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Friends of Animals v. Phifer

United States District Court, D. Maine

February 15, 2017

FRIENDS OF ANIMALS, et al., Plaintiffs,
v.
PAUL PHIFER, in his official capacity as Assistant Regional Director of Ecological Services for the Northeast Region Office of the U.S. Fish and Wildlife Service, et al., Defendants, and STATE OF MAINE, et al. Intevenor Defendants.

          ORDER ON THE PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT

          JON D. LEVY U.S. DISTRICT JUDGE

         This case concerns the Canada lynx, a wild cat that typically weighs about twenty pounds and has long legs; large, well-furred paws; long tufts on the ears; and a short, black-tipped tail. Canada lynx are most commonly found in Canada and several states contiguous to Canada, including Maine. The U.S. Fish and Wildlife Service (the “Fish and Wildlife Service” or “the Service”) has listed Canada lynx as a threatened species under the Endangered Species Act, 16 U.S.C.A. §§ 1531-1544 (2016). 65 Fed. Reg. 16052-01 (Mar. 24, 2000), 2000 WL 299328 (F.R.).

         The State of Maine prohibits the trapping of Canada lynx, but allows the regulated trapping of many other animals such as coyotes, bobcats, fishers, foxes, martens, and other species. Because traps catch animals indiscriminately, Canada lynx can be caught in traps set to catch other species. When this happens, it is called a “take, ”[1] which is permitted by the Endangered Species Act only if an incidental take permit has been issued. 16 U.S.C.A. § 1539(a)(1)(B). In November 2014, the Service issued an Incidental Take Permit (the “Permit”) to the Maine Department of Inland Fisheries and Wildlife (“Maine”) which exempts the State from liability for incidental takes of Canada lynx resulting from its state-regulated trapping programs. AR-0070422.[2] In response, two sets of plaintiffs filed separate actions asserting that the Permit violates both the Endangered Species Act and the National Environmental Policy Act, 42 U.S.C.A. § 4321, et seq. (2016). All claims are brought under the Administrative Procedure Act, 5 U.S.C.A. § 706 (2016).

         The first action was filed against the Service and its then-director, Daniel M. Ashe, by three environmental advocacy organizations: the Center for Biological Diversity, the Wildlife Alliance of Maine, and the Animal Welfare Institute. The second action was filed by a fourth organization, Friends of Animals, against Director Ashe and against Paul Phifer, in his capacity as the Assistant Regional Director of Ecological Services for the Northeast Region Office of the Fish and Wildlife Service. The two cases were ordered consolidated in October 2015. The State of Maine, U.S. Sportsmen's Alliance Foundation, Maine Trappers Association, and National Trappers Association have intervened as defendants. This matter is before the court on the cross-motions for summary judgment filed by the Plaintiffs and the Service. For the reasons explained below, the Plaintiffs' Motion for Summary Judgment is denied and the Service's Cross-Motion for Summary Judgment is granted.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The 2006 Litigation and the 2007 Consent Decree

         In 2006, the Animal Protection Institute, a national, nonprofit animal advocacy organization based in California, sued Maine, alleging that it was violating Section 9 of the Endangered Species Act, 16 U.S.C. § 1538, by authorizing and allowing trapping that killed protected species such as bald eagles, Canada lynx, and gray wolves. Animal Protection Institute v. Martin, Case No. 1:06-cv-00128-JAW, ECF No. 1 at 1-2, ¶ 1. In 2007, Judge John A. Woodcock, Jr., entered a Consent Decree and Order in the Martin case which required Maine to adopt numerous measures to minimize the incidental take of Canada lynx in Maine's recreational trapping program.[3] 1:06-cv-00128-JAW, ECF No. 134 at 2-6. The Consent Decree also permitted Maine to seek an order from the court terminating the decree if the Fish and Wildlife Service issued an incidental take permit pursuant to the Endangered Species Act that authorized the State's trapping program.

         B. Maine's Application for an Incidental Take Permit

         Maine filed its first application for an incidental take permit with the Fish and Wildlife Service in June 2007, AR-0007618-0007843, and over the next seven years it submitted multiple revised drafts of its Incidental Take Plan in response to the Service's comments. AR-0008787-0008807; AR-0009869-0010146; AR-0011188-0011508; AR-0013350-51; AR-0070457-0070458. Maine submitted the final version of its Incidental Take Plan in October 2014, in which it proposed that up to 195 lynx[4]could be incidentally trapped over a fifteen-year period, of which up to three could involve lethal take, and up to nine lynx could experience a major injury. AR-0070103.

