Animal Welfare Institute v. Martin

United States Court of Appeals
For the First Circuit

No. 09-2643

ANIMAL WELFARE INSTITUTE and WILDLIFE INSTITUTE OF MAINE,

Plaintiffs, Appellants,

v.

ROLAND D. MARTIN, Commissioner of Maine Department of Inland
Fisheries and Wildlife, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.

Eric R. Glitzenstein, with whom William S. Eubanks II was on
brief, for appellants.
Christopher C. Taub, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, Paul Stern, Deputy Attorney
General, and Nancy Macirowski, Assistant Attorney General, were on
brief for appellee Roland D. Martin, Maine Department of Inland
Fisheries and Wildlife Commissioner.
James H. Lister, for appellees Maine Trappers Association,
U.S. Sportsmen's Alliance Foundation, Fur Takers of America, Dana
Johnson, Sr., Donald Dudley, and Carl Guay.
Gary R. Leistico, on brief for appellee National Trappers
Association.

October 20, 2010
 LYNCH, Chief Judge. This is a case about the Canada

lynx. The Endangered Species Act makes it unlawful to "take" a

member of an endangered species. 16 U.S.C. § 1538(a)(1)(B). By

regulation, it is also unlawful to "take" a "threatened" species,

that is, one likely to become endangered in the foreseeable future.

16 U.S.C. § 1532(20); 50 C.F.R. § 17.31(a). The term "take" means

to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,

or collect." 16 U.S.C. § 1532(19).

The Canada lynx is a wild cat, weighing about 20 pounds,

which eats small animals, particularly the snowshoe hare, and is

most commonly found in Canada. It is not listed as an endangered

species. In 2000, the U.S. Fish and Wildlife Service (FWS) of the

federal Department of the Interior listed the Canada lynx as a

"threatened" species throughout its U.S. range: certain states

contiguous to Canada, as well as certain Western states. 65 Fed.

Reg. 16,052. In Maine, a listed state, Canada lynx are found

primarily in the northern portion of the state, in state Wildlife

Management Districts (WMD) 1 through 11. Maine prohibits the

trapping of Canada lynx, but allows the regulated trapping of many

other furbearing animals.

This appeal is from the district court's denial of

plaintiffs' motion to enjoin Maine state officials from allowing

the use of any foothold traps, which are used to legally trap other

species, in WMDs 1 through 11. Plaintiffs argued this relief was

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necessary to prevent incidental takes of lynx in these traps. See

50 C.F.R. § 17.3 (defining incidental taking). The district court

held that plaintiffs had not shown irreparable injury, even

recognizing the special emphasis in the Endangered Species Act

(ESA) on protecting threatened species. We affirm.

I.

Plaintiffs are two private groups, Animal Welfare

Institute and Wildlife Institute of Maine (together "AWI"), that

sued in August 2008, under the ESA citizen suit provision, 16

U.S.C. § 1540(g). They allege that Maine, by allowing trappers to

obtain permits to use foothold traps (also called "leghold traps")

to catch other species that are neither threatened nor endangered,

violates the ESA because some individual lynx will incidentally be

caught in such traps.

Foothold traps spring shut on an animal's leg or foot,

holding the animal in place until the trapper returns. Trappers

usually use foothold traps to trap coyote and fox. There are no

known instances of lynx deaths caused by a foothold trap.1 Still,

1
In two instances in November and December 2008, Canada
lynx died after being trapped in Conibear traps, which are usually
used to trap fisher and marten and are designed to spring shut on
an animal's body, killing it. See Animal Welfare Institute v.
Martin, 588 F. Supp. 2d 70, 81-82 (D. Me. 2008) (AWI I) (November
incident); Animal Welfare Institute v. Martin, 588 F. Supp. 2d 110,
111-12 (D. Me. 2008) (AWI II) (December incident). In both
instances, the traps were illegally set. AWI II, 588 F. Supp. 2d
at 112; AWI I, 588 F. Supp. 2d at 82. In response to the November
2008 incident, and under the district court's order, Maine amended
its Conibear trap regulations. Animal Welfare Institute v. Martin,

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historically, a small number of Canada lynx are trapped and

released each year in Maine.

