canada lynx in
Maine, and she decided at that time to visit Moosehead Lake to view Canada lynx.
Grazyk’s plan to visit Moosehead Lake, formulated prior to the filing of the complaint,
was sufficiently definite to make the alleged threat of future harm to her and
8

Weissbrod’s ability to view Canada lynx in their natural habitat particularized as to
them.6 See Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1) (“For an
injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual
way.’”).
Accordingly, Friends of Animals has standing to sue.
B.

The Endangered Species Act
Section 9 of the Endangered Species Act, 16 U.S.C.A. § 1538(a)(1)(B), makes it

unlawful to take a member of an endangered species.

By regulation, it is also

unlawful to take a member of a threatened species, that is, a species likely to become
endangered in the foreseeable future. Animal Welfare Inst., 623 F.3d at 21 (citing 50
C.F.R. § 17.31(a)). As noted earlier, the Canada lynx is a threatened species.
Section 10 of the Endangered Species Act, 16 U.S.C.A. § 1539, creates an
exception to the general ban on taking endangered and threatened species. Under
Section 10, the Service may issue a permit allowing “any taking otherwise prohibited
by [the Endangered Species Act] if such taking is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B). Before
issuing the permit, the Fish and Wildlife Service must find that the taking will be
incidental; that the applicant will, to the maximum extent practicable, minimize and
mitigate the impacts of such taking; that adequate funding for a habitat conservation

6 In addition, “[i]t is settled principle that when one of several co-parties (all of whom make similar
arguments) has standing, an appellate court need not verify the independent standing of all the
others.” Houlton Citizens’ Coal. v. Town of Houlton, 175 F.3d 178, 183 (1st Cir. 1999); see also
Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 976 (1st Cir. 1989) (“[w]here coplaintiffs have a shared
stake in the litigation—close identity of interests and a joint objective—the finding that one has
standing to sue renders it superfluous to adjudicate the other plaintiffs’ standing.”).
9

plan will be provided; and that the taking “will not appreciably reduce the likelihood
of the survival and recovery of the species in the wild.” Id. at § 1539(a)(2)(B)(i)-(iv).
The Plaintiffs claim that the Service’s decision to grant Maine’s Incidental
Take Permit was arbitrary and capricious in four respects: (1) the calculation of the
cumulative amount of incidental take of Canada lynx that would be allowed during
the Permit period; (2) the minimization of incidental take; (3) the mitigation of the
impacts of incidental take; and (4) the adequacy of Maine’s funding for its habitat
conservation program. I address each issue in turn.
1.

The Incidental Take Calculation

In its Permit application, Maine requested approval for a cumulative incidental
take of up to 195 lynx over a fifteen-year period. AR-0070103; AR-0070433. Maine
calculated this number by reviewing data on incidental lynx take from the years 1999
to 2012 and selecting the year with the greatest amount of take as the basis for its
calculation. AR-0070164-65; AR-0070433. That year was 2004, during which eleven
trapped lynx were reported. AR-0069927-28; AR-0070433; AR-0070164. Maine then
added a twenty percent “allowance” of two additional lynx per year in order to adjust
for uncertainties such as unreported lynx takes, larger traps, and the changing
susceptibility of lynx to traps, id., bringing the estimated annual take to an average
of thirteen lynx per year, or 195 lynx over the fifteen-year life of the Permit. Out of
the cumulative total of 195 lynx, the application provided that up to three would be
permitted to be killed or rendered non-releasable, up to nine would be permitted to
be captured and released after treatment for severe injuries, and up to 183 would be

10

permitted to be captured and released with no injuries or only minor injuries. AR0070167-68; AR-0070462.
The Plaintiffs argue that the Fish and Wildlife Service arbitrarily accepted
Maine’s take calculation despite the existence of certain alleged flaws in the data.
They argue that the Service (a) failed to include data regarding incidental takes from
2013 and 2014 in the take calculation; (b) omitted illegally-set traps, unreported
takes, and non-lethal takes from the take calculation; (c) failed to account for Maine’s
Animal Damage Control and Predator Management Programs; and (d) used
inconsistent estimates of the baseline lynx population.
(a) Data from 2013 and 2014
The Plaintiffs argue that the Fish and Wildlife Service acted arbitrarily by
failing to consider take data from 2013 and 2014 in the data it relied on in approving
the Permit. ECF No. 112 at 28 (citing AR-0058247). They claim that this is important
because fourteen and twenty lynx were captured and released in 2013 and 2014,
respectively, making each year’s incidental take higher than 2004, the year with the
highest take in Maine’s data set, which was used to arrive at a cumulative take of
195 lynx over the fifteen-year life of the Permit. Id. The Plaintiffs calculate that if
the 2014 take data were applied, then the total number of lynx taken under the
Permit would rise eighty-five percent, from 195 lynx to 360 lynx. Id.
(i) The 2013 Data
Maine submitted its revised Incidental Take Plan to the Fish and Wildlife
Service in March 2013, AR-0046896, and submitted a second revised Plan in July
2013, AR-0059419. At that point in time, it was reasonable for the Service to consider
11

Maine’s incidental take estimate based upon a data set that ended in 2012. Even the
Plaintiffs acknowledge that at the time this methodology was accepted, the available
data pertained to the years 1999 to 2012.
Contrary to the Plaintiffs’ argument, the Service accounted for the 2013 take
data the following year in its October 2014 Environmental Assessment which noted
that fourteen lynx had been incidentally trapped in 2013. AR-0069916 n.19. The
Service concluded that the annual estimate of eleven trapped lynx was still accurate
as a long-term average and observed that Maine had included the twenty percent
allowance in its calculation to account for fluctuations in the anticipated annual take
during the course of the Permit period, id.; AR-0069927-28, resulting in an estimated
annual average take of thirteen lynx.
The total of fourteen lynx trapped in 2013 was one more than the take
calculation’s estimated average of thirteen per year, and constitutes just the sort of
fluctuation that the Service accounted for in the Environmental Assessment. Id.
Moreover, as the Service asserts, the take authorization of 195 lynx is an upper limit
under which a higher take may not occur, thus resulting in a more conservative take
authorization that results in greater protection for the species. See Friends of the
Wild Swan v. Jewell, 2014 WL 4182702, at * 6 (D. Mont. Aug. 21, 2014) (concluding
that the Service “did not act arbitrarily or capriciously in choosing an analytical tool
that resulted in greater protection.”). Thus, the Service’s failure to adjust the take
calculation in response to the 2013 data was neither arbitrary nor capricious.

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(ii) The 2014 Data
On November 3, 2014, one day before the Fish and Wildlife Service issued the
Permit, see AR-0070462-64, Maine notified the Service that the number of lynx
trapped thus far that year had increased from three to thirteen. AR-0069857-58. The
Service argues that it was reasonable for it to issue the Permit under those
circumstances because thirteen captured lynx was consistent with the take
calculation’s projected annual average, and because there was no certainty that the
number would increase during the remainder of the season.
The Service issued the Permit almost immediately after learning that an entire
year’s worth of projected incidental take had already occurred during the early coyote
and fox season, and just as the general 2014 trapping season was beginning.7
Although the Service’s contention that there was no certainty that more lynx would
be captured during the remainder of the trapping season is undoubtedly correct, it is
a weak ledge on which to rest given that the general trapping season was barely one
day old and the take calculation was premised on an estimated average of thirteen
takes per season. Nevertheless, two aspects of the administrative record demonstrate
that it was not arbitrary or capricious for the Service to approve the Permit despite
receiving this information one day before the Permit was issued.

The general trapping season began on November 2, 2014. See Maine Department of Inland
Fisheries & Wildlife, Maine Hunting & Trapping: 2014-2015 State of Maine Summary of Hunting &
Trapping Laws and Rules, pp. 36, 40 (2014).
7

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First, the Service had addressed the effects of a hypothetical “worst case
scenario” on Maine’s Canada lynx population in its October 2014 Biological Opinion.8
The Service concluded that “even if lethal take from trapping in Maine was a
magnitude higher than anticipated by [Maine], it is almost certain to be below the
threshold for population effects.” AR-0070071. The Biological Opinion reasoned that
if, in the span of one year, all three lynx permitted to be killed were killed, and all
nine lynx that were permitted to be severely injured were severely injured and
consequently failed to reproduce for the rest of their lifetimes, plus various additional
uncertainties combined to cause an additional fifteen lynx deaths, the resulting 5.4
percent decrease in the lynx population was “far below the rates that occur in
sustainable harvest programs.”

AR-0070070.