         In October 2014, the Service issued an Environmental Assessment as required by the National Environmental Policy Act, which addressed the environmental impact of Maine's proposed Incidental Take Permit. AR-0069861-0070041. The Environmental Assessment concluded that the proposed Incidental Take Permit would not be a major federal action that would significantly affect the quality of the human environment and, therefore, a more comprehensive Environmental Impact Statement was not required for the Permit. AR-0069954-56; see also AR-0070462-64. Also in October, the Service issued its Biological Opinion, a requirement of Section 7 of the Endangered Species Act.[5] AR-0070042-0070093. The Biological Opinion concluded that the proposed Incidental Take Permit was not likely to jeopardize the continued existence of Canada lynx or result in an adverse modification of any designated critical habitat. AR-007043. The Service approved and issued Maine's Incidental Take Permit in November 2014. AR-0070422-23.

         The Plaintiffs seek a declaratory judgment determining that: (1) the Service violated the Endangered Species Act by arbitrarily and capriciously approving the Permit; and (2) that the Service violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement for the Permit. The Plaintiffs also seek an injunction vacating the Permit, as well as reasonable costs, litigation expenses and attorneys' fees. As part of its response, the Service has challenged the standing of one of the four Plaintiffs, Friends of Animals, to sue.

         II. STANDARD OF REVIEW

         When reviewing a final agency decision for alleged violations of the Endangered Species Act or the National Environmental Policy Act, courts conduct their review under § 706(2)(A) of the Administrative Procedure Act. See Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 72 (D.C. Cir. 2011). Under the Administrative Procedure Act, the court must determine whether the agency's decision was made “without observance of procedure required by law, ” 5 U.S.C.A. § 706(2)(D), and whether it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (the “arbitrary and capricious” standard), id. at § 706(2)(A).

         “An agency acts arbitrarily or capriciously if it has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 574 (D.C. Cir. 2016) (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 997-98 (D.C. Cir. 2008)). Stated differently, “[t]he task of a court reviewing agency action under the [Administrative Procedure Act's] arbitrary and capricious standard is to determine whether the agency has examined the pertinent evidence, considered the relevant factors, and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir. 1999) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation marks omitted)).

         Regarding the National Environmental Policy Act, an Environmental Impact Statement is required if there is a “substantial possibility” that the agency action could significantly affect the human environment. Sierra Club v. Marsh, 769 F.2d 868, 870-76 (1st Cir. 1985). Judicial review must ensure that “the agency has taken a ‘hard look' at the environmental consequences” of the proposed action and the decision not to prepare an Environmental Impact Statement. United States v. Coalition for Buzzards Bay, 644 F.3d 26, 31 (1st Cir. 2011).

         III. LEGAL ANALYSIS

         I first address (A) the Fish and Wildlife Service's challenge to Friends of Animals' standing to sue, and then consider the Plaintiffs' challenges to the Permit under (B) the Endangered Species Act and, (C) the National Environmental Policy Act.

         A. Standing to Sue

         The Fish and Wildlife Service argues that Friends of Animals lacks standing to sue because the declarations submitted by members of the organization do not establish that the members suffered an injury in fact, which is one of the requirements for standing.

         The “irreducible constitutional minimum of standing contains three elements: (1) that the plaintiff suffered an injury in fact, (2) that there is a causal connection between the injury and the conduct complained of, and (3) that it is likely that the injury will be redressed by the requested relief.” Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir. 2009) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted)). The injury in fact requirement for standing arises from Article III of the U.S. Constitution, and requires that the alleged injury be both “concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1548 (2016) (internal quotations omitted).

         To demonstrate an injury in fact, Friends of Animals submitted declarations prepared by two of its members, Katherine Grazyk and Peter Weissbrod. The declarations indicate that as of the filing of the complaint, Grazyk and Weissbrod had never visited Canada lynx habitat, but that they had decided in December 2014 that they would plan a trip to view lynx or signs of lynx. They ultimately arranged an October 2016 trip to Moosehead Lake, which is at the southern edge of lynx habitat. Grazyk and Weissbrod asserted that their ability to view lynx or signs of lynx would be harmed if the Permit remained in place.

