Friends of Animals v. Phifer (238 F. Supp. 3d 119, 2017)

ORDER ON THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT

JON D. LEVY, UNITED STATES 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. §§ 1581-1544 (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,” 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. 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. 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 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. ARt0069861-0070041. 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. 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 664, 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, 103 S.Ct. 2856, 77 L.Ed.2d 443 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (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 Weiss-brod’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. See Spokeo, 136 S.Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130) (“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 Spécies 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, thé application provided that up to three would bé 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, unrepo'rted 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. EOF 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. Although the Service’s contention that there jvas 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 ease scenario” on Maine’s Canada lynx population in its October 2014 Biological Opinion. 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.

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, nonlethal 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 nonlethal 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.” Animal Welfare Institute v. Martin, 588 F.Supp.2d 110, 113 (D. Me. 2008) (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 [fjederal 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-0Q46872). 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 Management and Animal Damage Control Programs.

(d) Estimates of the Baseline Lynx Population

The Plaintiffs allege that the Fish and Wildlife Service relied upon inconsistent, shifting, and contradictory baseline lynx population estimates in the final Environmental Assessment, in the Biological Opinion, and in a Service memorandum regarding the Service’s findings and recommendations (the “Findings Document”) that accompanied its Finding of No Significant Impact. The Plaintiffs also, allege that the Service itself acknowledged this inaccuracy but used the population estimates anyway.

The Plaintiffs base their argument on a September 2014 email between three Service biologists, in which one biologist, AH, stated that she intended to change the population estimate in a new draft of the Biological Opinion, from “approximately 750 individuals” to “more than 500,” and she noted that the latter population estimate “reiteratfed]” the estimate used in the draft Environmental Assessment. AR-0063451. Another biologist, LW, responded to AH that “you are correct that the population number we use in our explanation of the baseline in the [Environmental Assessment, Biological Opinion], and Findings should be the same.” AR-0063450. A third biologist, MM, expressed skepticism about the population estimate of 500 lynx, but stated that he was “comfortable” using it so long as the new draft of the Biological Opinion contained a caveat that AH had previously written, to the effect that the estimate of 500 lynx “may well be lower than the actual population.” Id. AH then replied to MM that “[n]ow that I read my prose again, I might flip the emphasis ... i.e., [‘]recognizing that the actual population may well be higher[.]’ ” Id. (emphasis added).

The preceding email exchange suggests, as the Plaintiffs argue, that the Service’s staff was aware that the baseline lynx population was not consistent between the Environmental Assessment and the Biological Opinion. The exchange also demonstrates that the inconsistency was considered and reconciled to the satisfaction of the three biologists involved. See. AR-0063450-51. In keeping with this resolution, the Findings Document also employed .the “more than 500” baseline. AR-0070424,

The Plaintiffs also contend that there is an inconsistency between the Biological Opinion and the final Environmental Assessment, each of which relied upon a minimum baseline population estimate of 500 lynx, and the Incidental Take Plan,-which stated that 750 to 1,000 adult lynx lived in northern Maine in 2006. ECF No. 112 at 29 (citing AR-0069861, AR-0070042, AR-0070057). The 750 to 1,000 population figure for 2006 mentioned in the Incidental Take Plan was the product of a 2012 study that was cited in both the Biological Opinion and the Environmental Assessment as reflecting the estimated lynx population at “about the time when [Maine] believed that lynx populations peaked” in 2006. AR-0069898; see also AR-0070057; AR-0074349 (citing “Vashon et al. 2012”). Moreover, as explained in the Biological Opinion, there were “shortcomings” in Maine’s methods of estimating the lynx population, and for that reason, the Service relied on the lower estimate of 500 lynx:

Both methods have shortcomings, but indicate that northern Maine supports a population of more than 500 adult Canada lynx. For the purposes of this biological opinion, we will rely on a minimum population estimate of 500 adult Canada lynx in Maine, although the actual population may well be higher.

AR-0070057. By using a lower lynx population figure, the Service adopted an analytical tool that resulted in greater protection for the lynx, which was a reasonable exercise of the agency’s discretion. San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 610 (9th Cir. 2014) (The Service “did not act arbitrarily or capriciously in choosing an analytical tool that resulted in greater protections for the [endangered or threatened species].”).

