Exempted lynx: Feds opt not to designate ‘critical habitat’ in Maine

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Federal officials have exempted all Canada lynx habitat in Maine from a rarely used but highly controversial provision of the Endangered Species Act, setting the stage for more lawsuits over the reclusive cat.

In a drastic rewrite of the agency’s original proposal, the U.S. Fish and Wildlife Service opted not to designate about 10,600 square miles in Maine and more than 5,000 square miles in western and midwestern states as “critical habitat” for the federally protected lynx.

Agency representatives said Wednesday that the decision should not hurt lynx populations, which are still protected from harm or harassment under the Endangered Species Act. Instead, officials said, the exemption will help the agency maintain good relations with landowners where lynx live.

But several environmental groups involved in the long and costly legal battle over protection of the lynx denounced that rationale. And one legal expert predicted that the feds are unlikely to find sympathy in the courts.

“It’s D.O.A. in the courts – dead on arrival,” said Patrick Parenteau, a wildlife law expert with Vermont Law School.

The Canada lynx is the largest cat known to live in Maine, measuring up to 3 feet long with a small tail, pointed ears and large, fur-covered feet that act as natural snowshoes.

As recently as the late 1990s state and federal officials publicly questioned whether Maine had any breeding lynx populations.

But they now estimate between 200 and 500 of the cats now live in areas of Maine’s snowy North Woods that were clear cut during the spruce budworm outbreak of the 1970s. Sportsmen and timber industry representatives contend that thousands of the cats really prowl the woods.

“Critical habitat” designation means that a landowner or developer must submit to an additional layer of bureaucratic review for any projects involving federal money or permits.

The vast majority of reviewed projects are allowed to go forward as planned. Projects on private land that do not have any federal involvement are not subject to additional review. Yet many landowners, distrustful of the federal wildlife law, strongly oppose designation.

The agency’s original lynx proposal encompassed 18,031 square miles in Maine, Minnesota, Montana, Idaho and Washington. Most of northern Maine – including parts of Aroostook, Franklin, Penobscot, Piscataquis and Somerset counties – would have been designated.

But the final rule announced Wednesday designates critical habitat on just 1,841 square miles in three national parks in Minnesota, Montana and Washington.

Agency officials exempted 16,000-plus square miles used in commercial forestry as well as smaller noncommercial plots, land with existing lynx management plans as well as tribal and state land. Maine property owned by The Nature Conservancy also was exempt because of the group’s wildlife policies.

Lori Nordstrom, a federal lynx biologist based in Montana, said commercial forests were exempt in part to encourage owners of large land tracts to continue working with the agency on lynx conservation.

These landowners typically allow biologists and crews onto their lands to research lynx, manage habitat for lynx and sometimes fund the research.

“We felt the benefit of maintaining these partnerships and these working relationships … was much more important and beneficial than designating critical habitat,” Nordstrom said during a conference call.

Nordstrom said some landowners had expressed concerns about the “stigma” of designation. Going ahead with the designation, Nordstrom continued, could make landowners reluctant to accept federal funding for wildlife conservation.

Most of the major landowners in northern Maine, including Plum Creek Timber Co., had requested an exemption.

“Especially in Maine, where there is so little federal land … the benefit of critical habitat will always be very small,” she said.

A spokesman for the Maine Forest Products Council, which represented the major landowners, could not be reached for comment Wednesday.

But supporters of critical habitat designation disagreed, often vociferously.

Jym St. Pierre, the Maine director of RESTORE: The North Woods, said in a statement that he was shocked and astounded by the decision and the “Alice in Wonderland justification.”

“Instead of enhancing protection of habitat for an imperiled species, the USFWS has said it wants to protect its partnerships with private forest managers,” St. Pierre said. “Instead of defending the public interest at stake, the agency has said it wants to be best buddies with extractive industries.”

Tara Thornton, Maine organizer of the Endangered Species Coalition, called the decision “pathetic” and accused the agency of pandering to special interests.

Representatives for the group Defenders of Wildlife, who have filed most of the lynx lawsuits against the USFWS, could not be reached for comment.

But Parenteau with Vermont Law said he was “100 percent confident of a challenge.”

Parenteau, who has helped argue critical habitat cases, said federal courts have repeatedly told the agency that it cannot exempt land simply because protections are already in place. He said courts have interpreted critical habitat standards to be more protective in helping species recover.

“I am stunned that they would put something like this out. It doesn’t have a chance,” said Parenteau, also director of the school’s Environmental and Natural Resources Law Clinic.

Agency officials have for years made clear their opposition to critical habitat designation. The original announcement of the lynx proposal said the process provides few conservation benefits, limits scientific discovery, consumes “enormous” amounts of resources and imposes “huge social and economic costs.”

In an economic analysis, the agency estimated that designation for the lynx and related conservation would cost between $175 million and $889 million over 20 years. Environmental groups said those figures were greatly inflated.

During a recent question-answer session with reporters, USFWS director Dale Hall said he believes critical habitat has been “nothing but perfunctory.” Hall said money spent on bureaucratic designation could be better spent on on-the-ground conservation.