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Humane Society of United States v. Kienzle

United States District Court, D. New Mexico

July 16, 2018

HUMANE SOCIETY OF THE UNITED STATES, ANIMAL PROTECTION OF NEW MEXICO, JEAN OSSORIO, and PETER OSSORIO, Plaintiffs,
v.
PAUL M. KIENZLE, III; WILLIAM MONTOYA; ROBERT ESPINOZA, SR.; RALPH RAMOS; BOB RICKLEFS; ELIZABETH ATKINSON RYAN; THOMAS SALOPEK; and ALEXANDRA SANDOVAL; Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

         THIS MATTER comes before the Court upon the following motions following oral argument:

Defendants' Motion for Summary Judgment, filed October 27, 2017 (Doc. 79); and
Plaintiffs' Motion for Summary Judgment, filed December 8, 2017 (Doc. 88).

         Having reviewed and considered the parties' cross-motions and the applicable law, the Court is denying Plaintiffs' motion and granting Defendants' motion.

         BACKGROUND

         The relevant entities in this lawsuit are:

Plaintiffs:Humane Society of the United States Animal Protection of New Mexico Jean Ossorio Peter Ossorio
Defendants:Individual Commissioners of the New Mexico State Game Commission;
New Mexico State Game Commission:“Commission”
New Mexico Department Of Game and Fish ''Department”
United States Fish And Wildlife “FWS”

         Plaintiffs in this case allege that the Defendants, who are the Commissioners of the New Mexico State Game Commission, have adopted regulations that authorize trapping of cougars and that by so doing, will cause “take” of Mexican gray wolves in violation of the Endangered Species Act (“ESA”), 16 U.S.C. §§1531-1544 (“ESA”), in particular, §9 and §10(j), and its relevant federal regulations. Plaintiffs seek a Court order enjoining the state trapping regulations.[1]

         The New Mexico Department of Game and Fish (“Department) reviews and proposes updates to hunting and trapping regulations, including those that apply to trapping of cougars. The New Mexico State Game Commission (“Commission”) has ultimate authority to adopt such hunting and trapping regulations. N.M.A.C. § 19.31.11.3. In 2016, Defendants authorized recreational trapping and snaring for cougars on state trust land and private deeded lands throughout the state, making New Mexico the only state that authorizes the recreational trapping and snaring of cougars. (Hereinafter, the rules and regulations relating to the trapping and snaring of cougars will be referred to as the “Cougar Rule”). Plaintiffs allege the adoption of the Cougar Rule threatens Mexican wolves and that it will cause cougar trappers to trap and snare Mexican wolves without due care because it is impossible to modify cougar traps to avoid harming wolves. Plaintiffs contend that because the state has licensed the trapping activity, it is liable for the conduct of the trappers.

         Parties anticipate that this case can be resolved at the summary judgment stage, based on their cross-motions. Doc. 108, ¶2. Both sides have presented voluminous amounts of material as evidence, including numerous Declarations by individuals who have not been designated as experts, according to the parties' own representations. Doc. 108, ¶6. The Court considers all of these statements and weighs them as opinion testimony based solely on the personal experience of these individuals. See Fed.R.Evid. 701.

         I. Relevant Law

         A. The Endangered Species Act

         Congress enacted the ESA in 1973 to “provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction.” Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000) (“Wyo. Farm Bureau”) (quoting S. Rep. No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N. 2989). The ESA provides various levels of protection depending upon how a species is classified. The three ESA classifications are: (1) endangered, (2) threatened, and (3) experimental populations. See 16 U.S.C. §§ 1538(a), 1539(j). “Endangered” species are entitled to the highest level of protection. See Animal Welfare Inst. v. Martin, 588 F.Supp.2d 70, 97-98 (D. Me. 2008) (internal citation omitted).

         When a species is listed as endangered, ESA § 9(a)(1)(B) prohibits all take of the species. 16 U.S.C. § 1538(a)(1)(B). The ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” Id. § 1532(19The ESA does not expressly prohibit take of threatened species although it allows the United States Fish and Wildlife Service (“FWS”) to promulgate protective regulations for threatened species. Id. 16 U.S.C. § 1533(d). Plaintiffs emphasize the broad scope of activities included in the ESA's definition of “take, ” arguing that even if no wolf has been caught in traps set for cougars, Defendants' conduct still constitutes a take because it is an “attempt” at a “take.” However, an “attempt to take” implies an intent that is directed at wolves and would not include those instances where wolves may be caught in traps that were meant for cougars. There is no evidence in this case of any specific intent to trap Mexican wolves, and so the Court finds the use of “attempt” inapplicable.