         In arguing that the declarations do not establish standing, the Service does not challenge the causation or redressability elements of standing, but only whether Grazyk and Weissbrod suffered a cognizable injury in fact. The Service asserts that: (1) Grazyk's and Weissbrod's trip to Moosehead Lake was scheduled to take place before the trapping season and, therefore, the Permit would have no adverse effect on their ability to view Canada lynx; and (2) the declarations are silent as to when Grazyk and Weissbrod made their plans to visit Moosehead Lake and, therefore, do not demonstrate that they had definite plans at the time Friends of Animals filed its complaint. Neither argument is persuasive.

         First, although Grazyk's and Weissbrod's visit to Moosehead Lake was scheduled to take place before the 2016 trapping season, Maine's Permit was in effect during the 2015 trapping season. Thus, any incidental take from the previous trapping season could have affected Grazyk's and Weissbrod's ability to view lynx in October 2016. In addition, the Service acknowledges that Moosehead Lake is located in one of Maine's Wildlife Management Districts in which lynx are found. Because it is reasonably possible that the Permit has or will, over time, diminish Grazyk's and Weissbrod's ability to observe Canada lynx in their natural habitat, the declarations establish a concrete injury that is actual or imminent. See Animal Welfare Inst. v. Martin, 623 F.3d 19, 25-26 (1st Cir. 2010) (Plaintiffs adequately alleged an injury in fact by asserting 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.”).

         Second, Grazyk's supplemental declaration establishes that she joined Friends of Animals in December 2014 having learned of possible threats to Canada lynx in Maine, and she decided at that time to visit Moosehead Lake to view Canada lynx. Grazyk's plan to visit Moosehead Lake, formulated prior to the filing of the complaint, was sufficiently definite to make the alleged threat of future harm to her and Weissbrod's ability to view Canada lynx in their natural habitat particularized as to them.[6] See Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1) (“For an injury to be ‘particularized, ' it ‘must affect the plaintiff in a personal and individual way.'”).

         Accordingly, Friends of Animals has standing to sue.

         B. The Endangered Species Act

         Section 9 of the Endangered Species Act, 16 U.S.C.A. § 1538(a)(1)(B), makes it unlawful to take a member of an endangered species. By regulation, it is also unlawful to take a member of a threatened species, that is, a species likely to become endangered in the foreseeable future. Animal Welfare Inst., 623 F.3d at 21 (citing 50 C.F.R. § 17.31(a)). As noted earlier, the Canada lynx is a threatened species.

         Section 10 of the Endangered Species Act, 16 U.S.C.A. § 1539, creates an exception to the general ban on taking endangered and threatened species. Under Section 10, the Service may issue a permit allowing “any taking otherwise prohibited by [the Endangered Species Act] if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” 16 U.S.C. § 1539(a)(1)(B). Before issuing the permit, the Fish and Wildlife Service must find that the taking will be incidental; that the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; that adequate funding for a habitat conservation plan will be provided; and that the taking “will not appreciably reduce the likelihood of the survival and recovery of the species in the wild.” Id. at § 1539(a)(2)(B)(i)-(iv).

         The Plaintiffs claim that the Service's decision to grant Maine's Incidental Take Permit was arbitrary and capricious in four respects: (1) the calculation of the cumulative amount of incidental take of Canada lynx that would be allowed during the Permit period; (2) the minimization of incidental take; (3) the mitigation of the impacts of incidental take; and (4) the adequacy of Maine's funding for its habitat conservation program. I address each issue in turn.

         1. The Incidental Take Calculation

         In its Permit application, Maine requested approval for a cumulative incidental take of up to 195 lynx over a fifteen-year period. AR-0070103; AR-0070433. Maine calculated this number by reviewing data on incidental lynx take from the years 1999 to 2012 and selecting the year with the greatest amount of take as the basis for its calculation. AR-0070164-65; AR-0070433. That year was 2004, during which eleven trapped lynx were reported. AR-0069927-28; AR-0070433; AR-0070164. Maine then added a twenty percent “allowance” of two additional lynx per year in order to adjust for uncertainties such as unreported lynx takes, larger traps, and the changing susceptibility of lynx to traps, id., bringing the estimated annual take to an average of thirteen lynx per year, or 195 lynx over the fifteen-year life of the Permit. Out of the cumulative total of 195 lynx, the application provided that up to three would be permitted to be killed or rendered non-releasable, up to nine would be permitted to be captured and released after treatment for severe injuries, and up to 183 would be permitted to be captured and released with no injuries or only minor injuries. AR-0070167-68; AR-0070462.

