The U.S. District Court for the District of New Mexico recently entered summary judgment against the Humane Society of the United States (HSUS) and other plaintiffs in a case brought under the Endangered Species Act (ESA) alleging that regulations issued by the New Mexico State Game Commission authorizing the recreational trapping of cougars (Cougar Rule) will cause a “take” of Mexican gray wolves in violation of the ESA. Humane Soc’y of the U.S. v. Kienzle, 2018 WL 3429924 (D.N. M. July 16, 2018).

The Cougar Rule authorizes recreational trapping of cougars on state trust land and private deeded lands throughout the state, making New Mexico the only state authorizing the recreational trapping and snaring of cougars. The Mexican gray wolf is also found in New Mexico. U.S. Fish & Wildlife Service regulations issued under the ESA establish the Mexican Gray Wolf Experimental Population Area (MWEPA), an area sought of Interstate 40 in New Mexico within which Mexican gray wolves cannot be taken with a trap or snare or other capture device unless due care is exercised to avoid injury or death to the wolf. Outside the MWEPA, the gray wolf is treated as an endangered species meaning that any take of such animal through a trap or snare is per se unlawful. Plaintiffs claimed that the Cougar Rule will result in unlawful “takes” of Mexican gray wolves because it will cause trappers to trap and snare the wolves since it allegedly is impossible to modify the traps to avoid harming the wolves. This claimed effect of the Cougar Rule, according to the plaintiffs, rendered the state agencies liable for the alleged “take.” Plaintiffs sought an injunction against the Cougar Rule.

The district court denied plaintiffs’ motion for summary judgment and granted the summary judgment motion of the defendants.

The parties differed as to the standard for injunctive relief. The district court found that the standard to apply is “whether there is a reasonable likelihood or reasonable certainty of actual future harm to the Mexican gray wolf.” 2018 WL 3429924, at *11. Actual harm, however, had yet to occur. As the court observed:

“No Mexican wolves were trapped in traps set for cougars for the two trapping seasons that the Cougar Rule has been enacted. … In addition, during the 420,000 hours over the past 15 years of the Bighorn Sheep Restoration Project, from July 2002 to June 2017, government contractors trapped 156 cougars, but they never caught a Mexican gray wolf.”

Id. In addition to the fact that no protected wolves had been caught in cougar traps over the past two years, the court rejected the “taking” claim because plaintiffs could not create an issue of fact as to the evidence presented by defendants:

“Plaintiffs have argued that use of larger traps and overlapping territory will make it nearly inevitable that wolves will be caught in traps set for cougars, but they fail to rebut the facts and evidence presented by Defendants showing that measures can be taken either by use of habitat or compliance with trapping policies and regulations, to minimize any risk of harm to Mexican wolves.”

Id. at *21.