         The FWS has promulgated a rule applying the ESA § 9 take prohibition to all threatened species, subject to certain exceptions. 50 C.F.R. §§ 17.31, 17.40-17.48. Experimental populations authorized for release under ESA section 10(j) are “treated as if . . . listed as a threatened species for purposes of establishing protective regulations under section 4(d). . . .” 50 C.F.R. § 17.82; see also 16 U.S.C. § 1539(j).

         The designation of an animal is pertinent to any analysis where the Department is being challenged on its regulations and policies relative to the ESA. Special rules have been promulgated relating to experimental populations, such as the Mexican wolf population, which provide an exception to §9's take prohibition under the ESA. One of these rules is 50 CFR §17.84(k) which addresses “unavoidable and unintentional take.” The regulation states that a violation of the ESA does not occur when take is incidental to a legal activity and is not a result of negligent conduct lacking reasonable due care, and when due care was exercised to avoid the taking. In a fairly recent unpublished District of New Mexico case, the court contrasted the taking of an animal under the special rules applied to experimental populations, with taking of an animal on the endangered species list:

Under the special rules applied to experimental populations, the taking of a wolf with a trap or other type of capture device within occupied wolf range would not be considered unavoidable, accidental, or unintentional, but no violation occurs if “due care was exercised to avoid taking a wolf.” Id. Thus, a trapper engaged in lawful trapping of furbearer animals, who was careful and sought to avoid capturing a wolf, would not violate the law. In contrast, under the § 9 prohibition on taking, it matters not if a trapper exercised due care to avoid taking a listed animal. Any taking of a listed animal under § 9 is a violation of law, and indeed, ESA § 9 does not contemplate any type of trapping of a threatened or endangered species that is not an experimental population.

WildEarth Guardians v. Lane, No. CIV 12-118 LFG/KBM, 2012 WL 6019306, at *21 (D.N.M. Dec. 3, 2012), as amended (Dec. 4, 2012). Thus, the designation of the Mexican gray wolf is not altogether irrelevant when considering measures taken by the Department in trying to minimize risk of injury to wolves when enacting the Cougar Rule.

         The FWS promulgated a rule relating to the experimental population of the Mexican gray wolf in 1998, designating the population as “nonessential” under the ESA. 50 C.F.R. § 17.84(k). The rule was amended in 2015 to modify the geographic boundaries in which Mexican gray wolves are managed, to modify certain other provisions to facilitate management activities, and to revise the “due care” criteria to “allow for trapping to occur in a way that reduces harm to Mexican wolves.” Revision to the Regulations for the Nonessential Experimental Population of the Mexican gray wolf, 80 Fed. Reg. 2512, 2534, 2548 (Jan. 16, 2015) (“10(j) Rule”).

         B. The Cougar Rule

         Under the Cougar Rule, hunters who possess both a valid cougar license and a valid furbearer license may use traps or foot snares to harvest cougars on state trust land, or private deeded land with written permission from the landowner. N.M. Admin. Code § 19.31.11.10(O). Hunters must comply with the “regulations on methods, trap specification, trap inspection, and cougar removal as defined in 19.32.2.10 NMAC (Manner and Method of Taking Furbearers), and 19.32.2.11 NMAC (Trap Inspection and Furbearer Removal”). Id. These provisions include limitations on the size and type of traps. See, e.g., N.M. Admin. Code § 19.32.2.10.B(2). Further, it is unlawful to hunt cougars without completing a mandatory cougar identification course. N.M. Admin. Code § 19.31.11.9(G). The extent to which cougar trapping in New Mexico is authorized is limited in a number of other respects. For example, trapping is only permitted on certain lands, N.M. Admin. Code § 19.31.11.10(O)-(P), and where trapping is authorized, the season is limited from November 1 through March 31, or until the total mortality limit, or female sub-limit, is met, whichever comes first. N.M. Admin. Code § 19.31.11.12(B).