In fact, the Biological Opinion

concluded that “annual trapping mortality would have to exceed 50 to 100 Canada
lynx, or 10 to 20 percent [out of an estimated baseline population of 500] respectively,
before Canada lynx populations would be impacted.” AR-0070071. In contrast with

8

Section 7 of the Endangered Species Act requires all federal agencies to “insure that any action
authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence”
of any endangered or threatened species or result in the destruction of critical habitat. 16 U.S.C. §
1536(a)(2). The term “action” includes “all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies[,]” including the granting of permits. 50 C.F.R. §
402.02 (2016). To comply with this provision, the Endangered Species Act requires that a federal
agency consult with the Service under certain circumstances. Id. at § 402.14(a). The Service must
then craft a Biological Opinion that determines whether the action, taken together with its cumulative
effects, “is likely to jeopardize the continued existence of listed species or result in the destruction or
adverse modification of critical habitat.” Id. at § 402.14(g)(4).
In most cases, another agency’s actions are at issue and the question is whether that agency
has a duty to consult with the Service. Here, because the “action agency” is the Service itself, the
question is whether the Service’s action in issuing the Incidental Take Permit would affect the Canada
lynx. If so, it must complete an “internal consultation” process to satisfy Section 7. 16 U.S.C.A. §
1536(a)(2); Env. Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1077 & n.5 (9th Cir. 2001). This
internal consultation process resulted in the Biological Opinion.
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this finding, the thirteen captured lynx that the Service learned of the day before
approving the Permit were all “released at the capture site with no or minor injury.”
AR-0069857.9
Second, Maine assumed in its Incidental Take Plan that there would be annual
fluctuations in the amount of lynx trapped. See AR-0070217-19. The estimate of
thirteen lynx per year was an average; thus, the prospect that the 2014 trapping
season would exceed the average was not, without more, a reason to reject the
Service’s earlier analysis. Moreover, the Plan had accounted for the possibility that
the number of incidental takes might exceed the projected average of thirteen per
year by including a “changed circumstance” provision. Id. This provides for the
implementation of additional minimization measures if the average number of
incidentally-captured lynx exceeds thirteen per year over a rolling five-year period.
Id.
The worst case scenario employed by the Service as part of its Biological
Opinion analysis assumed facts far worse than those presented by the 2014 data
received the day before the Permit was approved. Because the Service factored the
worst case scenario into its decision to approve the Permit, and with the Incidental
Take Plan having provided for the implementation of additional minimization
measures if the number of incidentally-captured lynx exceeds projections, the

9

The Plaintiffs also assert that the 2014 data, indicating a total of twenty takes, was available to
the Service when it issued the Permit. This assertion is inaccurate because at the time the Service
approved the Permit, the available information was that thirteen lynx had been taken. AR-0069857.
A total of twenty lynx were ultimately captured by the end of the 2014 season. AR-0073817.
15

Service’s decision not to reconsider the take calculation based on the 2014 year-todate data was neither arbitrary nor capricious.
(iii) Conclusion
“The task of a court reviewing agency action under the [Administrative
Procedure Act’s] arbitrary and capricious standard is to determine whether the
agency has examined the pertinent evidence, considered the relevant factors, and
articulated a satisfactory explanation for its action including a rational connection
between the facts found and the choice made.” Penobscot Air Servs., 164 F.3d at 719
(internal quotation marks omitted). Here, the record demonstrates that the Fish and
Wildlife Service had a rational basis to proceed with issuing the Permit even after
learning that a higher number of lynx had been captured in 2013 and 2014 compared
to previous years, and despite the fact that the take calculation utilized a data set
spanning the years 1999 to 2012.

The Incidental Take Plan anticipated the

possibility of a greater take and mandated additional minimization efforts if the
number of lynx takes exceeded thirteen per year over a rolling five-year period. The
record reflects that the Service considered the pertinent evidence, as well as several
alternative approaches to analyzing the take calculation, see AR-0069928; AR0069965; AR-0070434, and its explanation for adhering to an average annual take of
thirteen lynx was rationally connected to the facts and the Permit’s approval.
(b) Unreported Takes, Non-Lethal Takes, and Illegally Set Traps
The Plaintiffs contend that the Fish and Wildlife Service’s decision to issue the
Permit was arbitrary and capricious because Maine’s take calculation omitted data

16

from unreported takes, non-lethal takes, and illegally set traps. For the reasons that
follow, I find these arguments unpersuasive.
Turning first to unreported takes and non-lethal takes, the Plaintiffs rely upon
notes made in October 2014 by one or more Service staff members that were critical
of a revised draft of the Environmental Assessment. AR-0066009. They also rely
upon staff notes expressing concern that the methods used to develop the take
calculation were “confounded by assumptions” and “uncertainty.” AR-0058249.
Although it is noteworthy that one or more Service staff members were critical
of how unreported and non-lethal takes were accounted for in the take calculation,
such criticism does not, by itself, render the Service’s acceptance of the take
calculation arbitrary and capricious. Turtle Island Restoration Network v. U.S. Dep’t
of Commerce, 2013 WL 4511314, at *5 (D. Haw. Aug. 23, 2013) (“The court sees no
reason to attribute to any agency every comment made by agency employees during
preliminary and internal discussions preceding the agency’s articulation of its
position.”); see also Nat’l Wildlife Fed’n v. Norton, 306 F. Supp. 2d 920, 928 n.15 (E.D.
Cal. 2004) (citation omitted). This conclusion is bolstered by the fact that the Service
identified portions of the administrative record which indicate that it gave due
consideration to unreported takes and non-lethal takes before approving the Permit.
For example, in a 2013 memorandum prepared as part of a revision to its Permit
application, Maine indicated that there was little to no evidence supporting the claim
that many incidental takes of lynx went unreported. AR-0049221 (“[s]ome members
of the public commented that many incidentally trapped lynx are not being reported
. . . [but Maine] has observed good compliance with mandatory reporting of incidental
17

lynx captures.”). The memorandum also states that prior to the introduction of a
2008 rule making it mandatory to report an incidental lynx capture, eighty-one
percent of the lynx caught in traps were reported to Maine by trappers, id., and that
after the mandatory reporting requirement went into effect, twenty-three out of
twenty-four lynx that were captured since 2009 were reported, id. Additionally, in
its Environmental Assessment, the Service determined that “[Maine] has addressed
the potential for non-reporting in several ways[,]” including increased compliance
checks by Maine game wardens and existing federal and state penalties.

AR-

0069966.
With regard to the Service’s decision not to include illegally-set traps in the
take calculation, this court previously determined in Martin that “the state’s
licensure and regulation of trapping must be the ‘stimulus’ for the trappers’ conduct
that results in incidental takings . . . [and] the trappers’ conduct must not be an
independent intervening cause that breaks the chain of causation between the state
and the incidental takings of lynx.” Martin, 588 F. Supp. 2d at 113 (quotation
omitted). Thus, unlawful take resulting from actions that violate the rules or statutes
associated with Maine’s trapping program is not “incidental” to that program. AR00704427.

Consistent with this view, the Incidental Take Plan provided that

trappers who set illegal traps “would be subject to prosecution for violations of [s]tate
and [f]ederal law.” AR-0070150 (“[I]f . . . a violation of rule or law is found to have
caused or contributed to the capture or subsequent injury or fatality, then . . . the
capture will not count toward [Maine’s] authorized take under the [P]lan.”). The
Service scrutinized Maine’s commitment to “investigate every lynx capture event, in
18

cooperation with the Service law enforcement staff,” and to prosecute illegal activities
“to the full extent of the State and Federal law.” AR-0070442. It found the process
established by Maine to be “practicable and reasonable.” Id.
For the foregoing reasons, it is apparent that the Service weighed the relevant
factors and had a rational basis to exclude illegally-set traps from the take
calculation. Its decision to do so was not arbitrary and capricious.
(c) Maine’s Animal Damage Control or Predator Management
Trapping Programs
The Plaintiffs fault the Fish and Wildlife Service for not increasing the take
calculation to account for Maine’s Animal Damage Control and Predator
Management trapping programs which, they claim, added significantly more
trapping and increased potential take. ECF No. 112 at 18 (citing AR-0046859; AR0046872). They also note that according to the Incidental Take Plan, forty percent of
incidental takes in 2012 were from trappers enrolled in the Predator Management
Program.

Id. at 29 (citing AR-0070164).

The Plaintiffs argue that the take

calculation should have been increased to account for this fact. Id.
With respect to the Animal Damage Control Program, the Plaintiffs’ argument
is undercut by the Service’s Environmental Assessment. The Service found that the
Animal Damage Control Program is aimed primarily at trapping beaver and that no
lynx have ever been reported caught by Animal Damage Control trappers. AR0069876; AR-0070149. Regarding the Predator Management Program, the Plaintiffs’
argument is contrary both to the draft Incidental Take Plan that they cite as well as
the final Incidental Take Plan. AR-0046859; AR-0070380. Both Plans indicate that
19

the Predator Management Program “is not expected to significantly increase
statewide trapping effort but rather redirect existing efforts to . . . specific Designated
Areas.” Id.
Additionally, the number of incidental takes attributable to the Predator
Management Program does not demonstrate that the Service arbitrarily accepted an
improperly low take calculation. The Incidental Take Plan reflects that Maine took
the number of captures from the Animal Damage Control and Predator Management
Programs into account. The Service found that “[f]or the purposes of the projected
take calculations for this Plan, the maximum capture rate was used for both
programs[.]” AR-0070165.
Based on the record, the Service did not arbitrarily or capriciously accept a
take calculation that failed to account for Maine’s Predator Management and Animal
Damage Control Programs.
(d) Estimates of the Baseline Lynx Population
The Plaintiffs allege that the Fish and Wildlife Service relied upon
inconsistent, shifting, and contradictory baseline lynx population estimates in the
final Environmental Assessment, in the Biological Opinion, and in a Service
memorandum regarding the Service’s findings and recommendations (the “Findings
Document”) that accompanied its Finding of No Significant Impact. The Plaintiffs
also allege that the Service itself acknowledged this inaccuracy but used the
population estimates anyway.
The Plaintiffs base their argument on a September 2014 email between three
Service biologists, in which one biologist, AH, stated that she intended to change the
20

population estimate in a new draft of the Biological Opinion from “approximately 750
individuals” to “more than 500,” and she noted that the latter population estimate
“reiterat[ed]” the estimate used in the draft Environmental Assessment.