Earlier litigation over the protection of the Canada

lynx, brought by an organization called the Animal Protection

Institute2 (API) in October 2006, had resulted in a consent decree

which provided significant protections for the Canada lynx. See

Animal Welfare Institute v. Martin, 588 F. Supp. 2d 70, 76-77 (D.

Me. 2008) (AWI I) (describing earlier litigation).

Under that consent decree, Maine issued new regulations

in 2007 and 2008, which limited the size of foothold traps in lynx

territory in an effort to reduce the number of incidental takes of

Canada lynx.3 Maine also attempted to reduce any harm from

668 F. Supp. 2d 254, 257 (D. Me. 2009) (AWI III). The trapper who
caused the December 2008 killing had been warned earlier in the
season that his traps flagrantly violated the regulations, and he
faces federal prosecution. See Trapper charged in deaths of lynx,
gray jay, Bangor Daily News, July 3, 2010, at B5. The records of
the Maine Department of Inland Fisheries and Wildlife (IF&W) also
show that two lynx were trapped and killed by Conibear traps in
2005, under a prior set of regulations.
In addition, in October 2009, a bird hunter illegally
shot a Canada lynx that was caught in a legally set foothold trap.
The lynx would otherwise have been released without need for
treatment. AWI III, 668 F. Supp. 2d at 261 n.9.
2
Many of the persons involved in the API litigation are
principals of the present plaintiffs.
3
The consent decree required that Maine limit the size of
foothold traps to 5 3/8 inches or less (unless set in water, where
lynx do not venture), and limit "killer-type" or Conibear traps to
areas where lynx are unlikely to wander, such as around water, or
at least four feet above ground in poles or trees less than four
inches in diameter and at least a 45-degree angle from the ground.
AWI I, 588 F. Supp. 2d at 76-77.

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incidental takings of Canada lynx by requiring trappers to report

any incidental Canada lynx takings. This, in turn, allows

biologists from the Maine Department of Inland Fisheries and

Wildlife (IF&W) to examine the captured lynx and rehabilitate any

injured lynx before releasing them to the forests.

The consent decree remains in effect unless and until the

FWS acts favorably on Maine's application for a federal "incidental

take permit" (ITP).4 16 U.S.C. § 1539(a)(1)(B). An ITP allows

takes incidental to otherwise lawful activity when requisite

measures to minimize and mitigate harms are taken such that the

permitted incidental takes will not "appreciably" impact the

species as a whole. 16 U.S.C. § 1539(a)(2). Maine filed its first

draft ITP application in August 2006; Maine filed a complete ITP

application in June 2007, and in August 2008, at the request of

FWS, filed a revised application. FWS has taken no action yet on

the application and so the consent decree continues in effect.5

The present plaintiffs, apparently dissatisfied with the

relief accomplished earlier, filed suit in August 2008 alleging

4
The consent decree will also expire if the Canada lynx is
delisted, or if FWS promulgates a rule under Section 4(d) of the
ESA, allowing incidental takes of Canada lynx. See 16 U.S.C. §
1533(d) (authorizing Secretary to promulgate special rules for
threatened species); 50 C.F.R. § 17.31.
5
In an email dated September 7, 2010, the day before oral
argument, FWS informed Maine that its ITP application faced many
more layers of review, and that FWS was confident the ITP would not
be issued in time for the 2010 trapping season, which runs from
mid-October through December.

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that Maine had not done enough.6 Unless and until an ITP is

issued, they argued, the court was required by the ESA to issue a

preliminary injunction banning all foothold traps. The court

rejected the argument that as a matter of law injunctive relief

must issue, even absent a showing of irreparable harm, upon a

showing that incidental takings result from Maine's decision to

allow any foothold traps. AWI I, 588 F. Supp. 2d at 104-05. The

court denied preliminary injunctive relief as to foothold traps,

but set the matter for hearing on evidence as to the actual risk of

incidental trapping in foothold traps and actual consequences to

the Canada lynx of any such trapping.

As to Conibear traps, the court granted preliminary

injunctive relief on November 26, 2008, enjoining IF&W to

immediately promulgate regulations, by emergency order if

necessary, to prevent further takes in these "killer-type" traps.