         The Plaintiffs argue that the Fish and Wildlife Service arbitrarily accepted Maine's take calculation despite the existence of certain alleged flaws in the data. They argue that the Service (a) failed to include data regarding incidental takes from 2013 and 2014 in the take calculation; (b) omitted illegally-set traps, unreported takes, and non-lethal takes from the take calculation; (c) failed to account for Maine's Animal Damage Control and Predator Management Programs; and (d) used inconsistent estimates of the baseline lynx population.

         (a) Data from 2013 and 2014 The Plaintiffs argue that the Fish and Wildlife Service acted arbitrarily by failing to consider take data from 2013 and 2014 in the data it relied on in approving the Permit. ECF No. 112 at 28 (citing AR-0058247). They claim that this is important because fourteen and twenty lynx were captured and released in 2013 and 2014, respectively, making each year's incidental take higher than 2004, the year with the highest take in Maine's data set, which was used to arrive at a cumulative take of 195 lynx over the fifteen-year life of the Permit. Id. The Plaintiffs calculate that if the 2014 take data were applied, then the total number of lynx taken under the Permit would rise eighty-five percent, from 195 lynx to 360 lynx. Id.

         (i) The 2013 Data

         Maine submitted its revised Incidental Take Plan to the Fish and Wildlife Service in March 2013, AR-0046896, and submitted a second revised Plan in July 2013, AR-0059419. At that point in time, it was reasonable for the Service to consider Maine's incidental take estimate based upon a data set that ended in 2012. Even the Plaintiffs acknowledge that at the time this methodology was accepted, the available data pertained to the years 1999 to 2012.

         Contrary to the Plaintiffs' argument, the Service accounted for the 2013 take data the following year in its October 2014 Environmental Assessment which noted that fourteen lynx had been incidentally trapped in 2013. AR-0069916 n.19. The Service concluded that the annual estimate of eleven trapped lynx was still accurate as a long-term average and observed that Maine had included the twenty percent allowance in its calculation to account for fluctuations in the anticipated annual take during the course of the Permit period, id.; AR-0069927-28, resulting in an estimated annual average take of thirteen lynx.

         The total of fourteen lynx trapped in 2013 was one more than the take calculation's estimated average of thirteen per year, and constitutes just the sort of fluctuation that the Service accounted for in the Environmental Assessment. Id. Moreover, as the Service asserts, the take authorization of 195 lynx is an upper limit under which a higher take may not occur, thus resulting in a more conservative take authorization that results in greater protection for the species. See Friends of the Wild Swan v. Jewell, 2014 WL 4182702, at * 6 (D. Mont. Aug. 21, 2014) (concluding that the Service “did not act arbitrarily or capriciously in choosing an analytical tool that resulted in greater protection.”). Thus, the Service's failure to adjust the take calculation in response to the 2013 data was neither arbitrary nor capricious.

         (ii) The 2014 Data

         On November 3, 2014, one day before the Fish and Wildlife Service issued the Permit, see AR-0070462-64, Maine notified the Service that the number of lynx trapped thus far that year had increased from three to thirteen. AR-0069857-58. The Service argues that it was reasonable for it to issue the Permit under those circumstances because thirteen captured lynx was consistent with the take calculation's projected annual average, and because there was no certainty that the number would increase during the remainder of the season.

         The Service issued the Permit almost immediately after learning that an entire year's worth of projected incidental take had already occurred during the early coyote and fox season, and just as the general 2014 trapping season was beginning.[7]Although the Service's contention that there was no certainty that more lynx would be captured during the remainder of the trapping season is undoubtedly correct, it is a weak ledge on which to rest given that the general trapping season was barely one day old and the take calculation was premised on an estimated average of thirteen takes per season. Nevertheless, two aspects of the administrative record demonstrate that it was not arbitrary or capricious for the Service to approve the Permit despite receiving this information one day before the Permit was issued.