The Plaintiffs also claim that the 2015 amended Incidental Take Plan listed the lynx population as being 750 to 1,000 but then stated that Maine used estimates of 750 and 600 for its population modeling. ECF No. 112 at 29-30 (citing AR-0074349). As just discussed, the page from the amended Incidental Take Plan cited by the Plaintiffs contains the same estimate of between 750 and 1,000 adult lynx in Maine in 2006 as stated in the original Incidental Take Plan, but it does not mention “750 or 600” lynx as the Plaintiffs assert. AR-0074349. Also, there is no difference between the population estimates contained in the 2014 Incidental Take Plan, see AR-0070115, and the corresponding section of the 2015 amended Incidental Take Plan, see AR-0074349.

Finally, the Plaintiffs claim that the Service admitted that it did not use the most recent population data, and yet it proceeded to approve the Permit despite knowing that the less recent data resulted in an inaccurate and inflated lynx population estimate. Again, the Plaintiffs’ argument is not supported by the record evidence that they cite, in this instance a footnote from the Biological Opinion. See AR-0070069 n.8.

(e) Conclusion

The Service’s acceptance of Maine’s take calculation was the product of a logical and rational process for which the Service has “articulated a satisfactory explanation ,,. including a rational connection between the facts found and the choice made.” Pe-nobscot Air Seros., 164 F.3d at 719 (citation and quotation omitted). The Service’s acceptance of Maine’s take calculation was neither arbitrary nor capricious.

2. Minimization Measures

As part of the permit review process, the Fish and Wildlife Service must determine that the applicant will, to the maximum extent practicable, minimize the impacts of the authorized incidental taking. 16 U.S.C.A. § 1539(a)(2)(B)(ii). The Plaintiffs argue that the Service arbitrarily failed to insist on additional minimization measures, including several contained in the 2007 Consent Decree in the Martin case and others that the Plaintiffs claim the Service demanded throughout the permit drafting process, but, without explanation, did not require when the Permit was issued. Although the Plaintiffs assert that both the alleged failure to require more minimization measures and the lack of explanation were arbitrary and illegal, the administrative record establishes otherwise.

(a) Minimization Measures Included in the 2007 Consent Decree

The 2007 Consent Decree prohibited two types of traps from certain state Wildlife Management Districts that contained lynx habitat: (1) snares, i.e., traps which catch animals by the neck or leg and can be lethal, and (2) so-called “foothold” traps with an inside jaw spread width greater than five and three-eighths inches. AR-0006068-69 (Consent Decree, Animal Protection Inst. v. Martin, et al., 1:06-cv-00128-JAW). The Plaintiffs argue that the Fish and Wildlife Service arbitrarily omitted prohibitions on both types of traps from the Permit without reason.

With regard to snares, the Service responds and the record reflects that Maine’s Incidental Take Plan does not allow the use of snares on dry land, and the Permit does not authorize take associated with the use of snares. AR-0070104; AR-0069960; AR-0070441 (“Nonlethal cable restraints are not snares, and [Maine] will not be changing the existing prohibitions on the use of snares in Maine under, this plan.”). With regard to foothold traps, the Service maintains that available data did not support continued restrictions on foothold traps larger than five and three-eighths inches, citing a Maine study that showed that “[t]he number of lynx captures per year did not decrease after trap size restrictions were put in place in 2008[,]” AR-0049217; see also AR-0069891 (Environmental Assessment stating “capture and injury rates did not differ for lynx when larger foothold traps were permitted (i.e., prior to 2008)”). The Maine study provided direct support for the Service’s conclusion regarding foothold traps.

Moreover, the Service acknowledged in the Findings Document that although it had previously raised concerns that larger and heavier foothold traps with a larger jaw spread could increase injury rates in captured lynx, Maine had provided data that showed that the injury rate for incidentally captured lynx prior to the consent decree, when trap sizes were not limited, was similar to or lower than the injury rate for lynx caught by Maine biologists using smaller traps. AR-0070440 (citing AR-0070236). The Service also observed in the Findings Document that Maine had incorporated a changed circumstances provision in the Incidental Take Plan that could result in new restrictions on foothold trap sizes if higher injury rates were found to occur. Id.