Id. at 110. The court found irreparable harm in the death of a

single lynx that had been killed by a Conibear trap in November

2008 (a second lynx was killed in a Conibear trap shortly after the

court issued its opinion). Id. at 103. Even though AWI had "not

established that the death of one threatens the species as a

whole," it had demonstrated that "the current regulations are

6
Several trappers' groups and three individual trappers
intervened as defendants, as they did in the earlier litigation.
In addition, the Pacific Legal Foundation has filed a brief as
amicus curiae in support of the defendants-appellees.

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inadequate and it is predictable that if the regulations are not

amended, other lynx will suffer irreparable harm." Id. at 106.

The court found that under the ESA the balance of hardships and

public interest factors "tip[] heavily in favor of the protected

species." Id. (quoting Strahan v. Coxe, 127 F.3d 155, 160 (1st

Cir. 1997)) (internal quotation marks omitted).

In April and June 2009, the district court held a six-day

hearing, which had extensive evidence as to both types of traps.

The court found AWI had not shown it was likely that lynx would be

taken in Conibear traps under the new regulations promulgated by

Maine as a result of the preliminary injunction. AWI III, 668 F.

Supp. 2d at 260. AWI does not appeal this finding and so Conibear

traps are not at issue in this appeal.

Maine conceded that Canada lynx would continue to be

caught in foothold traps, even after the tighter regulations. AWI

III, 668 F. Supp. 2d at 261. As to consequences to the lynx of

being caught in a foothold trap, the court found as a matter of

fact that AWI had failed to prove lynx suffer serious physical

injury from incidental takes in foothold traps. The court

recounted IF&W's records of lynx takings from 1999 to 2008,

distinguishing between periods before and after the tighter

regulations were imposed in 2007. Id. at 268. In the seven-year

period from 1999-2006, during which thirty lynx were taken in

foothold traps, IF&W was able to assess just under half, and only

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one had an injury that required veterinary treatment. Id. None of

the thirty died as a direct result of being trapped. Id. In 2007-

2008, eight lynx were taken and IF&W was able to assess five of

them: two sustained no injuries, and the other three had minor skin

lacerations (one also had a "very slight limp upon release"). Id.

The court found that AWI had failed to prove the truth of

its assumption that most of the taken lynx suffered some sort of

injury, or to provide any reliable data to counter IF&W's evidence.

Id. at 269. Rather, AWI relied on studies about lingering negative

effects of trapping on other species, or, in one case, about the

convergence of multiple stressors on Canada lynx in a different

part of the country. See id. at 270 & n.16. The court found that

AWI's use of generalizations from other regions and species

amounted to a "failure of proof." Id. at 269. On the question of

whether Canada lynx caught in incidental takes in foothold traps

would be more likely to die from predation or starvation in the

future, the court found that any "incremental impact is unknown and

probably unknowable." Id. at 272.

The court did accept the testimony of AWI's experts that

Canada lynx might experience physical symptoms of stress--such as

an elevated breathing rate and temperature, or hormonal or other

chemical changes--as a result of being trapped. Id. at 266-67.

But the court rejected expert testimony that Canada lynx could die

from "capture myopathy," a deterioration of the animal's organ

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systems resulting from stress-induced overproduction of lactic acid

during a temporary capture. Id. at 267. The court was skeptical

that any stress caused by incidental takes in foothold traps could

be so damaging for two reasons. First, it was unlikely a temporary

trapping by humans would cause stress-induced death if the stress

of daily survival efforts does not. Id. Second, there was firm

evidence that some lynx repeatedly visit traps for food despite

repeatedly being trapped, undercutting AWI's argument that being

trapped is an intensely stressful experience for lynx. Id.

Given these factual findings, the court concluded AWI had

failed to demonstrate that irreparable harm was likely to occur

absent an injunction. The court further noted that even assuming

AWI had shown that some Canada lynx suffer "debilitating" injuries

from takes, it certainly had not established that these injuries

threatened the Canada lynx species. Id. at 272. The court quoted

the holding in Water Keeper Alliance v. U.S. Department of Defense,

271 F.3d 22, 34 (1st Cir. 2001), that absent a showing that animal

deaths were likely and that these would impact the species, it was

not an abuse of discretion to refuse to issue an injunction. Id.