AR-

0063451. Another biologist, LW, responded to AH that “you are correct that the
population number we use in our explanation of the baseline in the [Environmental
Assessment, Biological Opinion], and Findings should be the same.” AR-0063450. A
third biologist, MM, expressed skepticism about the population estimate of 500 lynx,
but stated that he was “comfortable” using it so long as the new draft of the Biological
Opinion contained a caveat that AH had previously written, to the effect that the
estimate of 500 lynx “may well be lower than the actual population.” Id. AH then
replied to MM that “[n]ow that I read my prose again, I might flip the emphasis . . .
i.e., [‘]recognizing that the actual population may well be higher[.]’” Id. (emphasis
added).
The preceding email exchange suggests, as the Plaintiffs argue, that the
Service’s staff was aware that the baseline lynx population was not consistent
between the Environmental Assessment and the Biological Opinion. The exchange
also demonstrates that the inconsistency was considered and reconciled to the
satisfaction of the three biologists involved. See AR-0063450-51. In keeping with this
resolution, the Findings Document also employed the “more than 500” baseline. AR0070424.
The Plaintiffs also contend that there is an inconsistency between the
Biological Opinion and the final Environmental Assessment, each of which relied
upon a minimum baseline population estimate of 500 lynx, and the Incidental Take
21

Plan, which stated that 750 to 1,000 adult lynx lived in northern Maine in 2006. ECF
No. 112 at 29 (citing AR-0069861, AR-0070042, AR-0070057). The 750 to 1,000
population figure for 2006 mentioned in the Incidental Take Plan was the product of
a 2012 study that was cited in both the Biological Opinion and the Environmental
Assessment as reflecting the estimated lynx population at “about the time when
[Maine] believed that lynx populations peaked” in 2006. AR-0069898; see also AR0070057; AR-0074349 (citing “Vashon et al. 2012”). Moreover, as explained in the
Biological Opinion, there were “shortcomings” in Maine’s methods of estimating the
lynx population, and for that reason, the Service relied on the lower estimate of 500
lynx:
Both methods have shortcomings, but indicate that northern Maine
supports a population of more than 500 adult Canada lynx. For the
purposes of this biological opinion, we will rely on a minimum
population estimate of 500 adult Canada lynx in Maine, although the
actual population may well be higher.
AR-0070057.

By using a lower lynx population figure, the Service adopted an

analytical tool that resulted in greater protection for the lynx, which was a reasonable
exercise of the agency’s discretion. San Luis & Delta-Mendota Water Authority v.
Jewell, 747 F.3d 581, 610 (9th Cir. 2014) (The Service “did not act arbitrarily or
capriciously in choosing an analytical tool that resulted in greater protections for the
[endangered or threatened species].”).
The Plaintiffs also claim that the 2015 amended Incidental Take Plan listed
the lynx population as being 750 to 1,000 but then stated that Maine used estimates
of 750 and 600 for its population modeling.

ECF No. 112 at 29-30 (citing AR-

0074349). As just discussed, the page from the amended Incidental Take Plan cited
22

by the Plaintiffs contains the same estimate of between 750 and 1,000 adult lynx in
Maine in 2006 as stated in the original Incidental Take Plan, but it does not mention
“750 or 600” lynx as the Plaintiffs assert. AR-0074349. Also, there is no difference
between the population estimates contained in the 2014 Incidental Take Plan, see
AR-0070115, and the corresponding section of the 2015 amended Incidental Take
Plan, see AR-0074349.
Finally, the Plaintiffs claim that the Service admitted that it did not use the
most recent population data, and yet it proceeded to approve the Permit despite
knowing that the less recent data resulted in an inaccurate and inflated lynx
population estimate. Again, the Plaintiffs’ argument is not supported by the record
evidence that they cite, in this instance a footnote from the Biological Opinion.10 See
AR-0070069 n.8.
(e) Conclusion
The Service’s acceptance of Maine’s take calculation was the product of a
logical and rational process for which the Service has “articulated a satisfactory
explanation . . . including a rational connection between the facts found and the choice

10 The Biological Opinion contains a brief discussion of a 2007 analysis of lynx population growth
rates based on demographic data collected in Maine beginning in 1999 and using a computer program
called “VORTEX.” AR-0070069. In a footnote to that discussion, the Service states that the VORTEX
analysis was completed in 2007, at the beginning of a decline in the snowshoe hare population that
lasted until approximately 2011. AR-0070069 n.8. The upshot of this footnote was to make clear that
the data used in the VORTEX analysis “would inflate [Maine’s] projections of [the lynx] population
growth rate[,]” AR-0070069 n.8 (emphasis added), not the estimated lynx population as the Plaintiffs
contend. Moreover, as discussed above, the Incidental Take Plan cited a different population study
completed in 2012 (“Vashon, et al. 2012”) that estimated the lynx population in Maine to be
approximately 750 to 1,000 lynx as of 2006 and which explicitly stated that this figure reflected a time
when Maine believed that the lynx population peaked. AR-0070115. The Service then acknowledged
the limitations of Maine’s methods for estimating the lynx population and used the lower estimate of
500 lynx, while recognizing that the actual population may well be higher. AR-0069898; AR-0070057.
23

made.” Penobscot Air Servs., 164 F.3d at 719 (citation and quotation omitted). The
Service’s acceptance of Maine’s take calculation was neither arbitrary nor capricious.
2.

Minimization Measures

As part of the permit review process, the Fish and Wildlife Service must
determine that the applicant will, to the maximum extent practicable, minimize the
impacts of the authorized incidental taking. 16 U.S.C.A. § 1539(a)(2)(B)(ii). The
Plaintiffs argue that the Service arbitrarily failed to insist on additional minimization
measures, including several contained in the 2007 Consent Decree in the Martin case
and others that the Plaintiffs claim the Service demanded throughout the permit
drafting process, but, without explanation, did not require when the Permit was
issued. Although the Plaintiffs assert that both the alleged failure to require more
minimization measures and the lack of explanation were arbitrary and illegal, the
administrative record establishes otherwise.
(a)

Minimization Measures Included in the 2007 Consent
Decree

The 2007 Consent Decree prohibited two types of traps from certain state
Wildlife Management Districts that contained lynx habitat: (1) snares, i.e., traps
which catch animals by the neck or leg and can be lethal, and (2) so-called “foothold”
traps with an inside jaw spread width greater than five and three-eighths inches.11
AR-0006068-69 (Consent Decree, Animal Protection Inst. v. Martin, et al., 1:06-cv-

11 The 2007 Consent Decree did not prohibit such foothold traps if they were set fully under water.
AR-0006068.
24

00128-JAW). The Plaintiffs argue that the Fish and Wildlife Service arbitrarily
omitted prohibitions on both types of traps from the Permit without reason.
With regard to snares, the Service responds and the record reflects that
Maine’s Incidental Take Plan does not allow the use of snares on dry land, and the
Permit does not authorize take associated with the use of snares. AR-0070104; AR0069960; AR-0070441 (“Nonlethal cable restraints are not snares, and [Maine] will
not be changing the existing prohibitions on the use of snares in Maine under this
plan.”). With regard to foothold traps, the Service maintains that available data did
not support continued restrictions on foothold traps larger than five and threeeighths inches, citing a Maine study that showed that “[t]he number of lynx captures
per year did not decrease after trap size restrictions were put in place in 2008[,]” AR0049217; see also AR-0069891 (Environmental Assessment stating “capture and
injury rates did not differ for lynx when larger foothold traps were permitted (i.e.,
prior to 2008)”). The Maine study provided direct support for the Service’s conclusion
regarding foothold traps.
Moreover, the Service acknowledged in the Findings Document that although
it had previously raised concerns that larger and heavier foothold traps with a larger
jaw spread could increase injury rates in captured lynx, Maine had provided data
that showed that the injury rate for incidentally captured lynx prior to the consent
decree, when trap sizes were not limited, was similar to or lower than the injury rate
for lynx caught by Maine biologists using smaller traps. AR-0070440 (citing AR0070236). The Service also observed in the Findings Document that Maine had
incorporated a changed circumstances provision in the Incidental Take Plan that
25

could result in new restrictions on foothold trap sizes if higher injury rates were found
to occur. Id.
(b)

Minimization Measures Previously “Demanded” By the
Fish and Wildlife Service

The Plaintiffs contend that for six years, the Fish and Wildlife Service
repeatedly insisted on four minimization measures during the multi-year process of
reviewing the Permit application, yet abruptly dropped its demands without
explanation when it approved the Permit in 2014—an outcome that the Plaintiffs
claim was arbitrary and capricious. The four minimization measures in question are:
(1) requiring lynx exclusion devices in all killer-type traps set in upland areas in
Wildlife Management Districts containing lynx; (2) requiring that Best Management
Practice (“BMP”) foothold traps12 be phased in over a five-year period in lynx Wildlife
Management Districts; (3) eliminating drag sets13 for foothold traps in lynx Wildlife

