A federal lawsuit over whether wolf and coyote trapping should be limited because they also trap endangered grizzly bears will go to trial, possibly the first week of December.
The Daily Montanan reports that at a hearing Wednesday in U.S. District Court in Missoula, Judge Donald Molloy said he would not grant summary judgment to either side. He ordered attorneys to propose trial dates.
Molloy also told the attorneys that it would be helpful for them to talk about coyote trapping.
In November 2023, the judge temporarily limited Montana’s wolf trapping season in response to a request for a preliminary injunction by conservation groups.
The judge agreed that wolf and coyote traps injure grizzly bears and that any capture is an illegal “take” under the Endangered Species Act.
However, the judge did not prevent the capture of coyotes in his previous order. He said coyote trapping is regulated differently and that the groups had not linked their arguments closely enough to coyote trapping regulations.
The judge had previously limited this year’s wolf trapping season to Jan. 1 through Feb. 15, when bears are mostly found in their dens. The order covered more than half the state from the western border, or regions 1 through 5.
Wolf trapping season lasted roughly from Thanksgiving to March 15.
In April, the 9th Circuit Court of Appeals upheld the judge’s deadline but said the lower court’s order should apply only to areas where bears are known to live.
In September 2023, the Flathead-Lolo-Bitterroot Citizens Working Group and WildEarth Guardians sued the state of Montana, as well as Fish and Wildlife Commission Chair Lesley Robinson and Governor Greg Gianforte.
Conservation groups said an expanded trapping season and doubling the number of wolves that could be trapped increased the potential harm already faced by endangered grizzly bears.
They also argued that Montana officials are violating the law by allowing activities that are “reasonably certain” to result in the accidental death or “capture” of a threatened species.
(According to the ESA, “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap.”)
The state argued that Montana’s trapping regulations minimize the taking of grizzly bears, and a “floating start date” for trapping based on real-world conditions helps prevent accidental bear take. They also said the plaintiffs exaggerate harms to grizzly bears.
Other parties have intervened in the case, including the Montana Cattlemen’s Association, the Montana Wool Growers Association, the Montana Farm Bureau Federation, the Montana Trappers Association and the Outdoor Heritage Foundation.
On Wednesday, attorney Lawson Fite, who represents the Montana Cattlemen’s Association, told the court he believes conservation groups have not yet connected their allegations of harm to grizzly bears to the coyote trapping regulations at issue, such as the judge previously determined.
Fite, with Schwabe Williamson & Wyatt in Portland, Ore., also said the record has “scant evidence” of injuries to grizzly bears from coyote trapping. He said there have been only three recorded incidents in the past decade.
However, Fite also said that a properly placed trap is not a threat to a grizzly bear.
But Molloy had questions: “What is a properly placed trap, and who determines whether it is properly placed?”
Additionally, the judge said there are also regulations about shooting grizzly bears, but it seems the bears end up getting shot anyway.
Coyotes are not part of the updated wolf trapping rules that the Fish and Wildlife Commission adopted in its Wolf and Furbearer Hunting and Trapping Rules of 2023.
However, Fite said state statute governs the trapping of coyotes. He said the law provides criminal penalties for violators who trap and catch coyotes illegally.
He also noted that the law says traps cannot unduly endanger “livestock,” but Molloy had another question.
“What’s up with the bears?”
Fite said the traps also won’t unduly endanger grizzly bears. In comparison, he said adult sheep can free themselves from traps.
He argued that the bears that have been captured have been released and records indicate that releases at the site show that they have not been harmed.
Molloy also asked lawyers about an award for “incidental captures.” Agencies that want to take actions that could violate the Endangered Species Act must consult with federal officials to obtain approval for unintentional harm or killing.
“Isn’t that the solution to this whole damned business?” said Molloy.
The plaintiffs had also argued that an “incidental take declaration” is required under the Endangered Species Act. In such declarations, federal authorities specify impacts and mitigations on threatened species, but the state has not requested one.
Gary Leistico, a representative for the Montana Trappers Association, also said coyote traps were not a problem. For one thing, he said, they are much smaller than wolf traps.
“It’s not reasonably likely that a grizzly bear would get caught in a coyote trap,” said Leistico, of Leistico & Esch in Clear Lake, Minnesota.
But, in fact, this has happened, said Tim Bechtold, a representative of conservation groups.
The complaint says that since 2010, the state of Montana reported three grizzly bears captured in traps set for wolves and four in traps set for coyotes. The state also found severed toes from a grizzly bear in a trap.
“There are cases of ‘taking’ that result from a coyote trap,” said Bechtold, of the Bechtold law firm in Missoula.
In his preliminary injunction, the judge agreed that widespread coyote trapping “likely presents a significant risk” of grizzly bear “capture” in violation of the Endangered Species Act, as conservation groups argued.
The order also notes that coyotes are “predatory” animals under Montana law, meaning they can be trapped without a license year-round.
After his arguments, Molloy said the lawyers had raised some “important issues,” though he still believes an “incidental take” allocation by federal authorities would resolve the issue.
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