Plaintiffs do not challenge the findings of fact.

II.

We start with the question of standing. While Maine has

not challenged the plaintiffs' standing, we have jurisdiction only

if plaintiffs meet the constitutional standing requirements. Lujan

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v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiffs

"must show (1) that they have suffered an injury in fact, (2) that

the injury is fairly traceable to the [defendant's] allegedly

unlawful actions, and (3) that 'it [is] likely, as opposed to

merely speculative, that the injury will be redressed by a

favorable decision.'" Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18, 26 (1st Cir. 2007) (quoting Lujan, 504 U.S. at 560-61)

(second alteration in original). Plaintiffs must clearly allege

facts demonstrating standing; we then construe those facts and

reasonable inferences drawn from them in plaintiffs' favor. Id. at

25.

In addition, as a prudential matter, each plaintiff

organization may sue based on injuries to its members' interests

only if (1) at least one of its members would have standing to sue

as an individual, (2) "the interests at stake are germane to the

organization's purpose," and (3) individual members' participation

is not necessary to either the claim asserted or the relief

requested.7 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 181 (2000); see also Dubois v. U.S.

Dep't of Agric., 102 F.3d 1273, 1281 & n.11 (1st Cir. 1996).

Animal Welfare Institute's purpose as an organization is "to reduce

7
Another traditional prudential requirement, that
plaintiffs' claims be within the "zone of interest" protected by
the law they invoke, was overridden by Congress in the ESA's
citizen suit provision. Bennett v. Spear, 520 U.S. 154, 164
(1997).

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the sum total of pain and fear inflicted on animals by humans," and

Wildlife Institute of Maine's purpose is "to advoca[te] for

wildlife and represent[] nonconsumptive interests of wildlife in

Maine." The interests invoked in this litigation in observing the

Canada lynx free from incidental trapping are germane to these

purposes.

Plaintiffs' affidavits from members who are Maine

residents assert the members frequently visit wildlife refuges and

parks in Maine to try to observe lynx and other wildlife species.

This "desire to use or observe an animal species . . . is

undeniably a cognizable interest for purpose of standing." Lujan,

504 U.S. at 562-63. The members also allege a cognizable injury to

this interest: 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. See id. at 564; see also Friends

of the Earth, 528 U.S. at 183 (stating plaintiffs meet injury in

fact requirement by averring (1) they use the affected area and (2)

the challenged activity will lessen their recreational and

aesthetic interest in the area); Sierra Club, 405 U.S. at 734

(finding that an adverse effect on the "scenery, natural and

historic objects, and wildlife" of a park that "would impair the

enjoyment of the park" by those who use it would constitute a

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cognizable harm). Plaintiffs have adequately alleged that this

injury is fairly traceable to the challenged IF&W regulations, and

redressable by the injunctive relief plaintiffs seek.

III.

In order to obtain a permanent injunction plaintiffs must

ordinarily satisfy a four-factor test. "A plaintiff must

demonstrate: (1) that it has suffered an irreparable injury; (2)

that remedies available at law, such as monetary damages, are

inadequate to compensate for that injury; (3) that, considering the

balance of hardships between the plaintiff and defendant, a remedy

in equity is warranted; and (4) that the public interest would not

be disserved by a permanent injunction." Monsanto v. Geertson Seed

Farms, 130 S. Ct. 2743, 2756 (2010) (quoting eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006)) (internal quotation

marks omitted).

For purposes of this case we will assume that the

incidental taking of Canada lynx in foothold traps results in a

violation of the ESA.8 The questions before us have to do with the

appropriate remedies for such a violation. Our standard of review

of denial of injunctive relief depends upon the nature of the

issues involved. Overall, review is for abuse of discretion.

8
We need not reach Maine's argument that it has not
violated the ESA by licensing trappers who take lynx, nor Maine's
argument that the injunctive relief requested by plaintiffs would
violate the Tenth Amendment.

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Garcia-Rubiera v. Calderon, 570 F.3d 443, 455-56 (1st Cir. 2009).