A “BMP trap” is a trap that conforms to “best management practices,” as determined by the
Association of Fish & Wildlife Agencies, a professional organization that represents U.S. and Canadian
state and provincial wildlife agencies. See AR-0070440; see also Association of Fish and Wildlife
Services, www.fishwildlife.org (last visited Jan. 13, 2017). The Association of Fish and Wildlife
Services defines its best management practices as “carefully researched educational guides designed
to address animal welfare and increase trappers’ efficiency and selectivity.” Association of Fish &
Wildlife Agencies, Best Management Practices for Trapping Canada Lynx in the United States,
http://www.fishwildlife.org/files/Lynx_BMP_F.pdf (2006). “Trapping BMPs identify both techniques
and traps that address the welfare of trapped animals and allow for the efficient, selective, safe[,] and
practical capture of furbearers.” Association of Fish & Wildlife Agencies, Best Management Practices
for Trapping in the United States, http://www.fishwildlife.org/files/Introduction_BMPs.pdf (2006).
12

Neither party defines the term “drag set,” nor is a concise definition to be found on the Internet.
Based on the record, I understand a drag set to be a foothold trap that is not staked into the ground,
but instead has an anchor attached to it via a metal chain that allows the captured animal to move a
short distance.
13

26

Management Districts; and (4) eliminating blind sets14 in lynx Wildlife Management
Districts.
The Plaintiffs cite two undated and unsigned spreadsheets in the record titled
“Minimization and mitigation measures that USFWS believes would meet the
maximum extent practicable issuance criteria” which address three of the four
minimization measures listed above.15 See ECF No. 112 at 31 (citing AR-0039643,
AR-0040471).
“believes”

Both documents speak of minimization measures that the Service

would

meet

issuance

criteria,

AR-0039643,

and

both

contain

recommendations rather than demands. AR-0039647-56; AR-0040475-84. Neither
spreadsheet supports the Plaintiffs’ claim that the Service “repeatedly insisted on”
any of the cited minimization measures. See id.
The Plaintiffs also cite certain file notes written by one or more dissenting
Service staff members. AR-0062087, AR-0053924, AR-0053315, AR-0036039, AR0036112, AR-0036131. One of these documents states that the notes constitute the
author’s “personal assessment of the practicability of minimization measures[.]” AR0062088 (emphasis in original). As previously noted, “the mere existence of internal
disagreements does not make the agency’s decision arbitrary or capricious.” Turtle
Island Restoration Network, 2013 WL 4511314, at *5 (“The court sees no reason to
attribute to any agency every comment made by agency employees during

14 A “blind set” is “any set designed to catch a wild animal, without the use of bait, lure, or visible
attractor, by intercepting the animal as it moves naturally through its habitat.” Animal Welfare Inst.
v. Martin, 668 F. Supp. 2d 254, 260 n.6 (D. Me. 2009).
15

Neither of the two spreadsheets mention blind sets. See AR-0039647-56; AR-0040475-84.
27

preliminary and internal discussions preceding the agency’s articulation of its
position.”); see also Nat’l Wildlife Fed’n, 306 F. Supp. 2d at 928 n.15 (citation omitted).
There is positive support in the administrative record for the Service’s decision
not to require the four minimization measures at issue. Turning first to the lynx
exclusion devices, in its Environmental Assessment, the Service found that the use
of leaning pole traps was as effective at minimizing incidental lynx captures. AR0069962 (“[Maine] disputes that exclusion boxes . . . are a practicable alternative to
leaning pole sets . . . . Since there should ultimately be no difference in outcomes for
lynx, the Service agrees that [Maine’s] approach will serve as an effective and
biologically sufficient avoidance measure.”). The Service based this decision on data
provided by Maine which showed that no lynx had been caught or killed in legally set
leaning pole devices since the Consent Decree was put in place. AR-0070176.
With regard to BMP traps, the Incidental Take Plan considered the use of such
traps but determined that because BMP traps are developed for specific target species
other than lynx, there was insufficient data regarding the benefit of BMP traps to
lynx. See AR-007044016; see also AR-0070236 (“The purported benefits of reducing
lynx take or injuries by requiring all trappers to use only traps meeting Best
Management Practices . . . standards is not supported by National BMP data or BMP
data collect[ed] in Maine.”).

16 In their reply brief, the Plaintiffs claim that the Service, in the 2014 Findings Document, stated
that BMP traps probably would benefit non-target-species such as lynx. The cited page in the Service’s
2014 Findings Document states that “[w]hile it is reasonable to assume that BMP traps may also have
benefit to nontarget species, data have not been collected . . . to evaluate this.” AR-0070440 (emphasis
added).
28

Similarly, with regard to drag sets, the Service based its decision not to
eliminate their use on data provided by Maine which “indicates that they did not
observe a difference in the number or severity of injuries for lynx caught in foothold
traps that were chained to stakes or that were chained to drags from 1999 to 2012.”
AR-0069962.
Finally, with regard to blind sets, the Environmental Assessment recognized
that Maine “presents information that no lynx have been reported to be captured in
blind sets.” AR-0070009. The Service also noted that Maine’s Incidental Take Plan
included a changed circumstance provision to address higher than anticipated lynx
injuries or deaths resulting from blind sets. Id.
(c)

Conclusion

As previously noted, under the Administrative Procedure Act an agency must
articulate a satisfactory explanation for its action including a “rational connection
between the facts found and the choice made.” Grosso v. Surface Transp. Bd., 804
F.3d 110, 116 (1st Cir. 2015) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43
(quotation marks omitted)).

Here, the Fish and Wildlife Service has identified

information contained in the administrative record that provides the rational
connection needed to support its decision not to require the specific minimization
measures identified by the Plaintiffs.
3.

Mitigation Measures

In considering whether to grant an incidental take permit, the Fish and
Wildlife Service must also determine that the applicant will, to the maximum extent
practicable, mitigate the impacts of such incidental taking. 16 U.S.C.A. §
29

1539(a)(2)(B)(ii). Maine’s Incidental Take Permit requires the Maine Bureau of
Public Lands to develop a forestry management plan. The plan calls for the creation
or restoration of 6,200 acres of high quality hare habitat and is intended to result in
a net increase of three lynx to compensate for the three lynx that, under the Permit,
are permitted to be killed or so severely injured that they are not able to be released
over the fifteen-year life of the Permit. AR-0070423.
The Plaintiffs challenge two aspects of the approved mitigation measures: (a)
mitigation of non-lethal takes, and (b) creation of lynx habitat.
(a) Mitigation of Non-Lethal Takes
The Plaintiffs argue that the mitigation measures contained in Maine’s
Incidental Take Plan are flawed because they only address the three lynx deaths
authorized by the Permit, but not the 192 non-lethal takes. In response, the Fish and
Wildlife Service notes that § 1539 of the Endangered Species Act requires mitigation
for the impact of incidental takes, rather than mitigation for each individual take,
and asserts that the 192 permitted non-lethal takes are not anticipated to have a
discernable impact.

ECF No. 113 at 54 (citing AR-0070442-43).

The Plaintiffs

counter by asserting that the Service arbitrarily discounted the impact of non-lethal
takes upon Canada lynx.
First, the Plaintiffs contend that the Service’s position is contradicted by its
own conclusion in the Findings Document, which states that up to nine lynx could
sustain “more severe” injuries.

AR-0070434.

Consequently, they argue, it was

arbitrary for the Service to discount these injuries as having no impact. The Plaintiffs
presume that these injuries must have an impact because they are described with the
30

phrase “more severe[.]” The Findings Document reasoned, however, that those lynx
that sustain “more severe” injuries “will be treated and/or rehabilitated to the point
that they can be released back in to the wild to function naturally in their
environment.” AR-0070443. This supports the Service’s conclusion that the injuries
will not have a discernable impact.
Second, the Plaintiffs cite data presented in the Findings Document stating
that six percent of lynx caught in foothold traps between 1999 and 2012 had moderate
to severe injuries, and seventy-five percent had mild injuries. AR-0070434. The
Findings Document also recognized that “[n]one of these data are necessarily more
appropriate or more reliable than the data presented in the [Incidental Take Plan]
due to differences in injury assessment protocols.” Id. Moreover, as explained above,
the cited data does not account for the fact that, according to the Findings Document,
lynx sustaining “more severe” injuries will, as required by the Plan, be treated and/or
rehabilitated to the point that they can be released back in to the wild to function
naturally in their environment. AR-0070443.
Third, the Plaintiffs cite the Findings Document to argue that lynx caught in
foothold traps do not live as long or function as well as lynx not caught in such traps.
ECF No. 120 at 13 (citing AR-0070440; AR-0070424; AR-0070433-34). The Findings
Document at AR-0070440 does refer to “more than minor” injuries, but only in
reference to Maine’s method for identifying injuries to lynx that may affect the ability
of the lynx to survive post-release. See AR-0070440 (“[S]uch assessments should be
sufficient in most cases to evaluate the type of injuries (e.g., more than minor) that
will affect the ability of lynx to function naturally in their environment and may affect
31

their ability to survive post release.”). The reference to “more than minor” injuries
does not support the Plaintiffs’ assertion that trapped lynx have shorter life spans or
function poorly compared to non-trapped lynx. See id. The assertion that lynx caught
in foothold traps do not live as long or function as well as lynx not caught in such
traps is also not supported by AR-0070424 and AR-0070433-34, which the Plaintiffs
cite for support.
The Plaintiffs also claim that the Service’s own biologists and lynx experts
sought mitigation for the entire take of 195 lynx, citing three documents from the
administrative record.
The first document is titled “Further notes to file concerning mitigation.” AR0060735. Because the document indicates that the “goal of mitigation” is “to offset
the take of 3 lynx[,]” it actually supports the Service’s position.
The second document is an excerpt of an undated, unsigned spreadsheet titled
“Minimization and mitigation measures that USFWS believes would meet the
maximum extent practicable issuance criteria[.]” AR-0039658. The spreadsheet
appears to have been prepared in 2012,17 and discusses details of the mitigation plan
that were never adopted, such as a 10,000 acre lynx habitat on land owned by the
Maine Bureau of Parks and Land. See AR-0039658. Thus, the document does not
appear to have been prepared in conjunction with the final Incidental Take Plan or
the approved Permit. It contains a recommendation that “habitat mitigation be the
primary means of mitigation in the final [Incidental Take Plan]. Final acreage . . .