(b) Minimization Measures Previously “Demanded” By the Fish and Wildlife Service

The Plaintiffs contend that for six years, the Fish and Wildlife Service repeatedly insisted on four minimization measures during the multi-year process of reviewing the Permit application, yet abruptly dropped its demands without explanation when it approved the Permit in 2014—an outcome that the Plaintiffs claim was arbitrary and capricious. The four minimization measures in question are: (1) requiring lynx exclusion devices in all killer-type traps set in upland areas in Wildlife Management Districts containing lynx; • (2) requiring that Best Management Practice (“BMP”) foothold traps be phased in over a five-year period in lynx Wildlife Management Districts; (3) eliminating drag sets for foothold traps in lynx Wildlife Management Districts; and (4) eliminating blind sets in lynx Wildlife Management Districts.

The Plaintiffs cite two undated and unsigned spreadsheets in the record titled “Minimization and mitigation measures that USFWS believes would meet the maximum extent practicable issuance criteria” which address three of the four minimization measures listed above. See EOF No. 112 at 31 (citing AR-0039643, AR-0040471). Both documents speak of minimization measures that the Service “believes” would meet issuance criteria, AR-0039643, and both contain recommendations rather than demands. AR-0039647-66; AR-0040475-84. Neither spreadsheet supports the Plaintiffs’ claim that the Service “repeatedly insisted on” any of the cited minimization measures. See id.

The Plaintiffs also cite certain file notes written by one or more dissenting Service staff members. AR-0062087, AR-0053924, AR-0053315, AR-0036039, AR-0036112, AR-0036131. One of these documents states that the notes constitute the author’s “personal assessment of the practicability of minimization measures[.]” AR-0062088 (emphasis in original). As previously noted, “the mere existence of internal disagreements does not make the agency’s decision arbitrary or capricious.” Turtle Island Restoration Network, 2013 WL 4511314, at *5 (“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, 306 F.Supp.2d at 928 n.15 (citation omitted).

There is positive support in the administrative record for the Service’s decision not to require the four minimization measures at issue. Turning first to the lynx exclusion devices, in its Environmental Assessment, the Service found that the use of leaning pole traps was as effective at minimizing incidental lynx captures. AR-0069962 (“[Maine] disputes that exclusion boxes ... are a practicable alternative to leaning pole sets.... Since there should ultimately be no difference in outcomes for lynx, the Service agrees that [Maine’s] approach will serve as an effective and biologically sufficient avoidance measure.”). The Service based this decision on data provided by Maine which showed that no lynx had been caught or killed in legally set leaning pole devices since the Consent Decree was put in place. AR-0070176.

With regard to BMP traps, the Incidental Take Plan considered the use of such traps but determined that because BMP traps are developed for specific target species other than lynx, there was insufficient data regarding the benefit of BMP traps to lynx. See AR-0070440; see also AR-0070236 (“The purported benefits of reducing lynx take or injuries by requiring all trappers to use only traps meeting Best Management Practices ... standards is not supported by National BMP data or BMP data collected] in Maine.”).

Similarly, with regard to drag sets, the Service based its decision not to eliminate them use on data provided by Maine which “indicates that they did not observe a difference in the number or severity of injuries for lynx caught in foothold traps that were chained to stakes or that were chained to drags from 1999 to 2012.” AR-0069962.

Finally, with regard to blind sets, the Environmental Assessment recognized that Maine “presents information that no lynx have been reported to be captured in blind sets.” AR-0070009. The Service also noted that Maine’s Incidental Take Plan included a changed circumstance provision to address higher than anticipated lynx injuries or deaths resulting from blind sets. Id.

(c) Conclusion

As previously noted, under the Administrative Procedure Act an agency must articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice' made.” Grosso v. Surface Transp. Bd., 804 F.3d 110, 116 (1st Cir. 2016) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856 (quotation marks omitted)). Here, the Fish and Wildlife Service has identified information contained in the administrative record that provides the rational connection needed to support its decision not to require the specific minimization measures identified by the Plaintiffs.