Nonetheless, review of underlying legal determinations is de novo.

Id.

Plaintiffs attempt to characterize their case as turning

on pure issues of law, and they make several related arguments.

First they argue that Congress, in enacting the ESA, has so

displaced the traditional four equitable factors used by courts in

deciding on injunctive relief that the district court was required

to issue an injunction on finding there was a "taking" of a single

member of a threatened species. AWI argues that in the ESA,

Congress circumvented the traditional injunction inquiry, mandating

prioritization of species protection, which curtails courts'

traditional discretion to deny equitable relief. They base this

argument on United States v. Oakland Cannabis Buyers' Cooperative,

532 U.S. 483, 496-98 (2001), and Weinberger v. Romero-Barcelo, 456

U.S. 305, 313-14 (1982). They are wrong.

Even under the ESA, the Supreme Court has said that

courts are "not mechanically obligated to grant an injunction for

every violation of law." Tenn. Valley Auth. v. Hill, 437 U.S. 153,

193 (1978). While reciting this language, AWI's actual argument is

to the contrary. AWI argues that where a court finds an ongoing

violation of the ESA, the court is indeed obligated automatically

to issue an injunction with terms stringent enough to end the

violation, regardless of what the facts may be. That is not so.

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 AWI's claims are based on a mistaken reading of a line of

cases beginning with Hill, in which the Supreme Court found that

only a permanent injunction against bringing a $100 million dam

online would suffice to remedy the Tennessee Valley Authority's

violation of Section 7 of the ESA.9 Id. at 172. The dam, if

operated, would completely destroy the entire habitat of the (newly

discovered) endangered snail darter, thereby extinguishing the

species. Id. at 171-72. The Court stated that "Congress has

spoken in the plainest of words [in the ESA], making it abundantly

clear that the balance has been struck in favor of affording

endangered species the highest of priorities." Id. at 194. The

Court held that it was not free to balance the equities where

Congress had mandated "institutionalized caution" for the

protection of listed species, and that it must therefore enjoin the

dam's operation. Id.

The Supreme Court has since explained that the drastic

result in Hill stemmed from the strong and undisputed showing of

irreparable harm that would occur absent an injunction: an entire

species would become extinct. Oakland Cannabis, 532 U.S. at 496-

97; Weinberger, 456 U.S. at 314. Since the existence of

9
At the time, Section 7 required federal agencies to make
sure their actions did not "jeopardize the continued existence" of
listed species "or result in the destruction or modification of
habitat of such species." Endangered Species Act of 1973, Pub. L.
No. 93-205, § 7, 87 Stat. 884, 892 (codified as amended at 16
U.S.C. § 1536(a)(2)).

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irreparable harm was essentially conceded in Hill, the discussion

of remedy focused on the changes the ESA made to the remaining

elements of the injunction analysis. See Hill, 437 U.S. at 193-94.

After stating the general proposition that a court sitting in

equity balances the equities and hardships of a case in its

discretion, id. at 193, the Court went on to find that

congressional intent in the ESA foreclosed the Court from

"strik[ing] a balance of equities on the side of the Tellico Dam,"

id. at 194. Rather, it was "abundantly clear that the balance has

been struck in favor of" endangered species. Id.

The circumstances here are none so dire, as the district

court's uncontested findings of fact show. AWI did not prove that

any single Canada lynx has suffered serious physical injury or

death from an incidental take in a foothold trap. The district

court found the statutory violation here has not caused the death

of any Canada lynx, let alone that it poses the ultimate danger of

extinction to which the Hill Court responded.

By contrast, the district court held that Maine's

previous, now-replaced Conibear trap regulations did pose a mortal

risk to at least some Canada lynx, and the district court issued an

injunction, forcing Maine to amend its regulations immediately.

AWI I, 588 F. Supp. 2d at 109. The district court thus engaged in

exactly the fact-sensitive analysis required by law.