17 Although the document is undated, the documents that appear immediately before and immediately after it
in the administrative record both date to 2012.

32

will need to mitigate for all forms of take.”

Id.

The spreadsheet casts this

recommendation as an item to “consider including in the final [Incidental Take
Plan].” AR-0039643.
The third document is dated February 2012 and is titled “Strategies to achieve
mitigation for lynx incidentally taken in traps.”

AR-0038285.

It contains a

recommendation that Maine “employ mitigation that clearly offsets (or better yet,
more than offsets) take of lynx in traps (lethal take, animals removed from the
population, injuries that would reduce survival)[.]” Id.
The administrative record does not establish the context in which the second
and third documents were prepared and utilized. Neither document appears to be a
formal, final document that expresses the final or official view of the Service.
Consequently, they are not dispositive of whether the Service arbitrarily or
capriciously discounted the effects of non-lethal takes. Cruz v. Brock, 778 F.2d 62, 64
(1st Cir. 1985) (agency did not act arbitrarily or capriciously in disregarding
“preliminary, less official data.”); see also, Nat’l Wildlife Fed’n v. U.S. Army Corps of
Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004) (rejecting argument that documents
demonstrated that an agency’s conclusions were arbitrary and capricious because the
email was a “compilation of ideas” under discussion, “preliminary, and not the official
view of the agency.”).18

The Plaintiffs also contend that in earlier drafts of the Environmental Assessment, the Service
stated that the Permit must mitigate for both lethal and non-lethal takes of lynx, but arbitrarily
abandoned this position without explanation. ECF No. 112 at 33 (citing AR-0022833, AR-0053924).
The record citations do not support the Plaintiffs’ contention. The first document cited, AR-0022833,
states that “[t]rapping of lynx constitutes take even if the animal is not killed or injured[,]” but makes
18

33

In evaluating the impact of the proposed Plan, the Service considered Maine’s
estimate of the take as well as information from lynx population model projections
“and the observed results of directed Canada lynx and bobcat harvest programs[.]”
AR-70079. That information indicated that the incidental capture and release of
uninjured lynx does not change the survival rates of lynx; thus, the Service concluded,
“the impact of the take that ultimately needs to be addressed is the potential for
injuries that are more than minor and fatalities that may result from incidental
capture events.” AR-70438. The Service concluded that over the Permit’s fifteenyear life, “the effect of anticipated mortalities and injuries on the Canada lynx
population is likely to range from completely compensatory during periods of high
hare populations to small and short-lived during periods of low hare populations and
declining Canada lynx numbers.” Id.; see also AR-70072; 69938-39 (observing that
the three lynx fatalities authorized by the Permit “are a small proportion of the lynx
population in Maine and will not have an effect [on] the overall population in the
state[.]”).
Based on the portions of the administrative record cited by the Plaintiffs,
considered together with other relevant portions that reflect the Service’s reasoning,
it is apparent that the Service did not, as the Plaintiffs contend, fail to consider
relevant factors and evidence, or fail to articulate a reasonable explanation for its
decision to limit the mitigation measures to the three lethal takes out of the 195 takes

no mention of mitigation. The second cited document, AR-0053924, discusses legal versus illegal take
and what constitutes illegal take, and does not discuss mitigation. See id.
34

authorized by the Plan. The remaining 192 takes require the release of the animal
into the wild (183 involving no or minor injuries and nine involving severe injuries
for which the animal will be treated before being released).

There is a rational

connection between the facts as found by the Service and its decision to focus the
mitigation measures on the three authorized lethal takes. See Penobscot Air Servs.
Ltd., 164 F.3d at 719.
(b) Creation of Lynx Habitat
“The primary factor driving Canada lynx behavior, habitat use, abundance,
and distribution is the abundance of snowshoe hare, their primary prey.” AR0070055. Snowshoe hare prefer habitat that provides the sort of dense cover found
in regenerating spruce and fir stands approximately 15 to 35 years after a forest is
clear cut. Id. Yet the quality of the currently-existing hare habitat is expected to
peak in approximately 2023 because clear-cutting of forests sharply declined in the
late 1980s, and as forests mature they become less hospitable to snowshoe hares. AR0070213; AR-0070056. The Incidental Take Plan proposed to offset the potential
lethal take of up to three lynx by having the Maine Bureau of Public Lands create
6,200 acres of high quality habitat for snowshoe hare within a 22,046 acre habitat
management area by the end of the fifteen-year Permit period. AR-0070210; AR0070443. To create the habitat, the Bureau of Public Lands will selectively harvest
larger, mature trees to enable the growth of new trees. AR-0070213. The Plan
includes required monitoring of forest management activities, surveys to estimate the
hare population, as well as a changed circumstance provision if the mitigation proves
unsuccessful.

AR-0070124; AR-0070217; AR-0070223-24.
35

The creation of this

additional snowshoe hare habitat is expected to result in at least three additional
lynx in the area by 2029, and possibly as many as five. AR-0070210.
The Plaintiffs argue that this aspect of the mitigation plan is arbitrary because
it relies on logging and other forest management to create optimal lynx habitat and
because it could take twelve years or more for the proposed 6,200 acres to develop
into a quality habitat for snowshoe hares. Thus, the Plaintiffs contend that the
mitigation area will have limited value for hares and lynx during the fifteen-year life
of the Permit. Moreover, the Plaintiffs argue that Maine has no incentive to continue
maintaining the habitat after the term of the Permit has expired, and therefore, the
Permit provides no assurance of a quality habitat.
The claim that the mitigation plan will have limited value during the Permit’s
lifespan overlooks evidence in the administrative record reflecting that the habitat
management area already contains approximately 4,398 acres of high quality hare
habitat that can support at least two adult lynx. AR-0070212 (reflecting 3,798 acres
of existing high quality hare habitat as of 2013); AR-0074096 (reflecting the discovery
in 2015 of a further 600 acres of currently-existing high quality hare habitat).
According to the Incidental Take Plan, the quality and suitability of these acres as
hare habitat would degrade over time if left unmanaged as the trees mature. AR0070211. Thus, the management of the high quality hare habitat should benefit the
hare population and, by extension, the lynx population, during the permit’s term. The
Service also cited data based on a twelve-year telemetry study showing that lynx have
higher litter sizes when hares are more abundant. AR-0070212. “This increase in
fecundity could increase the value of the mitigation beyond just compensating for the
36

loss of three lynx.” AR-0070445. The administrative record thus provides support
for the Service’s conclusion that the creation and active management of the habitat
during the life of the Permit is rationally connected to the Plan’s objective of
supporting additional lynx during the Permit period.
As for the Plaintiffs’ argument that Maine has no incentive to maintain the
habitat after the Permit expires, the habitat created during the Permit period will
not simply disappear once the Incidental Take Permit expires.

Rather, the

regenerating trees are expected to provide high quality hare habitat for
approximately thirty-five years and the habitat created by the mitigation plan “may
be present on the mitigation area until 2052 to 2064[.]” AR-0069893. Furthermore,
Maine addressed the possible need to amend its mitigation efforts by including a
changed circumstance provision in the Incidental Take Plan which, if triggered,
would require either an increase in the size of the mitigation area or an extended
mitigation period. AR-0070225.
The administrative record supports the Incidental Take Plan’s creation, over
time, of additional hare habitat sufficient to support three additional Canada lynx as
a means of mitigating the impacts of the taking on Maine’s population of Canada lynx
as a whole. The Plaintiffs have not demonstrated that the Service acted arbitrarily
or capriciously in approving this aspect of the Incidental Take Plan. See City of
Olmsted Falls, OH v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).
4.

