Federal judge in Montana quizzes lawyers on coyote trapping and grizzly bears

Coyote hunting at Wind Cave National Park. (Photo courtesy U.S. National Park Service, dated 7/16/2010)

A federal lawsuit over whether wolf and coyote traps should be limited because they also ensnare endangered grizzlies will go to trial, possibly the first week of December.

At a hearing Wednesday in U.S. District Court in Missoula, Judge Donald Molloy said he would not grant either party summary judgment. He directed the lawyers to propose trial dates.

Molloy also told the lawyers that it would be helpful for them to discuss coyote traps.

In November 2023, the judge temporarily limited Montana’s wolf trapping season in response to a request for a preliminary injunction from conservation groups.

The judge agreed that wolf and coyote traps injure grizzlies, and that any capture is an illegal “take” under the Endangered Species Act.

However, the judge did not stop coyote trapping in his earlier order. He said coyote trapping is regulated differently, and the groups hadn’t tied their arguments closely enough to coyote trapping regulations.

Previously, the judge limited the wolf trapping season this year from Jan. 1 to Feb. 15, when bears are mostly in their dens. The order covered more than half of the state from the western border, or Regions 1-5.

The wolf trapping season had been roughly after Thanksgiving through March 15.

In April, the 9th Circuit Court of Appeals affirmed the timeframe the judge set but said the lower court order should apply only to areas where bears are known to live.

In September 2023, the Flathead-Lolo-Bitterroot Citizens Task Force and WildEarth Guardians had sued the state of Montana as well as Fish and Wildlife Commission Chairwoman Lesley Robinson and Gov. Greg Gianforte.

The conservation groups alleged an expanded trapping season and doubling the number of wolves that could be trapped increased the potential harm already facing endangered grizzly bears.

They also argued Montana officials are violating the law by permitting activities that are “reasonably certain” to result in the accidental killing or a “taking” of a threatened species.

(To “take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap,” according to the ESA.)

The state argued Montana’s trapping regulations minimize the capture of grizzly bears, and a “floating start date” for trapping based on real-world conditions helps avoid the accidental trapping of bears. They also said the plaintiffs exaggerate harms to grizzlies.

Other parties have intervened in the case. The Montana Stockgrowers Association, Montana Wool Growers Association, and Montana Farm Bureau Federation, Montana Trappers Association and Outdoor Heritage Foundation also are participating.

Wednesday, lawyer Lawson Fite, representing the Montana Stockgrowers Association, told the court he believes the conservation groups still haven’t connected their allegations of harm to grizzlies with the coyote trapping regulations at issue — as the judge earlier found.

Fite, with Schwabe Williamson & Wyatt of Portland, Oregon, also said the record has “scant evidence” of injuries to grizzly bears from coyote trapping. He said just three incidents have been recorded in the last decade.

However, Fite also said an appropriately set trap is not a threat to a grizzly bear.

But Molloy had questions: “What is a properly set trap, and who determines if it’s properly set?”

As an aside, the judge said regulations exist about shooting grizzly bears too, but bears seem to end up getting shot anyway.

Coyotes aren’t part of the updated wolf trapping rules the Fish and Wildlife Commission adopted in its 2023 Wolf and Furbearer Trapping and Hunting Regulations.

However, Fite said state statute governs coyote trapping. He said the law provides criminal penalties for violators who illegally trap and snare coyote.

He also noted the law says traps can’t unduly endanger “livestock,” but Molloy had another question.

“What about bears?”

Fite said the traps won’t unduly endanger grizzly bears either. By comparison, he said adult sheep can break free from traps.

He argued bears that have been caught have been released, and records indicate onsite releases show a lack of injury to them.

Molloy also asked the lawyers about an “incidental take” allowance. Agencies that want to take actions that might buck the Endangered Species Act need to check in with federal officers for approval of unintended harms or kills.

“Isn’t that sort of the resolution of the whole darn thing?” Molloy said.

The plaintiffs also had alleged an “incidental take statement” is required under the Endangered Species Act. In those statements, federal authorities specify impacts and mitigations on threatened species, but the state hasn’t applied for one.

Gary Leistico, representing the Montana Trappers Association, also argued coyote traps weren’t a problem. For one thing, he said, they’re much smaller than wolf traps.

“It’s not reasonably likely that a grizzly bear is going to be trapped in a coyote trap,” said Leistico, of Leistico & Esch of Clear Lake, Minnesota.

But it has, in fact, happened, said Tim Bechtold, representing the conservation groups.

The complaint said since 2010, the state of Montana reported three grizzlies captured in traps set for wolves and four in traps set for coyotes. The state also has found severed grizzly bear toes in a trap.

“There are instances of ‘take’ resulting 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 “take” in violation of the Endangered Species Act, as the conservation groups argued.

The order also noted coyotes are “predatory” animals under Montana law, which means they can be trapped without a license all year.

After their arguments, Molloy said lawyers had raised some “significant issues,” although he still believes an “incidental take” allowance from federal authorities would solve the problem.

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