3. Mitigation Measures

In considering whether to grant an incidental take permit, the Fish and Wildlife Service must also determine that the applicant will, to the maximum extent practicable, mitigate the impacts of such incidental taking. 16 U.S.C.A. § 1539(a)(2)(B)(ii). Maine’s Incidental Take Permit requires the Maine Bureau of Public Lands to develop a forestry management plan. The plan calls for the creation or restoration of 6,200 acres of high quality hare habitat and is intended to result in a net increase of three lynx to compensate for the three lynx that, under the Permit, are permitted to be killed or so severely injured that they are not able to be released over the fifteen-year life of the Permit. AR-0070423.

The Plaintiffs challenge two aspects of the approved mitigation measures: (a) mitigation of non-lethal takes, and (b) creation of lynx habitat.

(a) Mitigation of Non-Lethal Takes

The Plaintiffs argue that the mitigation measures contained in Maine’s Incidental Take Plan are flawed because they only address the three lynx deaths authorized by the Permit, but not the 192 nonlethal takes. In response, the Fish and Wildlife Service notes that § 1539 of the Endangered Species Act requires mitigation for the impact of incidental takes, rather than mitigation for each individual take, and asserts that the 192 permitted non-lethal takes are not anticipated to have a discernable impact. ECF No. 113 at 54 (citing AR-0070442-43). The Plaintiffs counter by asserting that the Service arbitrarily discounted the impact of non-lethal takes upon Canada lynx.

First, the Plaintiffs contend that the Service’s position is contradicted by its own conclusion in the Findings Document, which states that up to nine lynx could sustain “more severe” injuries. AR-0070434. Consequently, they argue, it was arbitrary for the Service to discount these injuries as having no impact. The Plaintiffs presume that these injuries must have an impact because they are described with the phrase “more severe[.]” The Findings Document reasoned, however, that those lynx that sustain “more severe” injuries “will be treated and/or rehabilitated to the point that they can be released back in to the wild to function naturally in their environment.” AR-0070443. This supports the Service’s conclusion that the injuries will not have a discernable impact.

Second, the Plaintiffs cite data presented in the Findings Document stating that six percent of lynx caught in foothold traps between 1999 and 2012 had moderate to severe injuries, and seventy-five percent had mild injuries. AR-0070434. The Findings Document also recognized that “[n]one of these data are necessarily more appropriate or more reliable than the data presented in the [Incidental Take Plan] due to differences in injury assessment protocols.” Id. Moreover, as explained above, the cited data does not account for the fact that, according to the Findings Document, lynx sustaining “more severe” injuries will, as required by the Plan, be treated and/or rehabilitated to the point that they can be released back in to the wild to function naturally in their environment. AR-0070443.

Third, the Plaintiffs cite the Findings Document to argue that lynx caught in foothold traps do not live as long or function as well as lynx not caught in such traps. EOF No. 120 at 13 (citing AR-0070440; AR-0070424; AR-0070433-34). The Findings Document at AR-0070440 does refer to “more than minor” injuries, but only in reference to Maine’s method for identifying injuries to lynx that may affect the ability of the lynx to survive post-release. See AR-0070440 (“[S]uch assessments should be sufficient in most cases to evaluate the type of injuries (e.g., more than minor) that will affect the ability of lynx to function naturally in their environment and may affect their ability to survive post release.”). The reference to “more than minor” injuries does not support the Plaintiffs’ assertion that trapped lynx have shorter life spans or function poorly compared to non-trapped lynx. See id. The assertion that lynx caught in foothold traps do not live as long or function as well as lynx not caught in such traps is also not supported by AR-0070424 and AR-0070433-34, which the Plaintiffs cite for support.

The Plaintiffs also claim that the Service’s own biologists and lynx experts sought mitigation for the entire take of 195 lynx, citing three documents from the administrative record.

The first document is titled “Further notes to file concerning mitigation.” AR-0060735. Because the document indicates that the “goal of mitigation” is “to offset the take of 3 lynx[,]” it actually supports the Service’s position.

The second document is an excerpt of an undated, unsigned spreadsheet titled “Minimization and mitigation measures that USFWS believes would meet the maximum extent practicable issuance criteria[.]” AR-0039658. The spreadsheet appears to have been prepared in 2012, and discusses details of the mitigation plan that were never adopted, such as a 10,000 acre lynx habitat on land owned by the Maine Bureau of Parks and Land. See AR-0039658. Thus, the document does not appear to have been prepared in conjunction with the final Incidental Take Plan or the approved Permit. It contains a recommendation that “habitat mitigation be the primary means of mitigation in the final [Incidental Take Plan]. Final acreage ... will need to mitigate for all forms of take.” Id. The spreadsheet casts this recommendation as an item to “consider including in the final [Incidental Take Plan],” AR-0039643.