Funding

Section 10 of the Endangered Species Act requires that an applicant for an
incidental take permit ensure that adequate funding for the conservation plan will
37

be provided. 16 U.S.C.A. § 1539(a)(2)(B)(iii). The Incidental Take Plan states that
Maine will fund it with revenues from the sale of hunting and fishing licenses, federal
matching funds, general funds appointed by the Maine Legislature, federal
threatened and endangered species funds, the sale of state conservation license
plates, the Fish and Wildlife Service’s State Wildlife Grant program, and “grants from
a variety of private and governmental organizations.” AR-0070227.
The Plaintiffs characterize Maine’s identification of fees, grants, and other
funds as a “laundry list of speculative, third-party funding sources” and object that
the State has not ensured adequate funding because reliance on anything other than
guaranteed funding is arbitrary. ECF No. 112 at 35-36 (citing Sw. Ctr. for Biological
Diversity, 470 F. Supp. 2d at 1155-56; Sierra Club v. Babbitt, 15 F. Supp. 2d 1274,
1282 (S.D. Ala. 1998)). The Service responds that the Plaintiffs mischaracterize the
source of funding for the conservation plan, and that the Maine Department of Inland
Fisheries and Wildlife has committed to include in its biennial budget request the
funds needed for the conservation plan and to use those funds to carry out the plan’s
measures. ECF No. 113 at 60 (citing AR-0070227).
The Incidental Take Plan requires adequate funding as a precondition to
authorizing the incidental take of lynx. The Plan states that Maine “will provide
evidence that the Legislature has appropriated sufficient funding to implement this
plan by July 15th each year” and also states that “[i]ncidental take authorization
under the [P]ermit is contingent on demonstrating adequate annual funding for plan
implementation, including both [the Department of Inland Fisheries and Wildlife]
and [the Maine Bureau of Public Land].” AR-0070227. This provision also puts to
38

rest the Plaintiffs’ added objection that the Service removed the threat of mandatory
permit revocation that was contained in prior drafts of the Incidental Take Plan by
replacing the word “shall” with “may.” ECF No. 112 at 36 (quoting prior drafts of the
Plan as stating that failure to demonstrate sufficient funding by July 15th of each
year “shall” be grounds for revocation of the Permit.).
Because the Incidental Take Plan requires Maine to produce proof of adequate
funding to support the Plan each year, and identifies several credible funding sources,
the Service had a sound basis to conclude that the adequate funding requirement was
met.
C.

The National Environmental Policy Act (“NEPA”)
The Plaintiffs also contend that the Fish and Wildlife Service violated NEPA

and the Administrative Procedure Act by failing to prepare an Environmental Impact
Statement for the Permit. After producing its final Environmental Assessment (AR0069861-AR-0070041), the Service issued a Finding of No Significant Impact in
November 2014. AR-0070462-64. Under NEPA, this Finding relieved the Service
from having to prepare an Environmental Impact Statement. Padgett v. Surface
Transp. Bd., 804 F.3d 103, 109 (1st Cir. 2015) (quoting Sierra Club v. Wagner, 555
F.3d 21, 24 (1st Cir. 2009)). The Plaintiffs argue that this decision was arbitrary
because the Incidental Take Permit implicates six of the ten intensity factors listed
in the relevant Council on Environmental Quality regulations.
1.

NEPA Statutory Framework

NEPA “requires federal agencies . . . to consider and report on the
environmental effect of their proposed actions.” WildEarth Guardians v. Jewell, 738
39

F.3d 298, 302 (D.C. Cir. 2013). “The goal of NEPA is to focus attention on the possible
environmental effects of proposed actions, which in turn furthers two important
purposes: to ensure that agencies do not make decisions based on incomplete
information, and to provide information about environmental effects to the public and
other governmental agencies in a timely fashion so that they have an opportunity to
respond.” Town of Winthrop v. FAA, 535 F.3d 1, 4 (1st Cir. 2008) (citing Marsh v. Or.
Nat. Res. Council, 490 U.S. 360, 371 (1989)). An agency meets these aims through
the preparation of an Environmental Impact Statement for any agency action that
will “significantly affect[ ] the quality of the human environment.” Union Neighbors
United, Inc., 831 F.3d at 568-69 (quoting 42 U.S.C. § 4332(C)) (internal quotation
marks omitted) (alteration in original).
Regulations issued by the Council on Environmental Quality, 40 C.F.R. §§
1501.1, et seq., implement NEPA’s requirements. These regulations allow agencies
to comply with NEPA by first preparing an Environmental Assessment to determine
whether a contemplated action is likely to have a significant impact, in which case an
Environmental Impact Statement is required. O’Reilly v. U.S. Army Corps of Eng’rs,
477 F.3d 225, 228 (5th Cir. 2007). If the contemplated action is likely to have no
significant impact, a Finding of No Significant Impact is required. Id.
In determining whether a proposed action will likely have a significant impact,
the Council on Environmental Quality regulations require an agency to consider
context and intensity.

40 C.F.R. § 1508.27.

Context refers to a wide range of

considerations, from “society as a whole” to the “affected region, the affected interests,
and the locality.” 40 C.F.R. § 1508.27(a). Intensity refers to “the severity of the
40

impact.” Id. at § 1508.27(b). The Council on Environmental Quality regulations list
ten “intensity factors” an agency must consider when evaluating the intensity of an
impact in order to determine whether it is “significant.” Id. at § 1508. 27(b)(1)-(10).
The Plaintiffs contend that the presence of a single intensity factor usually
compels the preparation of an Environmental Impact Statement, yet § 1508.27 does
not mandate the preparation of an Environmental Impact Statement based on the
presence of a single intensity factor. See id. “While some courts have held that the
presence of one or more of these intensity factors may be sufficient to require
an Environmental Impact Statement, [it is inaccurate to] assert that the presence of
a single one of the factors warrants an [Environmental Impact Statement].”
Advocates for Transp. Alt., Inc. v. U.S. Army Corps of Eng’rs, 453 F. Supp. 2d 289,
300-301 (D. Mass. 2006) (citation and internal quotation marks omitted). The ten
intensity factors provide a framework for an agency to evaluate the severity of the
impacts of a proposed action on the human environment. See 40 C.F.R. § 1508.27(b).
Thus, the weight to be given any single factor turns on the facts and circumstances
associated with the proposed action.
2.

Intensity Factors

The Plaintiffs contend that the Fish and Wildlife Service’s decision not to
prepare an Environmental Impact Statement was arbitrary and capricious because
the Permit implicated the following six intensity factors: (a) the impact of the Permit
on a species listed under the Endangered Species Act; (b) the impact of the Permit on
an ecologically critical area; (c) the potential precedential effect of the Permit; (d) the
significant cumulative effects of the Permit on the environment; (e) the uncertain
41

effects of the Permit; and (f) the highly controversial effects of the Permit. ECF No.
112 at 37-38 (citing 40 C.F.R. § 1508.27).
(a)

Adverse Impact of the Permit on an Endangered or
Threatened Species or its Habitat

The Council on Environmental Quality regulations require an agency to
consider “the degree to which the action may adversely affect an endangered or
threatened species or its habitat that has been determined to be critical under the
Endangered Species Act of 1973.” 40 C.F.R. § 1508.27(b)(9).
The Plaintiffs argue that the Fish and Wildlife Service violated NEPA by not
preparing an Environmental Impact Statement because in the context of the other
threats to the species, the Permit may have a significant adverse impact on the
Canada lynx. The Plaintiffs quote the Service’s March 2000 Final Rule listing the
lynx as threatened, which included the statement that “[i]f other threats to a resident
population of lynx exist, the additive nature of additional losses to the population
may prove significant, at least on a local scale.” AR-0002044 (internal quotation
marks omitted). They maintain that this observation cannot be squared with the
Service’s conclusion in its 2014 Environmental Assessment that the incremental
effects of trapping on lynx over the fifteen-year life of the Permit will be negligible.
AR-0069954-55.
The Plaintiffs’ argument rests on a selective reading of the excerpt from the
cited 2000 Final Rule. In fact, the Service concluded at that time that it had no
information that the loss of lynx from trapping mortality “has negatively affected the

42

overall ability of the United States [distinct population segment of Canada lynx] to
persist”:
If the population is doing well in an area and there are no threats to its
continued existence, trapping mortality would not likely jeopardize the
population. However, if other threats to a resident population exist, the
additive nature of additional losses to the population may prove to be
significant, at least on a local scale. Mortality from accidental trapping
or animal damage control activities would be considered incidental and
in most cases would not be significant; we have no information to
indicate that the loss of such individuals has negatively affected the
overall ability of the contiguous United States [distinct population
segment of Canada lynx] to persist.
AR-0002044 (65 Fed. Reg. 16064 (Mar. 24, 2000)).
Elsewhere, the Plaintiffs claim that the Service failed to consider the “adverse
impact” intensity factor because the Permit fails to adequately minimize and mitigate
the impacts of trapping on the lynx population, and because there are no assurances
in the Permit that the mitigation and minimization measures will be effective. This
argument is unpersuasive because it merely repeats the Plaintiffs’ critique of Maine’s
minimization and mitigation measures, which are addressed in sections III.B.2. and
3., above.
(b) Impact of the Permit on an Ecologically Critical Area
The Council on Environmental Quality regulations require an agency to
consider the “[u]nique characteristics of the geographic area such as . . . ecologically
critical areas.” 40 C.F.R. § 1508.27(b)(3). The Plaintiffs argue that an Environmental
Impact Statement is required because the Permit will allow trapping throughout lynx
habitat and in the proposed mitigation area, which they contend are ecologically

