9th Circuit upholds length-of-season restrictions for Montana wolf trapping, snaring

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Leopold wolf following grizzly bear. (Provided by Doug Smith, April 2005, via the University of Montana)

A federal court on Tuesday mostly upheld a judge’s decision last fall to limit Montana’s wolf trapping and snaring season to six weeks in January and February over what he said was the potential for grizzly bears to incidentally get caught in the traps in violation of the Endangered Species Act.

The 9th Circuit Court of Appeals, in a 2-1 decision, upheld the main part of District Court Judge Donald Molloy’s November order, which limited wolf trapping and snaring season to Jan. 1 to Feb. 15 to ensure as many grizzlies were in their dens as possible and could not be caught in the wolf traps.

But the circuit court panel disagreed with the portion of his order that limited the season length in hunting Regions 1 through 5 and in Blaine, Hill, and Phillips counties, and said the lower court needed to modify that part of its original order to only include areas where grizzly bears are known to live.

The panel also vacated the part of the order that the court said appeared to have prohibited Montana Fish, Wildlife and Parks from trapping wolves for scientific purposes, which the state says is necessary and often happens during the summer months. The order says plaintiffs’ attorneys had agreed to the injunction not applying to scientific research trapping.

The order comes as the plaintiffs in this case seek a permanent injunction to keep the restrictions on wolf trapping seasons in place, as a judge in Idaho implemented similar restrictions there, and as conservation groups appeal the U.S. Fish and Wildlife Service’s decision that wolves don’t need heightened Endangered Species Act protections in the states that are allowed to manage their wolf populations.

The two groups that challenged Montana’s 2023 wolf trapping regulations, WildEarth Guardians and the Flathead-Lolo-Bitterroot Citizen Task Force, said they see the decision as a small victory as they continue to push for a permanent injunction in the district court.

“We must give grizzly bears a fair shot at recovery, and hostile state management like Montana’s has a long way to go before it measures up to what wildlife and the public need,” said Lizzy Pennock, the carnivore coexistence attorney for WildEarth Guardians.

The defendants in the case, Gov. Greg Gianforte and Fish and Wildlife Commission Chair Lesley Robinson, almost immediately appealed Molloy’s November order to the 9th Circuit. Their attorneys argued the district court wrongly considered new arguments and materials submitted by the two conservation groups, applied the wrong injunction standard, and that the injunction did not prevent irreparable harm and was geographically overbroad.

The circuit court panel, in the majority opinion, disagreed with the state on nearly everything but the geographic overbreadth argument.

Judge Judge Mark J. Bennett and Judge Robert S. Lasnik, a Washington district court judge sitting on the appeals panel for the case, also said that the court’s consideration of a news story highlighting a sighting of a grizzly bear as far east as one had been spotted in 100 years, which was published just before the hearing, was not improper.

The state had also argued that Molloy used the wrong injunction standard by saying the plaintiffs had shown the case involved a serious question on the merits rather than meeting the higher standard of showing that they had a likelihood to succeed in the case.

But Bennett wrote that the 9th Circuit uses the “serious questions” test, and Molloy correctly used that as well. Bennett wrote that the conservation groups had shown evidence grizzly bears are not limited to geographical borders, are attracted to baited traps and can get caught in them.  He also said they had shown grizzly bears would be active outside of their dens during the state’s proposed trapping season, which was to start on a floating date sometime between Nov. 27 and Dec. 1 and run through March 15.

“Given all the evidence, it was plausible for the district court to find a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf trapping and snaring season proceed as planned,” Bennett wrote. “In other words, the district court’s finding was not implausible given plaintiffs’ evidence and the evidence as a whole.”

Judge Richard C. Tallman disagreed with the other two judges on that finding, offering a partial dissent in which he said Molloy based his decision off speculative evidence offered by the plaintiffs and their exhibits.

“The record viewed in totality does not support a finding that irreparable harm is likely, other than just possible,” he wrote. “Of the four exhibits, ten declarations, and nine affidavits submitted by the plaintiffs, the bulk of the information provided is speculative in nature, offering theories about what could happen in the face of climate change or food scarcity, instead of offering any actual evidence that the harm is likely to occur.”

The other two judges disagreed with his assessment however, saying Tallman was giving more weight to evidence that would undermine Molloy’s decision than to the evidence that led him to make his decision.

“Because the district court’s finding of a reasonably certain threat of imminent harm was not implausible on the record, we must affirm that finding,” Bennett wrote.

District court will have to decide new geographic boundaries

But all of the judges agreed that the geographic area to which the season restrictions applied was too broad and said there was not enough evidence in the record to conclude having restrictions across more than half the state was necessary to prevent the accidental capture of grizzly bears.

Molloy’s decision on where the season restrictions would apply seems to have been based on the plaintiffs’ citing of a news release from FWP saying grizzlies have the potential to be found “anywhere in the western two-thirds of Montana” and a news story about the bear being spotted near the Missouri and Judith rivers in eastern Montana. But the judges said those did not constitute enough evidence to close off all wolf trapping west of Billings except for six weeks out of the year.

“The bulletin’s statement is thus couched in speculation and is too hypothetical to support the conclusion that grizzlies will likely be present in all areas of west of Billings such that the injunction’s geographic scope is necessary to protect the grizzlies,” Bennett wrote.

The judges remanded the geographic scope question back to the district court and asked it to make a finding “expeditiously.” But they also ordered that the current geographic scope stay in place until a new one is decided. Montana’s wolf hunting and trapping season concluded on March 15.

Meanwhile, the Montana Trappers Association and Outdoor Heritage Coalition have intervened in the district court case in an attempt to loosen the restrictions. Also, the two conservation groups that are plaintiffs in the case last week filed for summary judgment, asking Molloy to extend the injunction permanently and to include coyote trapping and snaring season restrictions that are identical to the wolf season restrictions – something Molloy declined to do with the preliminary injunction, meaning they can still be trapped and snared year-round for the time being.

It’s currently unclear how the court will handle the remanded geographic question in conjunction with the request for a permanent injunction, but attorneys for Gianforte and Robinson will have until May 6 to file their opposition to the request, and the two sides will have about another month to fully brief their arguments, at which time the decision would rest in the court’s hands.

Montana Fish, Wildlife and Parks spokesperson Greg Lemon said FWP agreed the geographic area of the original injunction was too broad and said the state was focused back on the district court case.

Pennock and Mike Bader, a consultant to the Flathead-Lolo-Bitterroot Citizen Task Force, said the state needed to acknowledge how climate change was shortening grizzlies’ den times and start to better acknowledge how some of its hunting and trapping policies could harm animals, like grizzlies, that do still have protections under the Endangered Species Act.

“The State of Montana cannot be entrusted with management responsibility for grizzly bears because they are acting irresponsibly towards carnivores and predators,” Bader said.

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