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Federalism and the Canada Lynx: Traps for the Unwary?

By Eric L. Lipman

In an interesting opinion issued late last month, the U.S. District Court for the District of Minnesota entered an injunction against the Minnesota Department of Natural Resources. The injunction directed the Department to apply for certain permits under the Endangered Species Act and to provide a ?proposal, to be submitted to the Court on or before April 30, 2008, to restrict, modify or eliminate the use the incidental taking of Canada Lynx through trapping activities in the core Canada Lynx ranges.?

The case arises out of a request for injunctive relief filed by the Animal Protection Institute and the Center for Biological Diversity, on claims that the Department of Natural Resources was violating the Endangered Species Act. The groups asserted that by authorizing trapping activities which, in some cases, later resulted in the capture ? or ?taking? ? of Canada Lynx, the DNR violated federal law. The Canada Lynx is designated as a threatened species under the Act.

In order for state officials to avoid liability for incidental takings of the Lynx, in the course of trapping activities that it licenses Minnesota trappers to take, state officials must hold a federally-issued Incidental Take Permit. The Department did not hold such a permit.

What makes Judge Davis? order especially noteworthy is that beyond the directive for Minnesota officials to obtain the required permit, the Court directs the agency to prepare and submit a plan of regulatory improvements for the Court?s review. Noting that additional state regulations are needed, Judge Davis wrote:

[D]espite the DNR?s regulations and the setting of trapping seasons, a risk exists that a taking of lynx will occur even when traps are set pursuant to existing regulations. The DNR also argues that Plaintiffs have put forth no evidence demonstrating that a lynx taking occurred when the trapper was following the relevant state and federal laws and regulations. This argument is misleading, however, as the DNR has not issued regulations to assist in the avoidance of lynx takings. Rather, the DNR has simply issued recommendations. As Plaintiffs point out, the fact that a trapper may not have followed the discretionary, unenforceable recommendations that are included in the DNR handbook should not exempt the DNR from liability. Trappers are not even required to read the DNR handbook on hunting and trapping.
?.

Given the fact that 13 takings have been reported since 2002, and that the DNR has not taken substantial steps to further protect lynx from takings, the Court finds it likely that additional takings may occur unless further regulations are implemented.

The Court?s complete analysis is accessible here.

Full post as published by Within the Scope on April 16, 2008 (boomark / email).