Leopold wolf following grizzly bear. (Provided by Doug Smith, April 2005, via the University of Montana)
An attorney for the State of Montana told a federal judge Monday that the floating wolf trapping season will certainly not start next Monday, as is possible under this year’s regulations, as the judge heard arguments about whether to shorten the trapping season out of concerns for endangered grizzly bears.
Following the hour-long hearing, U.S. District Court Judge Donald Molloy told the two sides he would issue a ruling on whether to grant a preliminary injunction blocking part of the wolf trapping season in grizzly territory “relatively quickly,” as the season is days or weeks from getting underway.
The plaintiffs, Flathead-Lolo-Bitterroot Citizen Task Force and WildEarth Guardians, are asking the court to block wolf and coyote trapping and snaring in all parts of Montana west of Billings outside of Jan. 1 to Feb. 15 each year. They say any grizzly that accidentally gets captured in a trap or snare constitutes an illegal “take” as defined by the Endangered Species Act regardless of whether they injure or kill an animal.
The Montana Fish and Wildlife Commission in August adopted new wolf and coyote trapping regulations that put a floating opening date of Nov. 27 in place and a closing date of March 15 for the season. However, the floating date allows FWP to determine exactly when the season starts based on grizzly bear activity. If officials do not decide to open the season early, the latest opening date is Dec. 31.
Originally, the plaintiffs sued in September, asking a court to block the entirety of the trapping and snaring season for wolves amid concerns grizzlies could be harmed as a byproduct. But earlier this month, in a response to the state’s filings, the plaintiffs said trapping and snaring should instead be limited to Jan. 1 to Feb. 15 – which they argue is the period the fewest amount of grizzlies would be outside of their dens looking for food.
In the hearing Monday on whether to grant the injunction, the plaintiffs’ attorneys and attorneys for the defendants – the State of Montana, Gov. Greg Gianforte, and Montana Fish and Wildlife Commission Chair Lesley Robinson – each had 30 minutes to make their cases to Molloy.
Timothy Bechtold, the attorney for the plaintiffs, told Molloy there was no other way to interpret the ESA’s protections for endangered animals other than deciding that any capture of a grizzly in a wolf or coyote trap was an unlawful take. Further, he argued, grizzlies remain endangered and should be the beneficiaries of doubt when it comes to weighing the arguments.
Further, he told the court, grizzly bears, while mostly concentrated in two primary ecosystems in Montana, have been expanding their territory – showing up recently on American Prairie land and elsewhere in eastern Montana – and should be protected from being snared or trapped if they are outside of them, especially to ensure necessary connectivity between the populations so the gene pool remains diverse.
“All grizzlies, no matter where they live, deserve equal protections,” Bechtold told Molloy. “…No matter where they live, they all have protections under the Endangered Species Act.”
The Gianforte administration has been pushing the U.S. Fish and Wildlife Service to delist grizzlies in those two primary grizzly ecosystems where they said populations have recovered: the Northern Continental Divide Ecosystem (NCDE) in western Montana and the Greater Yellowstone Ecosystem (GYE), which sits in Montana, Idaho and Wyoming.
USFWS is in the midst of a yearlong study to decide whether grizzlies should be delisted in those two ecosystems, but this past spring, the Republican supermajority-led legislature passed a bill so Montana could start setting up its own grizzly management framework in the event the grizzly bears are delisted.
The Fish and Wildlife Commission could approve new administrative rules surrounding grizzly management as soon as next month, as the public comment period for the language closes Monday.
During the past two months, the plaintiffs and the State of Montana have submitted sworn declarations from biologists and other data regarding the number of grizzlies ensnared or trapped via wolf and coyote traps, as well as testimonials about the true number of grizzlies trapped or snared every year. The plaintiffs contend that many captures and deaths of grizzlies go unreported, while attorneys for the state have claimed the opposite – that most snaring or trappings are reported and that every accidental killing of a grizzly is also reported.
The state would like its wolf trapping and snaring season – in which one person could trap up to 10 wolves and hunt 10 others each season – to continue from whenever officials decide to open the season, through March 15.
But the plaintiffs say the regulations approved by the Fish and Wildlife Commission, including the use of bait for wolves outside of Lynx Protection Zones, put bears that go into their dens late, come out early, or do not hibernate at all, at risk.
Bechtold told Molloy the reduced season timeframe the plaintiffs are asking for would limit the number of grizzlies that could potentially be accidentally trapped or snared.
Sarah Clerget, representing the state at the hearing, told Molloy the plaintiffs were arguing about “possibilities and speculation,” saying most of the cases of grizzlies getting snared or trapped during the past couple decades have been purposefully captured by FWP or USFWS, and no public cases have been documented in the specific protection zones since 2013. She told Molloy he should not grant an injunction on the plaintiffs’ arguments that a grizzly might theoretically be trapped or snared.
But Molloy pressed Clerget to admit that those all amounted to “takes” under the ESA. But Clerget said the plaintiffs “should have sued” when the federal government did not enforce the ESA at the time.
Though the federal government had previously been dubious about Montana’s work toward protecting grizzly bears ahead of their ask for delisting, Clerget said those issues had been resolved by the bill passed by lawmakers and the nearly completed rulemaking.
“We can’t use the past to indicate the future,” she said.
She also told Molloy that the request to shorten the potential season to Jan. 1 to Feb. 15 should be denied because the Fish and Wildlife Commission could step in and limit wolf and coyote trapping and snaring in any region before March 15 comes around.
Clerget said FWP’s biologists would make the ultimate determination of when to open the wolf trapping and snaring season based on when the greatest number of grizzlies that Montana tracks can be confirmed to be in their dens and would not open the season next week because of that data.
Molloy, in closing out the hearing, said he wanted to issue an order “quickly” with the floating season start approaching. But he noted it was smart for the state not to open the season on Monday on its first possible day.
“The state has indicated the season will not start on Monday, which is wise,” he said.
A decision is expected during the next few weeks.27
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