Time to Un-list the Lynx?|
By Gerry Lavigne
Predictably, it was not enough for anti-trapping zealots that the Department of Inland Fisheries and Wildlife (DIFW) closed the remainder of the trapping season in northern Maine, following the trapping death of two lynx. During January, Washington DC based Friends of Animals (FoA) filed suit against the US Fish and Wildlife Service (USFWS) over their issuance of an Incidental Take Permit (ITP) to DIFW covering accidental trapping take of Federally-Threatened Canada lynx in Maine. FoA alleges that the USFWS decision to issue the ITP was “arbitrary, capricious, an abuse of discretion, and otherwise in violation of federal law”. In a press release, FoA stated: “This unthinkable decision sacrifices members of a species listed as threatened with extinction under the Endangered Species Act (ESA) --.”
Threatened with extinction? Maine lynx? The population that exceeds 1,000 adults and has been increasing for 25 years? Yes, that population! The predicament that the USFWS now finds itself in is a familiar one for this agency. It stems from the fact that Maine lynx were never really in need of federal protection, but they were wrongfully listed as Federally-Threatened under the ESA 15+ years ago. Unfortunately, as with other lawsuits filed (or threatened) concerning lynx in Maine in the past (2009, 2007, and 2003), it will be Maine trappers and hunters who stand to lose, not the USFWS. We are long over-due to right the wrong done to lynx management in Maine in 2000. It is time to un-list the lynx in Maine and return management solely to DIFW. This is different from de-listing, where the USFWS and anti-trapping and hunting zealots would retain their stranglehold on lynx management. We need to demonstrate that the USFWS erred in declaring that Maine lynx were threatened with extinction in the first place.
This will not be as daunting a task as it may seem. The USFWS has already provided all the legal documentation we need to prove they erred when listing Maine lynx in 2000. After being sued by the anti’s in the mid-1990s for not listing the lynx under the ESA, the courts forced the USFWS to pursue the listing. Accordingly, the USFWS listed the lynx as threatened under the ESA in 2000, and published it in their legal record (called the Federal Register). In declaring their reasons for listing, the USFWS admitted several times that they made the listing using the best scientific and commercial information available at the time (1999). But USFWS also stated repeatedly that data on population status, persistence, and habitat use of lynx in the Northeast was limited, at best.
The first glitch in the legal record is the reason USFWS used to legally justify the threatened listing. Of the five possible legal criteria, the USFWS found only one they could use, i.e., “inadequate conservation measures on federally-owned lands”. The feds rejected the others, including inadequate habitat, over-harvest, predation, and other man-caused mortality. The legal problem for the USFWS is that there is no federal land supporting lynx in Maine. Given this fact, how could the USFWS legally justify including Maine in the ESA listing?
Secondly, it seems that the antis weren’t entirely happy with the feds for listing lynx as Threatened under the ESA. They wanted lynx to be listed as Endangered. Works for them! An Endangered listing under the ESA allows the feds to use a much heavier hand in curtailing “threats” to lynx recovery, namely trapping, hunting, timber harvest, and other land-use. Soon after the listing in 2000, Defenders of Wildlife and a slew of their camp-followers filed suit in federal court alleging that the threatened listing was “arbitrary and capricious”. The court agreed, and it remanded the USFWS to re-justify its decision to list the lynx as threatened. The USFWS’s legal response was published in the Federal Register in 2003. That document put the USFWS on the legal record declaring several points relevant to the inclusion of Maine in the lynx listing in 2000.
The feds successfully justified the Threatened listing before the court. They did so, in part, by refining their assessment of lynx population status, habitat, persistence, and threats, based on a veritable flurry of research conducted since the 2000 listing. In the Northeast, DIFW was at the forefront of this research activity, having established an intensive lynx research effort in 1999. That research investment paid off handsomely, as the USFWS used this new information in its legal declarations in the 2003 Federal Register and before the court.
