Center for Biological Diversity v. Sarah Strommen

United States Court of Appeals
For the Eighth Circuit
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No. 23-1572
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Center for Biological Diversity
Plaintiff - Appellee
v.
Sarah Strommen, in her official capacity as Commissioner of the Minnesota
Department of Natural Resources
Defendant - Appellee
v.
Minnesota Trappers Association; National Trappers Association; Fur Takers of
America, Inc.
Intervenor Defendants - Appellants
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 14, 2024
Filed: August 14, 2024
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Before SMITH, Chief Judge,1 BENTON, and STRAS, Circuit Judges.
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1 Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).

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STRAS, Circuit Judge.
When are consent decrees fair and reasonable? The district court2 thought
this one, which requires Minnesota to take additional steps to protect Canadian lynx,
qualifies. And although a coalition of animal trappers disagrees, we affirm.
I.
The Canadian lynx is a medium-sized wild cat with tufted ears, long hind legs,
and a goatee. The federal government has designated it as a “threatened” species
because of its “low [population] densit[y].” 65 Fed. Reg. 16052, 16081 (Mar. 24,
2000). Between 50 and 200 live in Minnesota.
For years, the Center for Biological Diversity has pressed Minnesota to do
more to protect lynx from trappers, who sometimes “incidental[ly] take” them while
trying to catch legal game. See 16 U.S.C. § 1532(19) (explaining that someone
“take[s]” an endangered or threatened animal when he “harass[es], harm[s],
pursue[s], hunt[s], shoot[s], wound[s], kill[s], trap[s], capture[s], or collect[s]” it).
Its first case against Minnesota led to an injunction and the creation of a “Lynx
Management Zone” in the northeast corner of the state. See Animal Prot. Inst. v.
Holsten, 541 F. Supp. 2d 1073, 1081–82 (D. Minn. 2008) (concluding that
Minnesota had violated the Endangered Species Act).
After nine additional takings, the Center filed another lawsuit. This time, the
allegation was that Minnesota had not done enough to limit trapping, which poses a
“risk[] [of] further injur[y] and death” to the lynx. Following an unsuccessful
attempt to dismiss the case, Minnesota initiated settlement talks. Concerned that
neither party would “adequately represent th[eir] interest[s],” three pro-trapping
organizations intervened. Fed. R. Civ. P. 24.
2 The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.

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Over their objections, the talks ended in a proposed consent decree. See Rufo
v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992) (“A consent decree . . .
embodies an agreement of the parties” and is “a judicial decree that is subject to the
rules generally applicable to other judgments and decrees.”). It required Minnesota
to put “additional restrictions” on snare and foothold traps in the Lynx Management
Zone within 40 days “[b]y whatever regulatory means are necessary, including
expedited emergency rulemaking.” See Minn. Stat. § 84.027, subd. 13 (specifying
the procedures for this type of rulemaking).
The trappers asked the district court to reject it. In their view, it was
“prejudicial and harmful” and would eliminate all “meaningful snaring in the Lynx
Management Zone.” They also argued that state law prevented Minnesota from
adopting the new regulations in the way the consent decree proposed.
After hearing from all sides, the district court disagreed. Its view was that the
consent decree was a “reasonable midpoint between the [parties’] litigati[ng]
positions and [had] a reasonable relationship to [each side’s] claims and . . .
defenses.” We must now determine whether the court abused its discretion in
approving it. See United States v. Metro. St. Louis Sewer Dist., 952 F.2d 1040, 1044
(8th Cir. 1992).
II.
There are multiple judge-made rules that have arisen around the approval of
consent decrees, one of which is that they must be procedurally “fair[].” EEOC v.
Prod. Fabricators, Inc., 666 F.3d 1170, 1172 (8th Cir. 2012) (citation omitted). By
procedurally fair, we mean the negotiations must have been “in good faith and at
arm’s length.” United States v. BP Amoco Oil PLC, 277 F.3d 1012, 1020 (8th Cir.
2002). The “candor, openness, and bargaining balance” of the negotiations are
factors to consider, but what matters in the end is whether there was “fair play.”
United States v. Cannons Eng’g Corp., 899 F.2d 79, 86–87 (1st Cir. 1990).