         The Complaint asserts three claims, with Counts One and Two alleging claims for relief for illegal take of Mexican wolves and Count III for illegal take of jaguar. Count III was dismissed by the Court on standing grounds, Doc. 28 at 28-29, and so the only remaining claims for relief are Counts I and II which allege take of Mexican wolves. Plaintiffs seek declaratory and injunctive relief to bar Defendants from implementing those parts of the Cougar Rule that authorize cougar trapping or snaring, and specifically preventing the Department from authorizing the opening of a cougar trapping and snaring season. The Court recently denied Defendants' motion to dismiss under Fed.R.Civ.P.12(c) and found that Plaintiffs had sufficiently alleged that the regulations that authorize cougar trapping by state-licensed trappers increase the risk of harm to Mexican wolves. Doc. 86. There is now a more complete record upon which the Court can resolve the issues in this case.

         C. Summary Judgment Standard

         Both parties have moved for summary judgment. A motion for summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). As the Tenth Circuit has explained, “mere assertions and conjecture are not enough to survive summary judgment.” York v. AT&T, 95 F.3d 948, 955 (10th Cir. 1996). To avoid summary judgment, a party “must produce specific facts showing that there remains a genuine issue for trial and evidence significantly probative as to any [material] fact claimed to be disputed.” Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir. 1988) (quotation marks and citations omitted).

         The fact that both parties have moved for summary judgment does not permit the entry of a summary judgment if disputes remain as to material facts. See Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir.1979). Cross-motions for summary judgments, however, do authorize a court to assume that there is no evidence which needs to be considered other than that which has been filed by the parties. See Harrison W. Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.1981) (citations omitted).

         II. Facts[2]

         The Mexican Gray Wolf Experimental Population Area (“MWEPA”) includes the area south of Interstate 40 in New Mexico and establishes special protections for Mexican wolves in that area. 80 Fed. Reg. 2, 512 (Jan. 16, 2015); 50 C.F.R. § 17.84(k). Within the MWEPA, federal law prohibits “[t]aking a Mexican gray wolf with a trap, snare, or other type of capture device . . . unless due care was exercised to avoid injury or death to a wolf.” Id. §17.84(k)(5)(iii) (emphases added). Mexican wolves outside the MWEPA are treated as endangered species, meaning that the take of a wolf through trapping or snaring is per se unlawful. Id. §§ 17.11, 17.21.

         According to FWS, Mexican wolves currently occupy an area identified in the “Mexican gray wolf Occupied Range Map, ” which is updated biweekly based on the location of radio-collared Mexican wolves. In other words, much of the land open to cougar trapping overlaps with the MWEPA, and much of the land classified by the Defendants as prime cougar habitat within New Mexico also lies in key Mexican gray wolf habitat all within the MWEPA. See Arrivo Decl. (Doc. 97) & att. Exs. B & P (under seal) (maps showing occupied Mexican wolf range).

         The Cougar Rule allows trapping and snaring within the MWEPA and the known current range of Mexican wolves in New Mexico. Individuals with a Cougar License and Trapping Permit may set an unlimited number of traps and snares for cougars.

         The Department's “Cougar Density Model” from 2010 represents Defendants' official estimate of the location and abundance of cougars in the state. Arrivo Dec, Ex. C (Department Cougar Zone Map and Habitat Model).[3] The Cougar Rule relied on this model to develop recreational hunting and trapping harvest limits or “quotas, ” such that areas of higher estimated density correspond to higher quotas. Arrivo Dec. (Doc. 97), Ex. D (Department Cougar Population and Harvest Management Matrix).