In their 2003 assessment of the lynx population in Maine, the USFWS declared that:
1. Lynx were more abundant and widely distributed in Maine than formerly thought (in 2000).
2. Lynx have persisted continuously in Maine, albeit at varying densities, since at least the mid-1800s, despite harvests, bounties, and more recently incidental catch by trappers.
3. Lynx in Maine are a resident, reproducing population directly connected with the metapopulation located south of the St. Lawrence River. The Canadian portion is in the Gaspe Peninsula of Quebec, and in northwestern New Brunswick.
4. Lynx move unobstructed between Maine and southeastern Canada (and vice versa).
5. Core lynx habitat (spruce-fir forests in deep snowfall areas) is more extensive than previously thought.
6. The Canadian portion of the Northeastern lynx metapopulation is 84%, while the US portion (almost entirely in Maine) comprises 16%. Total area used by lynx in the Northeastern metapopulation approximates 32,600 sq. mi., an area larger than Maine.
7. Core lynx habitat in Maine has remained relatively stable and available, (though variable in quality) for at least 100 years.
8. Incidental take by trapping, as well as other “threats” such as vehicle collisions, predation and competition for hares do not threaten persistence of the lynx population in Maine.
9. Low densities of lynx in the Northeast metapopulation (relative to populations north of the St. Lawrence River) are normal, and are due to lower densities of their primary prey, snowshoe hare.
10. The USFWS in their response to the court in 2003 concluded: “Lynx in Maine are not in danger of extinction”.
While that conclusion legally exempted the Maine lynx population from being listed as Federally-Endangered, it and the associated facts declared by the feds in this lawsuit also preclude listing Maine lynx as Federally-Threatened. Here are the legal definitions of Endangered and Threatened under the ESA, taken from the 2003 Federal Register:
Endangered -- any species which is in danger of extinction throughout all or a significant portion of its
Threatened -- any species which is likely to become an endangered species within the foreseeable future
throughout all or a portion of its range.
Given the declaration of low threat status in Maine and the conclusion that lynx in the Northeast US, i.e., Maine are not threatened with extinction, the USFWS cannot legally justify its ESA listing as Threatened for Maine’s lynx population. The USFWS could not identify any threat looming in the “foreseeable future” that would drive Maine lynx toward extinction. The facts have been right under our noses since 2003, but no one has challenged the USFWS on this point. The antis certainly won’t do so.
For the record, all of the data which DIFW collected from 2003 to the conclusion of their lynx research effort in 2011 reinforces the above facts regarding the status of lynx in Maine. Going forward, it’s hard to argue that something unforeseen and ominous lies on the horizon that will end the 150+ years of lynx persistence in Maine. In their 2003 declaration to the court, the USFWS even dismissed the much-theorized effects of “global warming” as speculative and not a consideration at this time. I am confident that any objective Population Viability Analysis of lynx status in Maine would conclude that this population does not warrant protection under the Federal ESA. It is also noteworthy that Maine lynx have never qualified for state-listing as Endangered or Threatened by DIFW.
Nor can we expect the USFWS to voluntarily do the right thing. During 2003, the year the feds made these declarations in the Federal Register, the USFWS stood by when DIFW was threatened with a lawsuit, leading to the loss of our coyote snaring program. The feds also stood by and allowed DIFW to be sued in 2007 and 2009, leading to severe restrictions on trapping in Northern Maine. Worse, the feds hemmed and hawed for 7+ years, essentially delaying issuance of DIFW’s trapping ITP. I now wonder how vigorously the USFWS will defend their current lawsuit by FoA over the issuance of that ITP?
I am uncertain how we should proceed with this information. The facts, both legal and biological, appear to be on our side. I am certain, however, that the only way to restore rational balance between protecting lynx and promoting lawful trapping opportunity and predation control in Northern Maine is to un-list the lynx and return its management solely to DIFW.
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