43

critical. There is no dispute that a total area of 10,123 square miles in northern
Maine has been designated as critical lynx habitat. AR-0070080.
The Plaintiffs’ assertion that it was arbitrary for the Service to conclude that
the Permit will not cause a significant impact is based upon nothing more than a
citation to the Incidental Take Plan’s general description of the Plan area. ECF No.
112 at 39 (citing AR-0070106 (describing the defined lynx range in Maine)). The
description provides no substantive support for the Plaintiffs’ position. Moreover, the
Service devoted several pages of its Biological Opinion to a “Determination Of Effects
On Critical Habitat Designated For The Canada Lynx.” AR-0070080-85. The Service
found that “trapping activities as proposed in the [Incidental Take Plan] will have
insignificant effects” on such constituent elements of the habitat [such] as snowshoe
hare population and snow conditions and thus would not adversely affect critical lynx
habitat in Maine. AR-0070081-82. Thus, the record establishes that the Service
considered the ecologically-critical nature of the area, see AR-0069978, as required by
40 C.F.R. § 1508.27(b)(3).
(c) Potential Precedential Effect of the Permit
The Council on Environmental Quality regulations require an agency to
consider “[t]he degree to which the action may establish a precedent for future actions
with significant effects or represents a decision in principle about a future
consideration.” 40 C.F.R. § 1508.27(b)(6). The Plaintiffs assert that because Maine’s
Permit is the first permit issued for incidental lynx take by a state’s recreational
trapping program under the Endangered Species Act, the Fish and Wildlife Service

44

should have considered the precedential nature of the Permit in its Environmental
Assessment.
The Service included a detailed discussion of the precedential effect of the
Permit in the Environmental Assessment. ECF No. 119 at 27. The Service explicitly
concluded that it did “not agree that issuing an incidental take permit for trapping is
precedential[.]” AR-0069981. The Service observed that the measures required by
the Permit were largely required under the 2007 Consent Decree and are neither new
nor novel. Id. Furthermore, although the Permit might serve as an example for other
states, the Permit is specific to Maine’s laws and regulations. Thus, permits sought
by other states will have to address those states’ laws and regulations, as well as the
specific trapping techniques and species at issue. Id. The administrative record
demonstrates that the Service considered the precedential effect of the Permit and
presented a reasoned basis for its conclusion.
(d)

Significant Cumulative Effects of the Permit on the
Environment

The Council on Environmental Quality regulations also require an agency to
consider “[w]hether the action is related to other actions with individually
insignificant but cumulatively significant impacts.” 40 C.F.R. § 1508.27(b)(7). The
Plaintiffs maintain that an Environmental Impact Statement is required because the
Fish and Wildlife Service itself concluded in the Environmental Assessment that
there would be significant cumulative effects, including from climate change,
changing forest practices, and residential and energy development that would have

45

significant impacts on the lynx. ECF No. 112 at 40-41 (citing AR-0069634). This is
not, however, a fair characterization of the Environmental Assessment.
The Environmental Assessment states in pertinent part that:
Although the long-term cumulative effects from changing land
ownership patterns, changing forest practices, residential and energy
development and climate change may substantially influence the
human environment in Maine, the incremental effects of trapping over
the 15-year life [of the Permit] under any of the alternatives analyzed in
this [final Environmental Assessment] (including the proposed action)
will be negligible. Furthermore, most of the effects of alternatives
evaluated in this [final Environmental Assessment], including
population-level effects on wildlife, would be reversed over just a few
years if a different approach is adopted at the end of the 15-year permit
period.
AR-0069634. Thus, the Environmental Assessment did not conclude that the Permit
was related to other actions which, in combination, would result in significant
cumulative effects on the quality of the human environment or, more specifically, on
the lynx population. The record reflects that the Service gave due consideration to
cumulative effects, see AR-0069634 (“Cumulative effects and the alternatives
considered”), and the Plaintiffs have identified no basis for concluding that the
Service’s analysis fell short of the requirements of § 1508.27(b)(7).
(e) Uncertain Effects of the Permit
The Council on Environmental Quality regulations also direct an agency to
consider “[t]he degree to which the possible effects on the human environment are
highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b)(5).
Because there is a certain “quotient of uncertainty” that is always present when
making predictions about the natural world, agency decisions are generally upheld
despite such uncertainty. Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701,
46

712 (9th Cir. 2009).

Accordingly, an Environmental Impact Statement is only

necessary where the effects of an incidental take regulation are highly uncertain. Id.
The Plaintiffs maintain that it was arbitrary for the Fish and Wildlife Service
to approve the Permit without performing an Environmental Impact Statement
because its effects are highly uncertain.

They argue that the Permit itself is

“grounded in uncertainty[,]” because the take calculations are uncertain, the
minimization and mitigation measures may not work, and the Permit’s funding
mechanism is speculative. ECF No. 112 at 41.
The Plaintiffs base their argument that the effects of the Permit are highly
uncertain on their separate arguments concerning the alleged shortcomings of
Maine’s take calculation, minimization and mitigation measures, and Permit
funding. See ECF No. 112 at 42 (citing Parts IA and IB of the Plaintiffs’ brief). For
the reasons explained in section III.B. of this decision, I have found those arguments
to be unpersuasive. The Plaintiffs have not demonstrated that the Service failed to
evaluate the uncertain effects question.
(f) Highly Controversial Effects of the Permit
The Council on Environmental Quality regulations require an agency to
consider “[t]he degree to which the effects on the quality of the human environment
are likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). The Plaintiffs claim
that the Fish and Wildlife Service arbitrarily failed to prepare an Environmental
Impact Statement despite the fact that: (i) it admitted in the Environmental
Assessment that the effects of the Permit were highly controversial; (ii) its own
experts disputed the size, nature, and effect of the Permit; and (iii) the public
47

overwhelmingly disagreed with the Finding of No Significant Impact during the
public review process. ECF No. 112 at 44 (citing AR-0026368). The Plaintiffs cite
numerous pages from the administrative record, yet as explained more fully below,
these citations provide no more than modest support for their contentions.
(i)

Alleged Admission That the Permit’s Effects Were
“Highly Controversial”

The single document cited by the Plaintiffs to support their claim that the Fish
and Wildlife Service admitted that the Permit’s effects were “highly controversial” is
a one-page excerpt of an August 2011 draft outreach plan apparently written by the
Service in connection with a public notice announcing the publication of Maine’s draft
Incidental Take Plan. AR-0026368. The document is not part of the Environmental
Assessment. See id. More importantly, the “admission” the Plaintiffs refer to consists
of the observation that “[t]rapping is controversial, period.” Id. This statement is
about trapping in general, rather than the effects of the Permit itself. Furthermore,
because the draft document was written several years before the take calculation and
the minimization and mitigation measures were finalized, the quoted statement does
not amount to an admission by the Service regarding the final Permit. See Nat’l Ass’n
of Home Builders, 551 U.S. at 658-59 (the federal courts are empowered to review
only the agency’s final action).
(ii)

Dispute Among the Fish and Wildlife Service’s Own
Experts

With regard to the Plaintiffs’ assertion that there existed a dispute between
the Fish and Wildlife Service’s own experts during the planning process, ECF No. 112
at 45 (citing Nat’l Wildlife Fed’n, 128 F. Supp. 2d at 1278, 1301), the record does not
48

reflect a “substantial controversy” that would trigger the need for an Environmental
Impact Statement.
The first of two documents cited by the Plaintiffs is a 2014 email that reflects
two Service biologists’ disagreement with the Regional Office over “some of the
positions the agency is taking.” AR-0067763.

The second document is a one-page

excerpt from the Service’s draft 2011 response to public comments received in
response to the 2008 draft Incidental Take Plan and contains comments from an
unidentified author on the subject of adaptive management commitments.

AR-

0053484. The document reflects that there “continue[d] to be a debate” regarding the
issue between the Service’s Field Office and another unidentified entity.

See

id. Assuming that the document refers to a debate between the Service’s Field Office
and Regional Office, these comments represent the views of individual staff members
and does not constitute evidence of a substantial controversy requiring an
Environmental Impact Statement. “[T]he mere existence of internal disagreements
does not make the agency’s decision arbitrary or capricious.” Nat’l Wildlife Fed’n,
306 F. Supp. 2d at 928 n.15. Additionally, the existence of a debate does not, without
more, demonstrate the existence of a “substantial dispute as to the size, nature, or
effect” of the Permit. See Found. for N. Am. Wild Sheep v. U.S. Dept. of Agr., 681 F.2d
1172, 1182 (9th Cir. 1982); see also Nat’l Wildlife Fed’n, 306 F. Supp. 2d at 928 n.15.
In Sierra Club v. U.S. Forest Service, the U.S. Court of Appeals for the Ninth
Circuit concluded that the plaintiff established the existence of a controversy under
§ 1508.27(b)(4) based on “affidavits and testimony of conservationists, biologists, and
other experts who were highly critical of the [Environmental Assessment] and
49

disputed the [agency’s] conclusion that there would be no significant effects” from a
proposed logging project. Sierra Club, 843 F.2d 1190, 1193 (9th Cir. 1988). In
contrast with the affidavits and testimony considered in Sierra Club, the two
documents cited by the Plaintiffs—each a single page from the administrative record
presented in isolation—do not establish that the Permit’s effects were highly
controversial.
The Plaintiffs also cite four documents as proof that biologists in the Service’s
Field Office identified deficiencies in the Permit and the Environmental Assessment.
The first document is a July 2007 memorandum noting deficiencies in Maine’s
proposed minimization and mitigation plans, which was written seven years before
the Permit was issued and cannot be said to demonstrate a serious controversy
regarding the effect of the Permit as finally adopted seven years later. AR-000822425. The second and third documents are two one-page excerpts of draft
Environmental Assessments containing critical comments and notations by an
unidentified author. AR-0053982; AR-0066833. Of these two documents, only one—
AR-0053982—indicates that the criticisms were forwarded to the Service’s Regional
Office for consideration. See AR-0053982. The fourth document is an anonymous
September 2014 comment expressing reservations about the public comment period.
AR-0045898.
The various documents cited by the Plaintiffs reflect that there was a debate
and even disagreement within the Service regarding the effects of the Permit.
Considered together, and in relation to the voluminous record as a whole, these