         First, the Service had addressed the effects of a hypothetical “worst case scenario” on Maine's Canada lynx population in its October 2014 Biological Opinion.[8]The Service concluded that “even if lethal take from trapping in Maine was a magnitude higher than anticipated by [Maine], it is almost certain to be below the threshold for population effects.” AR-0070071. The Biological Opinion reasoned that if, in the span of one year, all three lynx permitted to be killed were killed, and all nine lynx that were permitted to be severely injured were severely injured and consequently failed to reproduce for the rest of their lifetimes, plus various additional uncertainties combined to cause an additional fifteen lynx deaths, the resulting 5.4 percent decrease in the lynx population was “far below the rates that occur in sustainable harvest programs.” AR-0070070. In fact, the Biological Opinion concluded that “annual trapping mortality would have to exceed 50 to 100 Canada lynx, or 10 to 20 percent [out of an estimated baseline population of 500] respectively, before Canada lynx populations would be impacted.” AR-0070071. In contrast with this finding, the thirteen captured lynx that the Service learned of the day before approving the Permit were all “released at the capture site with no or minor injury.” AR-0069857.[9]

         Second, Maine assumed in its Incidental Take Plan that there would be annual fluctuations in the amount of lynx trapped. See AR-0070217-19. The estimate of thirteen lynx per year was an average; thus, the prospect that the 2014 trapping season would exceed the average was not, without more, a reason to reject the Service's earlier analysis. Moreover, the Plan had accounted for the possibility that the number of incidental takes might exceed the projected average of thirteen per year by including a “changed circumstance” provision. Id. This provides for the implementation of additional minimization measures if the average number of incidentally-captured lynx exceeds thirteen per year over a rolling five-year period. Id.

         The worst case scenario employed by the Service as part of its Biological Opinion analysis assumed facts far worse than those presented by the 2014 data received the day before the Permit was approved. Because the Service factored the worst case scenario into its decision to approve the Permit, and with the Incidental Take Plan having provided for the implementation of additional minimization measures if the number of incidentally-captured lynx exceeds projections, the Service's decision not to reconsider the take calculation based on the 2014 year-to-date data was neither arbitrary nor capricious.

         (iii) Conclusion

         “The task of a court reviewing agency action under the [Administrative Procedure Act's] arbitrary and capricious standard is to determine whether the agency has examined the pertinent evidence, considered the relevant factors, and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Penobscot Air Servs., 164 F.3d at 719 (internal quotation marks omitted). Here, the record demonstrates that the Fish and Wildlife Service had a rational basis to proceed with issuing the Permit even after learning that a higher number of lynx had been captured in 2013 and 2014 compared to previous years, and despite the fact that the take calculation utilized a data set spanning the years 1999 to 2012. The Incidental Take Plan anticipated the possibility of a greater take and mandated additional minimization efforts if the number of lynx takes exceeded thirteen per year over a rolling five-year period. The record reflects that the Service considered the pertinent evidence, as well as several alternative approaches to analyzing the take calculation, see AR-0069928; AR-0069965; AR-0070434, and its explanation for adhering to an average annual take of thirteen lynx was rationally connected to the facts and the Permit's approval.

         (b) Unreported Takes, Non-Lethal Takes, and Illegally Set Traps

         The Plaintiffs contend that the Fish and Wildlife Service's decision to issue the Permit was arbitrary and capricious because Maine's take calculation omitted data from unreported takes, non-lethal takes, and illegally set traps. For the reasons that follow, I find these arguments unpersuasive.

         Turning first to unreported takes and non-lethal takes, the Plaintiffs rely upon notes made in October 2014 by one or more Service staff members that were critical of a revised draft of the Environmental Assessment. AR-0066009. They also rely upon staff notes expressing concern that the methods used to develop the take calculation were “confounded by assumptions” and “uncertainty.” AR-0058249.

