Judge limits wolf trapping in favor of grizzly bears

Laura Lundquist

(Missoula Current) Montana Fish, Wildlife & Parks must cut its wolf trapping season back to six weeks across the western two-thirds of the state to prevent injuries to grizzly bears, according to a court ruling.

Late Tuesday, Missoula federal district judge Donald Molloy issued an injunction saying FWP must limit its wolf trapping season to Jan. 1 through Feb. 15 for all wolf districts west of Billings. He issued his ruling just one day after he heard arguments from attorneys for FWP, the defendant, and the plaintiffs, WildEarth Guardians and the Flathead-Lolo-Bitterroot Citizen Task Force.

The plaintiffs asserted that FWP was violating the Endangered Species Act by allowing activities – trapping, in this case – in places that put grizzly bears at risk of injury or death, which the law refers to as “take.” Molloy said the plaintiffs did a better job of demonstrating that grizzly bears could be harmed by traps and Montana’s expanded trapping season.

“Defendants are incorrect that the ‘status quo’ in this case is Montana’s trapping tradition. The status quo is grizzly bear recovery and the protections afforded to grizzly bears by their threatened status under the ESA,” Molloy wrote.

Under FWP’s most recent wolf trapping regulations approved by the FWP commission in August, the season could potentially have started on Nov. 27 and would run through March 15.

However, grizzly bears are often still active in late November, and it’s likely that they’ll stay active deeper into December as climate change reduces the intensity of winter.

After the 2021 Legislature passed a slew of bills that legalized more methods to trap wolves – including snares and baiting – FWP set a floating start date for the trapping season in an effort to avoid conflict with grizzlies. For most of the state west of Bozeman, Helena and Great Falls, and for regions around Yellowstone National Park, the start date could be as late as Dec. 31, depending on when biologists determined that bears had gone into hibernation.

However, the most recent regulations passed in August also reduced size and location of the region where the starting date would apply. During the past few years, grizzly bears have been reported in the areas that were eliminated, so the plaintiffs said eliminating the floating start date in those areas put bears at potential risk.

Retired federal and FWP biologists provided affidavits saying that the only time when the risk is lowest is January and early February, because some bears, particularly males, have been known to emerge in the latter part of February, particularly during warm winters.

Judges have to use a four-part test to determine if an injunction is justified, but the Ninth Circuit has a “sliding scale” that drops that to two, if the plaintiffs’ case is likely to succeed and plaintiffs can show strong irreparable harm. Molloy said the plaintiffs had not only shown both, but also courts are to presume that the balance of interest weighs in favor of protecting an endangered species.

The plaintiffs provided evidence – research, photographs and testimony – showing that grizzly bears have been captured and harmed where wolf and coyote trapping has been allowed in Montana, Wyoming, Idaho and Alberta and British Columbia, Canada. Biologists testified that the number of grizzly bears with trap-like injuries – broken or missing limbs or toes – have increased since wolf trapping began in 2013.

FWP said that it’s put limits on how traps are set and that there are no reported cases of bears being caught in recreational wolf traps  since 2013 or since the floating start date was created in 2021. It also argued trapping incidents that occurred outside the state were irrelevant.

Molloy disagreed, saying bears aren’t constrained by state borders and some of the trap injuries occurred just across the state’s borders. Plus, according to precedent, if there’s a risk of a taking, state-authorized recreational trapping violates the Endangered Species Act “even if trappers comply with all applicable laws and regulations.” This is particularly the case for coyote trapping, which is unregulated and unmonitored.

“Defendants have failed to show that the State’s mitigation measures are as effective in practice as in theory,” Molloy wrote. “Defendants are incorrect. Plaintiffs’ evidence is relevant.”

As to irreparable harm, the plaintiffs argued that bears are not only out longer during recent winters, but when they are out, they tend to look for meat so they can be drawn in by baited traps. In 2021, Montana biologists noted four bears with missing forelegs and toes that were likely lost to traps. In addition, bears are moving into more areas with each passing year, so the plaintiffs argued that the law needs to protect bears wherever they might be.

Even the U.S. Fish and Wildlife Service has hinted that Montana’s wolf trapping may pose too much of a risk to grizzlies, Molloy wrote. He cited a Feb. 3 letter from U.S. Fish and Wildlife Service Director Martha Williams to FWP cautioning that many of the bills being passed by the Legislature related to wolves and grizzly bears could put grizzly delisting in question. During Monday’s hearing, FWP attorney Rachel Clerget said FWP hasn’t heard anything from Williams since then, so FWP thinks the letter is “old news,” to which Molloy replied, “I don’t.”

“(The letter) is compelling evidence that the State’s authorization of wolf trapping and snaring is at least potentially problematic for the survival of the species,” Molloy wrote.

Molloy granted the injunction related to wolf trapping but couldn’t extend the injunction to coyote trapping. Even though the plaintiffs had shown grizzly bears could be harmed by coyote traps, they hadn’t made a connection between the harm and the coyote regulations in their arguments and hadn’t suggested a remedy.The plaintiffs expressed relief at Molloy’s ruling.

“We are elated that Montana’s grizzly bears will at least temporarily avoid the cruel harms caused by indiscriminate steel traps and snares in their habitat,” said Lizzy Pennock, carnivore coexistence attorney at WildEarth Guardians. “We are pleased that the Court saw the dangers of allowing these activities to continue, and we are optimistic that this win is a precursor to securing longer-term grizzly protections.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.