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 This circuit has consistently applied the traditional

tests for preliminary injunctions in ESA cases, without modifying

the irreparable harm requirement. See, e.g., Water Keeper, 271

F.3d at 33 ("To be entitled to preliminary injunctive relief,

appellants must demonstrate that they will otherwise suffer

irreparable harm."); Coxe, 127 F.3d at 160. Rather than supplant

the need for proof on the irreparable harm requirement, as AWI

seeks, this circuit's law has incorporated Congress's

prioritization of listed species' interests into the third and

fourth prongs of the analysis, modifying those factors where

appropriate to "tip[] heavily in favor of protected species."

Coxe, 127 F. 3d at 160 (quoting Nat'l Wildlife Fed'n v. Burlington

N. R.R., 23 F.3d 1508, 1510 (9th Cir.1994)) (internal quotation

mark omitted); see also Hill, 437 U.S. at 194 (stating Congress

limited courts' discretion to balance the equities in ESA cases);

Water Keeper, 271 F.3d at 34. The district court properly required

AWI to demonstrate irreparable harm.

In a related statutory construction argument, AWI asserts

that the purpose and language of the Section 9 prohibition on

"taking" listed species make all takes of any threatened species

per se irreparable harm. AWI argues that it needs to show neither

species-level effect, since Section 9's purpose is to prohibit

takes of individual animals, nor any actual harm to individual

animals: since the statutory definition of "take" includes both

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"trap" and words like "wound," "harass," and "harm," AWI argues,

requiring a showing of some injury would make "trap" superfluous

and read it out of the definition. See Babbit v. Sweet Home

Chapter of Communities for a Great Oregon, 515 U.S. 687, 703 (1995)

(characterizing a take of a single animal as a statutory

violation). AWI's argument mistakes the question of what violates

the statute with the question of the appropriate remedy for a

violation.

AWI makes a final argument that as a matter of law the

district court could not inquire into species-level harm during the

irreparable harm inquiry because that would conflict with the role

Congress has assigned to the FWS through the ITP process. There is

no language in the ESA which supports this argument. Congress

provided both that courts may issue injunctive relief and that FWS

may issue ITPs. No language limits the power of courts as AWI

claims nor is there any conflict between the two provisions. In

fact they are consistent with each other.

Section 10 of the ESA provides, "The Secretary10 may

permit, under such terms and conditions as he shall prescribe," any

incidental taking otherwise prohibited by Section 9 that will not

10
Depending on the animal species at issue, "Secretary" in
the ESA means either the Secretary of Commerce (for species
overseen by the National Marine Fisheries Service) or the Secretary
of the Interior (for all other species, which are overseen by FWS).
See 16 U.S.C. § 1532(15); 50 C.F.R. § 402.01(b). Here, then, the
Secretary is the Secretary of the Interior, whose authority under
the ESA has been delegated to FWS. See 50 C.F.R. § 402.01(b).

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"appreciably reduce" the likelihood that the species will survive

and recover.11 16 U.S.C. § 1539(a)(1)(B), (2)(B). While FWS must

issue a permit to any plan that meets its application requirements,

16 U.S.C. § 1539(a)(2)(B), FWS may alter application requirements

as "necessary or appropriate," 16 U.S.C. § 1539(a)(2)(A)(iv).

Plaintiffs' request for injunctive relief depends entirely on the

fact that the FWS has not yet issued an ITP to Maine.

Nothing in the statutory language about ITPs constrains

the power of the federal judiciary. Similarly, nothing in the

citizen suit provision purports to subordinate judicial remedies to

the ITP process. The provision simply states that "[t]he district

courts shall have jurisdiction . . . to enforce any . . . provision

or regulation, or to order the Secretary to perform such act or

duty," at issue in a citizen suit.12 16 U.S.C. § 1540(g)(1). There

is no reason to think that while Congress intended for FWS to

11
In addition, FWS must ensure the takings are incidental
to otherwise lawful activity, the permittee will "minimize and
mitigate the impacts" of the taking "to the maximum extent
practicable," the permittee will adequately fund its plans to do
so, and the application meets any other requirements FWS considers
"necessary or appropriate." 16 U.S.C. § 1539(a)(2)(B).
12
Separate provisions grant jurisdiction and process powers
to the district courts over civil and criminal enforcement suits
brought by the United States. 16 U.S.C. § 1540(c), (e)(2).
The statute constrains district courts' discretion over
citizen suits for injunctive relief in only one circumstance: if
the suit is to compel FWS to enforce the taking prohibition, and
the district court finds there is substantial evidence of an
"emergency," then the district court "shall compel" FWS to apply
the taking prohibition. 16 U.S.C. § 1540(g).