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Here, the negotiations lasted several months, and the consent decree appears
to have been the product of a hard-fought compromise. See Killer Joe Nev., LLC v.
Does 1–20, 807 F.3d 908, 911 (8th Cir. 2015) (deciding what gives rise to an abuse
of discretion by a district court). Before the trappers intervened, Minnesota and the
Center had spent more than a year litigating the case. The negotiations underlying
the consent decree “spanned more than seven months and involved significant input
by subject matter experts.” Although the trappers oppose the settlement, they do not
allege collusion or any other type of misconduct. See Common Cause R.I. v. Gorbea,
970 F.3d 11, 17 (1st Cir. 2020); United States v. Oregon, 913 F.2d 576, 586 (9th Cir.
1990).
Instead, they believe they deserved more of an opportunity to “air [their]
objections.” Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S.
501, 529 (1986). It is tough to figure out what more the district court could have
done. First, even though they entered the case late and were never really defendants,
the trappers had an opportunity to file an answer. Then, once they formally objected
to the reasonableness of the consent decree, the court held a lengthy evidentiary
hearing to consider the points they raised. See United States v. Union Elec. Co., 132
F.3d 422, 430 (8th Cir. 1997) (holding that a district court did not abuse its discretion
by approving a consent decree without giving the intervenors an evidentiary
hearing). Finally, to button things up, the court allowed the parties, including the
trappers, one last opportunity to submit additional briefing and “relevant evidence.”
Local No. 93, 478 U.S. at 529. There was no shortage of chances for them to raise
objections.
Instead, they held back. The arguments they try to raise now—like a lack of
associational standing,3 the application of res judicata, and the failure to state a
3 Standing is the one issue we must raise on our own. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 95 (1998). Although we questioned the existence of
associational standing before oral argument, the Center seeks to supplement the
record with an interrogatory response naming three members who regularly travel
to northern Minnesota to see lynx. See Summers v. Earth Island Inst., 555 U.S. 488,

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claim—all came up in their answer, but they never filed a motion to dismiss or for
summary judgment. Nor did they raise those specific arguments as reasons to reject
the consent decree. See Union Elec. Co., 132 F.3d at 430 (holding that the district
court did not abuse its discretion in approving a consent decree because “[t]he
[i]ntervenors had ample opportunity to file objections”). To the extent they argue
that the district court kept them from “relitigat[ing] matters already determined in
the case,” Arizona v. California, 460 U.S. 605, 615 (1983), nothing stood in the way
other than their own approach to the litigation.
III.
Consent decrees must also be “reasonable.” BP Amoco, 277 F.3d at 1021.
The reasonableness inquiry is “multifaceted,” Cannons, 899 F.2d at 89, although
two considerations are especially important. The first is whether the consent decree
“spring[s] from and serve[s] to resolve a dispute within the court’s subject-matter
jurisdiction.” Local No. 93, 478 U.S. at 525. Closely related is the second: whether
the relief it provides “com[es] within the general scope of the case made by the
pleadings” and “further[s] the objectives of the law upon which the complaint was
based.” Id. (first alteration in original) (citation omitted). Within these basic limits,
the parties “enjoy wide latitude in terms of what they may agree to” in a consent
decree. Conservation L. Found. of New England, Inc. v. Franklin, 989 F.2d 54, 59
(1st Cir. 1993).
A.
At its core, this lawsuit is about alleged violations of the Endangered Species
Act, which raises a federal question that falls within the district court’s subject-
matter jurisdiction. See Benalcazar v. Genoa Twp., 1 F.4th 421, 425 (6th Cir. 2021)
498 (2009) (requiring such a showing for an association to claim Article III
standing). It shows that “at least one of [its] members,” if not all three, “has had
continuous standing,” so we grant the motion. Worth v. Jacobson, 108 F.4th 677,
686 (8th Cir. 2024) (approving of a similar procedure).