         Although it is noteworthy that one or more Service staff members were critical of how unreported and non-lethal takes were accounted for in the take calculation, such criticism does not, by itself, render the Service's acceptance of the take calculation arbitrary and capricious. Turtle Island Restoration Network v. U.S. Dep't of Commerce, 2013 WL 4511314, at *5 (D. Haw. Aug. 23, 2013) (“The court sees no reason to attribute to any agency every comment made by agency employees during preliminary and internal discussions preceding the agency's articulation of its position.”); see also Nat'l Wildlife Fed'n v. Norton, 306 F.Supp.2d 920, 928 n.15 (E.D. Cal. 2004) (citation omitted). This conclusion is bolstered by the fact that the Service identified portions of the administrative record which indicate that it gave due consideration to unreported takes and non-lethal takes before approving the Permit. For example, in a 2013 memorandum prepared as part of a revision to its Permit application, Maine indicated that there was little to no evidence supporting the claim that many incidental takes of lynx went unreported. AR-0049221 (“[s]ome members of the public commented that many incidentally trapped lynx are not being reported . . . [but Maine] has observed good compliance with mandatory reporting of incidental lynx captures.”). The memorandum also states that prior to the introduction of a 2008 rule making it mandatory to report an incidental lynx capture, eighty-one percent of the lynx caught in traps were reported to Maine by trappers, id., and that after the mandatory reporting requirement went into effect, twenty-three out of twenty-four lynx that were captured since 2009 were reported, id. Additionally, in its Environmental Assessment, the Service determined that “[Maine] has addressed the potential for non-reporting in several ways[, ]” including increased compliance checks by Maine game wardens and existing federal and state penalties. AR-0069966.

         With regard to the Service's decision not to include illegally-set traps in the take calculation, this court previously determined in Martin that “the state's licensure and regulation of trapping must be the ‘stimulus' for the trappers' conduct that results in incidental takings . . . [and] the trappers' conduct must not be an independent intervening cause that breaks the chain of causation between the state and the incidental takings of lynx.” Martin, 588 F.Supp.2d at 113 (quotation omitted). Thus, unlawful take resulting from actions that violate the rules or statutes associated with Maine's trapping program is not “incidental” to that program. AR-00704427. Consistent with this view, the Incidental Take Plan provided that trappers who set illegal traps “would be subject to prosecution for violations of [s]tate and [f]ederal law.” AR-0070150 (“[I]f . . . a violation of rule or law is found to have caused or contributed to the capture or subsequent injury or fatality, then . . . the capture will not count toward [Maine's] authorized take under the [P]lan.”). The Service scrutinized Maine's commitment to “investigate every lynx capture event, in cooperation with the Service law enforcement staff, ” and to prosecute illegal activities “to the full extent of the State and Federal law.” AR-0070442. It found the process established by Maine to be “practicable and reasonable.” Id.

         For the foregoing reasons, it is apparent that the Service weighed the relevant factors and had a rational basis to exclude illegally-set traps from the take calculation. Its decision to do so was not arbitrary and capricious.

         (c) Maine's Animal Damage Control or Predator Management Trapping Programs

         The Plaintiffs fault the Fish and Wildlife Service for not increasing the take calculation to account for Maine's Animal Damage Control and Predator Management trapping programs which, they claim, added significantly more trapping and increased potential take. ECF No. 112 at 18 (citing AR-0046859; AR-0046872). They also note that according to the Incidental Take Plan, forty percent of incidental takes in 2012 were from trappers enrolled in the Predator Management Program. Id. at 29 (citing AR-0070164). The Plaintiffs argue that the take calculation should have been increased to account for this fact. Id.

         With respect to the Animal Damage Control Program, the Plaintiffs' argument is undercut by the Service's Environmental Assessment. The Service found that the Animal Damage Control Program is aimed primarily at trapping beaver and that no lynx have ever been reported caught by Animal Damage Control trappers. AR-0069876; AR-0070149. Regarding the Predator Management Program, the Plaintiffs' argument is contrary both to the draft Incidental Take Plan that they cite as well as the final Incidental Take Plan. AR-0046859; AR-0070380. Both Plans indicate that the Predator Management Program “is not expected to significantly increase statewide trapping effort but rather redirect existing efforts to . . . specific Designated Areas.” Id.

         Additionally, the number of incidental takes attributable to the Predator Management Program does not demonstrate that the Service arbitrarily accepted an improperly low take calculation. The Incidental Take Plan reflects that Maine took the number of captures from the Animal Damage Control and Predator Management Programs into account. The Service found that “[f]or the purposes of the projected take calculations for this Plan, the maximum capture rate was used for both programs[.]” AR-0070165.

         Based on the record, the Service did not arbitrarily or capriciously accept a take calculation that failed to account for Maine's Predator ...


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