DENVER – A federal appeals court heard arguments Wednesday over whether lynx that are protected by the Endangered Species Act in Colorado keep that protection when they wander into New Mexico, where they officially do not exist.
Environmental groups sued hoping to force the U.S. Forest Service in New Mexico to consider wandering lynx as it draws up forest management plans. They argued the law declaring the mountain cat a threatened species gives it protection everywhere.
Mark Haag, a lawyer with the Justice Department, disagreed, arguing federal protections don’t extend to lynx in New Mexico.
He disputed arguments by the environmental groups that managers of the Carson and Santa Fe national forests must consult with the U.S. Fish and Wildlife Service on how activities might affect lynx.
“The fact that the lynx is not listed in New Mexico is sufficient to dismiss the claim,” Haag told a panel of the 10th U.S. Circuit Court of Appeals.
The Fish and Wildlife Service has declared the lynx threatened in 14 states, including Colorado, Utah and Wyoming but not New Mexico, he said. New Mexico is not in the lynx population area mapped out by federal biologists.
A federal judge in New Mexico ruled in 2005 that forest managers weren’t required to consider lynx in their plans because their presumed absence. One of the groups that brought the suit, Santa Fe, N.M.-based Forest Guardians, appealed that decision.
Appeals court Judge Michael Murphy questioned Haag about the animal’s different status in New Mexico and Colorado.
“I’m trying to put myself in the paws of the lynx,” Murphy said. “I must know I must not cross that line or I’m dead.”
The judges didn’t indicate when they would issue a decision.
The Colorado Division of Wildlife lists the long-haired, tuft-eared cat as endangered and has released more than 200 Canada lynx in southwestern Colorado since 1999. As the population has grown and kittens have been born, some of the animals have ventured into other states, including New Mexico, Wyoming and Utah.
The lynx is protected as a threatened species in Colorado under the Endangered Species Act. Matthew Bishop, the attorney for the environmental groups, said that listing protects lynx, including individual cats, throughout the lower 48 states, and what land managers do in New Mexico can harm lynx wandering in from Colorado.
Bishop contended the federal government’s argument amounts to saying that lynx can be “hunted, shot, killed as soon as they cross an invisible line” into New Mexico.
The judges questioned whether the lawsuit was premature because the forest management plans being challenged are still being written. But Bishop replied that federal officials have acknowledged that forest plans allowing logging, motorized recreation and other activities might harm lynx in the Rockies. He said the law clearly requires the Forest Service to consult with the Fish and Wildlife Service.
Colorado is usually considered the southernmost tip of the cat’s historic range, although environmentalists maintain biologists’ data show lynx living in New Mexico.
Trapping, poisoning and development wiped out native lynx in Colorado, with the last confirmed sighting before the recovery program began coming in 1973 near Vail.