December 5, 2008

District of Maine Canada lynx litigation

By District of Maine Canada lynx litigation

U.S. District Judge Woodcock issued an interesting decision last week in the Canada lynx litigation.  The decision is available here.  Among other things, Maine claimed that it should not be required to impose further restrictions on wild animal trapping because, according to Maine, under "the tort concept of proximate cause and, measured against basic principles of proximate causation, a state does not cause an incidental take [of lynx] by allowing a trapping season for other animals."

The court's response was that the question of whether a state is the proximate cause of an incidental take by virtue of a permit program is answered by looking at the general intent of the permitees:

[I]n terms of causation, the distinction between motorists and trappers seems obvious: the trapper is seeking to trap animals; the motorist is not. The causation requirement would, therefore, apply with special force to the exercise of a ubiquitous legal activity, such as driving, which has a statistically miniscule likelihood of taking a lynx. By contrast, by authorizing trapping, Maine creates the likelihood that lynx-along with the preferred animal-will find its way into a trap.

The decision contains several other noteworthy analyses, not the least of which it its reliance upon the Supreme Court's recent decision in Winter v. NRDC. Winter is cited throughout the opinion even though, as the court pointed out, Winter was not an Endangered Species Act preliminary injunction case as was before Judge Woodcok. For more on this issue, see PLF on ESA's previous post on Winter

As a result of the decision, Maine was required to bolster its trapping regulations to better prevent incidental takes of lynx. Today's Bangor News reports that the new regulations were issued yesterday.  The regs can be downloaded here.

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