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consider the facts as to whether species-wide harm would be done

before it can issue an ITP, it intended to preclude a federal judge

from considering the same facts.

IV.

A. Permanent Injunction

The district court's denial of a permanent injunction was

not an abuse of discretion. AWI characterizes the district court

as adopting a per se rule requiring that plaintiffs show that "a

particular take will result in the extinction of the entire

species." AWI misrepresents the district court's reasoning.

The district court differentiated its "nuanced" approach

from the two opposite per se rules advanced by the opposing

parties. The plaintiffs maintain that harm to a single animal

constitutes irreparable harm while defendants argue that only a

threat to the entire species constitutes irreparable harm.13 AWI

III, 668 F. Supp. 2d at 261; AWI I, 588 F. Supp. 2d at 106.

Rejecting both approaches, the court "accept[ed] the principle that

the death of a single animal" may call for an injunction in some

circumstances, while in others "the death of one member is an

isolated event that would not call for judicial action," AWI I, 588

F. Supp. 2d at 106, because it has only a "negligible impact on the

13
Because in the decision on appeal the district court
expressly incorporated its earlier opinions in the case, AWI III,
668 F. Supp. 2d at 258, we also refer to the text of the district
court's earlier opinion on AWI's motion for a preliminary
injunction, AWI I.

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species as a whole," AWI III, 668 F. Supp. 2d at 264. The court's

issuance of injunctive relief as to Conibear traps while declining

to issue relief as to foothold traps demonstrates the point.

The factual findings which supported the denial of

injunctive relief are not challenged. Denial of that relief was

not error.

B. Other Relief

AWI argues that even if it did not show irreparable harm

sufficient for the injunction it sought, the district court should

have issued both a declaratory judgment and alternate relief.

AWI argues it was entitled to a declaratory judgment, for

which irreparable harm need not be shown. See Steffel v. Thompson,

415 U.S. 452, 471-72 (1974). The district court did not abuse its

discretion in deciding not to issue a declaratory judgment. See

Garcia-Rubiera, 570 F.3d at 455. The court, in two published

decisions, made findings that Maine had violated the ESA through

the incidental takings. AWI III, 668 F. Supp. 2d at 259; AWI I,

588 F. Supp. 2d at 99-100. It acknowledged the relief obtained

through the consent decree, and it issued injunctive relief as to

the Conibear traps, which caused a change in Maine's regulations.

See AWI III, 668 F. Supp. 2d at 257-58. It was within the court's

discretion to conclude that such relief was an adequate remedy and

a further formal declaration was not needed. See Wilton v. Seven

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Falls Co., 515 U.S. 277, 286-87 (1995); Ernst & Young v. Depositors

Econ. Protection Corp., 45 F.3d 530, 534 (1st Cir. 1995).

AWI, on appeal, additionally argues the district court

erred in not granting other relief, such as a new working group or

new regulations. This argument fails because AWI expressly

disavowed such remedies before the district court.14 It may well

have done so for tactical reasons, preferring to stress the

inadequacy of other remedies in order to strengthen its case for

injunctive relief against foothold traps. Parties are held to

their choices and AWI's bait and switch tactics in the courts are

to be deplored, not rewarded.

The judgment for defendants is affirmed. Costs are

awarded to defendants.

14
In its post-trial brief AWI specifically disclaimed any
injunctive relief other than a total ban on foothold traps in lynx
areas and a total ban on Conibear traps with openings of more than
four inches, arguing that the bans were "the only way to prevent
further take of lynx in traps." AWI clearly stated it was
"concerned with the two alternatives offered by the court." AWI
claimed a working group was not "a viable solution" because "the
parties are at polar opposites and it would be difficult to come to
a consensus in a working group" before the 2009 trapping season
began. AWI argued further that "allowing" IF&W to work on new
regulations would likely not end takes because IF&W had already
failed once, under the 2007 consent decree, to amend its
regulations to end takes.

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