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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