The third document is dated February 2012 and is titled “Strategies to achieve mitigation for lynx incidentally taken in traps.” AR-0038285. It contains a recommendation that Maine “employ mitigation that clearly offsets (or-better yet, more than offsets) take of lynx in traps (lethal take, animals removed from the population, injuries that would reduce survival)[.]” Id.

The administrative record does not establish the context in which the second and third documents were prepared and utilized. Neither document appears to be a formal, final document that expresses the final or official view of the Service. Consequently, they are not dispositive of whether the Service arbitrarily or capriciously discounted the effects of non-lethal takes. Cruz v. Brock, 778 F.2d 62, 64 (1st Cir. 1985) (agency did not act arbitrarily or capriciously in disregarding “preliminary, less official data.”); see also, Nat’l Wildlife Fed’n v. U.S, Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir. 2004) (rejecting argument that documents demonstrated that an agency’s conclusions were arbitrary and capricious because the email was a “compilation of ideas” under discussion, “preliminary, and not the official view of the agency.”).

In evaluating the impact of the proposed Plan, the Service considered Maine’s estimate of the take as well as information from lynx population model projections “and the observed results of directed Canada lynx and bobcat harvest programs[.]” AR-70079. That information indicated that the incidental capture and release of uninjured lynx does not change the survival rates of lynx; thus, the Service concluded, “the impact of the take that ultimately needs to be addressed is the potential for injuries that are more than minor and fatalities that may result from incidental capture events.” AR-70438. The Service concluded that over the Permit’s fifteen-year life, “the effect of anticipated mortalities and injuries on the Canada lynx population is likely to range from completely compensatory during periods of high hare populations to small and short-lived during periods of low hare populations and declining Canada lynx numbers.” Id.;. see also AR-70072; 69938-39 (observing that the three lynx fatalities authorized by the Permit “are a small proportion of the lynx population in Maine and will not have an effect [on] the overall population in the state[.]”).

Based on the portions of the administrative record cited by the Plaintiffs, considered together with other relevant portions that reflect , the Service’s reasoning, it is apparent that the Service did not, as the Plaintiffs contend, fail to consider relevant factors and evidence, or fail to articulate a reasonable explanation for its decision to limit the mitigation measures to the three lethal takes out of the 195 takes authorized by the Plan. The remaining 192 takes require the release of the animal into the wild (183 involving no or minor injuries and nine involving severe injuries for which the animal will be treated before being released). There is a rational connection between the facts as found by the Service and its decision to focus the mitigation measures on the three authorized lethal takes. See Penobscot Air Servs. Ltd., 164 F.3d at 719.

(b) Creation of Lynx Habitat

“The primary factor driving Canada lynx behavior, habitat use, abundance, and distribution is the abundance of snowshoe hare, their primary prey.” AR-0070055. Snowshoe hare prefer habitat that provides the sort of dense cover found in regenerating spruce and fir stands approximately 15 to 35 years after a forest is clear cut. Id. Yet the quality of the currently-existing hare habitat is expected to peak in approximately 2023 because clear-cutting of forests sharply declined in the late 1980s, and as forests mature they become less hospitable to snowshoe hares. AR-0070213; AR-0070056. The Incidental Take Plan proposed to offset the potential lethal take of up to three lynx by having the Maine Bureau of Public Lands create 6,200 acres of high quality habitat for snowshoe hare within a 22,046 acre habitat management area by the end of the fifteen-year Permit period. AR-0070210; AR-0070443. To create the habitat, the Bureau of Public Lands will selectively harvest larger, mature trees to enable the growth of new trees. AR-0070213. The Plan includes required monitoring of forest management activities, surveys to estimate the hare population, as well as a changed circumstance provision if the mitigation proves unsuccessful. AR-0070124; AR-0070217; AR-0070223-24, The creation of this additional snowshoe hare habitat is expected to result in at least three additional lynx in the area by 2029, and possibly as many as five. AR-0070210.