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(explaining that if a dispute is “arguabl[y]” about a federal issue, the district court
can approve a consent decree settling it). According to the complaint, at least nine
Canadian lynx had been “take[n]” since the first lawsuit. 16 U.S.C. § 1538(a)(1)(B).
The Center raised a “[non]frivolous” claim that, just like the first time, Minnesota
was ultimately responsible for the alleged violations. Benalcazar, 1 F.4th at 424; cf.
Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997) (holding that Massachusetts
committed a violation when licensed fishermen injured protected whales).
The consent decree proposed a set of regulations designed to curb future
violations. See Local No. 93, 478 U.S. at 525; Prod. Fabricators, 666 F.3d at 1172
(explaining that a consent decree “must be formulated to protect federal interests”).
One expert testified, for example, that decreasing the diameter of foothold traps
would lead to fewer “significant . . . injuries that could affect [the] animal upon
release.” And the other thought that keeping snare traps away from rooted
vegetation and fences would “reduce lethality.” Lowering the number of deaths of
a threatened species like the lynx “further[s] the objectives” of the Endangered
Species Act. Local No. 93, 478 U.S. at 525. And so does preventing trappers from
“harass[ing],” “wound[ing],” and “trap[ping]” lynx, each of which also qualifies as
a taking. 16 U.S.C. §§ 1532(19), 1538(a)(1)(B); see Mausolf v. Babbitt, 125 F.3d
661, 670 (8th Cir. 1997) (upholding a regulation that “m[ight] prevent some
incidental takings” of a protected species (emphasis added)).
Reasonableness does not require perfection. By its nature, a consent decree
is a “compromise[] in which the parties give up something they might have won in
litigation.” United States v. ITT Cont’l Baking Co., 420 U.S. 223, 235 (1975). The
Center sought to give the lynx complete protection from “trapping that risks further
injuries and death.” It “compromise[d]” instead and settled for something less: the
elimination of particularly risky practices. Id.; see Cannons, 899 F.2d at 90 (“[T]he
reasonableness of a proposed settlement must take into account foreseeable risks of
loss.”). The consent decree was a step in the “right direction.” United States v.
Comunidades Unidas Contra La Contaminacion, 204 F.3d 275, 282 (1st Cir. 2000)
(explaining that a consent decree was reasonable and rejecting an intervenor’s

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argument that it did not go “far enough”); cf. United States v. Microsoft Corp., 56
F.3d 1448, 1461 (D.C. Cir. 1995) (noting that “remedies” in a consent decree can be
“less than vigorous”).
B.
The details show why. The objective of the proposed regulations was to
increase an ensnared lynx’s chance of survival. One requires the use of a loop stop
to prevent the noose on a trap from closing too tight, which “substantially if not fully
eliminate[s] the risk of mortality caused from constriction pressure on the arteries in
the neck.” Another “displace[s]” pressure on a lynx’s neck “across a larger surface”
and prevents strangulation by mandating a specific type of snare lock. And keeping
snares away from trees and fences stops a panicked lynx from entangling itself,
which risks “pushing” the snare “down onto [its] arteries” and strangling it. Studies
and expert testimony both suggested that these measures would reduce lynx
mortality.
The trappers’ expert, on the other hand, thought the new regulations were
dangerous to both the animal and the continued existence of trapping in the Lynx
Management Zone. In his opinion, loop stops could tear the skin and fur of an
ensnared lynx as it struggles. Not to mention that the regulations make trapping
more expensive and difficult. The alternative to using a nearby fence or root
vegetation as a snare-trap anchor, for example, is pounding a stake into the frozen
ground during a frigid Minnesota winter. Hardly a comparable burden.
These are legitimate concerns, but the district court reviewed the evidence and
found that, notwithstanding the burden on trappers, each regulation would reduce
the number of lynx killed. Even if a different interpretation of the evidence is
possible, our job is to determine whether the consent decree’s terms find “support[]
[in] the record.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639,
642 (1976). And here, they do. See BP Amoco, 277 F.3d at 1019 (explaining that
we defer to “the district court’s carefully[ ]exercised informed discretion”).