50

documents do not show that the effects of the Permit were “highly controversial” for
purposes of 40 C.F.R. § 1508.27(b)(4). See Sierra Club, 843 F.2d at 1193.
(iii)

Public Controversy

The Plaintiffs also claim that the effects of the Permit were highly
controversial because the Fish and Wildlife Service received over 11,000 comments
during the public comment period and that many of these comments disputed the
agency’s draft and final Environmental Assessments, although the Plainitffs offer no
evidence explaining how many of the 11,000 comments contained criticisms of or
opposition to the Service’s conclusions. The Plaintiffs, citing Wild Sheep, 681 F.2d at
1182, argue that numerous comments disputing an agency’s conclusions may
establish an action as controversial. ECF No. 112 at 46.
In Wild Sheep, the court concluded that the regulation at issue was “highly
controversial” because the agency had received “numerous responses from
conservationists, biologists, and other knowledgeable individuals, all highly critical
of the [Environmental Assessment] and all disputing the [Environmental
Assessment’s] conclusion[.]” Wild Sheep, 681 F.2d at 1182. Rather than the raw
number of comments received by the agency, the court based its conclusion on the
consensus of identified experts, including “biologists, zoologists, the California
Department of Natural Resources, and the California Department of Fish and Game”
who submitted comments that were critical of the agency’s regulation. Id. at 1178
n.31, 1182.
Here, in contrast, the Plaintiffs have not identified a single public comment
contained in the administrative record. Instead, the Plaintiffs rely upon the Service’s
51

draft Finding of No Significant Impact, which includes a comment by an agency
staffer stating that “11,000 public comments may seem controversial to some[,]” AR0057017, and another anonymous comment appended to a draft 2014 response to the
public comments stating that “several of the [Council on Environmental Quality]
criteria [including public controversy] . . . could be considered by some to be
triggered.” AR-0067419. These record citations suggest that the Permit may be
controversial to some but they do not demonstrate that the effects of the Permit are
“highly controversial” for purposes of § 1508.27(b)(4). See Wild Sheep, 681 F.2d at
1182; Sierra Club, 843 F.2d at 1193.
(g)

Conclusion Regarding Intensity Factors

Whether the Incidental Take Permit would significantly affect the quality of
the human environment for purposes of 42 U.S.C.A. § 4332(c) required the Service to
weigh each intensity factor individually and in relation to all ten factors. It is
apparent from the record that the Service undertook that analysis. Because there is
a rational connection between what the Service found and the conclusions it reached
as to each factor and the factors as a whole, the Service’s Finding of No Significant
Impact is deserving of deference. See Sierra Club v. Marsh, 976 F.2d 763, 769 (1st
Cir. 1992).
D.

Proposed 2015 Plan Amendments
During the 2014-2015 trapping season—the first trapping season after the

Incidental Take Permit took effect—two Canada lynx died in legally set traps. AR0074135. In response, Maine implemented an emergency regulation pursuant to the
“changed circumstances” provisions of the Incidental Take Plan.
52

AR-0070222

(“Changed Circumstance #3”). The emergency regulation restricted the use of certain
trap types and sizes in certain wildlife management districts for the remainder of the
2014-2015 trapping season. AR-0073462-63. Maine also amended existing state
trapping regulations to eliminate other types of traps entirely, AR-0074316-24, and
requested that the Fish and Wildlife Service allow it to amend the Incidental Take
Plan to incorporate these changes. AR-0074135-43. In its letter approving the
amendments, the Service stated that the Plan amendments were “minor in nature
and scope” and could therefore “be processed according to the ‘Minor Amendment’
provision in the Plan[.]” See AR-0074518.
The Plaintiffs challenge the amendments as arbitrary and capricious,
contending that the Service should have revoked its previous Finding of No
Significant Impact and prepared an Environmental Impact Statement.

Minor

amendments, the Plaintiffs maintain, should be limited to amendments that are
commonly needed over the life of a permit and may be expedited without resort to the
same process as the original permit application, citing the Service’s Habit
Conservation Planning and Incidental Take Permit Processing Handbook in support.
ECF No. 112 at 48 (citing AR-0000597). The Plaintiffs contend that the amendments
that were necessitated by the deaths of two lynx so soon after the Permit took effect
were not minor because the amendments resulted from an emergency response to
unforeseen and unanalyzed high levels of take within the first month of the Permit’s
issuance. The Plaintiffs argue that the Service should have required Maine to revisit
its lethal take calculations and reconsider the minimization and mitigation measures.
The Service responds that the amendments were properly treated as minor
53

amendments and, as such, the Service was justified in employing the expedited
procedure established in the Incidental Take Plan.19
Two factors lead me to conclude that the Service did not act arbitrarily and
capriciously when it treated the 2015 amendments as minor. First, Maine’s August
24, 2015, letter to the Service requested “proposed amendments that [Maine] would
like to make to the Incidental Take Permit . . . that was issued . . . last November.”
AR-0074135. This supports the Plaintiffs’ position that Maine sought an amendment
of the Incidental Take Permit. The Service contends, however, that what was sought
and granted was an amendment to the Incidental Take Plan, and not the Permit.
This view also finds support in the August 24, 2015, letter which refers to “an updated
version of our Plan[,]” AR-0074135 (emphasis added), and seeks to implement a
Changed Circumstance that was contemplated by the Incidental Take Plan. AR0074136 (describing eliminating the use of leaning pole sets); AR-0070222.
The distinction between the Permit and the Plan is the key to resolving this
issue. Although the August 24, 2015, letter was ambiguous, it is clear that what
Maine ultimately sought, and what the Service granted, was an amendment to the
Incidental Take Plan. The Handbook recognizes that the Plan “can also be amended

19

The Plan provides:
Minor amendments are changes to the [Plan], the effects of which on [Plan] species,
the conservation strategy, and [Maine’s] ability to achieve the biological goals and
objectives of the [Plan], are either beneficial or not significantly different than those
described in [the Plan]. Such amendments also will not increase impacts so species,
their habitats, and the environment beyond those analyzed in the [Plan,
Environmental Assessment, and Biological Opinion] or increase the levels of take
beyond that authorized by the [Permit].

AR-0070239-40.
54

administratively without formal amendment of the permit itself.”

AR-0000597.

Thus, the Service was not required to revisit the Permit, revoke the Finding of No
Significant Impact, and prepare an Environmental Impact Statement.

The

Handbook is the only authority cited by the Plaintiffs to advance their argument
concerning the 2015 amendment.
The second factor that leads me to conclude that it was not arbitrary and
capricious for the Service to label the 2015 amendment as minor is the fact that the
Incidental Take Plan defines “minor amendments” as amendments that “will not
increase impacts to species,” and that “are either beneficial or not significantly
different” from those already in the Plan. AR-0070239. The 2015 amendments added
restrictions to trapping by (1) eliminating certain types of traps such as leaning pole
sets and drags for foothold traps, and (2) imposing additional requirements for setting
foothold traps in order to reduce the risk of injury to lynx. AR-0074135-39. Because
the 2015 amendments required greater restrictions on trapping in Maine, it was
reasonable for the Service to conclude that the amendments would benefit Canada
lynx and would not increase impacts on the species.20 Thus, the requirements for
minor amendments to the Incidental Take Plan were satisfied.
IV. CONCLUSION
In a case such as this, judicial review of the Fish and Wildlife’s Service’s actions
must be both “searching and careful,” Marsh v. Or. Nat. Res. Def. Council, 490 U.S.
360, 378 (1989), but also deferential so that the court does not “substitute its

20 The Plaintiffs do not argue that these new restrictions will present greater risks to the lynx, nor
have they cited record evidence that supports that position.
55

judgment for that of the agency,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416 (1971). For the reasons I have explained, Plaintiff Friends of Animals
has standing to sue. I further conclude that the Fish and Wildlife Service did not act
arbitrarily and capriciously by approving Maine’s application for an Incidental Take
Permit, deciding not to prepare an Environmental Impact Statement, or treating
Maine’s 2015 amendment to the Incidental Take Plan as minor. Accordingly, because
the Service’s actions were in keeping with the requirements of the Endangered
Species Act, 16 U.S.C.A. §§ 1531-1544; the National Environmental Policy Act, 42
U.S.C.A. § 4321, et seq.; and the Administrative Procedure Act, 5 U.S.C.A. § 706, the
Plaintiffs’ Cross-Motion for Summary Judgment (ECF No. 112) is DENIED and the
Service’s Cross-Motion for Summary Judgment (ECF No. 113) is GRANTED.
SO ORDERED.
Dated this 15th day of February 2017
/s/ JON D. LEVY
U.S. DISTRICT JUDGE

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