         The Cougar Rule has now been in effect for two full trapping seasons, from November 1, 2016 to March 31, 2017. Goldstein Decl., (Doc. 79-1), ¶ 4; Goldstein Decl. (Doc. 111), Reply, ¶¶4 & 5.[4] There are records of Mexican wolves being caught in traps, but there is not a single record evidencing that a Mexican gray wolf has ever been caught in a trap set for cougars. Ngo Decl. & Exs. A-R; Pachelli Decl. (Docs. 79-3 and 79-22); Goldstein Decl. (Doc. 111), Reply, ¶¶4 & 5). Plaintiffs admit that they are “unaware of any instance” in which a Mexican gray wolf has been caught in “a trap or snare set for cougars” either inside or outside the MWEPA after the Cougar Rule went into effect. Plaintiffs minimize this statement by noting that in the 2016-17 cougar trapping season, only four cougar trappings were reported. Ngo Declaration (Doc. 79-3). Exs. A-D. In a number of instances, the records of Mexican wolves being caught in traps specify the species that was targeted by the trapper, and in every instance where records specify the species that was targeted by a trapper who caught a Mexican gray wolf, the species targeted was not a cougar. Ngo Declaration (Doc. 79-3) Exs. F-K; see also Pachelli Declaration, ¶ 6.

         The Department has supplied staff time and contracted with persons to trap cougars in order to protect and manage bighorn sheep (Ovis canadensis) populations. This program is referred to as the “Bighorn Sheep Restoration Program.” Pursuant to direction from the Department, contractors hired for the course of the program have set traps for cougars on more than 60, 000 trap nights (defined as the number of traps set multiplied by the number of nights during which they were set) for 420, 000 hours over the past 15 years, from July 2002 to June 2017. These individuals have trapped 156 cougars, but they have never caught a Mexican gray wolf. Declaration of Elise Goldstein (“Goldstein Declaration”), ¶ 5.

         The Department has applied for and received federal grants to perform big game surveys, inventories, and management, including the Department's cougar trapping program. Pursuant to section 7 of the ESA, the FWS has evaluated whether the cougar trapping program will adversely affect Mexican wolves. It has concluded that the Department's cougar trapping program is not likely to adversely affect Mexican wolves. Deft's Fact 3; Goldstein Declaration (Doc. 79-1), ¶ 6; Ex. A.; see also WS and National Marine Fisheries Service, Consultation Handbook (1998) at 3-12, Doc. 79-2 at 5; (explaining that an action that “is not likely to adversely affect” a species means that “effects on listed species are expected to be discountable, or insignificant, or completely beneficial”).[5] Plaintiffs do not dispute the fact that the FWS came to the “not likely to adversely affect” conclusion, but nevertheless object to it because it purportedly pertains to professional cougar removal outside of the MWEPA and because it is not based on an independent FWS analysis of the Cougar Rule. Plaintiffs may not like the conclusions made by the Department regarding the Bighorn Sheep Restoration Program, but their objections do not create a material issue of fact about this program.[6]

         In Fact 5, Plaintiffs claim that under the Cougar Rule, the same rules that apply to the types of traps permitted for the trapping of other furbearers also apply to the setting of traps or snares for cougars within the MWEPA or currently occupied Mexican gray wolf range. They contend that these rules allow trappers to use laminated leghold traps with an inside jaw spread of up to seven inches, and nonlaminated leghold traps of any jaw spread, for trapping cougars. N.M. Admin. Code § 19.32.2.10. Pltffs' Fact 5. Plaintiffs' Fact 8 states that Mexican wolves caught in leghold traps or snares of the size authorized by the Cougar Rule may suffer injury or death. Arrivo Dec., Exs. G, H & K; Niemeyer Dec., ¶¶ 29-39; Hopkins Dec., ¶ 30.[7]

         Defendants dispute Plaintiffs' Fact 5 and 8 because under the New Mexico Administrative Code, all traps which have an outside jaw spread greater than seven (7) inches (including possible lamination) are not legal in New Mexico. NMAC §19.32.2.10. If the inside jaw spread is greater than five and on-half (5.5) inches, the trap jaws must be offset and padded. Id., Griego Decl., Doc. 99-1, ¶¶4-8.[8] The actual language of the regulation states:

No foot-hold trap with an outside spread larger than 7 inches if laminated above the jaw surfaces or tooth-jawed traps, shall be used in making a land set. All foot-hold traps with an inside jaw spread equal to or greater than 5.5 inches shall be offset unless they have padded jaws.