The Plaintiffs argue that this aspect of the mitigation plan is arbitrary because it relies on logging and other forest management to create optimal lynx habitat and because it could take twelve years or more for the proposed 6,200 acres to develop into a quality habitat for snowshoe hares. Thus, the Plaintiffs contend that the mitigation area will have limited value for hares and lynx during the fifteen-year life of the Permit. Moreover, the Plaintiffs argue that Maine has no incentive to continue maintaining the habitat after the term of the Permit has expired, and therefore, the Permit provides no assurance of a quality habitat.

The claim that the mitigation plan will have limited value during the Permit’s lifespan overlooks evidence in the administrative record reflecting that the habitat management area already contains approximately 4,398 acres of high quality hare habitat that can support at least two adult lynx. AR-0070212 (reflecting 3,798 acres of existing high quality hare habitat as of 2013); AR-0074096 (reflecting the discovery in 2015 of a further 600 acres of currently-existing high quality hare habitat). According to the Incidental Take Plan, the quality and suitability of these acres as hare habitat would degrade over time if left unmanaged as the trees mature, AR-0070211. Thus, the management of the high quality hare habitat should benefit the hare population and, by extension, the lynx population, during the permit’s term. The Service also cited data based on a twelve-year telemetry study showing that lynx have higher litter sizes when hares are more abundant. AR-0070212. “This increase in fecundity could increase the value of the mitigation beyond just compensating for the loss of three lynx.” AR-0070445. The administrative record thus provides support for the Service’s conclusion that the creation and active management of the habitat during the life of the Permit is rationally connected to the Plan’s objective of supporting additional lynx during the Permit period.

As for the Plaintiffs’ argument that Maine has no incentive to maintain the habitat after the Permit expires, the habitat created during the Permit period will not simply disappear once the Incidental Take Permit expires. Rather, the regenerating trees are expected to provide high quality hare habitat for approximately thirty-five years and the habitat created by the mitigation plan “may be present on the mitigation area until 2052 to 2064[.]” AR-0069893. Furthermore, Maine addressed the possible need to amend its mitigation efforts by including a changed circumstance provision in the Incidental Take Plan which, if triggered, would require either an increase in the size of the mitigation area or an extended mitigation period. AR-0070225.

The administrative record supports the Incidental Take Plan’s creation, over time, of additional hare habitat sufficient to support three additional Canada lynx as a means of mitigating the impacts of the taking on Maine’s population of Canada lynx as a whole. The Plaintiffs have not demonstrated that the Service acted arbitrarily or capriciously in approving this aspect of the Incidental Take Plan. See City of Olmsted Falls, OH v. FAA, 292 F.3d 261, 271 (D.C. Cir. 2002).

4. Funding

Section 10 of the Endangered Species Act requires that an applicant for an incidental take permit ensure that adequate funding for the conservation plan will be provided. 16 U.S.C.A. § 1539(a)(2)(B)(iii). The Incidental Take Plan states that Maine will fund it with revenues from the sale of hunting and fishing licenses, federal matching funds, general funds appointed by the Maine Legislature, federal threatened and endangered species funds, the sale of state conservation license plates, the Fish and Wildlife Service’s State Wildlife Grant program, and “grants from a variety of private and governmental organizations.” AR-0070227.

The Plaintiffs characterize Maine’s identification of fees, grants, and other funds as a “laundry list of speculative, third-party funding sources” and object that the State has not ensured adequate funding because reliance on anything other than guaranteed funding is arbitrary. EOF No. 112 at 35-36 (citing Sw. Ctr. for Biological Diversity v. Bartel, 470 F.Supp.2d 1118, 1155-56 (S.D. Cal. 2006); Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1282 (S.D. Ala. 1998)). The Service responds that the Plaintiffs mischaracterize the source of funding for the conservation plan, and that the Maine Department of Inland Fisheries and Wildlife has committed to include in its biennial budget request the funds needed for the conservation plan and to use those funds to carry out the plan’s measures. EOF No. 113 at 60 (citing AR-0070227).

The Incidental Take Plan requires adequate funding as a precondition to authorizing the incidental take of lynx. The Plan states that Maine “will provide evidence that the Legislature has app