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IV.
Finally, parties to a consent decree cannot agree to “violate the law.” Sierra
Club, Inc. v. Elec. Controls Design, Inc., 909 F.2d 1350, 1355 (9th Cir. 1990). The
problem, according to the trappers, is that Minnesota agreed to bypass regular notice-
and-comment rulemaking in favor of an expedited emergency process that has no
application here. The district court disagreed, but the explanation requires delving
into how Minnesota’s regulatory process works.
Like their federal counterparts, agencies in Minnesota must typically use
notice-and-comment rulemaking when adopting regulations. See Minn. Stat.
§ 14.14. In some situations, however, the Commissioner of Natural Resources can
use a different method, including when “directed by statute, federal law, or court
order to adopt, amend, suspend, or repeal a rule” and time is too short to comply
with the usual statutory deadlines. Id. § 97A.0451–52 (emphasis added). One
advantage of the expedited process is the absence of public hearings. Compare id.
(no public-hearing requirement), with id. § 14.25 (requiring one if “25 or more”
people request it during the regular notice-and-comment period).
An even more turbo-charged process is available too: expedited emergency
rulemaking. See id. § 84.027, subd. 13. It allows the Commissioner of Natural
Resources to bypass public comment completely by “publishing a notice” in the state
register, but only if “conditions exist that do not allow the [C]ommissioner to comply
with” regular emergency rulemaking. Id. § 84.027, subd. 13(b). The statute lists
numerous possibilities, but the one the parties and the district court relied upon is
the power to “adopt rules” to “prohibit or allow taking of wild animals to protect a
species.” Id. § 84.027, subd. 13(a)–(a)(1); see id. § 97B.605 (letting the
Commissioner “prescribe limits and restrictions on” the “tak[ing] and possess[ion]”
of “small game” like lynx). The prototypical example, according to the statute, is
when it becomes necessary to “adjust season variables on an annual basis based upon
current biological and harvest data.” Id. § 84.027, subd. 13(b). That is, when data
shows dwindling or expanding numbers require on-the-fly adjustments to the length

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of the hunting season or the number of animals each hunter can take. It provides
flexibility to deal with emergency situations.
One Minnesota court has interpreted the power broadly. When hundreds of
farmed deer were entering the state with a neurodegenerative disease that could wipe
out the native deer population, the Commissioner of Natural Resources acted quickly
through expedited emergency rulemaking to put a stop to it. See Minn. Deer
Farmers Ass’n v. Minn. Dep’t of Nat. Res., 979 N.W.2d 465, 467–68 (Minn. Ct.
App. 2022). A group of deer farmers challenged the way the agency had adopted
the emergency rules, but the Minnesota Court of Appeals concluded that it had acted
within its statutory authority “to prevent or control wildlife disease.” Id. at 471
(quoting Minn. Stat. § 84.027, subd. 13(a)(1)).
The parties could have reasonably relied on Minnesota Deer Farmers to
support what they did here. The immediately preceding clause of the same statute,
after all, allows the Commissioner of Natural Resources to follow the same
regulatory blueprint when “prohibit[ing] or allow[ing] taking of wild animals to
protect a species.” Minn. Stat. § 84.027, subd. 13(a)(1). If the trappers disagree,
nothing prevents them from challenging the validity of the new regulations in a
separate state-court action. See Minn. Stat. §§ 14.44, 14.45; see also Mammenga v.
State Dep’t of Hum. Servs., 442 N.W.2d 786, 789 (Minn. 1989) (explaining that
Minnesota district courts can set aside an agency decision that is “arbitrary or
capricious”). But in the absence of evidence that the parties “circumvented” state
law, what we cannot do is unwind the consent decree. St. Charles Tower, Inc. v.
Kurtz, 643 F.3d 264, 270 (8th Cir. 2011).
V.
We accordingly grant the pending motion to supplement the record and affirm
the judgment of the district court.
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