NMAC §§19.32.2.10(B)(2). Plaintiffs claim that the provision, by its express language, prohibits the use only of laminated traps with jaw spreads larger than seven inches and by default allows the use of nonlaminated traps that are over seven inches of jaw spread. See Niemeyer Decl., ¶15; Arrivo Decl., Exs. L & O (traps available for purchase generally).[9] Based solely on his own review of the regulation, and without any other evidentiary support, Mr. Niemeyer stated that traps with jaw spreads that exceed 7 inches may be used for trapping cougars, and that these traps would meet the New Mexico trapping regulation requirements “because their jaws are not laminated.” Doc. 89, ¶15. At the hearing, the Court questioned the basis for Plaintiffs' reading of the rule because it just did not make sense to prohibit the use of smaller laminated traps while allowing larger nonlaminated ones. In his Declaration, Mr. Griego stated:

The intent of the rule, as well as how it has historically been enforced, is that even if one or both of the jaws are laminated, the outside jaw spread cannot exceed seven (7) inches. If the inside jaw spread is greater than five and one-half (5.5) inches, the trap jaws shall be offset or padded. The maximum outside jaw spread size of seven (7) inches includes any possible lamination. Therefore, all traps which have an outside jaw spread greater than seven (7) inches are not legal in New Mexico.

Griego Decl., ¶¶6-7 (citing N.M. Admin. Code §§ 19.32.2.10(B)(2)). The Court clarified this issue at the hearing, where defense counsel explained that laminated traps were “more humane, ” and meant to trap rather than kill, but the rule ensures that the thickness of the lamination is taken into account and included in the total size of the jaw so that larger traps are not used simply by disregarding the width of the lamination. Based on the Court's reading of this administrative code provision and the other evidence on this point presented at the hearing, the Court is convinced that Plaintiffs' gloss of the provision is incorrect and that Defendants' reading of the rule is more in line with the purpose behind the administrative code. The only reasonable interpretation of the provision is that the New Mexico Administrative Code (and by extension, the Cougar Rule) does not allow use of foot-hold traps that are larger than 7 inches in diameter, taking into account the thickness of lamination. The Court therefore considers Plaintiffs' Facts 5 and 8 to be disputed as well as unsupported by evidence.

         DISCUSSION

         Defendants contend that Plaintiffs can neither establish standing nor succeed on the merits because since the Cougar Rule took effect, there is no evidence that a single Mexican gray wolf has been caught in a trap set for cougars. Further, since the Cougar Rule took effect, there are only two instances of a Mexican gray wolf being caught in any trap and in both instances, the traps were set for coyotes. Defendants also point out that even prior to the effective date of the Cougar Rule, there is no record of a Mexican gray wolf ever being caught in a trap set for cougars. Plaintiffs respond that a one-year season provides insufficient statistical evidence that wolves will not be caught in cougar traps; and that because there is no way to modify these traps to minimize or avoid capturing wolves, Mexican gray wolves will be harmed by the Cougar Rule.

         I. Standing (Injury-In-Fact)

         Defendants contend that Plaintiffs have failed to establish injury-in-fact as part of the requirements for standing. For standing purposes, a plaintiff must meet three elements. First, the plaintiff must have suffered an “injury-in-fact” that is both: (a) “concrete and particularized”; and (b) “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, the plaintiff must establish a “causal connection” between the injury and the defendant's acts. Third, the injury must be “likely to be redressed by a favorable decision.” Id.. A failure to meet any one of these three criteria constitutes a lack of Article III standing and requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See League of United Latin Am. Citizens, N.M. (LULAC) v. Ferrera, 792 F.Supp.2d 1222, 1229 (D.N.M. 2011).

         Defendants argue that Plaintiffs fail to show evidence of injury-in-fact. They contend that at this summary judgment juncture, Plaintiffs offer only bare assertions of perceived injury to Mexican wolves which are insufficient to confer standing. See Amigos Bravos v. U.S. Bureau of Land Mgmt., 816 F.Supp.2d 1118, 1128 (D.N.M. 2011) (no standing where plaintiffs' allegations were conjectural and hypothetical and where plaintiffs offered only inadmissible non-expert opinions as a basis for their standing in case). Defendants rely on the lack of any evidence that Mexican wolves have been trapped in traps intended for cougars either within or outside of the MWEPA.

