Judge says state could be liable for lynx trappings

BANGOR – A federal judge told attorneys for the state Friday that Maine appears to be violating the Endangered Species Act by allowing trapping that could harm Canada lynx.

U.S. District Court Judge John Woodcock did not make a ruling on whether the state can be held liable whenever one of the federally protected wildcats is caught inadvertently in traps set for other animals. Hearings will resume Tuesday as the court works to resolve the case before the trapping season opens in mid-October.

But the judge made clear that he believes the state has an uphill battle in the lawsuit filed by the organization Animal Protection Institute. If successful, the suit could dramatically affect – or even bring to a halt – trapping throughout much of central and northern Maine.

“I don’t think anyone here is accusing anybody of deliberately trapping lynx, but if trappers are going out … and they accidentally or inadvertently take lynx, then that is a violation of the Endangered Species Act,” Woodcock told the two teams of attorneys at the beginning of Friday’s hearing.

“I sympathize very much with the state of Maine on this but that is a personal sympathy, not a judicial one,” Woodcock added.

API, which is based in California but has members here in Maine, alleges that the Maine Department of Inland Fisheries and Wildlife is not doing enough to protect lynx, bald eagles and gray wolves from harm caused by state-regulated trapping.

The organization’s lawsuit against DIF&W Commissioner Roland “Danny” Martin, filed last fall, seeks a court order to end any trapping that could inadvertently capture, injure or kill the three species.

Bald eagles have since been removed from the federal list of threatened species and there are no documented populations of wild gray wolves living in Maine. So Friday’s hearing focused exclusively on lynx.

Thirty-four lynx have been caught by trappers in Maine since 1999, including 25 since 2004, according to figures supplied to the court by the U.S. Fish and Wildlife Service. Two of the 34 animals died as a result.

Officials say Maine’s dense forests are home to an estimated 200 to 500 lynx, although many hunters and trappers say that figure is much too low. Larger than the more common bobcat, lynx have big, fur-covered feet that allow them to pursue their favorite prey, the snowshoe hare, in deep snow.

DIF&W officials currently are seeking a federal permit that would protect the state legally for any “incidental take” of lynx by trappers.

But during Friday’s hearing, Woodcock pointed out that the permit – if one is issued at all – will not be complete by the time trapping season begins on Oct. 14. And under his reading of past case law, the state of Maine can be held liable for any lynx trapped during the upcoming season, Woodcock said.

“It is the law,” he said. “I don’t think there is any question about it, and I am obligated to follow the law.”

But attorneys for the state and several sportsmen’s organizations disagreed with Woodcock’s black-and-white interpretation of past case law.

Chris Taub, an assistant attorney general, and private attorney James Lister sought to place the liability burden on the individual trapper, not the state. The two men said that, just like Maine residents who hold a state-issued driver’s license, trappers are responsible for their own behavior.

While Woodcock appeared unmoved by that argument, he did spend considerable time questioning the two attorneys and a representative for API about the legal significance of steps that DIF&W recommends trappers take to avoid capturing lynx.

Taub and Lister, who was representing such groups as the Maine Trappers Association, the Sportsman’s Alliance of Maine and the U.S. Sportsmen’s Alliance, argued that trappers easily could avoid capturing lynx by following the state’s recommendations. An attorney for API disagreed.

Taub also pointed out that the U.S. Fish and Wildlife Service has never indicated that inadvertent trapping of lynx is a problem, nor has the agency ever penalized a trapper that accidentally caught a lynx.

“Certainly trapping is a take … but we feel there is very little evidence that the population is being harmed,” Taub said.

The two sides are expected to present evidence to Woodcock during hearings scheduled for Tuesday and Wednesday.