         The Court has addressed the standing issue once before in the context of Defendants' motion to dismiss, and finds it unnecessary to do so again. Doc. 28 at 20 (finding that Plaintiffs had “adequately pled that imminent harm to the wolves . . . is “fairly traceable” to Defendants' actions”).[10] It is true that something more is expected in a summary judgment context in that Plaintiffs must now present sufficient evidence-not just allegations-in order to survive the standing inquiry. See Utah Ass'n of Ctys. v. Bush, 455 F.3d 1094, 1100 (10th Cir. 2006) (plaintiff must “set forth” by affidavit or other evidence “specific facts, ” which for purposes of the summary judgment motion will be taken to be true”) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)); Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996) (“Rio Hondo”) (at the summary judgment stage, injury in fact requires “a factual showing of perceptible harm) (citing Defenders of Wildlife, 504 U.S. at 566). However, as it turns out, the standard for showing an injury-in-fact for a standing analysis mirrors the inquiry used later on the merits question when determining whether Plaintiffs have shown the existence of the “harm” required for injunctive relief. The Court sees no need to do the same thing twice, and will not venture further into the standing question because (1) it has already been determined favorably to Plaintiffs and (2) the Court will take up the issue of whether injury or harm occurred when discussing the causation issue within the merits analysis.

         II. Liability of State Agencies

         In their cross-motion for summary judgment, Plaintiffs argue that state agencies are liable for authorizing and permitting conduct that is likely to cause take of endangered species. See Doc. 88 at 7. The Court has already passed on this issue, concluding that “a state licensing scheme can be a proximate cause of a taking in violation of the ESA.” Doc. 86 at 12 (Mem. Opin. & Order on Defts' Judgment on Pleadings). The Court need not make further findings on the issue.

         III. Standard for Showing of Harm: “Actual” or “Reasonably Certain”?

         Injunctive relief is available for a violation Section 9 of ESA. Defenders of Wildlife, 882 F.2d 1294, 1301 (8th Cir. 2015); Strahan v. Coxe, 127 F.3d 155, 166 (1st Cir. 1997); 16 U.S.C. § 1540(g)(1). However, parties disagree on the appropriate standard for an injunction to ensue. Defendants insist that in order to obtain injunctive relief, Plaintiffs must show that actual harm to Mexican wolves has already occurred in violation of §9 and the 10(j) Rule; but Plaintiffs claim that harm need not have actually occurred and the correct standard is whether the authorization of cougar trapping under the Cougar Rule causes “a reasonable likelihood of actual future harm” to the Mexican gray wolf. Based on an analysis of the available case law, the Court finds that Plaintiffs are correct on the standard to be used.

         The starting point is the complaint, which alleges a violation of ESA Section 9. ¶¶98-110. Plaintiffs specifically allege that Defendants will cause the unlawful take of Mexican wolves to be committed by authorizing cougar trapping and snaring within the MWEPA through the Cougar Rule and subsequent licensing and implementation, in violation of the Revised 10(j) Rule and Section 9 of the ESA. 16 U.S.C. § 1538(a)(1)(G), (g). Compl., ¶104. The term “take” is defined in Section 3(19) of the ESA to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The statute does not further define any of the terms found in this definition, but through regulation the FWS has further defined the terms “harass” and “harm.” “Harm” in the definition of “take” in the Act means an act which actually kills or injures wildlife. Such acts may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. 50 C.F.R. § 17.3. The FWS has defined the term “harass” to mean “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.” 50 C.F.R. § 17.3 (1997).[11]

         Defendants rely on two First Circuit cases: Am. Bald Eagle v. Bhatti and Strahan v. Linnon, which cites Bhatti. Relying on the ESA's definition of a “taking, ” the court in Bhatti concluded that the standard for establishing taking of species under the Act required showing of actual harm, rather than any numerical probability of harm:

Clearly, then, for there to be “harm” under the ESA, there must be actual injury to the listed species. Accordingly, courts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species.See Defenders of Wildlife v. Administrators,882 F.2d 1294 (8th Cir.1988) (enjoining the EPA from continuing its registration of strychnine after finding that continued registration of the substance resulted in poisonings of protected species); Sierra Club v. Yeutter,926 F.2d 429 (5th Cir.1991) (enjoining the United States Forest Service from even-aged lumbering following ...

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